A Third Appeal of a Home Invasion of a Drug Dealers' Apartment in St. Paul

2006-M-23          State of Minnesota, Respondent, vs. James Michael Green, Appellant.

DESCRIPTION OF CRIME:  Ron Glasgow and Andria Crosby were drug dealers in St. Paul. On January 22, 2004, their friend Wayne Costilla was asked to sell meth to Valtierra, Michael Medal-Mendoza, and James Green.  Glasgow and Crosby agreed to sell the meth to Costilla for $1,600.  Costilla sold the meth to Valtierra’s group for $1,800.

Shortly thereafter, Valtierra’s group returned to Costilla’s apartment to rob the drug dealers.  Medal-Mendoza started the shooting, and Crosby testified that the other two drug buyers may have been both armed and involved in the shooting.  Glasgow and Costilla were shot to death and Crosby was shot in her chest and left leg.

THE TRIAL:  Crosby recognized Green as a former classmate.  Crosby identified Green from a school yearbook.  Crosby identified Green, Medal-Mendoza, and Valtierra from a security tape from the Perkins restaurant where they said they had been.  After Green was injured in a car accident when he fled Minnesota, he learned that people had died in the shooting.  Green called the St. Paul police to arrange his surrender because he felt he had done nothing wrong.  He also gave a jail-house confession to a fellow prisoner who testified against him.

The jury found Green guilty as charged and he was sentenced to consecutive life terms for aiding and abetting the first-degree intentional felony murder of two victims and a concurrent term of 240 months for aiding and abetting attempted murder of the third victim. 

THIS APPEAL:   On direct appeal, Green argues that the district court’s submission of two pattern jury instructions—CRIMJIG 4.01 (accomplice liability) and CRIMJIG 4.04 (flight raising a permissive inference of guilt)—denied him a fair trial.  Green raises several other pro se arguments

Justice Gildea joined the unanimous decision by Justice Sam Hanon on this direct appeal to uphold Scanlon’s conviction and sentence.

First, Green argued that the district court erred in giving an unmodified version of the pattern jury instruction on accomplice liability for crimes of another.  He argues that it was error to not add the words “to appellant” after the phrase “the defendant is also guilty of any other crime the person commits while trying to commit the intended crime if that other crime was reasonably foreseeable.” 

The state points out that Green not only failed to object to CRIMJIG 4.01, he specifically requested it.  We need not decide whether plain error applies or whether Green’s request increased his burden or constituted a waiver because we have already held on several occasions that CRIMJIG 4.01 is not erroneous.  

Second, Green argued that the district court erred in submitting the permissive-inference instruction on flight, CRIMJIG 4.04.  Green argued that the district court erred in submitting the permissive-inference instruction on flight, CRIMJIG 4.04. 

We hold that the district court erred by instructing the jury on the permissive inference that may be drawn from evidence of flight.

The only issue is whether the error in giving the permissive inference instruction was harmless.  In Valtierra we held the error in giving the instruction was harmless because, unlike Olson, the flight was only peripheral to the state’s case, which was otherwise supported by Crosby’s testimony that Valtierra had a gun and by Crosby’s prior consistent statement to that effect. 

The state’s case against Green was even stronger.  Green organized the drug deal and was the common link between the suspects and the victims.  After the shooting the three met at Green’s girlfriend’s house—where Green said he lived—to discuss their getaway plans.  Finally, there is evidence from the jailhouse informer that Green admitted that, after the shooting, he returned to the scene and nudged Crosby to make sure she was dead.  The evidence showed that Green knew he was guilty of the joint crime, even if he had not fled.

Finally, we note that, as in Valtierra, the error in giving the flight instruction is that it is argumentative, not that it inaccurately conveys the law or improperly suggests that the jury was compelled to make the inference.  For these reasons, we conclude that the erroneous jury instruction was harmless.

Third, Green raised a series of unsubstantial claims that there was reversible error in the denial of a Batson challenge, non-sequestration of the jury during deliberations, and juror misconduct.  He also challenges the sufficiency of the evidence and the credibility of a witness.  Finally, he argues he was denied effective assistance of counsel.  The evidence and the law leads us to reject these claims and to affirm Green’s convictions and sentences.

DATE OF DECISION:  August 10, 2006

RECORD NUMBER:  2006-145

FULL OPINION:  A05-336

DESCRIPTION: [MURDER]