This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).





State of Minnesota,


Marcel Nigel Coker,



Filed November 27, 2007


Wright, Judge

Concurring specially, Shumaker, Judge


Olmsted County District Court

File No. K1-05-4054


John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

Mark A. Ostrem, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street Southeast, Rochester, MN  55904 (for respondent)



            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his convictions of second-degree assault and unlawful possession of a firearm, arguing that (1) the district court abused its discretion by permitting the state to cross-examine him about his probationary status; (2) the district court failed to give the required accomplice testimony instruction; and (3) the evidence at trial was insufficient to find him guilty beyond a reasonable doubt.  We affirm.


Based on an incident during the early hours of October 2, 2005, appellant Marcel Coker was charged with one count each of second-degree assault, Minn. Stat. § 609.222, subd. 1 (2004); terroristic threats, Minn. Stat. § 609.713 (2004); and unlawful possession of a firearm, Minn. Stat. § 624.713, subds. 1(b), 2 (2004) (having been convicted of a felony).[1]  According to the complaint, Coker attempted to settle an argument by firing a gun into the air.  When the incident occurred, Coker was on probation for an unrelated second-degree assault of which he had been convicted several months earlier. 

Before trial, the state moved to introduce evidence of Coker’s prior conviction of second-degree assault for impeachment purposes if he chose to testify.  During argument on the motion, the state “indicate[d] as an aside” that it also intended to cross-examine Coker about his probationary status, citing our decision in State v. Johnson, 699 N.W.2d 335 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).  The state planned to demonstrate that Coker, like the defendant in Johnson, “had a motive to lie about his failure to remain law abiding, namely, to avoid a substantial jail sentence for violating a condition of probation.”  The district court ruled that, if Coker elected to testify, the state would be permitted to ask Coker whether he is on probation for “assault” and then question him about the terms of his probation. 

During the jury trial, witness credibility was a major focus.  The victim, Angela Burt, had consumed alcohol before the incident.  Like Coker, two others, Jerry McCloud and Frances Brennan, were charged with assault and terroristic threats for their role in the incident.  After his arrest, McCloud initially told officers that he had not seen Coker with a gun.  But he later recanted and testified against Coker as part of a plea agreement.  The witnesses’ accounts contained several inconsistencies.

According to the testimony of the state’s witnesses, an argument began at approximately 2:00 a.m. outside Brennan’s home after Brennan’s boyfriend, McCloud, told Brennan that Burt had been flirting with him at a nearby SuperAmerica.  What began as an argument between Brennan and Burt soon escalated into a physical confrontation.  Brennan and Burt then resumed arguing about a missing purse.  When a car occupied by unknown men pulled up nearby, McCloud became concerned.  Believing that these men were there to defend Burt, McCloud called Coker for assistance if necessary.  Coker agreed to come to the scene, and McCloud sent Brennan to pick up Coker.  When Brennan returned with Coker approximately 30 minutes later, Coker approached Burt,         drew a gun, and pointed it skyward.  Coker then asked Burt where “all [her] boys” were and what she was going to do.  He fired two shots into the air before retreating into Brennan’s house.  McCloud and Brennan also went inside the house.  After turning off the lights, they hid in the basement to make it appear to the police that no one was at home. 

Sgt. Thomas Kaase was conversing with another officer when he heard what he believed to be gunshots, followed by people yelling.  These sounds appeared to originate from one or two blocks southeast of their location.  Sgt. Kaase drove his squad car toward the commotion.  En route, he received information that a fight had broken out near the SuperAmerica.  When Sgt. Kaase arrived on the scene a minute later, he was joined by a number of other officers, including Officer Michael Drees.  After learning that Coker, Brennan, and McCloud had entered the house, Officer Drees knocked on Brennan’s front door.  No one answered the door, and the interior remained dark.  Shortly thereafter, the Emergency Response (SWAT) and Crisis Negotiation Units were called. 

The units arrived with a large command vehicle and set up their operations at approximately 7:00 a.m.  Sgt. Craig Anderson, a crisis negotiator, attempted to contact Brennan and McCloud by telephone, using various telephone numbers.  At 9:25 a.m., Sgt. Anderson called Brennan’s residence and left a message stating that the police were outside and needed to speak with the occupants.  Sgt. Anderson made several additional calls in rapid succession.  But no one answered.  When Coker exited the house approximately one minute later, he was arrested.[2] 

A forensic test disclosed the presence of particles containing lead, barium, and antimony on Coker’s hands.  This combination of elements is unique to primer gunshot residue.    

Coker testified and offered a very different version of events.  According to Coker, he had arrived at Brennan’s house before his 9:00 p.m. curfew, which, he explained, was a condition of his probation for a prior conviction of assault.  At Brennan’s house, Coker played cards in the basement with Burt and her boyfriend. 

Coker became aware of an argument between Brennan and Burt over a missing purse.  And sometime thereafter, Brennan and Burt took their disagreement outside.  Coker testified that he declined their invitation to come along because it would violate his curfew.  Coker maintained that he remained in the house for the rest of the night.  Coker testified that he was asleep by 11:00 p.m., and he did not recall hearing an argument or any commotion outside that night.  Coker maintained that he was unaware that an entire SWAT team was surrounding the house until officers in riot gear came “outta nowhere with AKs and . . . M-16s” and arrested him as he left.  Between Coker’s testimony on direct- and cross-examination, the district court cautioned the jury that information about Coker’s probation may be used for the limited purpose of assessing his credibility. 

The closing arguments focused heavily on witness credibility.  The state urged the jury to consider the larger picture when evaluating the evidence, arguing that, despite some inconsistent details, the testimony of every witness except Coker established a coherent narrative of the events.  The defense countered by highlighting the discrepancies in the testimony, as well as the self-interested motives of the two cooperating witnesses.

During the final jury instructions, the district court cautioned the jurors about the limited purposes for which Coker’s prior conviction could be used.  And although Brennan, McCloud, and Coker had been charged with terroristic threats, Coker’s counsel did not seek, nor did the district court sua sponte give, the jury an instruction on accomplice testimony.

The jury returned a guilty verdict on each of the submitted charges.  The district court subsequently dismissed the terroristic threats count, finding it to be a lesser-included offense of assault, and imposed concurrent sentences on the remaining counts.  This appeal followed.




Coker challenges the district court’s pretrial ruling permitting the state to cross-examine him about his probationary status.  The district court’s ruling on an evidentiary matter rests within its sound discretion.  State v. Moua, 678 N.W.2d 29, 37 (Minn. 2004).  We will not reverse an evidentiary ruling absent a clear abuse of that discretion.  Id.  

In State v. Johnson, we held that impeachment of a defendant with evidence of his status as a probationer is not an abuse of discretion.  699 N.W.2d 335, 339 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).  Coker now urges us to reach the opposite conclusion.  We decline to do so.

The Johnson court held that a defendant, like any other witness who takes the stand, may be impeached by evidence of probationary status as a motive to testify falsely.  Id.  Indeed, the threat of a substantial term of incarceration for violating the conditions of probation, such as remaining law-abiding, may provide a witness with a particularly strong incentive to lie about any acts that violate the terms of probation.  Id.  Thus, when a defendant testifies, evidence regarding the defendant’s probation status is admissible.  Id. (citing Minn. R. Evid. 616). 

The rule of Johnson recognizes a well-established principle: when a defendant places the credibility of his testimony at issue, the state may show the jury why a finding of credibility might be misplaced.  A criminal defendant has an “absolute right” not to testify on his own behalf.  State v. Aubid, 591 N.W.2d 472, 477 (Minn. 1999) (citing U.S. Const. amend. V; Minn. Const. Art. I, § 7).  But by opting to waive this right, a defendant “may open the door to otherwise inadmissible evidence which is damaging to [the defendant’s] case.”  Brooks v. Tennessee, 406 U.S. 605, 609, 92 S. Ct. 1891, 1893 (1972) (quotation omitted).  Providing testimony obligates the defendant to speak truthfully and accurately and subjects the defendant’s testimony to the “traditional truth-testing devices of the adversary process.”  See Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643, 645-46 (1971) (affirming impeachment with prior inconsistent statement obtained without Miranda warnings); see also Brooks, 406 U.S. at 609, 92 S. Ct. at 1893 (observing that choice to testify inherently “carries with it serious risks of impeachment and cross-examination”).  And cross-examining a witness about that which may serve as a motive to testify falsely is foremost among the traditional truth-testing devices used in an adversarial process.  See United States v. Abel, 469 U.S. 45, 50, 105 S. Ct. 465, 468 (1984) (noting “overwhelming weight of authority” that evidence of bias is admissible on cross-examination); see also Minn. R. Evid. 616 1989 comm. cmt. (observing that rule expressly permitting impeachment with “evidence of bias, prejudice, or interest of the witness” codified Abel, “which in turn reaffirmed existing practice”). 

Coker argues that Johnson ignored “significant differences between a defendant and other witnesses [that] make it unnecessary and unfair to allow the state to introduce the defendant’s probationary status for impeachment.”  Even if this were true, the principle of stare decisis compels us to follow our prior decision.  Doe v. Lutheran High Sch. of Greater Minneapolis, 702 N.W.2d 322, 330 (Minn. App. 2005).  Although dogmatic adherence to an unsound precedent is not warranted, a respect for stare decisis is vital if “citizens of this state [are to] be assured that decisions of the court are good for more than ‘one trip and one day only.’”  State ex rel. Foster v. Naftalin, 246 Minn. 181, 205, 74 N.W.2d 249, 264 (1956).  Hence, we are reluctant to sacrifice legal stability without a compelling reason to do so.  State v. Ross, 732 N.W.2d 274, 280 (Minn. 2007).  No such reason is offered here. 

Accordingly, the district court did not abuse its discretion by permitting the state to cross-examine Coker regarding his probation status based on our decision in Johnson.




Coker argues that the district court erred by failing to instruct the jury that it could not convict Coker solely based on uncorroborated accomplice testimony.  This instruction must be given if any witness against the defendant “might reasonably be considered an accomplice to the crime.”  State v. Lee, 683 N.W.2d 309, 316 (Minn. 2004) (quotation omitted).  A witness is an “accomplice” if the witness could have been charged and convicted of the same crime as the defendant.  State v. Pederson, 614 N.W.2d 724, 733 (Minn. 2000). 

The district court’s obligation to give an accomplice-testimony instruction exists independent of whether a party requests it.  Lee, 683 N.W.2d at 316.  If the district court “fails to give a required accomplice corroboration instruction and the defendant does not object, an appellate court must apply the plain error analysis.”  State v. Reed, 737 N.W.2d 572, 584 n.4 (Minn. 2007).  The plain-error analysis examines the following factors: (1) whether there was an error; (2) if so, whether that error was “plain”; and (3) whether the error affected the defendant’s substantial rights.  Id. at 583.  If such error is found, we also must consider whether the error “should be addressed ‘to ensure the fairness and integrity of the judicial process.’”  Id. (quoting State v. Ramey, 721 N.W.2d 294, 298 (Minn. 2006)).

When an accomplice witness testifies against the defendant, omission of the accomplice-testimony instruction will necessarily satisfy the first two of these conditions.  See id. at 594 (noting that because instruction is required by caselaw, failure to give it is both error and “plain”).  The state concedes that McCloud and Brennan were Coker’s accomplices within the meaning of Minn. Stat. § 634.04.  They were charged and convicted of the same crime as Coker—terroristic threats—arising out of their respective roles in the incident.  Thus, although Coker did not request the accomplice-testimony instruction, the district court committed plain error by not giving the instruction sua sponte. 

Such error does not warrant a new trial, however, unless it affected the defendant’s substantial rights.  Id. at 585.  Therefore, under the third factor, the defendant is required to satisfy the “heavy burden” of demonstrating a reasonable probability that the error significantly affected the jury’s verdict.   Id. at 583-84; Ramey, 721 N.W.2d at 302.   This burden is not satisfied when “the concerns underlying the accomplice corroboration instruction [are] largely mitigated at trial.”  Reed, 737 N.W.2d at 584.  Because the abundance of evidence verifying the testimony of McCloud and Brennan makes it unlikely that the absence of the required instruction had any effect on the jury’s verdict, this factor is not satisfied.

The accomplice-testimony instruction is necessary to caution jurors about the often self-serving nature of accomplice testimony.  State v. Henderson, 620 N.W.2d 688, 700 (Minn. 2001).  By definition, an accomplice is exposed to criminal liability for involvement in the same offense that the defendant is alleged to have committed.  State v. Azzone, 271 Minn. 166, 170, 135 N.W.2d 488, 493 (1965).  The testimony of an accomplice, therefore, is inherently untrustworthy because the accomplice “might be disposed to shift or diffuse responsibility in order to curry the favor of law enforcement officials.”  Id. (explaining reason underlying general rule); State v. Palubicki, 700 N.W.2d 476, 487 (Minn. 2005) (describing accomplice testimony as “inherently untrustworthy”).  To address this untrustworthiness, the law requires some external verification as a check on the credibility of an accomplice’s testimony.  See id.; Minn. Stat. § 634.04 (2006) (prohibiting conviction resting on uncorroborated accomplice testimony).  The district court, therefore, is charged with the responsibility of instructing the jurors that the defendant cannot be found guilty without evidence corroborating the accomplice’s testimony.  See 10 Minnesota Practice, CRIMJIG 3.18 (2006) (instructing jurors that “[a]ccomplice testimony must be corroborated with evidence other than accomplice testimony before [jurors] may find the defendant guilty”). 

But if there is enough evidence that the accomplice’s testimony is trustworthy, “the concerns underlying the accomplice corroboration instruction [are] largely mitigated at trial” even when the instruction is not given.  Reed, 737 N.W.2d at 584.  Thus, we examine the extent to which other evidence in the record corroborates the accomplice’s testimony and links the defendant to the crime.  See Azzone, 271 Minn. at 170-71, 135 N.W.2d at 493 (discussing concerns underlying corroboration instruction); State v. Scruggs, 421 N.W.2d 707, 713 (Minn. 1988) (discussing how those concerns may be satisfied).  When ample corroborating evidence exists in the record, it is more difficult for the defendant to demonstrate a reasonable probability that failure to give an instruction about the necessity of such corroboration significantly affected the verdict.   Cf. Reed, 737 N.W.2d at 584-85 (weighing extent of corroboration in record as a whole). 

Coker argues that the evidence against him was “weak at best” and did not sufficiently corroborate the testimony of McCloud and Brennan.  The quantum of corroborating evidence needed depends on the circumstances of the crime.  Pederson, 614 N.W.2d at 732.  The evidence must link the defendant to the offense rather than merely establish that the offense was committed.  Scruggs, 421 N.W.2d at 713; see also Minn. Stat. § 634.04 (corroboration “not sufficient if it merely shows the commission of the offense or the circumstances thereof”).  For example, the defendant’s proximity to the scene of the crime may verify an accomplice’s assertion that the defendant was present when the offense was committed.  See State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (noting that defendant’s opportunity or motive to commit offense may corroborate accomplice testimony).  Similarly, internal inconsistencies in the defendant’s version of events may suggest that an alternative account offered by the accomplice is more credible.  See Scruggs, 421 N.W.2d at 713 (noting that credibility of testifying defendant may corroborate accomplice testimony).  The corroboration need only be sufficient to “restore[ ] confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial degree.”  Id.  When we review whether the corroborating evidence meets this test, we view this evidence in the light most favorable to the verdict.  State v. Bowles, 530 N.W.2d 521, 532 (Minn. 1995).

Here, there is ample evidence to corroborate the testimony of McCloud and Brennan.  For example, both witnesses place Coker at the scene of the crime through their testimony that Coker confronted Burt in front of Brennan’s house.  Even Coker admitted that he was nearby.  But he claimed to have been asleep in Brennan’s basement, rather than in front of her house, when the criminal activity occurred.  Indeed, the implausibility of Coker’s testimony on this point provides corroboration.  Despite being in close proximity to where the shots were fired, Coker testified that he did not hear the shots and commotion, which one of the responding officers heard from two blocks away.  And gunshot residue was found on Coker’s hands.  In addition, Burt, who was not an accomplice, gave an account of the incident that generally is consistent with the testimony of McCloud and Brennan.

The nature and amount of corroborating evidence are sufficient to restore confidence in the testimony of McCloud and Brennan.  Although the district court erred by omitting the accomplice-testimony instruction, the record does not establish that there is a reasonable probability that failure to give the instruction had a substantial impact on the jury’s decision to find Coker guilty.  Thus, this error did not affect Coker’s substantial rights.



Coker also challenges the sufficiency of the evidence supporting his conviction.  When reviewing a challenge to the sufficiency of the evidence, we conduct a painstaking analysis of the record to determine whether the jury could reasonably find the defendant guilty of the offense based on the facts in the record and the legitimate inferences that can be drawn from those facts.  State v. Chambers, 589 N.W.2d 466, 477 (Minn. 1999).  In doing so, we view the evidence in the light most favorable to the verdict and assume that the jury believed the evidence supporting the verdict and disbelieved any contrary evidence.  Id.  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

Coker argues that the evidence was insufficient to prove beyond a reasonable doubt that he fired a gun into the air in front of Brennan’s home.  His argument is founded on two propositions: (1) that Minn. Stat. § 634.04 prohibits a conviction that rests entirely on uncorroborated accomplice testimony; and (2) that, without the accomplice testimony, the only evidence placing Coker in front of Brennan’s home with a gun in his hand was the testimony of Burt, who was too intoxicated to be credible.

As discussed in section II, there is ample corroborating evidence to support the jury’s apparent reliance on the accomplice testimony.  And we must assume that the jury believed Burt’s testimony despite evidence that she may have been intoxicated.  Moreover, Burt’s testimony was not the only evidence supporting the allegation that Coker fired the gun.  The jury could reasonably infer from the presence of gunshot residue on Coker’s hands that he fired a gun as the others testified. 

Coker’s trial ultimately turned on witness credibility.  The jury heard two mutually exclusive versions of the events.  Coker’s account was fundamentally incompatible with the rest of the evidence presented.  For example, Sgt. Kaase testified that the commotion in front of Brennan’s house was loud enough to be heard from several blocks away.  Coker, who was much closer, testified that he heard nothing.  From this testimony, the jury could reasonably infer that Coker was lying to cover up his commission of the charged offenses.  Similarly, the jury could reasonably determine that there was a common nucleus of fact in the testimony of every witness except Coker.  Although there are inconsistencies among the eyewitness accounts, all but Coker’s share enough common elements to compose a coherent account.  Indeed, the relatively minor discrepancies among the accounts may have enhanced the overall credibility of the eyewitnesses by “contribut[ing] to the jury’s conclusion that it was being told the truth, rather than an artfully contrived story.”  United States v. Moret, 334 F.2d 887, 892 n.1 (2nd Cir. 1964) (Kaufman, J., concurring). 

In sum, Coker testified that he had come to Brennan’s house for a party that the other witnesses, who Coker claimed were present, did not even mention.  Although McCloud, Brennan, and Burt testified that Coker confronted Burt on the street, Coker testified that he was asleep in Brennan’s basement.  Where, as here, the testimony presented the jury with a choice between believing Coker’s exculpatory testimony or the other witnesses’ testimony supporting Coker’s conviction of the charged offenses, Coker’s challenge to the sufficiency of the evidence must fail.




SHUMAKER, Judge (concurring specially)


On the issue of the admissibility of evidence of Coker’s probationary status, I concur in the majority’s conclusion and I agree with the reasoning supporting that conclusion.  I write separately, however, to suggest that the use of Minn. R. Evid. 616 is a misplaced authority for the resolution of this evidentiary issue.

The majority relies on State v. Johnson, 699 N.W.2d 335, 339 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005), in affirming the district court’s ruling on this issue.  Johnson upheld the propriety of bringing out a criminal defendant’s probationary status and conditions on cross-examination to establish the defendant’s motive to lie.  Id.  The appellate court in Johnson correctly stated that Johnson “took on the role of a witness after he took the stand and . . . he became subject to cross-examination to the same extent as any other witness.”  Id.  But then the court cites Minn. R. Evid. 616 for that proposition.  Id.

Rule 616, labeled “Bias Of Witness,” states: “For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.”  Minn. R. Evid. 616 (emphasis added).  The plain language of the rule shows a distinction between a nonparty witness and a party to the case, or perhaps between one party who testifies against another party.  Johnson confuses nonparty witnesses and testifying parties in applying rule 616.  Thus, Johnson purports to be authority for the proposition that rule 616 allows evidence of a witness’s own bias in his favor.  The majority opinion here perpetuates the skewed logic of Johnson by also citing rule 616 as a basis for allowing evidence of Coker’s probation and probationary conditions.  It has always been proper to show a witness’s self-interest to demonstrate a motive for false testimony, and that “rule” is not codified.  Rule 616 is not authority for that proposition and should not be cited as such.



[1] Coker also was charged with second-degree riot, Minn. Stat. § 609.71, subd. 2 (2004), and reckless discharge of a firearm in a municipality, Minn. Stat. § 609.66, subd. 1a(a)(3) (2004), based on the same incident.  Although the reason for doing so is not reflected in the record, the state dismissed these two counts at the conclusion of its case-in-chief.


[2]Brennan and McCloud remained in the house for several more hours.  At approximately 10:00 a.m., Brennan called a relative and asked him to pick up her children, who also were inside the house.  Anderson then borrowed the relative’s cell phone to call Brennan.  When Brennan answered, Anderson convinced her and McCloud to surrender and end the standoff.