Ramsey County District Court. File No. K9-03-61.
Considered and decided by Minge , Presiding Judge; Harten , Judge; and Halbrooks , Judge.
When it is unclear whether a person intentionally aided in the commission of the crime of illegal possession of a firearm, the question of whether that person is an accomplice should be decided by the jury and the accomplice-testimony jury instruction should be given.
The opinion of the court was delivered by: Minge, Judge
Appellant challenges his conviction of felon in possession of a firearm, arguing that (1) the district court abused its discretion in denying appellant's request for an accomplice-testimony jury instruction; (2) the district court abused its discretion in excluding evidence that the state collected gunpowder residue samples from appellant but never tested them; and (3) the prosecutor committed prejudicial misconduct in referring to evidence that appellant was present during another gun-related incident earlier in the day. Because we conclude that the district court erred in declining to give the accomplice-testimony jury instruction, we reverse and remand.
On January 4, 2003, appellant Walter Davis and a group of his friends went to a Wendy's restaurant. The group included appellant's brother, Dana Davis ("Dana"), and Perry Williams. While waiting in line to order food, another group arrived at the restaurant, including Robert Brown and Glen Acon. Appellant and his friends have had difficulties with Brown and his friends in the past.
Brown's group started a fight by attacking appellant's group with fists and chairs. Williams went to the car, retrieved a gun, and handed it to Dana as he was standing near an entrance. Dana fired the gun approximately four times. The facts as to what occurred next are contested. Williams testified that after he handed Dana the gun, he ran back to the vehicle and found appellant already inside. According to Dana, after Williams handed him the gun, Dana then handed the gun to appellant. Dana contends that as he turned to run, he heard more shots fired. Dana claims that appellant was directly behind him as they fled the scene and that they left in the same vehicle. Appellant denies ever having had the gun in his hands.
Officer Chad Degree arrived at the scene and discovered that three people, including Brown and Acon, had been shot by a small caliber handgun. Degree spoke to Brown at the scene and testified that Brown told him that there had been an argument and a fight, that Dana had the gun initially, but then handed the gun to appellant and that appellant, Dana, and Williams shot at them. At trial, Brown testified that he did not recall if he saw appellant with a gun that evening, but that he saw appellant run out of the building after Dana started firing.
Officer Degree also testified that when he interviewed Acon at the hospital, Acon told him that he saw appellant with a handgun, that Williams handed appellant the gun, and that appellant had shot him. Acon testified at trial that he did not see appellant with a gun.
Sergeant Bruce Wynkoop interviewed Dana two days after the incident. Dana told Wynkoop that Williams gave him the gun as the fight progressed, that he fired it before handing it to appellant, and that he heard a couple more shots as he ran away. Wynkoop also interviewed Ebony Green, a customer at Wendy's who knew appellant. Wynkoop testified that Green told him that someone from appellant's group retrieved a gun from a car, fired a couple shots, and then handed it to appellant. Green testified at trial that while she heard shots, she really did not see anyone with a gun. Timeka Lowe, Breisha Smith, and Jerrine Powers, who were also witnesses to the incident, testified that they never saw appellant with a gun.
Appellant was charged with one count of felon in possession of a firearm under Minn. Stat. § 624.713, subd. 1(b) (2002). Dana pleaded guilty to second-degree assault for his role in the incident, with an agreement that before sentencing he would testify honestly and truthfully against appellant. The parties stipulated that appellant was a person prohibited from possessing a firearm. Appellant testified at trial that he did not possess a gun that evening, that after fighting with Acon in the doorway, he escaped and went to the car, and that he left in a different car than Dana. Although appellant requested a jury instruction on accomplice testimony, the district court refused ...