Although the omission of the jury instruction regarding accomplice testimony was error, it was not prejudicial error requiring a new trial.
The opinion of the court was delivered by: Anderson, Russell A., Justice.
Heard, considered and decided by the court en banc.
Appellant Houa Vang Lee was convicted following a jury trial of receiving stolen property for the benefit of a gang, fifth-degree controlled substance crime and possession of a firearm with an altered serial number. On appeal, Lee asserts that the omission of the jury instruction regarding accomplice testimony was reversible error. The court of appeals affirmed Lee's convictions. Concluding that the omission of the jury instruction regarding accomplice testimony was error, but not prejudicial error requiring a new trial, we affirm.
On December 31, 2001, law enforcement officers responded to gang-related drive-by shootings in St. Paul and Brooklyn Center, Minnesota. At approximately the same time, appellant Lee was hosting a party at his townhome in Woodbury, Minnesota. Lee allowed his cousin Mai Yang, acquaintance James Her and two of their friends from Milwaukee, all members of the Imperial Gangsters gang, to stay the night. Yang, Her and the others awoke early the next morning, returned to the Milwaukee area and were subsequently arrested for unrelated offenses. While in custody, Her told the police that he had information about the drive-by shootings that took place in the Twin Cities on New Year's Eve. This information was relayed to law enforcement in St. Paul.
On January 8, 2002, Special Investigator Mark Reding from the St. Paul Police Department and Investigator John Hankes from the Minnesota Gang Strike Force interviewed Her in Port Washington, Wisconsin where Her was being held in connection with a burglary in that jurisdiction. Her told the investigators that he and other members of the Imperial Gangsters had stolen firearms in the Wisconsin area, that they transported the firearms to the Twin Cities, that some of the firearms were used in drive-by shootings in the Twin Cities and that the firearms were located in Lee's garage. Her told the investigators that Lee's role was that of the "shot caller."
On January 9, 2002, at around 7 p.m., law enforcement officers executed a search warrant at Lee's home and found several firearms, ammunition and a baggie of marijuana in the garage. Through contacts with investigators in Wisconsin and a computer records check, law enforcement determined that two of the firearms, a Remington bolt-action rifle and a Ruger 9-mm handgun, had been stolen in a residential burglary near Sullivan, Wisconsin on December 7, 2001. The handgun was found in a day planner with mail addressed to Mai Yang. A third firearm, a bolt-action long rifle, had the serial number scratched off.
Lee was charged by complaint with receiving stolen property, Minn. Stat. § 609.53, subd. 1 (2002); receiving stolen property for the benefit of a gang, Minn. Stat. §§ 609.53, subd. 1, 609.229, subd. 2 (2002); fifth-degree controlled substance crime, Minn. Stat. § 152.025, subd. 2(1) (2002); and possession of a firearm with altered identification, Minn. Stat. § 609.667(2) (2002). The state obtained an order requiring Her to testify by granting him use immunity. At the time of Lee's trial, burglary charges against Her were pending in Wisconsin.
At Lee's trial, Her testified that he was a member of the Imperial Gangsters, a gang whose members were located in Minnesota, Wisconsin, and North Carolina. Her stated the Imperial Gangsters had "a lot" of members, meaning more than ten. He indicated that the gang had signs and symbols. Her also admitted to having been convicted for aggravated battery and armed robbery, gang-related crimes. He testified that the Imperial Gangsters had "a lot" of rivalries, including the Purple Brothers.
Her testified that he and three others had committed the December 7, 2001 burglary to obtain firearms for the gang. He admitted committing burglaries in about ten other counties as well. According to Her, he and other gang members started committing burglaries in November 2001 because Lee wanted "firearms for the family or for the nation." They were so successful that when Lee heard about it, he told them to bring the firearms to the Twin Cities because there were more problems with gang action in Minnesota than in Milwaukee. Consequently, Her, Mai Yang and other gang members brought the stolen firearms with them as they traveled to the Twin Cities to celebrate the coming New Year. Some of the stolen firearms were stored in Lee's garage.
Her testified that they spent the first night in a motel and then stayed at Lee's house over the rest of the weekend. On December 31, 2001, Her and other gang members went to the Metrodome for a New Year's celebration where a fight erupted with a rival gang.*fn1 When they returned to Lee's house, there was a party in progress. According to Her, people were drinking and using marijuana but Lee was using "[j]ust alcohol." Her testified that during the evening, the Imperial Gangsters committed two drive-by shootings in retaliation for the fight that occurred at the Metrodome. During the first drive-by shooting, Her drove his vehicle. Her did not participate in the second drive-by shooting. According to Her, Lee did not participate in either incident; but Lee was in the garage when they were reloading. Lee also "kind of" told them to "take care" of the second house and asked Her to let another gang member use Her's car for the second drive-by shooting. Early the following morning, Her and the other gang members left Lee's residence and traveled to the Milwaukee area where they were arrested for unrelated offenses.
In addition to Her's testimony, the state offered the testimony of one of the investigating officers who described the execution of the search warrant at Lee's residence and the means by which they connected some of the firearms found in Lee's garage to the December 7, 2001 burglary near Sullivan, Wisconsin. The victim of the Wisconsin burglary also testified and identified two of the firearms found in Lee's garage as having been stolen from his residence. The state also called an expert on criminal street gangs who testified ...