Shotgun and Stabbing in Home Invasion in Anoka

2006-M-29          State of Minnesota, Respondent, vs. Lennell Maurice Martin, Appellant.

DESCRIPTION OF CRIME:  On November 3, 2002, Lennell Maurice Martin and Jeffery Young broke into the Anoka apartment of Precious Franklin, her toddler son (R.E.), and her boyfriend (Curtis Anthony).  Martin wielded a shotgun, and Young wielded a long knife.

The burglars locked R.E. and Precious Franklin in the bathroom, where they soon heard Franklin scream, a knock at the outer apartment door, then a gunshot, and the sound of people running from her apartment.   She emerged to find Anthony conscious but shot and stabbed.  Anthony was in the bedroom doorway, holding his chest. He gasped, "Call the police. Jeff and Lenair."

She ran to her neighbor (Kevin Tilvis) to call for medical and police assistance.  Tilvis said he had already called 9-1-1, he had knocked on Precious Franklin’s front door when he heard a scream and gun-shot, and he had seen a green Cadillac parked in front of the apartment.

Anthony was taken to the hospital, where he died an hour later.

Monica Green, Anthony's sister, called Franklin from the hospital and asked her what had happened. Franklin told her and mentioned that Anthony had said two names, "Jeff and Lenair." Green asked if Franklin meant "Jeff and Lennell," and Franklin responded, "Yes. That's it." Green told the police that "Jeff and Lennell" were cousins of Anthony's ex-girlfriend, Monique Frye.

Investigating officers interviewed Monique Frye on the morning of November 3, *582 2002. She gave them the full names of Jeffery Young and Lennell Martin, and told them that Martin drove a bluish-green Cadillac. The afternoon of the same day, Franklin picked Martin as the gunman from a six-person photo lineup. The next day, Franklin picked Jeffery Young as the other intruder from another six-person photo lineup.

Investigating officers located a 1992 green Cadillac El Dorado, registered to Martin's mother and parked behind her home. When the Cadillac was searched, police found bloodstains on the dashboard, steering wheel, and headlight switch. An expert witness on DNA tested the blood and determined that it matched the DNA profile obtained from Anthony.

In Jeffery Young's car police found a printout of directions to Anthony's apartment with handwritten notations of Anthony's first name and landmarks on the route to Anthony's apartment. A handwriting expert identified the notations as having been written by Young.

THE TRIAL:  The jury heard about information from Precious Franklin, Carl Anthony, Kevin Tivis, Monica Green, Monique Frye, the coroner, crime-scene analysis, the photo arrays, the line-ups, and DNA data from the apartment and the Cadillac.

Martin was convicted of first-degree premeditated murder, first-degree murder while committing a burglary, second-degree assault against Franklin, and kidnapping of Franklin and her son. We affirm in part and remand.

FIRST PART OF DIRECT APPEAL:  On May 12, 2005, in a unanimous opinion by Justice Helen Meyer, the Minnesota Supreme Court rejected most of Martin’s claims, but returned the case to the trial court for clarifications of the record about four sets of communications between the trial judge and the jury during deliberations.

First, the trial court admitted into evidence without objection Anthony's statement, "Call the police. Jeff and Lenair." On appeal, Martin argues that this statement was inadmissible hearsay under the Minnesota Rules of Evidence and constitutionally barred under the holding in Crawford v. Washington, (2004). The state's position is that Crawford bars only "testimonial" statements and because Anthony's statement was not testimonial, it was properly admitted. Additionally, the state asserts that Anthony's statement is admissible as an exception to the hearsay rule, either as a dying declaration or an excited utterance.

Second, in his pro se supplemental brief, Martin raises several additional arguments in support of his request for a new trial. He argues that the photo lineup procedure, the alleged destruction of evidence, and the amendment of the indictment with additional charges violated his due process rights; that the state committed prosecutorial misconduct; that the trial court judge erred in giving the jury an instruction based on CRIMJIG 3.04 and in failing to order the removal of Martin's leg restraint; and that he received ineffective assistance of trial counsel. We have reviewed each of Martin's pro se claims and find them to be without merit, with the exception of Martin's claim of ineffective assistance of counsel.

Third, the Supreme Court remanded the case to the trial court for a clarification of the record about communications between the trial judge and the jury during deliberations.

“We turn to the question of whether it was reversible error for the trial court judge to have four different communications with the jury that occurred without Martin's presence, knowledge, or consent. Minnesota Rule of Criminal Procedure 26.03, subdivision 1, states that the defendant shall be present "at every stage of the trial." In State v. Thompson, this court held that the right to be present at trial is broader under the Minnesota Rules of Criminal Procedure than is required by the United States Constitution.   Responding to a deliberating jury's question is a stage of trial.  While the defendant can waive his right to be present at a stage of trial, the decision to waive the right is "not for counsel to make but a personal decision for defendant to make after consultation with counsel."

SECOND PART OF DIRECT APPEAL:  On November 16, 2006, Justice Gildea wrote a 5-2 majority opinion holding that it was not error for the judge to answer four questions from the jury about the law, proper procedures, the instructions to the jury, and the evidence without the presence of the defendant, especially when the defendant had left the country during the deliberations and with the court’s permission.

DATE OF DECISION:  November 16, 2006

RECORD NUMBER:  2006-195

FULL OPINION:  A04-279

DESCRIPTION:  [MURDER] 

Home Invasion of Drug Dealer's Home in St. Paul

2006-M-28          Otha Eric Townsend, petitioner, Appellant, vs. State of Minnesota, Respondent.

DESCRIPTION OF CRIME:  On October 31, 1992, Candis Koch-Wilson took Otha Eric Townsend to the St. Paul home of her friend Lisa M. Johnson.  They sampled marijuana which Johnson had for sale, and Townsend agreed to buy it.

At 2:00 a.m., Koch-Wilson took Townsend to her nearby ATM machine to get Townsend his cash for the transaction.  A short time later, Townsend returned alone to Johnson’s home.  He robbed and shot her and left her for dead.  Summoned by neighbors, police sent her to the hospital at 3:00 a.m.

At 4:00 a.m., Koch-Wilson’s body was found near the ATM.  The autopsy later placed her time of death between 2:20 and 2:40 a.m.

In the following days: 1) Johnson identified Townsend from a photo array; 2) Townsend’s partially-burned car was found with Koch=Wilson’s blood, 3) police found ammunition at the apartment of Townsend’s girlfriend which matched with bullets in Koch-Wilson’s body and shells from Johnson’s home; and 4) a drinking glass at Johnson’s home had the fingerprints of Townsend and Koch-Wilson.

Over a year later, Townsend was apprehended at a homeless shelter in Texas.

THE SEPARATE TRIAL PROCEEDINGS: Townsend won a motion to sever the trials of charges involving Koch-Wilson from those charges involving Johnson.

After his first-degree murder conviction, Townsend pleaded guilty to attempted murder in the second degree in the Johnson assault. He was sentenced to 153 months, to run consecutive to the first-degree murder conviction and life sentence for the Koch-Wilson killing.

DIRECT APPEAL: On April 26, 1996, Justice Sondra Gardebring wrote a unanimous opinion that denied Townsend’s direct appeal on the murder conviction.  While it was error to admit several pieces of evidence at trial, the Minnesota Supreme Court held that the errors were harmless because there was so much other evidence presented at trial.

“We liken the evidence of Johnson's pregnancy, her physical condition after the assault, and the condition of her apartment to that considered in” other cases where the errors were harmless.

THE FIRST POST-CONVICTION APPEAL:  On July 30, 1998, Justice Gilbert wrote a unanimous opinion which denied Townsend’s first post-conviction appeal.  The Minnesota Supreme Court rejected Townsend’s multiple claims including ineffective assistance of counsel, violation of his right to counsel, violation of his right to due process, and prosecutorial misconduct.

THE SECOND POST-CONVICTION APPEAL:  On June 27, 2002, Chief Justice Kathleen Blatz wrote a unanimous opinion which denied Townsend’s second post-conviction appeal.  The Minnesota Supreme Court rejected Townsend’s multiple claims including

THIS APPEAL: On October 26, 2006, Justice Gildea Joined Justice Sam Hanson’s unanimous opinion which denied Townsend’s third post-conviction appeal.

Townsend made two arguments as to why his claims should not be barred by his failure to raise them in earlier appeals.  First, Townsend contends that this court may take notice of plain error affecting substantial rights even when those errors were not previously raised.  Second, Townsend asserts that he has not had an adequate opportunity to seek a remedy for the claimed violations of his constitutional and statutory rights.  Specifically, Townsend argues that his appellate counsel on direct appeal intentionally failed to file a motion to withdraw and that, although Townsend signed a waiver that he wished to proceed pro se, this failure to file a motion to withdraw rendered the proceedings on direct appeal inadequate.

Townsend’s current petition for post-conviction relief makes five substantive claims:  (1) that the trial court improperly failed to rule on a motion to dismiss the indictment; (2) that the indictment did not adequately inform him of the charges against him or, alternatively, that the doctrine of merger should apply to the murder and attempted murder charges; (3) that the evidence of the attempted murder was not admissible in the trial on the murder charge, claiming that this constitutes an improper amendment of the indictment to include additional charges; (4) that the trial court’s failure to instruct the jury that it must return verdicts on both the first- and second-degree murder charges relieved the state of the burden of proving every element of its case beyond a reasonable doubt; and (5) that the state failed to provide Townsend with access to certain physical evidence for examination and testing.

The Minnesota Supreme Court held here that “all of Townsend’s claims in his current petition for post-conviction relief are barred by the Knaffla rule.”  “[W]here direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for post-conviction relief.”   “Similarly, a post-conviction court will not consider claims that were raised or were known and could have been raised in an earlier petition for post-conviction relief. “ 

DATE OF DECISION:  October 26, 2006

RECORD NUMBER:  2006-184

FULL OPINION:  A06-45

DESCRIPTION:  [MURDER] 

Murder by Transferred Intent at Convenience Store in Brooklyn Center

2006-M-27          State of Minnesota, Respondent, vs. Andre Francis Hall, Appellant.

SUMMARY:  Justice Gildea joined a 4-3 majority written by Justice Helen Meyer to strike down a Court of Appeals decision to strike down Hall’s first-degree premeditated murder conviction and sustain a second-degree murder conviction and sentence.

The Minnesota Supreme Court held that the trial court’s use of a jury instruction on “transferred intent” was a reversible error on the first-degree premeditated murder charge which required a new trial on that charge, and that the lesser sentence for the second-degree murder conviction and sentence would be set aside for the results of the new trial.

The dissenters would have imposed the lesser sentence for the second-degree murder conviction and sentence.

Following this decision in 2006, Hall was convicted of second-degree murder felon in possession of a firearm and sentenced to 30 years in May, 2007. 

DESCRIPTION OF CRIME:  On October 5, 2004, Hall left his pistol at A.M.s apartment in Brooklyn Center.  Hall and A.M. walked less than two blocks to a Citgo station to buy groceries. Hall argued with a fellow customer.  Cashier Dennis Winfield argued with Hall and ordered Hall to leave.  A.M. left and returned to her apartment.  Hall threatened Winfield and went outside, where he lost a fight with several men.

Returning to A.M.’s apartment, a bloodied Hall retrieved his pistol and said he had been jumped by three men and said he was going to kill them.  Returning to the Citgo store, Hall shot and killed Winfield who was outside his bullet-proof booth to empty a garbage can.

THE TRIAL:  At trial, Hall admitted that he had committed the second-degree murder of Whitfield, as well as the unpermitted possession of a firearm by a felon.  However, he denied that he had premeditated the killing of Winfield.

The prosecutor argued that Hall’s premeditation for killing Winfield was proved by his statement that “this bullet-proof glass won’t protect you” and Hall’s statement at the apartment after the killing that “I killed that n***er.” 

Alternatively, the prosecutor argued that the evidence showed that Hall intended to kill the men he had fought but that intent transferred to Winfield when Hall shot him.  The trial court gave the jury an instruction that combined the prosecution’s two theories on premeditation.

THIS APPEAL:  A Court of Appeals decision to strike down Hall’s first-degree premeditated murder conviction and sustain a second-degree murder conviction and sentence led to this appeal.

The majority held that because “Hall conceded at trial that he was guilty of second-degree intentional murder; the only element the state had to prove was the element of premeditation.  Because the transferred intent instruction pertained directly to the element of premeditation and because that instruction relieved the jury of its obligation to find that the element of premeditation was satisfied, the instruction was not harmless.  Moreover, although there was evidence that Hall premeditated Winfield’s murder, we cannot conclude beyond a reasonable doubt that Hall would have been convicted of first-degree premeditated murder without the erroneous transferred intent instruction.”

The majority reversed the Court of Appeals and remanded Hall to the district court for a new trial.  Following this decision in 2006, Hall was convicted of second-degree murder felon in possession of a firearm and sentenced to 30 years in May, 2007. 

DATE OF DECISION:  October 12, 2006

RECORD NUMBER:  2006-176

FULL OPINION:  A05-1534

DESCRIPTION:  [MURDER] 

Kidnapping Near Bemidji

2006-M-26          State of Minnesota, Respondent, vs. Stephanie Dawn Losh, Appellant.

DESCRIPTION OF THE CRIME:  Ms. Losh was indicted for the second-degree murder of Brian Jenny.  Ms. Losh pleaded guilty to kidnapping.

In October, 2002, Jenny and a relative hosted a late-night party at their remote cabin near Federal Dam.  Losh and her friends attended the party.  Losh and one friend left the party to acquire more beer.  Upon their return, they saw a second friend beating Jenny in the head with a baseball bat.  Losh’s friends loaded Jenny into the trunk of the car.  The killer instructed Losh to drive the car to a bog where Jenny was dumped.  Jenny died of massive head wounds a few days later.

The District judge sentenced Losh to a prison term of 20 months, which was longer than the recommended sentence for that crime for a person with Losh’s criminal record, but the judge suspended her prison sentence pending her good behavior.  He assigned her to a county jail for one year, required her to abstain from drugs in the future, and to participate in random drug testing. 

The guidelines recommended a prison sentence of 89 months for the kidnapping conviction, so Losh’s sentence was a(longer) upward durational departure and a )shorter) downward dispotional departure (shorter actual prison time).  The sentencing judge explained that the upward durational departure was justified because the kidnap victim suffered great bodily harm, was released in unsafe conditions, and the vulnerability of the victim at the time of release.

Less than a month after Losh completed her sentence in the county jail, she was again consuming a narcotic and was ordered to complete her 120-month sentence in prison.

AT THIS APPEAL:  Losh appealed on two grounds.  First, she claimed that a 2004 decision by the U.S. Supreme Court should be applied retroactively to Losh’s 2002 sentence and that trial judges could not accept plea bargains based on alleged facts that had not been specifically found by a jury.  

Second, Losh claimed that the trial judge abused his discretion in exceeding the 89-month recommended sentence by imposing an upward durational departure to 120 months.

THIS DECISION:  Justice Gildea voted to support Justice Barry Anderson’s majority opinion on both grounds.

First, the Minnesota Supreme Court held that the Blakely opinion by the U.S. Supreme Court in 2004 did not apply retroactively to Losh’s 2002 sentencing after her first opportunity for a direct appeal expired in 2003.

Second, the Minnesota Supreme Court held that the sentencing court did not abuse its discretion in adding 31 months to the kidnapping conviction because Losh left Jenny in dangerous circumstances in the swamp, while suffering from great bodily harm, in greatly vulnerable condition.

DATE OF DECISION:  September 28, 2006

RECORD NUMBER:  2006-170

FULL OPINION:  A04-1028,

DESCRIPTION:  [MURDER]  [KIDNAPPING]  [CRIME]

Repeated Beatings of Sixth-Month Infant in St. Paul

2006-M-25          State of Minnesota, Appellant, vs. Said Moussa Gouleed, Respondent.

DESCRIPTION OF CRIME:  On November 8, 2002, Gouleed was left alone to care for his six-month-old daughter, F.M.  When his wife returned after two hours, she found Gouleed cradling F.M. who was not breathing.   The baby was declared dead at the hospital.

Gouleed told officers that, while he was watching F.M., he took F.M. out of her crib to give her a bottle because she was crying.  Gouleed also told officers that he tripped over an infant chair while carrying F.M., causing him to drop her.  He said her head hit the floor, then she “jumped” up and her head hit the wall.

Dr. Michael McGee, the Ramsey County medical examiner, performed an autopsy on F.M. the next day.  He documented the following injuries: significant, depressed fractures on both sides of her skull; multiple healing fractures to her ribs; bi-lateral femur fractures; healing fractures of a forearm, wrist, and finger; contusions on her head, face, chest, and arms; and bruising on both of her legs.  According to the complaint, Dr. McGee’s provisional report concluded that the cause of death was injuries resulting from child abuse and the manner of death was homicide.  Gouleed was charged with second-degree unintentional felony murder.

THE TRIAL:   The district court in the first trial sua sponte ordered a mistrial because of a discovery violation by the defense’s expert witness.  A defense expert had failed to disclose testing of autopsy slides that formed the basis of his opinion that the victim’s critical injuries were inflicted days before her death.

When the trial judge declared a mistrial and ordered a new trial, there was no discussion on the record of the possible double-jeopardy consequences of a mistrial.   Before retrial, Gouleed moved to dismiss the charge on double-jeopardy grounds.  The district court denied the motion, stating that “the state was deprived of a fair trial when the defense did not provide full disclosure of its expert’s basis for opinions going to [the] very heart of the issue – the age of the injuries.”

The second trial commenced on December 1, 2003.  Gouleed employed a different expert for the second trial.  The jury in the second trial found Gouleed guilty and he was sentenced to 225 months in prison. 

PRIOR PROCEEDING:  Gouleed appealed to the court of appeals.  The court of appeals reversed the orders declaring a mistrial and denying the motion to bar the retrial, and reversed Gouleed’s conviction, saying that it was “unable to reach any principled conclusion that there was a manifest necessity for a mistrial or that the [trial] court and counsel appropriately investigated and examined measures short of a mistrial to remedy the discovery violation.”   This appeal followed.

THIS APPEAL:  On direct appeal, Gouleed claimed that:  1) The district court abused its discretion in ordering a mistrial in a felony murder case where a defense expert failed to disclose testing of autopsy slides that formed the basis of his opinion that the victim’s critical injuries were inflicted days before her death;   and 2) the retrial of the defendant did unconstitutionally subject him to double jeopardy where the record in the first trial established a manifest necessity for a mistrial.

Justice Gildea joined the 6-1 decision by Justice Helen Meyer on this direct appeal to uphold Gouleed’s conviction and sentence.

First, the Minnesota Supreme Court reversed the court of appeals’ reversal of the district court’s orders declaring a mistrial and denying the motion to bar retrial. 

“To permit the defendant’s key witness to commit a serious discovery error and then to bar retrial of the case would not serve the principles rooted in the double-jeopardy doctrine.”

Second, the Minnesota Supreme Court reinstated Gouleed’s conviction and remanded to the district court for resentencing in accord with the court of appeals’ opinion. 

In sentencing Gouleed to 225 months after the retrial, the trial court had imposed an improper upward departure of75 months above the 150-month cap on the sentence which should have been made only with the authorization by a jury.

DATE OF DECISION:  September 7, 2006

RECORD NUMBER:  2006-158

FULL OPINION:  A04-700

DESCRIPTION:  [MURDER] 

Stab Senior in a Crack Burglary near St. Cloud

2006-M-24          State of Minnesota, Respondent, vs. Eric Maurice Wright, Appellant.

DESCRIPTION OF CRIME:  On March 24, 2004, Wright stabbed to death the 82-year-old father of his girl-friend, Raymond Wander, in his El Rosa home in Stearns County.  A crack addict who lived with Wander’s daughter in Richfield in Hennepin County, Wright was in the midst of a three-day binge of crack consumption and repeated suicide attempts.  Wright’s DNA was tied to the crime scene with a number of pieces of evidence analyzed by the Minnesota Bureau of Criminal Apprehension.

THE TRIAL: A Stearns County jury found Wright guilty of first-degree premeditated murder, several counts of first-degree felony murder, and second-degree murder.    The district court entered judgment of conviction for first-degree premeditated murder and imposed a life prison term without the possibility of release. 

THIS APPEAL:   On direct appeal, Wright challenges:  1) the admission of other-crimes evidence; 2) deprivation of his right to a fair trial by engaging in prejudicial misconduct during the opening statement and closing argument; 3) the legality of his sentence to a life prison term without the possibility of release; and 4) deprivation of his right to effective assistance of counsel.

Justice Gildea joined the unanimous decision by Chief Justice Russell Anderson on this direct appeal to uphold Wright’s conviction and sentence.

First, the Minnesota Supreme Court upheld the trial court’s admission of other-crimes evidence. 

  In 1991, Wright was charged with attempted second-degree murder and first-degree criminal sexual conduct.  He ultimately entered a guilty plea to first-degree assault and was sentenced to a 180-month prison term.  During the trial for the current offense, the factual-basis inquiry portion of the 1991 plea-hearing transcript was read to the jury.

Here, the district court determined that the prior assault had sufficient similarities to the charged offense to be relevant to the issue of identity: both incidents involved intrusions into homes of vulnerable victims whom Wright had known for some time; both incidents occurred in the early morning hours; both incidents were preceded by extensive drug use; and the weapon used and injuries inflicted in both incidents were markedly similar.  Wright correctly points out that the Spreigl offense occurred 13 years prior to the charged offense and that the incidents occurred in two different cities located 2 hours apart.  But temporal-remoteness concerns were considerably reduced by Wright’s extensive incarceration between the two offenses; and circumstances of the prior offense were sufficiently similar to the charged offense.

Second, the Minnesota Supreme Court upheld the trial court’s decision that the prosecutor had not deprived him of his right to a fair trial by engaging in prejudicial misconduct during the opening statement and closing argument. 

It is not misconduct for the state to analyze the evidence and argue that particular witnesses were or were not credible. 

Examined in context, the prosecutor’s remarks related to Wright’s intoxication defense had more to do with the merits of that defense and were not aimed at improper disparagement. 

Third, the Minnesota Supreme Court upheld the trial court’s decision to sentence Wright to a life prison term without the possibility of release. 

Under Minnesota law, a conviction for first-degree premeditated murder is punishable by a term of life in prison.  A defendant convicted of first-degree premeditated murder who has “one or more previous convictions for a heinous crime” shall be sentenced to life without possibility of release.   Heinous crimes include “a violation of section 609.221 [first-degree assault].

Because Wright had a prior conviction for first-degree assault, he was sentenced to life without possibility of release.  Wright asserts that this sentence violated Apprendi.  Apprendi holds that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”   Apprendi has no application to a mandatory life sentence with a release disqualifier based on a prior conviction.

Fourth, the Minnesota Supreme Court rejected Wright’s claim that he was deprived of his right to effective assistance of counsel. 

The record reflects that trial counsel proceeded reasonably; and much of trial counsel’s approach that Wright now claims was inadequate relates to trial tactics.  What evidence to present and which witnesses to call at trial are tactical decisions properly left to the discretion of trial counsel.   Wright was not denied effective assistance of counsel. 

DATE OF DECISION:  August 17, 2006

RECORD NUMBER:  2006-150

FULL OPINION:  A05-1747

DESCRIPTION:  [MURDER]  [ROBBERY]

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]