Hennepin County Office of Appellate Courts
Lori Swanson, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Elizabeth Johnston, Assistant County Attorney, Minneapolis, Minnesota, for respondent.
Frederick J. Goetz, Gregory J. Young, Goetz & Eckland P.A., Minneapolis, Minnesota, for appellant.
1. The record contains sufficient evidence to support the appellant's conviction of first-degree felony murder while committing a drive-by shooting for the benefit of a gang.
2. The district court's jury instructions on accomplice liability did not constitute reversible error.
3. The appellant did not prove that his waiver of his right to testify was either unknowing or involuntary.
4. The decisions by trial counsel to tell the jury during his opening statement that the appellant would testify and later to advise the appellant not to testify did not constitute ineffective assistance of counsel under the facts and circumstances of this case.
5. The district court did not abuse its discretion when it denied the appellant's motion for a mistrial.
6. The postconviction court did not err when it denied an evidentiary hearing on the appellant's claim that the district court violated his right to a public trial.
7. The jury's verdicts are not legally inconsistent.
In a consolidated appeal, appellant Christopher Dineaa Bahtuoh challenges his conviction of first-degree felony murder while committing a drive-by shooting for the benefit of a gang. In his direct appeal, Bahtuoh argues that the record contains insufficient evidence to support his conviction. In his postconviction appeal, Bahtuoh argues that the district court misstated the law when it instructed the jury on accomplice liability, that trial counsel coerced him into not testifying at trial, that he received ineffective assistance of trial counsel, and that the district court abused its discretion when it denied his motion for a mistrial. Bahtuoh also argues in a pro se supplemental brief that the jury's verdicts are legally inconsistent and that the postconviction court erred when it denied an evidentiary hearing on his claim that the district court violated his right to a public trial. We affirm.
On the evening of April 28, 2009, Kyle Parker was at his mother's home in Minneapolis with two other men from his neighborhood, A.M. and N.A. While the three men were outside, Bahtuoh drove past the home, turned his car around, and then drove toward them. Bahtuoh, who knew Parker, opened a car window and called for Parker. As Parker approached the car, Bahtuoh's passenger—later identified as Lamont McGee—shot Parker multiple times. Bahtuoh then drove away, speeding through a stop sign. After Parker's sister learned of the shooting, she ran to Parker. Parker told her that Bahtuoh was responsible for the shooting. Parker died later that evening from the gunshot wounds.
Bahtuoh and his attorney met with the police approximately 6 weeks later. Bahtuoh waived his right to remain silent and denied any involvement in the shooting. The next day, the State charged Bahtuoh by complaint with intentional second-degree murder. See Minn. Stat. § 609.19, subd. 1(1) (2012). Bahtuoh admitted during a second conversation with the police that he was present at the scene of the shooting, drove the car, and fled the scene. Bahtuoh testified before a grand jury, which indicted him on four counts of first-degree murder, including first-degree felony murder while committing a drive-by shooting for the benefit of a gang, Minn. Stat. §§ 609.185(a)(3) (2012), 609.229, subd. 2 (2012), and two counts of second-degree murder. On all six counts, the indictment charged Bahtuoh as both a principal and an accomplice.
At the jury trial that followed, defense counsel repeatedly told the jury during his opening statement that Bahtuoh would testify. Nevertheless, Bahtuoh later waived his right to testify and presented no witnesses in his defense. The jury found Bahtuoh not guilty of two of the counts of first-degree murder, but guilty of the four remaining counts of the indictment. The district court convicted Bahtuoh of each of the four counts on which the jury found him guilty, but sentenced him only on the count of first-degree felony murder while committing a drive-by shooting for the benefit of a gang. The district court sentenced Bahtuoh to life imprisonment with the possibility of release after 31 years. See Minn. Stat. §§ 609.185(a)(3), 609.229, subd. 2; see also Minn. Stat. § 244.05, subd. 4(b) (2012).
We stayed Bahtuoh's direct appeal to permit him to file a petition for postconviction relief. State v. Bahtuoh, No. A10-1584, Order at 1 (Minn. filed Nov. 16, 2010). In his postconviction petition, Bahtuoh alleged that the district court misstated the law when it instructed the jury on accomplice liability, that he did not voluntarily waive his right to testify, that he received ineffective assistance of trial counsel, that the district court should have granted a mistrial because the prosecutor committed misconduct, and that the district court violated his right to a public trial. The postconviction court granted an evidentiary hearing to Bahtuoh on his allegation that he did not voluntarily waive his right to testify, but summarily denied relief to Bahtuoh on the remaining claims.
At the postconviction evidentiary hearing, Bahtuoh was the only witness who testified. Bahtuoh said that he was "shocked" and "confused" when, at a meeting the night before the State rested its case, defense counsel told Bahtuoh that he had decided not to have Bahtuoh testify. Bahtuoh also stated that defense counsel never advised him about the advantages and disadvantages of testifying. According to Bahtuoh, defense counsel simply instructed him to "say nothing other than [that he] understood the questions that [he] was being asked" when he was questioned about his decision not to testify on the record. The postconviction court found Bahtuoh's testimony unpersuasive and denied his petition for postconviction relief. Bahtuoh appealed the denial of his petition for postconviction relief, and we have consolidated Bahtuoh's direct and postconviction appeals into a single proceeding to facilitate review. State v. Bahtuoh, Nos. A10-1584, A12-1281, Order at 1 (Minn. filed Aug. 1, 2012).
The first question presented by this case is whether the State presented sufficient evidence to support Bahtuoh's conviction of first-degree felony murder while committing a drive-by shooting for the benefit of a gang. See Minn. Stat. §§ 609.185(a)(3), 609.229, subd. 2. Although the indictment charged Bahtuoh both as a principal and as an accomplice, the evidence at trial showed that Bahtuoh did not shoot Parker. Therefore, the parties agree that we should address the sufficiency of the evidence only with respect to Bahtuoh's liability as an accomplice. Bahtuoh's challenge focuses on whether the evidence was sufficient to prove beyond a reasonable doubt that he intentionally aided McGee, the man who shot Parker.
When considering a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and assume that the jury disbelieved any evidence that conflicts with the verdict. State v. Thomas, 590 N.W.2d 755, 757 (Minn. 1999). We will uphold the verdict if the jury, "giving due regard to the presumption of innocence and to the state's burden of proof beyond a reasonable doubt, could reasonably have found the defendant guilty of the offense charged." Id. at 757-58.
The State ordinarily proves a criminal defendant's mental state by circumstantial evidence. State v. Schneider, 402 N.W.2d 779, 782 (Minn. 1987). This case is no exception: the State relied solely on circumstantial evidence to prove that Bahtuoh intentionally aided McGee in the commission of first-degree felony murder while committing a drive-by shooting for the benefit of a gang. When a challenge is to the sufficiency of the circumstantial evidence supporting a conviction, we apply the following two-step analysis:
First, we must identify the circumstances proved, giving deference to the jury's acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proved by the State. Second, we independently examine the reasonableness of all inferences that might be drawn from the circumstances proved, including inferences consistent with a hypothesis other than guilt. Thus, our review consists of determining whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis except that of guilt.
State v. Anderson, 789 N.W.2d 227, 241-42 (Minn. 2010) (citations omitted) (internal quotation marks omitted). In applying the circumstantial-evidence standard, we must determine whether the circumstances proved by the State support a rational hypothesis that Bahtuoh acted as McGee's accomplice and are inconsistent with any rational hypothesis that Bahtuoh did not act as McGee's accomplice.
A defendant is guilty as an accomplice of an offense committed by another person if the defendant "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures [another person] to commit" the offense. Minn. Stat. § 609.05, subd. 1 (2012) (the "accomplice-liability statute"). The phrase "intentionally aids" in the accomplice-liability statute includes two "important and necessary principles: (1) that the defendant 'knew that his alleged accomplices were going to commit a crime, ' and (2) that the defendant 'intended his presence or actions to further the commission of that crime.' " State v. Milton, 821 N.W.2d 789, 805 (Minn. 2012) (quoting State v. Mahkuk, 736 N.W.2d 675, 682 (Minn. 2007)). A jury may infer the requisite state of mind from a variety of facts, including presence at the scene of the crime, a close association with the principal offender before and after the crime, a lack of objection or surprise under the circumstances, and flight from the scene of the crime with the principal offender. State v. Hawes, 801 N.W.2d 659, 668 (Minn. 2011).
Under the first step of the circumstantial-evidence standard, we identify the circumstances proved by the State, which are as follows. Bahtuoh and Parker were members of rival gangs that have a history of violent conflict. In the 2 hours immediately preceding the shooting, at least 13 calls were made from Bahtuoh's cell phone to telephone numbers that were associated with other known members of his gang. In the hours preceding the shooting, Bahtuoh drove his car from a known gang hangout to the location of the shooting at least three times.
At the scene of the shooting, Bahtuoh drove and positioned the car so that McGee was close to Parker. Bahtuoh then summoned Parker to the car. As Parker approached the car, Parker's friend, A.M., asked him whether everything was "cool." Parker said "yes" and told A.M. that Bahtuoh was a "nobody." Bahtuoh saw McGee pull out a gun and point it at Parker. Bahtuoh then saw McGee fire multiple close-range shots at Parker. In the seconds before, during, and after the shooting, Bahtuoh kept the car stationary and did not object, express surprise, or otherwise attempt to stop McGee from shooting Parker. Bahtuoh then fled the scene at high speed rather than attempting to assist Parker or call the authorities.
Shortly after the shooting, Bahtuoh met with a member of his gang whom he had called immediately before the shooting. In the hours that followed, at least three additional calls were made from Bahtuoh's cell phone to telephone numbers that were associated with known members of his gang. Bahtuoh also moved his car to a remote location, removed identifying information from the car, placed his cell phone in the trunk of the car, and lied to his girlfriend's family when he asked them for a place to stay. In addition, Bahtuoh lied to the police when he initially told them that he was not involved in Parker's shooting.
The second step of the circumstantial-evidence standard requires us to determine whether the circumstances proved are consistent with guilt and inconsistent with any rational hypothesis other than guilt. As applicable here, the circumstantial-evidence standard requires us to evaluate whether the circumstances proved lead to only one reasonable conclusion: that Bahtuoh kn ...