State v. Milton, No. A11–0809.

Citation821 N.W.2d 789
Decision Date19 September 2012
Docket NumberNo. A11–0809.
PartiesSTATE of Minnesota, Respondent, v. Javaris Eugene MILTON, Appellant.
CourtSupreme Court of Minnesota (US)

821 N.W.2d 789

STATE of Minnesota, Respondent,
Javaris Eugene MILTON, Appellant.

No. A11–0809.

Supreme Court of Minnesota.

Sept. 19, 2012.

[821 N.W.2d 793]

Syllabus by the Court

District court did not err when it admitted into evidence shell casings seized by the police from the back of defendant's multifamily residence, even though the seizure was warrantless, because the area where the shell casings were seized was not curtilage and the incriminating nature of the shell casings was immediately apparent to the police.

State did not commit prosecutorial misconduct when the State's opening statement to the jury complied with an agreement between the parties and the district court as to the admissibility of certain evidence, and the record does not indicate that the State was responsible for any improper redaction of a separate statement that the State published to the jury.

District court erred when it failed to instruct the jury that the jury could not find the defendant guilty of aiding and abetting unless the jury found that the defendant knew his alleged accomplices planned to commit a crime and that the defendant intended to aid in the commission of that crime; but, the district court's error did not affect the defendant's substantial rights because there was not a reasonable likelihood that the error had a significant effect on the jury's verdict.

Lori Swanson, Attorney General, Saint Paul, MN; and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for respondent.

David Merchant, Chief State Appellate Public Defender, Steven P. Russett, Assistant State Public Defender, Saint Paul, MN, for appellant.



On February 1, 2011, the Hennepin County District Court convicted Javaris

[821 N.W.2d 794]

Eugene Milton of one count of first-degree felony murder and one count of attempted first-degree felony murder. The court then sentenced Milton to: (1) life imprisonment with the possibility of parole for the murder of Dontae Johnson, and (2) a concurrent sentence of 220 months for the attempted murder of C.W. On appeal, Milton makes the following three arguments: (1) the district court erred by not suppressing shell casings seized from the back stairway of Milton's multifamily residence, (2) the State committed prosecutorial misconduct when it referenced shell casings found in Milton's truck, and (3) the district court erred when it failed to give an accomplice liability instruction. Milton asserts that because of the court's errors and the State's misconduct, we must reverse his convictions and grant a new trial. We affirm Milton's convictions.

On the evening of January 2, 2010, Minneapolis police officers responded to a 911 call from a woman who said she heard gunshots fired near her home, which home is located near the intersection of North Sixth Street and Dowling Avenue in north Minneapolis. The woman later testified that she heard five to seven gunshots and then seconds later heard a motor vehicle drive away. The woman testified that when she looked out the window of her home, she saw a body lying next to a van on North Sixth Street.

The police were dispatched to the scene of the reported shooting. As the police arrived at the scene, a man named C.W. walked toward them with his hands in the air. C.W. said to the police, “I think my friend's been shot; a guy just robbed us and he was real close and he started shooting off....” The police placed C.W. in the back of a squad car and began to investigate the crime scene.

At the crime scene, the police found Dontae Johnson lying face down in the snow, next to the passenger side of a van parked on North Sixth Street. Johnson died from multiple gunshot wounds.1 Johnson's keys were near his body, and the police found $3,365 in Johnson's pants pockets and $1,560 in his wallet. On the ground near the driver's side of the van, the police found four 9 mm Luger shell casings. The police also searched the van and found marijuana in the van. After investigating the crime scene, the police returned to the squad car where C.W. was seated. C.W. told the police, and later testified at trial, about the events that led up to Johnson's death.

C.W. stated that on the evening of January 2, 2010, Johnson drove Johnson's wife's van to pick up C.W. at his home. The two men had “[n]o plans in particular” that evening, but eventually Johnson drove to and parked on North Sixth Street between Dowling Avenue and 39th Avenue. Johnson told C.W. that he planned to “sell some weed to [his] cousin,” and then Johnson used his cell phone, apparently to arrange the sale. After waiting a few minutes, Johnson looked in the rearview mirror and recognized his “cousin's truck going the opposite way up the hill.” At that point, Johnson made another call on his cell phone. C.W. assumed Johnson was calling his cousin. Johnson told the person on the phone, “I'm on the other block.... [Y]ou're going the opposite way to me.” Shortly after Johnson's call, C.W. noticed a car pull up behind the van and park, and then a truck pull up near the van and park.

[821 N.W.2d 795]

After the truck parked, a person stepped out of the truck and approached the driver's side of the van. C.W. was unable to discern the person's identity because the van's windows were fogged due to the cold weather. The person stopped at the driver's side window and spoke with Johnson. C.W. heard Johnson tell the person, “Other side, Cousin.” Instead of moving to the other side of the van, the person opened the sliding door on the driver's side and got into the backseat. At this point, C.W. observed that the person was a man dressed in black—including a black-hooded sweatshirt, black jeans, and a black mask. C.W. also noticed that the person held a gun in his left hand. The person put the gun to the back of Johnson's head. Then, with his right hand, the person took a second gun from his right pocket, pointed it at C.W., and said, “Give me the weed.”

Johnson responded by saying, “Cousin's going to rob me; Cousin's going to rob me for my weed, going to rob your own family, your own blood....” Johnson then tossed a Tupperware container of marijuana toward the person in the backseat. The person continued to make demands, saying, “[G]ive me the money and the car keys.” Johnson responded by again referring to the person as “Cousin.” Johnson then removed his seatbelt, turned off the van's engine, opened his door, and stepped out of the van. The person in the backseat also got out of the van, and Johnson and the person stood “face to face.” C.W. heard Johnson say, “You going to shoot me, too, Cousin; you going to shoot your own family?”

The next thing that C.W. heard was gunshots. After hearing the gunshots, C.W. removed his seatbelt, “jumped out of the [van],” and began running in a northerly direction. As he ran, C.W. looked back toward the van. When he looked back, he saw the person dressed in black standing near the front hood of the van, shooting in C.W.'s direction.

The Police Investigation

The morning after the shooting, the police obtained Johnson's cell phone records. The records indicated that Johnson received six calls from one number and made one call to the same number shortly before the shooting. All of these calls “bounc[ed] off the same [cell phone] tower” near the vicinity of the shooting. The police learned that the number associated with the calls corresponded to a cell phone owned by a T.S., who is also known by the name T.C. The police also learned that T.C. and the appellant, Javaris Eugene Milton, are brothers, and that Milton used T.C.'s cell phone on occasion.

Believing that Milton might have information about Johnson's murder, the police officers investigating the shooting asked the Violent Crimes Apprehension Team (VCA Team) to locate Milton. The VCA Team had “[v]ery few details” about the crime, except that “it was a shooting.” Following the investigating officers' request for assistance, several members of the VCA Team went to Milton's home, which was located in an upper-level unit of a duplex on Hillside Avenue North in Minneapolis. Some members of the VCA Team went to the front door of the duplex. Officer Ann Martin said that she went to the back of the duplex “in case anybody came running out the door.” 2 While Martin was at the back of the duplex, she noticed two shell casings. One shell casing was located on the platform of a stairway

[821 N.W.2d 796]

leading to Milton's back door, and the other shell casing was located further up that stairway. Even though she did not have a search warrant, Martin took possession of the shell casings.

The VCA Team members knocked on the front door of the duplex. Milton answered. The VCA Team members asked Milton to accompany them to the police station to talk to the officers investigating a homicide. Milton was cooperative and agreed to accompany the officers to the police station. The VCA Team members then drove Milton, unhandcuffed, to the police station, where he spoke with the police. During this interview, Milton denied knowing anything about Johnson's murder. When asked about the shell casings on his back stairway, Milton claimed that his downstairs neighbor had shot a gun on New Year's Eve. Milton left the police station after the interview.

Subsequently, the Minneapolis Police Crime Lab determined that the shell casings found on the back stairway of the duplex where Milton lived were 9 mm Luger casings and had been fired from the same gun as the shell casings found at the crime scene. Additionally, the record indicates that at some point during the investigation, the police recovered two shell casings in Milton's truck that presented characteristics consistent with being fired from the same gun used at the crime scene.

After the police received this additional information, they requested a second interview with Milton on January 7, 2010. Milton agreed to the interview and again...

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