State v. Coker, No. A06-1531 (Minn. App. 11/27/2007)
| Decision Date | 27 November 2007 |
| Docket Number | No. A06-1531.,A06-1531. |
| Parties | State of Minnesota, Respondent, v. Marcel Nigel Coker, Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Olmsted County, File No. K1-05-4054.
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, (for appellant)
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, and Mark A. Ostrem, Olmsted County Attorney, (for respondent)
Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Stoneburner, Judge.
UNPUBLISHED OPINION
Appellant challenges his convictions of second-degree assault and unlawful possession of a firearm, arguing that (1) the district court abused its discretion by permitting the state to cross-examine him about his probationary status; (2) the district court failed to give the required accomplice testimony instruction; and (3) the evidence at trial was insufficient to find him guilty beyond a reasonable doubt. We affirm.
Based on an incident during the early hours of October 2, 2005, appellant Marcel Coker was charged with one count each of second-degree assault, Minn. Stat. § 609.222, subd. 1 (2004); terroristic threats, Minn. Stat. § 609.713 (2004); and unlawful possession of a firearm, Minn. Stat. § 624.713, subds. 1(b), 2 (2004) ().1 According to the complaint, Coker attempted to settle an argument by firing a gun into the air. When the incident occurred, Coker was on probation for an unrelated second-degree assault of which he had been convicted several months earlier.
Before trial, the state moved to introduce evidence of Coker's prior conviction of second-degree assault for impeachment purposes if he chose to testify. During argument on the motion, the state "indicate[d] as an aside" that it also intended to cross-examine Coker about his probationary status, citing our decision in State v. Johnson, 699 N.W.2d 335 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005). The state planned to demonstrate that Coker, like the defendant in Johnson, "had a motive to lie about his failure to remain law abiding, namely, to avoid a substantial jail sentence for violating a condition of probation." The district court ruled that, if Coker elected to testify, the state would be permitted to ask Coker whether he is on probation for "assault" and then question him about the terms of his probation.
During the jury trial, witness credibility was a major focus. The victim, Angela Burt, had consumed alcohol before the incident. Like Coker, two others, Jerry McCloud and Frances Brennan, were charged with assault and terroristic threats for their role in the incident. After his arrest, McCloud initially told officers that he had not seen Coker with a gun. But he later recanted and testified against Coker as part of a plea agreement. The witnesses' accounts contained several inconsistencies.
According to the testimony of the state's witnesses, an argument began at approximately 2:00 a.m. outside Brennan's home after Brennan's boyfriend, McCloud, told Brennan that Burt had been flirting with him at a nearby SuperAmerica. What began as an argument between Brennan and Burt soon escalated into a physical confrontation. Brennan and Burt then resumed arguing about a missing purse. When a car occupied by unknown men pulled up nearby, McCloud became concerned. Believing that these men were there to defend Burt, McCloud called Coker for assistance if necessary. Coker agreed to come to the scene, and McCloud sent Brennan to pick up Coker. When Brennan returned with Coker approximately 30 minutes later, Coker approached Burt, drew a gun, and pointed it skyward. Coker then asked Burt where "all [her] boys" were and what she was going to do. He fired two shots into the air before retreating into Brennan's house. McCloud and Brennan also went inside the house. After turning off the lights, they hid in the basement to make it appear to the police that no one was at home.
Sgt. Thomas Kaase was conversing with another officer when he heard what he believed to be gunshots, followed by people yelling. These sounds appeared to originate from one or two blocks southeast of their location. Sgt. Kaase drove his squad car toward the commotion. En route, he received information that a fight had broken out near the SuperAmerica. When Sgt. Kaase arrived on the scene a minute later, he was joined by a number of other officers, including Officer Michael Drees. After learning that Coker, Brennan, and McCloud had entered the house, Officer Drees knocked on Brennan's front door. No one answered the door, and the interior remained dark. Shortly thereafter, the Emergency Response (SWAT) and Crisis Negotiation Units were called.
The units arrived with a large command vehicle and set up their operations at approximately 7:00 a.m. Sgt. Craig Anderson, a crisis negotiator, attempted to contact Brennan and McCloud by telephone, using various telephone numbers. At 9:25 a.m., Sgt. Anderson called Brennan's residence and left a message stating that the police were outside and needed to speak with the occupants. Sgt. Anderson made several additional calls in rapid succession. But no one answered. When Coker exited the house approximately one minute later, he was arrested.2
A forensic test disclosed the presence of particles containing lead, barium, and antimony on Coker's hands. This combination of elements is unique to primer gunshot residue.
Coker testified and offered a very different version of events. According to Coker, he had arrived at Brennan's house before his 9:00 p.m. curfew, which, he explained, was a condition of his probation for a prior conviction of assault. At Brennan's house, Coker played cards in the basement with Burt and her boyfriend.
Coker became aware of an argument between Brennan and Burt over a missing purse. And sometime thereafter, Brennan and Burt took their disagreement outside. Coker testified that he declined their invitation to come along because it would violate his curfew. Coker maintained that he remained in the house for the rest of the night. Coker testified that he was asleep by 11:00 p.m., and he did not recall hearing an argument or any commotion outside that night. Coker maintained that he was unaware that an entire SWAT team was surrounding the house until officers in riot gear came "outta nowhere with AKs and . . . M-16s" and arrested him as he left. Between Coker's testimony on direct- and cross-examination, the district court cautioned the jury that information about Coker's probation may be used for the limited purpose of assessing his credibility.
The closing arguments focused heavily on witness credibility. The state urged the jury to consider the larger picture when evaluating the evidence, arguing that, despite some inconsistent details, the testimony of every witness except Coker established a coherent narrative of the events. The defense countered by highlighting the discrepancies in the testimony, as well as the self-interested motives of the two cooperating witnesses.
During the final jury instructions, the district court cautioned the jurors about the limited purposes for which Coker's prior conviction could be used. And although Brennan, McCloud, and Coker had been charged with terroristic threats, Coker's counsel did not seek, nor did the district court sua sponte give, the jury an instruction on accomplice testimony.
The jury returned a guilty verdict on each of the submitted charges. The district court subsequently dismissed the terroristic threats count, finding it to be a lesser-included offense of assault, and imposed concurrent sentences on the remaining counts. This appeal followed.
Coker challenges the district court's pretrial ruling permitting the state to cross-examine him about his probationary status. The district court's ruling on an evidentiary matter rests within its sound discretion. State v. Moua, 678 N.W.2d 29, 37 (Minn. 2004). We will not reverse an evidentiary ruling absent a clear abuse of that discretion. Id.
In State v. Johnson, we held that impeachment of a defendant with evidence of his status as a probationer is not an abuse of discretion. 699 N.W.2d 335, 339 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005). Coker now urges us to reach the opposite conclusion. We decline to do so.
The Johnson court held that a defendant, like any other witness who takes the stand, may be impeached by evidence of probationary status as a motive to testify falsely. Id. Indeed, the threat of a substantial term of incarceration for violating the conditions of probation, such as remaining law-abiding, may provide a witness with a particularly strong incentive to lie about any acts that violate the terms of probation. Id. Thus, when a defendant testifies, evidence regarding the defendant's probation status is admissible. Id. (citing Minn. R. Evid. 616).
The rule of Johnson recognizes a well-established principle: when a defendant places the credibility of his testimony at issue, the state may show the jury why a finding of credibility might be misplaced. A criminal defendant has an "absolute right" not to testify on his own behalf. State v. Aubid, 591 N.W.2d 472, 477 (Minn. 1999) . But by opting to waive this right, a defendant "may open the door to otherwise inadmissible evidence which is damaging to [the defendant's] case." Brooks v. Tennessee, 406 U.S. 605, 609, 92 S. Ct. 1891, 1893 (1972) (quotation omitted). Providing testimony obligates the defendant to speak truthfully and accurately and subjects the defendant's testimony to the "traditional truth-testing devices of the adversary process." See Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643,...
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