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United States v. Smith

United States District Court, D. Minnesota

April 24, 2018

United States of America, Plaintiff,
Michael Allen Smith, Defendant.

          Michael Cheever, for Plaintiff United States of America

          Shannon R. Elkins, for Defendant Michael Allen Smith



         Pending before the Court is the Motion for a New Trial filed by Defendant Michael Allen Smith [Doc. No. 120]. An evidentiary hearing was held on this matter on December 19, 2017, during which Defendant offered the testimony of two jurors, A.J. and D.B. (See Dec. 19, 2017 Redacted Hr'g Tr. at 16-25; 27-56 [Doc. No. 152].) For the reasons set forth below, Defendant's motion is granted.


         In July 2012, defendant Michael Smith, an African American male, was charged by indictment with one count of being a felon in possession of a firearm and one count of illegally possessing a short-barreled shotgun. (See Indictment [Doc. No. 1].) Smith proceeded to a jury trial, which was held from December 12 to 14, 2012. (See Trial Minutes [Doc. Nos. 77-78, 83].)

         A. Voir Dire

         Prior to trial, the Court conducted the voir dire of the jury venire. (See Dec. 12, 2012 Voir Dire Tr. [Doc. No. 107].) The venire members were sworn to tell the truth, were encouraged to be forthright, and were invited to speak with the Court and the parties at sidebar about any sensitive topics. (Id. at 3-6.) Several jurors requested sidebars to respond to sensitive questions. (Id. at 51, 57-58, 63, 66, 74.) At Smith's request, the Court also permitted counsel for both sides to conduct fifteen minutes of voir dire after the Court's voir dire. (See Id. at 81-96, 128-35, 146-47.) The Court struck nine venire members for cause. (Id. at 98-117, 136-41.)

         The Court instructed the prospective jurors that the purpose of voir dire was to ensure the selection of a fair and impartial jury. (See Id. at 4, 5, 117, 121.) The venire members disclosed information concerning their experiences with, and attitudes toward, the police, North Minneapolis, and African Americans, (see Id. at 47, 74-76, 77, 78-79, 84, 86, 87); their personal experiences with crime, (id. at 43, 44, 45, 47-48, 51, 58, 66, 88-89, 90, 118-121, 130-32); and their attitudes about firearm offenses (id. at 64, 74, 80, 123-24, 137).

         Smith proposed voir dire questions regarding his race and the ability of jurors to be fair to him. (See generally Def.'s Proposed Voir Dire [Doc. No. 46].) The Court advised the jury that Smith is African American, and twice asked if his race would affect their ability to reach a fair and impartial verdict. (Dec. 12, 2012 Voir Dire Tr. at 74-76.) The Court further asked whether any juror believed that African Americans were more likely than others to possess guns. (Id. at 76). Additionally, the Court asked whether the prospective jurors' experiences with African Americans-through work, school, residence, or otherwise-might impact their ability to be fair in this case. (Id. at 76-77.) Neither the Government nor defense counsel supplemented the Court's venire with additional inquiries regarding race.

         During attorney voir dire, defense counsel asked venire members whether they lived or worked in North Minneapolis. (Id. at 82-84, 128-29.) Several, including two who served on the jury, had such experience: Juror D.B. delivered flowers in North Minneapolis, (id. at 82-83), and Juror B.C. attended church there and drove a bus for children in the neighborhood to attend the church. (Id. at 84.)

         Upon being empaneled, each member of the jury venire swore another oath to be fair and impartial and to follow the Court's instructions. (Id. at 149.)

         B. Trial

         At trial, the evidence established that Smith lived in North Minneapolis and was a convicted felon. (See Trial Tr. at 307, 338.[1]) He was previously convicted of third-degree murder in Minnesota in 2001, and in 2005 and 2006 was convicted of fourth degree assault in Minnesota based on attacks made on prison guards while serving his murder sentence. (See Indictment Count 1.) The Court redacted the Indictment presented to the jury so it would only allege that Smith had previously been convicted of a single, unidentified felony. (See Jury Instructions at 11 [Doc. No. 84]; Trial Tr. at 394.) Smith entered a stipulation pursuant to Old Chief v. United States, 519 U.S. 172 (1997), admitting to a felony conviction prior to the date of the crime charged in Count 1. (See Jury Instructions at 13; Trial Tr. at 397.)

         The Government's primary fact witnesses were two Minneapolis police officers, Sean Lessard and George Warzinik. At approximately 9:15 p.m. on April 28, 2012, they and several other officers responded to the area around North 26th Avenue and Penn Avenue North in Minneapolis, looking for suspects in an armed robbery that had just occurred near a gas station. (Trial Tr. at 23.) The suspects were initially described as three black men, one of whom possessed a silver gun and at least one of whom was wearing a black “hoodie.” (Id. at 62, 301.)

         Initially, Officers Lessard and Warzinik saw Smith from behind as he was walking northbound on the west side of Oliver Avenue, just north of 27th Avenue. (Id. at 29-30, 115-16.) Warzinik testified that Smith was not wearing a black hoodie, nor was he in the company of two other people. (Id. at 62-63.) The officers testified that Lessard briefly shined a very bright spotlight on Smith. (Id. at 30-31, 154.) After seeing Smith look back at them in response to the spotlight, they testified that Smith immediately changed direction, walking northwest through an empty lot, toward an alley. (Id. at 30, 115-16.) Both officers testified that they then saw Smith remove a long object from his pants, discard the object in the lot, then sprint away, north up the alley. (Id. at 31, 116.)

         Officers Lessard and Warzinik stopped their squad car near the empty lot. (Id. at 27, 116-17, 157-58.) Lessard pursued Smith on foot, calling out Smith's location on his radio as he ran. (Id. at 116, 157.) Warzinik testified that while the chase was underway, he retrieved the object that he saw Smith discard-a semi-automatic, 20-gauge, short-barreled shotgun. (Id. at 32-33.) Warzinik also recovered a plastic baggie with five 20-gauge shotgun shells from the same location. (Id. at 32-35.) Warzinik then drove the squad car to the area where Smith was apprehended. (Id. at 66.)

         No physical or forensic evidence linked Smith to the recovered gun. (See id. at 179-81.) Rather, the Government's forensic expert testified that the forensic samples taken from the gun contained a mixture of DNA from two or more people, but excluded Smith. (Id.)

         Smith testified that on the night of April 28, 2012, he was walking north on Oliver Avenue. (Id. at 328.) One of Smith's neighbors, Margaret Little, testified that on that night, around 9:15, she was also outside with her pet dog. (Id. at 150-51.) From her vantage point near an empty lot at 2719 Oliver Avenue, she observed Smith walking on the sidewalk. (Id. at 151-53.) She testified that he was casually walking with a normal gait, and not with the gait of a person concealing a gun in his pants. (Id. at 151-53, 172.) As he approached her within arm's length, Ms. Little observed no visible weapon on Smith's person. (Id. at 153.) Both Smith and Little testified that they exchanged brief pleasantries, commenting on either a stray black cat or Ms. Little's dog. (Id. at 154, 328.)

         Smith testified that after he left Ms. Little, he continued on his walk, with his eyes on his cell phone, as he was about to send a text to his girlfriend. (Id. at 328.) As he drew closer to his neighbor's house, he testified that he heard an engine “revving up behind me.” (Id.) Smith said he “got terrified” because, “[t]he first thing that went through my mind was drive-by [shooting]. (Id. at 329, 331, 334.) He stated that North Minneapolis is a “violent neighborhood, ” and he did not want to become a crime victim. (Id. at 334.) Ms. Little also testified to high levels of crime in the neighborhood. (Id. at 144-146.)

         After hearing the car, Smith said that he looked over his shoulder and did not see anything, but immediately started running. (Id. at 331.) Smith testified that he first ran away from Oliver Avenue, then north up the alley. (Id. at 331-34, 349.) Rather than running through the empty lot, Smith testified that he ran between the two houses just north of the empty lot, specifically 2723 Oliver Avenue and his own house, 2727 Oliver Avenue. (Id. at 331-35.)

         Smith stated that he sprinted past about three houses in the alley, including the back door of his home. (Id. at 334, 349.) He felt that he might not be able to get into his house because he lacked keys to the front door, and the back door could be locked, putting him at risk of “get[ting] shot down.” (Id. at 334.) Smith then turned east, cutting through a yard and across Oliver Avenue. (Id. at 334-35.) Smith stated it was then that he realized that the car whose engine he had heard was a squad car and that a police officer was chasing him. (Id. at 335.) Smith also admitted that he could hear Officer Lessard yelling “Police!” and ordering him to stop, but Smith continued to flee. (Id.) He zig-zagged east through a yard on the east side of Oliver, north through the alley between Oliver and Newton Avenue North, then east again, through a yard near 2815 Newton, and north again, in front of the house. (Id. at 117-18, 335-36, 342-43.)

         As he emerged in front of 2815 Newton, officers saw Smith and arrested him. (Id. at 219-23.) A K-9 squad arrived on the scene to look for any discarded stolen property in the area, but found nothing. (Id. at 225.)

         At trial, Smith admitted that he saw a gun in his house on April 28, in the afternoon and later in the evening, around 9:15 p.m. (Id. at 314-15.) He testified that it looked like the gun admitted in evidence as Government Trial Exhibit 1. (Id. at 315.) Smith testified that around 3:00 p.m. on April 28, he spoke with three others at the house about a robbery that one of them, NaGary, was planning of the house directly across the street. (Id. at 313.) NaGary was the brother of Smith's roommate Nikia, and did not live at the house. (Id. at 312-13.) According to Smith, his neighbors ran drug sales and prostitution out of their house. (Id.) Smith advised NaGary that his robbery plan was stupid and dangerous, because Smith, who lived in the house, would have to contend with any resulting fallout with the neighbors. (Id.) Smith said that he saw NaGary place the gun behind the sofa at that time. (Id. at 313-15.)

         Smith further testified that later that evening, around 9:00 p.m., his roommate Nikia summoned him downstairs, explaining that he had just seen three men run by the house, “acting like they had guns.” (Id. at 319.) At Smith's suggestion, he and Nikia went outside to investigate. (Id. at 320-21.) Finding no one there, Smith testified that he decided to go for a walk. (Id. at 321.) Both he and his neighbor Ms. Little testified that while Smith was walking past Little's house, they exchanged brief pleasantries. (Id. at 153-54.) Little did not observe any weapon on Smith's person, and testified that he was walking in his usual manner. (Id.; 172.) Little testified that shortly after Smith passed, a young man with a red hat appeared out of nowhere. (Id. at 161, 170.) She was uncertain whether he appeared before the police arrived or after. (Id.)

         Smith testified that as he walked near his house, he saw NaGary come out of the back door. (Id. at 323.) Smith said that NaGary was walking stiffly on one side, and Smith assumed that NaGary had hidden the short-barreled shotgun in his pants leg. (Id. at 323-24.)

         Once Smith testified, the Court admitted evidence of his three prior felony convictions pursuant to Federal Rule of Evidence 609. The jury was allowed to consider the convictions in assessing Smith's credibility. (Jury Instructions at 9; Trial Tr. at 393.) The government sought to introduce evidence of the types of crimes for which Smith had been convicted. (See Gov't's Trial Mem. at 4-6 [Doc. No. 55].) At Smith's request, however, the Court limited the Rule 609 evidence to the fact that he was convicted of three felonies and the year of each conviction. (See Def.'s Mot. in Limine to Limit 609 Ev. [Doc. No. 61]); Dec. 7, 2012 Order at 1-5 [Doc. No. 71].) No. evidence of the nature of his prior convictions or the length of his sentences was introduced at trial.

         The jury began its deliberations at 1:17 p.m. on Friday, December 14, before its lunch break. It returned its verdict at 6:15 p.m. (Trial Tr. at 409-10.) The jury found Smith guilty on both counts. (Id. at 411.) The Court polled the jury, and each juror confirmed their agreement on the verdict. (Id.)

         C. Motion for a New Trial

         On March 15, 2017, the Court received an email from D.B., who had served as the foreperson of the jury. D.B. had recently become aware of the U.S. Supreme Court's decision in Peña-Rodriguez v. Colorado, 137 S.Ct. 855 (2017), describing it as a case “dealing with racial remarks made during jury deliberation.” (See Court's Mar. 17, 2017 Letter at 2 [Doc. No. 129-1], Def.'s Ex. 1 to Reply.) D.B. expressed interest in talking to someone about this ruling, “as it could pertain to [Smith's] case, ” because “[a] racial remark was made ...

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