1. The district court abused its discretion when it admitted evidence of an irrelevant telephone call made by defendant and evidence of a prior bad act for which Spreigl requirements were not satisfied.
2. The prosecutor committed misconduct by commenting on the defendant's credibility, appealing to the passions of the jury, commenting on the defendant's failure to call a witness, intentionally misstating evidence, asking a "were they lying?" question, referring to threats not in evidence, aligning herself with the jury, improperly attacking defendant's character, commenting on the defendant's opportunity to tailor his testimony, and commenting on the credibility of a witness.
3. The cumulative effect of multiple incidents and types of prosecutorial misconduct and two evidentiary errors deprived the defendant of a fair trial.
Dissenting, Anderson, G. Barry, J.
Reversed and remanded for a new trial.
Heard, considered, and decided by the court en banc.
Troy Demetrius Mayhorn appeals his convictions of aiding and abetting first-degree premeditated murder and aiding and abetting second-degree assault. Mayhorn argues that he is entitled to a new trial based on prosecutorial misconduct and various evidentiary errors made by the district court. Mayhorn also contends that the court erred in imposing a 51-month consecutive sentence for second-degree assault. We reverse Mayhorn's convictions, holding that the cumulative effect of prosecutorial misconduct and evidentiary errors deprived Mayhorn of a fair trial.
Around 2:20 p.m. on August 29, 2003, Janney Garcia dialed 911 and reported that her boyfriend had just been shot in the living room of her apartment in Moorhead, Minnesota. When police officers arrived at the apartment, they found Nasean Jordan lying on a couch just inside the doorway with multiple gunshot wounds to his chest. Garcia had been shot once in the leg but was standing and walking around. Nicole Johnson, a friend who lived nearby, was also at the apartment, having arrived just before emergency responders.
Investigators immediately began to locate Jordan's friends and associates. Mayhorn and Michael Dickey quickly were identified as suspects in Jordan's murder. Mayhorn and Jordan had met each other in Chicago as teenagers and became friends as well as partners in the trafficking of drugs, primarily crack cocaine. Dickey was also a friend of Mayhorn's and an associate of Mayhorn's and Jordan's in the drug trade. Also involved in the drug trade with them was Dickey's cousin, David Longmire. Investigators learned that Dickey had been admitted by Garcia or Longmire into Garcia's apartment building just before Jordan was killed.
The state's theory of the case at trial was that Mayhorn masterminded a plan to kill Jordan, and he drove the getaway car. The precise motive for Jordan's murder was never determined. One theory was that Jordan, who was known as "T.J.," was murdered by Mayhorn because Jordan was suspected of stealing drugs from him. Another theory was that Jordan had borrowed $800 from Mayhorn and had not repaid it. Evidence was also presented that Dickey was angry with Jordan because Jordan would not supply Dickey with drugs, and because Jordan had forcefully demanded that some of Garcia's acquaintances--including Dickey--stop spending time in Garcia's apartment.
Mayhorn's defense was that he had played no role in planning the murder and that he was not even in Moorhead at the time of the murder, although his green Ford Taurus may have been there.
It was undisputed at trial that on August 28, the day before the murder, Mayhorn and Muammar Ali drove from Chicago to Moorhead in Mayhorn's Taurus. They arrived in Moorhead around 7:30 p.m. and stopped at I-94 Liquors, where they purchased some liquor and left some garbage in the dumpster outside. Mayhorn and Ali spent the remainder of August 28 with a woman identified only as April. Around 2:30 a.m. on August 29, Mayhorn and Ali left April's home and drove to Garcia's apartment. Mayhorn testified that when they arrived, he went inside and delivered 63 grams of crack cocaine and 1 pound of marijuana to Jordan while Ali remained in the car. The state disputed the purpose of Mayhorn's and Ali's 2:30 a.m. trip to Garcia's apartment and asserted that the two men actually went there to kill Jordan, but their plan was thwarted because the exterior door had not been propped open as planned.
After leaving Garcia's apartment, Mayhorn and Ali drove to Kim Wilson's house, where a group of people, including Dickey, Longmire, Shawnee Johnson (one of Mayhorn's girlfriends), and others were socializing. Mayhorn went inside while Ali waited in the car. Inside Wilson's house, Dickey pressured Mayhorn to sell Dickey some crack cocaine. Mayhorn told Dickey that if Dickey could get to the Twin Cities, Mayhorn could arrange for him to obtain some drugs there. The state also presented evidence that Mayhorn said to Dickey, "[H]e gotta go," meaning Mayhorn wanted Jordan killed, but both Mayhorn and Dickey dispute that there was any such discussion at Wilson's house. Mayhorn then agreed to drive Dickey--who was unable to find another ride--to the Twin Cities. At 4:30 a.m. on August 29, Mayhorn, Dickey, and Ali left Moorhead in Mayhorn's Taurus. They arrived in Woodbury at 8:30 a.m. and went directly to Lyra Robinson's townhouse.
For the events beginning at 10 a.m. on August 29, the parties' versions of the facts diverge significantly. The state presented evidence that the three men obtained their crack cocaine and were back in Mayhorn's car on the road to Moorhead by 10 a.m. During the drive to Moorhead, Mayhorn said to Dickey, "TJ gotta go," ostensibly meaning Jordan should be killed. At around 2:15 p.m., Mayhorn, Dickey, and Ali arrived outside Garcia's apartment building. Mayhorn remained in the car while Dickey and Ali walked up to the apartment building. Dickey "buzzed" the intercom and was admitted to the building. Ali went inside the building and into Garcia's apartment and found Jordan playing a video game with Longmire. Ali asked Jordan, "[W]here that sh** at?" and started shooting. Dickey and Longmire fled to Mayhorn's car and got in the back seat. Ali then came running out and got in the car. As they were driving away, Mayhorn asked Ali, "[I]s he gone?" Ali answered affirmatively.
Four eyewitnesses testified that they had seen one to three men matching the physical descriptions of Dickey, Ali, and Longmire near or inside Garcia's apartment building at the time of the murder. One of these witnesses testified that the three men got into a green car driven by a fourth person.
Dickey testified against Mayhorn and said when Mayhorn drove him to the Twin Cities to get crack, Ali was in the car. As they were driving to the cities Mayhorn said that T.J. "gotta go." Dickey understood Mayhorn's statement to mean that T.J. was to die or be hurt. After they picked up the drugs in Woodbury, Dickey testified that the three of them drove back to Moorhead in Mayhorn's car.
Cell phone records were received into evidence. The state also presented maps that plotted the calls made and received on both Mayhorn's and Dickey's cell phones for the time period of August 28-30. The records and maps showed that Mayhorn's cell phone traveled from Chicago to Moorhead on August 28. In the evening and early morning hours of August 28-29, Mayhorn's cell phone was activating a Moorhead cell tower. By the morning hours of August 29, both Mayhorn's and Dickey's cell phones were activating towers in the Twin Cities. Both cell phones were back in Moorhead by 2:14 p.m. on August 29, around the time of the murder. By 12:16 a.m. on August 30, both cell phones were back in Chicago.
Longmire also testified for the state and said at the time of the murder he was in Garcia's apartment with Garcia and Jordan, playing a video game with Jordan. Longmire saw Ali enter the apartment with a handgun and heard him say, "Where that sh** at?" and start shooting. Longmire ran out of the apartment to Mayhorn's green Taurus. Mayhorn was in the driver's seat. Ali, Mayhorn, Longmire, and Dickey drove to Chicago, and Mayhorn warned Longmire and Dickey not to say anything.
Mayhorn testified in his own defense and claimed that he was not a part of any conspiracy, and although his car may have been in Moorhead at the time of the murder, he was not. Mayhorn told Dickey that he could take his car and return to Moorhead without Mayhorn. Mayhorn's cell phone was charging in his car at the time, and Dickey took the cell phone with him when he left the Twin Cities around 10 a.m. At about 6 p.m., Dickey returned in Mayhorn's car, picked up Mayhorn, and they drove to Chicago.
Mayhorn presented an alibi witness, Lyra Robinson, who testified that Mayhorn was taking a nap at her Woodbury apartment at the time of the murder. He also called Toistine Pleasant, a previous girlfriend, who claimed that she called Lyra Robinson in Woodbury about an hour after the murder and Robinson told Pleasant that Mayhorn was with her.*fn1 The defense suggested that robbery may have been a motive for Jordan's murder, and that Garcia may have been involved. The defense also presented evidence that Jordan was not well liked, was "big-headed," had aggressively tried to take over the drug trade in Moorhead, and had come between Garcia and her previous boyfriend. To bolster this argument, Mayhorn presented evidence that although Jordan was living with Garcia, Jordan had other girlfriends in Moorhead, a fiancée in Chicago, and two "baby-mamas"*fn2 by whom he had five children.
After a three-week trial, the jury found Mayhorn guilty of aiding and abetting first-degree premeditated murder, conspiracy to commit first-degree premeditated murder, and aiding and abetting second-degree assault. The court imposed a mandatory life sentence for aiding and abetting first-degree premeditated murder and a consecutive 51-month sentence for aiding and abetting second-degree assault. This direct appeal followed.
The district court admitted into evidence over Mayhorn's objection the recordings of telephone calls made by Mayhorn from the Otter Tail county jail as he was awaiting trial. On appeal, Mayhorn argues that four of the recordings were inadmissible because they were not relevant and their probative value was substantially outweighed by the danger of unfair prejudice. Mayhorn argues that one of the four telephone calls was also inadmissible because it was evidence of a prior bad act for which the state failed to comply with Spreigl requirements. The state's position is that the admission of the recordings was not a clear abuse of discretion and that Mayhorn has not met his burden of proving that he was prejudiced by the admission of any of them. Additionally, the state asserts that the fourth recording was relevant to illuminate the relationship between Mayhorn and Jordan, such that Spreigl requirements did not apply.
We review a district court's decision to admit evidence for an abuse of discretion. State v. Lee, 645 N.W.2d 459, 465 (Minn. 2002). The threshold requirement for the admissibility of evidence is provided by Minn. R. Evid. 402: "Evidence which is not relevant is not admissible." Reversal is required for the erroneous admission of evidence when the admission of that evidence likely influenced the jury to convict. Lee, 645 N.W.2d at 465.
In the first recording, Mayhorn is speaking to Nicole Johnson, the friend who arrived at Garcia's apartment shortly after the shooting, and states that he would prefer to "be around in Cook County where I was around killers and drug dealers" than in the Otter Tail county jail "around mother f*****g, um, ah, thieves and mother f*****g women beaters," who were "[n]ot my type of crowd."*fn3 The basis of the court's ruling on the admissibility of this recording is unclear from the record.
On appeal, the state does not address the relevance of this portion of the conversation with Nicole Johnson, merely contending that the entire conversation is relevant because Mayhorn was speaking to a potential witness. We have never concluded that all recorded conversations between a suspect and a potential witness are per se relevant. In any event, we conclude that the specific content of the objected-to portion of this recording had no probative value. Mayhorn's derogatory comments about the prisoners at the local jail are not probative of whether he engaged in conspiracy to commit murder, or aided and abetted murder and assault. These comments only tend to demonstrate Mayhorn's apparent preference for the company of certain criminals over others, and their admission may have allowed the inference that Mayhorn preferred to be around "killers" because he was one. Because the comments in the first recording are not relevant to any issue in the case, we hold that the court abused its discretion in admitting the comments into evidence.
The court also admitted over objection a voicemail message left by Mayhorn for Nicole Johnson in which Mayhorn stated: "What's up man? You don't f*** with the nig*** no more. You need to holler at your boy straight up." The state asserts that this message was a threat against Nicole Johnson, a potential witness. Mayhorn's position is that the message meant, "What's going on * * * I'm trying to reach you," and was not meant as a threat.
Evidence of a threat made by the defendant against a witness may be relevant to show consciousness of guilt, State v. Harris, 521 N.W.2d 348, 353 (Minn. 1994), and to explain a witness's inconsistent statements, State v. Clifton, 701 N.W.2d 793, 797 (Minn. 2005) (quoting United States v. Thomas, 86 F.3d 647, 654 (7th Cir. 1996)). It is possible to interpret this voicemail message as a threat against a witness and, therefore, we conclude that the court did not abuse its discretion in implicitly determining that it was relevant. We also defer to the district court's implicit finding that the recording was not unduly prejudicial. The district court was in the best position to evaluate the prejudicial nature of this evidence. Cf. State v. Gaulke, 281 Minn. 327, 330, 161 N.W.2d 662, 664 (1968) (noting that the trial judge was in the best position to evaluate the prejudicial nature of a closing argument).
A third recording admitted over Mayhorn's objection was his statement to an unidentified female to "keep [Shawnee Johnson] away from the police right now." Shawnee Johnson had been with Mayhorn in the early morning hours of August 29. She was not called as a witness by the state or the defense, but from her involvement with Mayhorn it is fair to conclude that the police may have wanted to interview her. A defendant's attempt to prevent a person from participating in a police investigation may be relevant to show consciousness of guilt. See Harris, 521 N.W.2d at 353 & n.6. We conclude that this attempt to keep Shawnee Johnson away from law enforcement tended to show a consciousness of guilt and, therefore, it was relevant. Further, we conclude that the content of this recording was not unfairly prejudicial and, therefore, the court did not abuse its discretion in admitting this recording.
We address Mayhorn's final claim of evidentiary error, that the court erred by admitting a recorded conversation in which Mayhorn describes "an ugly shootout" with a person named "T.J." without requiring a Spreigl analysis. See State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). The state sought to admit this evidence to show the past relationship between Mayhorn and Jordan, who was known as "T.J." The state essentially argues that relationship evidence involving a prior bad act is not subject to the notice requirements under Spreigl. We need not determine in this case whether relationship evidence is subject to the notice requirement of Spreigl because the state failed to establish by clear and convincing evidence that the referenced shoot-out involved Jordan.*fn4 See State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999) ("Character evidence which tends to show the 'strained relationship' between the accused and the victim is relevant to establishing motive and intent and is therefore admissible. Prior to admitting such evidence, the trial court must determine that there is clear and convincing evidence that the defendant committed the prior bad act * * *" (internal citations and quotation marks omitted)). If the state intends to present relationship evidence, it bears the burden of proving that the incident at issue actually involved the relevant parties in the present case. The evidence otherwise has no probative value as relationship evidence.
Mayhorn did not dispute that he participated in a shoot-out with an individual identified as "T.J.," but he denied that T.J. was Jordan. The state did not present clear and convincing evidence that Jordan was the person referred to by Mayhorn as T.J., the person involved in the shoot-out. The only evidence from the state on this point came from Nicole Jordan during questioning by the state:
Q: Okay. So do you know of any conflict between your brother and [Mayhorn] when they were down in Kok[o]mo?
A: He mentioned a couple of times that they got into it, you know. He wouldn't get into deep details * * *.
Q: Now, you told us that you had talked to your brother and he said there was some conflict down in Kok[o]mo, is that right?
Q: And that was between him and [Mayhorn]?
Q: Did your brother ever tell you that he ...