State v. Mahkuk, A05-1520.

• Decision Date: 09 August 2007
• Docket Number: No. A06-2087.,No. A05-1520.,A05-1520.,A06-2087.
• Citation: 736 N.W.2d 675
• Parties: STATE of Minnesota, Respondent, v. Edison Joseph MAHKUK, Appellant, and Edison Joseph Mahkuk, petitioner, Appellant, v. State of Minnesota, Respondent.
• Court: Minnesota Supreme Court

736 N.W.2d 675

STATE of Minnesota, Respondent, v. Edison Joseph MAHKUK, Appellant, and Edison Joseph Mahkuk, petitioner, Appellant, v. State of Minnesota, Respondent.

No. A05-1520.

No. A06-2087.

Supreme Court of Minnesota.

August 9, 2007.

John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, Office of the State Public Defender, Minneapolis, MN, for Appellant.

Lori Swanson, Attorney General, St. Paul, MN, Michael O. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for Respondent.

OPINION

PAGE, Justice.

Appellant Edison Joseph Mahkuk appeals his conviction for aiding and abetting the November 26, 2004, shooting deaths of Del Anthony Benjamin and Joseph George Burns. A Hennepin County jury found Mahkuk guilty of one count of first-degree premeditated murder and one count of first-degree premeditated murder for the benefit of a gang for both the death of Benjamin and the death of Burns. See Minn.Stat. §§ 609.185(a)(1); 609.229, subd. 2 (2006). The district court merged the two counts with respect to each victim, entered judgments of conviction for first-degree premeditated murder for the benefit of a gang for each victim, and sentenced Mahkuk to two consecutive terms of life in prison. Mahkuk appealed his conviction but subsequently had his direct appeal stayed pending the resolution of his petition for postconviction relief. The postconviction court denied the petition.

In this consolidated appeal, Mahkuk raises seven issues, six relating to his direct appeal and one relating to the denial of his petition for postconviction relief. With respect to his direct appeal, Mahkuk argues that: (1) the trial court's jury instruction regarding aiding and abetting first-degree murder was an abuse of discretion; (2) the trial court violated his constitutional rights when it excluded members of his family from the courtroom for part of the trial; (3) the trial court abused its discretion by admitting gang expert testimony; (4) the trial court abused its discretion in ruling that the state could elicit testimony regarding Mahkuk's previous arrest; (5) the trial court abused its discretion by declining to compel the state to accept Mahkuk's stipulation that he was a member of a criminal gang; and (6) the trial court abused its discretion in declining to declare a mistrial after a witness referenced inadmissible evidence. With respect to the denial of his petition for postconviction relief, Mahkuk asserts that the newly available testimony of his alleged accomplice entitles him to postconviction relief in the form of a new trial and that, in denying him that relief, the postconviction court abused its discretion. We conclude that the trial court abused its discretion in the instruction it gave the jury regarding aiding and abetting first-degree murder and, on that basis, we hold that Mahkuk is entitled to a new trial.

The events leading to the shooting deaths of Benjamin and Burns began at around 6:30 or 7:00 p.m. on November 26, 2004, when Mahkuk, Vincent Williams, Mike McFarlane, and Marcel Rainey went to the Little Earth Housing Complex (Little Earth) in Minneapolis to drop off McFarlane's girlfriend. From that point until 4:00 the next morning, there is no evidence in the record regarding Mahkuk's whereabouts or activities.

At approximately 4:00 a.m., a group of individuals including Burns, Benjamin, Douglas Jackson Ellis, Anthony Jackson, and Brino Gamboa, who had been drinking at various places throughout the night, was walking through the courtyard area of the Little Earth complex. Burns and Benjamin stopped and began talking to Jena White. White, who had also been drinking, was standing on a balcony overlooking the courtyard. Shortly thereafter, another group of individuals approached. There is conflicting testimony about who was in this second group, but a number of witnesses identified Mahkuk as being one of the people in the group. The testimony from these witnesses did not, however, provide a clear picture of what role, if any, Mahkuk played in the events that resulted in the shootings.

On direct examination, White testified that she was talking to the victims from her balcony when she decided to let them into the building. According to White, she went to open the door to the building and was halfway down the hall when she heard two gunshots. White testified that she then ran back onto the balcony and saw "the Indian boys shooting them." White clarified that the "boys" she was referring to were McFarlane, Williams, and Mahkuk. Although White testified on direct examination that she saw all three of the individuals shooting at the victims, on cross-examination, she confirmed that immediately after the shooting she told police that she did not know who shot Burns but that she knew that "there was two of them shooting towards him." She further confirmed that when the police asked her which two, she told them, "I just seen Vinny and Mike shooting towards Joey."

Anthony Jackson also placed Mahkuk at the scene. Jackson testified that Mahkuk and McFarlane were with Williams and that Mahkuk had a revolver and McFarlane had an automatic pistol. In a previous statement, Jackson did not identify Mahkuk and Williams as the two assailants with McFarlane; instead, he indicated that one of the other two individuals was either Williams or Rainey. Jackson testified that he was unsure about the identity of the second person because Williams and Rainey look alike. On cross-examination, Jackson testified that he spoke with Jena White after the shooting and she told him the three assailants were McFarlane, Doug Funny, and Mahkuk, and that White later told him that Funny was not in the group, rather it was Williams.

Brino Gamboa testified that while he was standing in the courtyard, McFarlane, Mahkuk, and Williams approached. Gamboa testified that McFarlane had a gun but Mahkuk did not.

Larry Marshall, who had shared a jail cell with Mahkuk, also testified for the state. Marshall said that Mahkuk told him that when the group arrived at Little Earth they saw the victims and their friends, ran over to the group, and "[McFarlane] had got jumped by one of them and [Rainey] had got jumped by one of them * * * so they just gunned them down." Marshall further testified that Mahkuk told him that he and his friends were mad at Gamboa for stealing guns and money from them.

McFarlane and Williams were also charged with the murders of Burns and Benjamin. McFarlane, whose trial had not taken place at the time of Mahkuk's trial, did not testify at Mahkuk's trial. Subsequently, however, McFarlane took the stand at his own trial and testified in his defense that he went to Little Earth with Rainey and Mahkuk. McFarlane testified that Burns approached Rainey and began wrestling with him. According to McFarlane, Rainey then pulled a gun and began shooting. McFarlane testified that he had no knowledge that Rainey was going to shoot someone. McFarlane also testified that Williams was not present during the shooting. McFarlane gave essentially the same testimony at Williams' trial, which also took place after Mahkuk's. Both McFarlane and Williams were acquitted.

I.

We first address Mahkuk's claim that the trial court erred in instructing the jury on aiding and abetting first-degree murder. During Mahkuk's trial, the court twice instructed the jury on aiding and abetting, first in its preliminary instructions to the jury given before the state opened its case and then in its final instructions given after both parties rested. Over defense counsel's objection, the court declined to use only the standard CRIMJIG¹ for aiding and abetting and instead gave an instruction that, in part, tracks the standard CRIMJIG for aiding and abetting,² but includes the following additional language:

In determining whether the defendant intentionally aided and abetted in the commission of the crimes charged, you may consider the following factors:

The defendant's companionship and association with the other participants in the crime before, during, and after its commission;

The defendant's conduct before, during, and after the crime;

Whether the defendant knew that a crime was going to be committed by the other participants;

Whether the defendant took reasonable steps to prevent the crime from being committed;

Whether the defendant intended his presence or acts to encourage or further the completion of the crime by the other participants;

And any other common sense factor that leads you to conclude that the defendant was a knowing participant in the commission of the crime.

Mere presence at the scene of a crime, without more, is not enough for you to impose liability under the aiding and abetting law. Such a person is merely a witness. However, a person's presence does constitute aiding and abetting if it is done intentionally and if it also aids or encourages the commission of the crime to any degree.

Mahkuk asserts that the court's aiding and abetting instructions "improperly highlighted evidence supporting the state's theory of the case and were confusing, misleading, and inaccurate." Mahkuk also asserts that by including knowledge and intent in the list of factors the jury need only consider, the court relieved the state of its burden to prove his knowledge and intent beyond a reasonable doubt. Further, Mahkuk asserts that the last paragraph of the instruction misstated the law. Mahkuk argues that the erroneous instruction significantly influenced the jury's verdict thus warranting a new trial. The state asserts that the court's instructions fairly and correctly stated Minnesota law.

Trial courts have considerable latitude in choosing jury instructions. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). We will not reverse a trial court's decision on jury instructions unless the trial court abused its discretion. State v. Persitz, 518 N.W.2d 843, 848 (Minn.1994)....