This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jerrett Lee Anderson,
Hennepin County District Court
File No. 02016378
Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg,
Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
Appellant Jerrett Lee Anderson challenges his conviction of murder in the third degree, arguing that the district court erred by not instructing the jury to determine if the witness to a shooting was his accomplice and, if so, whether that witness’s testimony was corroborated. Appellant also argues that the prosecutor engaged in prejudicial misconduct entitling him to a new trial. Because the district court did not abuse its discretion in instructing the jury and there was no prosecutorial misconduct, we affirm.
Eighteen-year-old Blake Rogers and
his friends Brian Bacich and appellant were in
Appellant was tried on a charge of
murder in the third degree (felony), in violation of Minn. Stat. § 609.195(a)
(2000); §609.11 (2000); § 609.107 (2000).
At trial, Bacich testified that he was in
Bacich testified that shortly after he arrived home, he began to cry and told his mother what had happened. They decided he needed to go to the police immediately, despite the fact that there was a warrant out for his detention for having absconded from probation for a juvenile offense. A police officer testified at trial that, in his judgment, because Bacich turned himself in at that time, he was more believable than appellant who turned himself in later.
Eric Kading, who was a friend of
appellant, Bacich, and Rogers, testified that he received a call on his cell
phone from appellant on the night of the shooting and appellant’s voice sounded
“distraught.” Kading testified that appellant
said he had been fooling around with a gun and it had gone off, and
Appellant testified that he had left
home a few days before the shooting after fighting with his mother about a gun
he brought to their home. He testified
that he stayed with Kading and brought the gun with him. Appellant testified that Kading bought the
gun from him for $150, paid in “weed.”
Appellant said that he then moved in with another friend, Chris
Swanson. Appellant said he saw the gun
Appellant, who said he had been to
Rogers’s home frequently, testified that, on the night of the shooting, he
stopped off at Papa John’s, where Rogers worked, to say he was coming over
later, then stayed at his girlfriend’s house for a couple of hours before going
to Rogers’s house. Appellant testified
that he threw a rock at
Bacich was already there, sitting in
a leather chair in the bedroom. Appellant testified that Bacich asked
A jury convicted appellant of murder in the third degree. He was sentenced, and this appeal followed.
I. Jury instructions
argues for the first time on appeal that the district court erred by not
submitting to the jury the questions of whether Bacich was his accomplice and
if so, whether his testimony was corroborated.
Trial courts have “‘considerable latitude’ in the selection of language in
the jury charge.” State v. Gray, 456 N.W.2d 251, 258 (
Appellant concedes that he never
requested an accomplice instruction and failed to object to the failure to
include such an instruction but asserts that even absent an objection, failing
to provide the instruction was plain error.
Appellant relies on State v. Shoop for the proposition that “given the long history of the
accomplice testimony instruction . . . a trial court should give the accomplice
testimony instruction even absent a request.”
441 N.W.2d 475, 479 (
Because, as respondent correctly
points out, the theory that Bacich was appellant’s accomplice was completely
contrary to appellant’s theory of the case at trial, this was not “an
appropriate case” that required the trial court to sua sponte give an
accomplice instruction. Appellant
testified that he was only a witness to Bacich shooting
evidence that appellant or Bacich aided or abetted each other in the shooting, both could not have been charged with the shooting. See State v. Henderson, 620 N.W.2d 688, 701 (Minn. 2001) (stating test for whether a witness is an accomplice of a defendant for purposes of section 634.04 is whether he could have been indicted for and convicted of the same crime with which the accused is charged). Because Bacich could not have been charged once appellant was charged, he was not an accomplice, and the trial court did not commit plain error by failing to submit accomplice instructions to the jury.
II. Prosecutor’s conduct
a. Appellant’s contact with attorney
The prosecutor asked Bacich if he
heard appellant speak by telephone to Kading when they were in Cullen’s
car. Bacich answered that although
appellant “made a couple of phone calls” from Cullen’s car, he did not know to whom
appellant was talking. Appellant now
argues that this exchange amounted to the prosecutor improperly bringing up, by
innuendo, the fact that appellant called an attorney from Cullen’s car. We reject this claim as without merit because
the record does not contain any reference to or innuendo that appellant called
an attorney from Cullen’s car. And even
if there were an innuendo
that appellant called an attorney prior to appearing at the police station, the
information did not implicate a constitutional right because appellant was not
charged with any crime or subject to custodial interrogation at that time. The constitutional right to counsel attaches
only after a person is in custody or has been charged. See,
e.g., United States v. Gouveia, 467
b. Appellant’s silence
asserts prosecutorial misconduct based on the prosecutor’s questions about and
comments on appellant’s pre-counseled, pre-arrest silence. The issue of the prosecutor’s ability to
question appellant on his failure to talk to
In closing, the prosecutor referred
to appellant’s failure to tell the police his version of the events and his
failure to remain at the scene or otherwise talk to
[D]oes a witness to a crime sit there and tell the family what happened and talk to the police, or do they [sic] run? Now certainly you can apply this to Brian Bacich as well. Brian Bacich ran. He was afraid. He didn’t know what was going on. He had warrants. He wanted to get out of there. But it certainly applies to the defendant as well, as one of the pieces you can look at to determine whether he committed this.
The propriety of a prosecutor’s
final argument is a matter within the sound discretion of the trial court. State
v. Fossen,282 N.W.2d 496, 503 (
A prosecutor may not impugn a
defendant’s exercise of a constitutional right, for example, by commenting on a
defendant’s failure to testify. State v. DeRosier,695 N.W.2d 97, 107 (
In Doyle v. Ohio, 426
 Bacich testified he knew the gun was loaded because he could see the “red” shells at the bottom of the gun. The state’s expert witness testified that one would be able to see the “head,”or brass portion, of a shell when it was in the magazine but that the red, plastic portion of the demonstration shell would not be visible in the magazine when the gun was loaded with cartridges. She also testified that one could see the “red” portion of a fired shell when racking the pump back to eject a fired shell and advance a new one from the magazine.
 At most, Bacich or appellant may have been considered an accessory after the fact under Minn. Stat. § 609.495, subds. 1 and 3 (2000) (providing that a person who harbors, conceals, aids or assists by word or acts another whom the person knows or has reason to know has committed a crime, or aids by destroying or concealing evidence of the crime is subject to criminal penalties). But an accessory after the fact is not an accomplice to the concealed crime. See State v. Ray, 659 N.W.2d 736, 748 (Minn. 2003) (holding accomplice instruction not required when witness was eventually charged with crime of accessory after the fact, because witness could not have been tried for the crime itself).
 We also note that even if Bacich could have been considered an accomplice, his testimony was corroborated by Kading’s testimony.