This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Hersey Lee Newson,
Filed January 18, 2000
Hennepin County District Court
File No. 98-18382
Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy J. Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the sufficiency of the evidence supporting his convictions for aggravated robbery, first-degree burglary, three counts of second-degree assault, and second-degree murder. Appellant contends that the state failed to prove beyond a reasonable doubt that he possessed the requisite intent to aid in the commission of these crimes. Additionally, appellant alleges that prosecutorial misconduct interfered with his right to a fair trial.
On January 11, 1998, Newson drove Michael Dickerson, Darrell Dickerson, and A.H. to south Minneapolis. Once there, two of the men entered an apartment and demanded money and drugs from the two adults and the child who were present in the apartment. When the men were pushed out of the apartment, one of them fired a shotgun through the apartment door, hitting the child. The men then fled with a watch, coins, and two pairs of tennis shoes to an agreed location where Newson was waiting in his car for them.
On January 12, 1998, Newson drove another group of men, David Ellis, J.H., A.H., and Darrell Dickerson, to an apartment building in north Minneapolis, where the men believed a drug dealer resided. The men knocked on the door, and shot and killed the man who answered the door. The men fled and called Newson to come get them. Newson picked the men up and they fled the area.
At trial, Michael Dickerson, one of the men involved in the offenses of January 11, 1998, testified against Newson. In exchange for his testimony against Newson, Michael Dickerson pleaded guilty to charges of burglary and assault with a guaranteed sentence of 60 to 84 months in prison. David Ellis, who was involved in the offenses occurring January 12, 1998, also testified against Newson and received a plea bargain in exchange for his testimony.
In addition to the Hennepin county convictions from which this appeal arises, Newson was charged in Ramsey county, with one count of first-degree assault for incident that occurred on January 11, 1998, one-half hour after the robbery occurred in south Minneapolis. It is the prosecution’s reference to this offense at trial that Newson alleges constitutes prosecutorial misconduct.
D E C I S I O N
Reversal of a conviction on sufficiency of the evidence is rare, and will only occur where the reviewing court has "grave doubt as to defendant’s guilt." State v. Roberts, 350 N.W.2d 448, 451 (Minn. App. 1984) (quoting State v. Housley, 322 N.W.2d 746, 751 (Minn. 1982)). A reviewing court must view the record in the light most favorable to the conviction, State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989), and assume "the jury believed the state’s witnesses and disbelieved any evidence to the contrary." State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted). We will not disturb a verdict if the jury could have reasonably concluded that the defendant was guilty of the offenses charged while giving due consideration to the presumption of innocence and the requirement of overcoming it by proof beyond a reasonable doubt. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). "[A] jury normally is in the best position to evaluate circumstantial evidence, and * * * their verdict is entitled to due deference." Webb, 440 N.W.2d at 430.
Newson contends that the state failed to prove beyond a reasonable doubt that he knowingly aided and abetted the commission of the offenses for which he was convicted. Specifically, Newson contends that the state failed to prove beyond a reasonable doubt that he played a knowing role in the commission of the offenses because the state failed to produce sufficient evidence corroborating the testimony of Newson’s alleged accomplices.
At trial, there was no testimony that Newson committed the overt acts constituting the underlying offenses. But to convict a defendant of aiding and abetting, the state need not prove that the defendant actively participated in the overt act that constitutes the primary offense. State v. Pierson, 530 N.W.2d 784, 788 (Minn. 1995). Minnesota law provides that
[a] person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.
Minn. Stat. § 609.05, subd. 1 (1998).
Newson argues that the evidence is insufficient to prove that he intentionally aided any of the perpetrators in the commission of their crimes. Newson argues that his convictions rest only on his presence outside the homes in which the crimes were committed and his association with the perpetrators either before or after the crimes were committed, and that such passive acquiescence cannot sustain the conviction. See State v. Dominguez-Ramirez, 563 N.W.2d 245, 257 (Minn. 1997) (noting that the state must do more than prove passive acquiescence in the principal act).
Intent is generally proved through circumstantial evidence, including inferences drawn "from the defendant’s words and actions in light of the totality of the circumstances." State v. Cooper, 561 N.W.2d 175, 179 (Minn. 1997) (citations omitted). "[T]he jury may infer that a person intends the natural and probable consequences of his actions * * *." Id. (citation omitted). "[P]resence, companionship, and conduct before and after the offense are circumstances from which a person’s participation in the criminal intent may be inferred." State v. Souvannarath, 545 N.W.2d 30, 34 (Minn. 1996) (quoting State v. Ulvinen, 313 N.W.2d 425, 428 (Minn. 1981)).
Here, to prove intent, the state presented the testimony of two of Newson’s accomplices, records from Newson’s cellular phone and those of an accomplice, and videotapes of Newson’s interviews with police. Because accomplice testimony is considered "inherently untrustworthy" an individual may not be convicted on the basis of accomplice testimony alone. State v. Wallert, 402 N.W.2d 570, 572 (Minn. App. 1987) (quotation omitted), review denied (Minn. May 18, 1987). Minnesota law requires that
[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Minn. Stat. § 634.04 (1998). Accomplice testimony is considered untrustworthy because an accomplice is "naturally inclined to shift or diffuse criminal responsibility." Wallert, 402 N.W.2d at 573 (quoting State v. Mathieson, 267 Minn. 393, 399, 127 N.W.2d 534, 539 (1964)). An accomplice can recite accurate details of the crime, but it is his implication of the defendant that must be corroborated. See State v. Sandefur, 249 Minn. 416, 421, 82 N.W.2d 624, 626 (1957).
* * * Corroborating evidence may be secured from the defendant’s association with those involved in the crime in such a way as to suggest joint participation, as well as from the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed.
State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (quoting State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988)).
Here, the state produced testimony from Michael Dickerson and David Ellis, who were both active participants in the alleged crimes and pleaded guilty as such. An accomplice, for purposes of the corroboration requirement, "is one who has been or could be convicted of the same offense with which defendant in a criminal case has been charged." State v. Jones, 347 N.W.2d 796, 800 (Minn. 1984) (citation omitted). Here, Michael Dickerson and David Ellis were charged with the same offenses as Newson was charged with, and they also pleaded guilty to some of the offenses for which Newson was charged.
Michael Dickerson testified that he and the other men in the car talked openly about the robbery they were planning to commit while en route to the crime scene with Newson. Furthermore, he stated that upon getting in Newson’s car after they had committed the robbery, Newson asked for "his" money. Michael Dickerson testified that when he told Newson that they did not get any money from the victims, Newson stated that he should "put them out of his car." Finally, Michael Dickerson testified that Newson laughed when told that A.H. had shot someone in the apartment.
The state also presented the testimony of David Ellis, a participant in the north Minneapolis murder. David Ellis testified that J.H. asked him if he wanted to "do a jack," meaning a robbery, while they were in Newson’s car. David Ellis testified that the men in the car, including Newson, discussed where they could get drugs and money. Additionally, David Ellis testified that Newson drove them to a Target store so that A.H. could purchase hats and scarves to conceal their identity during their planned attack. He also testified that Newson knew that the men had a gym bag containing a shotgun when he dropped the men off at the residence of the drug dealer they had discussed robbing. David Ellis testified that they called Newson’s cellular phone and Newson retrieved them. David Ellis testified that when the men entered Newson’s car, Darrell Dickerson told Newson that he had shot someone and Newson responded by asking for his portion of the money.
The state introduced Newson’s cellular phone records into evidence that showed Newson had made two calls to Michael Dickerson and three calls to A.H. The cellular phone records for both Newson’s and Ellis’s cell phones corroborate David Ellis’s account of calls received by him from Newson and calls made to Newson by David Ellis on the evening of January 12, 1998. This corroborates David Ellis’s account of what happened and does corroborate the fact that Newson communicated with Ellis on the day of the crime.
In addition to the testimony of two of his accomplices, the state presented the testimony of Sergeant Green who interviewed Newson about the crimes. A videotape of the interview was played for the jury. Newson’s statements to the police provide much of the corroborating evidence. Newson admitted that he had taken the men to the south Minneapolis residence and had picked them up on January 11, 1998. He also admitted to seeing the shoes stolen from the residence and that he had confronted A.H. about stealing people’s shoes.
As for the evening of January 12, 1998, Newson admitted that he had driven the men and dropped them off near Morgan Avenue North and then picked them up after they called him on his cell phone. He also admitted that Darrell Dickerson told him where the gun was hidden after the shooting and that he asked Newson to move it to another location. Although he denied knowing what crimes his friends had committed, Newson eventually admitted that Darrell Dickerson told him, as Newson was dropping him off, that someone had been shot.
Here, Newson’s association with the men responsible for the actual commission of the offenses for which he was convicted of aiding and abetting demonstrates that Newson intended to participate in the commission of the crimes. Newson was present before and after each crime was committed because he transported his accomplices to and from the crime scenes. Newson admitted that while he transported the men, he learned they had committed robbery and assault and that a weapon was involved. Finally, Newson had the opportunity and motive to aid in the commission of the crimes because he transported the men and wished to receive a portion of the money stolen. Because we conclude that there was sufficient evidence to corroborate the testimony of Newson’s accomplices and because there was other evidence demonstrating Newson’s intent to aid in the commission of the crimes for which he was convicted, Newson’s convictions must stand.
Prior to trial, the state moved to introduce evidence of the Ramsey county crime to establish Newson’s intent, but the court reserved its decision on the matter. The trial commenced. On redirect examination the state questioned Sergeant Green about the Ramsey county crime. Although defense counsel timely objected, Sergeant Green testified that he interviewed Newson about the murder of a man in St. Paul. Defense counsel immediately moved for a mistrial. The court did not address defense counsel’s motion, but did instruct the jury to ignore the question. The state again moved for admission of the Ramsey county crime evidence. The district court denied the state’s motion ruling that the prejudicial impact of the evidence greatly exceeded its probative value.
Newson contends that because the state, upon its first motion to admit the other crime evidence, promised the court that it would not "go into" the subject of the St. Paul crime without the "knowledge of the court" and "having its approval," it breached its promise when it posed this question to Sergeant Green. Newson contends that this breach constitutes prosecutorial misconduct and he is thus entitled to a new trial.
When reviewing a claim of prosecutorial misconduct, the reviewing court will first determine whether the prosecutor erred. Ford, 539 N.W.2d at 228. Only upon an assessment that the prosecutor erred, will the reviewing court decide whether "the conduct was so prejudicial in light of the entire record that the defendant was denied a fair trial." Id. (citing State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983)). In making a determination of whether there is error, the reviewing court examines the challenged conduct to ascertain whether the conduct "divert[ed] the jury’s attention from its true role of deciding whether the state has met its burden of proving [the] defendant guilty beyond a reasonable doubt. Id. (quoting State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985)).
Here, the prosecutor asked Sergeant Green about the existence of an investigation of a shooting in St. Paul. This question followed an answer by Sergeant Green that revealed that after the shooting in north Minneapolis, Newson dropped off one of the men in St. Paul.
Even if the statement was improper, it did not go to the merits of the case and does not amount to prosecutorial misconduct. The question did not implicate either Newson or any of his accomplices. Prosecutorial error is sometimes curable by corrective instructions. State v. Race, 383 N.W.2d 656, 664 (Minn. 1986). Here, the district court instructed the jury to "ignore the question as stated." Additionally, the court properly instructed the jury on the burden of proof. Given the court's instructions to the jury, we conclude that the prosecutor did not err and accordingly we need not reach the issue of whether the prosecutor’s conduct harmed Newson.