“Trial by juries impartially selected . . . from the brightest constellation which has gone before us.” —Thomas Jefferson (1801)
The judge’s charge to the jury is usually the penultimate act in a trial, especially in criminal cases. But the furnishing of instructions to jurors does not necessarily presage the end of a case.
The Minnesota Supreme Court, in a rarity at the beginning of this month, reversed a first degree murder conviction from McLeod County District Court due, in part, to faulty jury instructions in State v. Bustos, 2015 Minn. App. LEXIS 184 (Minn. April 1, 2015). See “Murder conviction reversed for judicial error,” in the April 6, 2015, Minnesota Lawyer.
The ruling, deeming the definition of domestic abuse a predicate for the first-degree charge, defective was unsuaul because so many appellate challenges to jury instructions in criminal cases are unsuccessful.
This pattern, notwithstanding Bustos, was reflected in eight rulings of the Court of Appeals decided recently within a two-week span by the Minnesota Court of Appeals. The series of cases reflects the Yogi Berra aphorism that, in litigation it’s never over until it’s over. Concurrently decided by the appellate court, the eight appeals, three from Olmsted County, all upheld the charges and affirmed the lower court convictions.
Challenges to jury instructions regarding accomplice culpability thrice failed.
Improperly instructing the jury on accomplice liability in aiding and abetting second-degree murder case did not warrant reversing the guilty verdict in State v. Huber, 2014 WL 6862505 (Minn. Ct. App. Dec. 18, 2014) (unpublished). Convicted by a jury in Kandiyohi County District Court of aiding and abetting second-degree murder that occurred during a confrontation between a man, his cohort, and another fellow. The convicted cohort appealed on the grounds that the jury was not told the meaning of “intentionally aiding,” which is a necessary element of the offense.
In a 2-1 decision, the appellate court affirmed, noting that the trial judge “has broad discretion in formulating jury instructions.” But the charge erroneously “failed to explain this essential term.” The judge should have told the jury that to convict it must bind beyond a reasonable doubt, that the defendant knew his colleague “was going to commit a crime and intended his presence or actions to further commission of the crime.”
But the omission was not dispositive. It was a harmless error because it did not have “a significant effect” on the guilty verdict. The prosecution’s “powerful evidence” of guilt would have yielded a conviction regardless of the error.
A dissent by Judge Larry Stauber would have granted a new trial on grounds that the “jury was confused” because the instruction failed to explain what proof is required. He viewed the evidence of the defendant’s knowledge and control as “not overwhelming.” Such “thin evidence” warrants reversal and remand to “a properly instructed jury.”
As in Huber, an erroneous charge did not require reversal of a verdict in a drug case, highlighted by testimony from a pair of accomplices in State v. Valentine, 2014 WL 6862978 (Minn. Ct. App. Dec. 8, 2014) (unpublished). A man convicted of drug offenses by an Olmsted County District Court asserted that the charge to the jury did not warn the jury about uncorroborated testimony of an accomplice, which invoked the “plain error” standard because the defense did not object at trial.
The concession by the State that the trial court committed “plain error” by not giving the standard accomplice instruction did not require reversal because the “substantial evidence corroborated the [accomplice] testimony.” The “overwhelming” evidence of culpability, including informant testimony about how the defendant “set up” drug transactions and the defendant’s own recording during phone calls with the informant.
Another accomplice instruction appeal also was unsuccessful in State v. Kilbo, 2014 WL 7011193 (Minn. Ct. App. Dec. 15, 2014) (unpublished). A Dakota County District Court jury found the defendant guilty of aiding and abetting fifth degree assault and terroristic threats growing out of a fracas in a park.
As in Valentine, the defendant argued on appeal that the trial court erred in failing to give an accomplice instruction, which had not been requested at trial nor objected to its absence. Not doing so was erroneous because one of the witnesses “arguably was an accomplice to the fight, but because the record reflected sufficient corroboration, reversal was not “warranted.” There was “extensive evidence” supporting the truth of the witness’s testimony and “establishing [defendant’s] guilt.” Thus, the “plain error challenge” failed because defendant did not carry the “heavy burden … “ of showing that the jury would not have convicted if given the proper instruction.
The failure to instruct the jury that the defendant’s “mere presence” at the scene was insufficient to convict was not erroneous. The evidence showed active conduct by the defendants that made that requested instruction inapplicable.
But the defendant received some solace. His sentences on the two convictions were improper because they arose out of the same behavioral incident. Thus, the assault sentence was vacated and the case remanded for sentencing on the new “serious” terroristic threats count.
Another drug defendant, also charged with obstructing the police in his arrest, lost his appeal based on a pair of challenges to instructions rejected by the appellate court in State v. Conlin, 2014 WL7011171 (Minn. Ct. App. Dec. 15, 2014) (unpublished). The defendant convicted in Winona County District Court of selling marijuana, claimed he thought it was lawful to do so because he had purchased marijuana tax stamps and the jury, thus, should have been instructed that he had to find “conscious knowledge” of illegality to convict.
But this type of instruction was not required because the defendant’s ignorance of the law was “not a defense.” Therefore, there was no need to prove that he “knew the sale of marijuana with a tax stamp was illegal to convict him.”
A challenge to the judge’s failure to defer the meaning of “force” on the other count of obstruction with force also failed. The evidence, including testimony of multiple police officers at the scene, gave the jury a “clear picture” that Defendant was resisting arrest, which warranted conviction on the felony obstruction charges.
Another assault case, also appealed from Olmsted County District Court, similarly failed to overturn jury instructions regarding the essential elements of “intent” in State v. Moallin, 2014 WL 7237037 (Minn. Ct. App. Dec. 22, 2014) (unpublished). The conviction stemmed from a fracas between a belligerent knife-wielding patron and a bouncer at the facility.
The appellate court upheld the instructions regarding the definition of “intentionally” and “with intent to,” which were agreed to by defense counsel at trial. The challenge to the failure to instruct the jury on the elements of assault law was rejected because that category is not a “distinct” crime, and it was “never alleged that [defendant] committed assault-harm.” The trial court gave “adequate instructions on the intent that must be proved” to convict, and defense counsel acknowledged that the “instructions satisfactorily defined intent.” Even if this was “plain error,” it did not affect the outcome because there was “ample evidence” of specific intent to cause harm.
Yet another objection to a charge in an assault case failed in State v. Evans, 2014 WL 7011130 (Minn. Ct. App. Dec. 15, 2014) (unpublished). The defendant was convicted by a jury in Clay County District Court of domestic assault for striking his wife in the face and squeezing her neck after he spent the night drinking.
Although he did not object at trial, he appealed the instruction to the jury that referenced the portion of the assault statute, Minn. Stat. §604. 242, dealing with causing fear even though he was only charged with violating the portion of the measure concerning bodily injury. But the appellate court rejected the argument, holding that the instruction was not erroneous even though it “misstated the law” by “unnecessarily” involving reference to the “fear” provision of the law. The surplusage did not warrant reversal because “the two subparts are alternative means of proving the same offense” to establish essential elements of the case and “was permissible” and did not rise to a “constitutional” level.
The jury instruction procedures were deemed proper in the other two affirmances.
In another appeal from Olmsted County, a man convicted of two counts of second decree criminal sex with a minor failed in challenging the recitation by the judge of portions of the charge following three questions for the jury in State v. Douglas, 2014 WL 6863167 (Minn. Ct. App. Dec. 8, 2014) (unpublished).
The trial court “properly recited” the elements of the charged offenses. The instructions were not “improper” and the failure to provide “further clarification” is response to the jury’s confusion about the meaning of the word “intentionally” followed consultation with counsel and their agreement to negate the charge without other elaboration or explanation. The judge’s actions, not objected to at trial, did not constitute “plain error” reversible on appeal and it was harmless, anyway.
The claimed failure to require the jury to find unanimously the facts underlying wars of no avail to a man convicted of operating a motorboat under the influence of alcohol and refusing an alcohol concentration test in State v. Horvath, 2014 WL 6863212 (Minn. Ct. App. Dec. 8, 2014) (unpublished). The challenge to the two felony convictions in Washington County District Court was rejected because the charge comported with the “pattern instruction” in Minnesota jurisprudence, and the jury was not required, as the defendant claimed, to “find that the probable cause element” was met.
Nor was the instruction insufficiently “vague and confusing.” It is not necessary for an instruction to “establish the elements of a crime,” as long as it does “explain a statutory definition.”
Jury instructions can be highly charged portions of a criminal trial. This octuplet of rulings illustrates, despite Bustos, that jury charges tend to be upheld, even when they are erroneous.
*Originally published in Minnesota Lawyer http://minnlawyer.com/2015/04/09/perspectives-jury-instruction-cases-eight-affirmances-one-reversal/