State v. Thomas
| Decision Date | 29 August 2016 |
| Docket Number | A15-1680 |
| Parties | State of Minnesota, Respondent, v. Delonte Ahshone Thomas, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
Affirmed
Hennepin County District Court
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Reyes, Judge; and John Smith, Judge.*
UNPUBLISHED OPINION
On appeal from his conviction of multiple counts of attempted first- and second-degree murder, appellant argues that (1) the district court abused its discretion by denying his request for a one-week continuance; (2) the district court committed prejudicial error by refusing to instruct the jury on the factors it should consider in evaluating eyewitnesses' identification of appellant as the shooter; and (3) the evidence was insufficient to support his conviction of attempted second-degree intentional murder of one of the victims. We affirm.
In July 2014, A.M. and her mother, S.M., hosted a birthday party for M.G. The party lasted late into the night, and appellant Delonte Ahshone Thomas arrived at the party sometime after midnight with his girlfriend, A.S., and his brother, L.T. After appellant's arrival, the whole group sang "Happy Birthday" to M.G. Appellant then asked the group to sing to A.S. since it was also her birthday. A.M. refused to sing, prompting a verbal altercation between A.M. and appellant in A.M.'s kitchen. Appellant then pulled out a black gun with an extended clip, pointed it at A.M.'s head, and pulled the trigger twice. The gun clicked without firing.
After the altercation, A.S., L.T., and appellant left the party. Approximately 20 minutes later, A.S. returned and dropped off appellant and his brother two-and-a-half blocks away from the party because, according to A.S., appellant wanted to retrieve some marijuana he left there. In the meantime, A.M. stepped outside and smoked a cigarette with Q.W. and J.G. Q.W. testified that while reaching down to put out her cigarette shefelt a weird feeling so she turned around. Q.W. claimed that she saw somebody crossing the alley and into some bushes, "creeping" towards them with a black gun, prompting her to yell, "[H]e's got a gun!"
A.M. testified that when she turned and looked, she saw appellant about ten feet away holding a black gun with an extended clip, and he then started shooting. A.M. tried to run, but appellant shot her, and she fell to the ground. A.M. had wounds from ten gunshots, including three shots near her ribcage and the small of her back, two in her buttocks. A.M. testified that she saw appellant run through the front gate before she lost consciousness.
Q.W. testified that after she saw appellant holding the gun, she turned around and ran, and then fell to the ground because she was shot. Q.W. testified that she was shot eight times, and her liver, lungs, and pancreas were all injured.
J.G. testified that as she ran away, she was shot in her foot and ankle and then fell down. According to J.G., someone then stood over her and shot her multiple times "higher and higher" on her left side—twice on her ankle, then just below the knee, then above the knee. She was shot a total of eight times.
At 1:27 a.m., a surveillance camera from a convenience store across the street from the shooting recorded two males running away from the shooting location. One of the males was holding something near his right hip while he was running. A.S. testified that after she heard gunshots, appellant and his brother got back into her car and denied knowing anything about the gunshots. But A.S. claimed that appellant admitted later that day that he was involved in the shooting.
A.M. told police that a man she knew as "Dee" shot her, and that Dee was a black male, with a fade haircut, wearing eyeglasses. Police then showed A.M. a photograph of appellant and his brother. Appellant was wearing a black shirt, brown khaki shorts, and glasses. A.M. pointed to appellant in the picture as the person who shot her and said his name was "Dee." Although A.M. admitted that she only knew appellant by his nickname and that she had not seen him since he was a young child, she stated that she has known appellant's family her whole life.
Q.W. testified that while she was in the hospital, police showed her the photo of appellant and his brother. When she viewed the photo, she drew a line to appellant and wrote, "Guy who shot me!" J.G. could not identify the shooter but testified that she thought the shooter had light skin and braids, and was named "Chico."
Appellant was charged with three counts of attempted first-degree murder and three counts of attempted second-degree intentional murder. The day before trial, the state first gave notice that it would call T.S., appellant's cellmate in jail, as a witness. Appellant moved for a one-week continuance to prepare for the new witness and pursue avenues of cross-examination. The district court denied the motion. On Friday, June 12, 2015, the second day of testimony, T.S. testified that appellant told him in jail that appellant used a .40 caliber Glock pistol with an extended clip to shoot all three women.
At the close of state's case, appellant moved for a judgment of acquittal on counts three and six—attempted first- and second-degree murder involving J.G.—alleging that the state failed to prove intent because J.G. was shot only in the leg. The district court denied the motion. The defense also requested a cautionary jury instruction concerningeyewitness-identification testimony based on the defense's theory that the identification of the shooter was at issue. The district court denied the motion and did not give the instruction.
The jury found appellant guilty of one count of attempted first-degree murder of A.M. and three counts of attempted second-degree murder of A.M., Q.W., and J.G. Appellant was sentenced to 333 months in prison. This appeal follows.
Appellant argues that the district court abused its discretion by denying his request for a continuance. We review a district court's decision to grant or deny a motion for continuance for an abuse of discretion. State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980). On review, appellate courts look at the circumstances surrounding the continuance request and determine whether the denial was so prejudicial in the preparation of an adequate defense as to "materially affect the outcome of the trial." State v. Sanders, 598 N.W.2d 650, 654 (Minn. 1999) (quotations omitted).
In denying the continuance the district court found that (1) appellant made a speedy trial demand; (2) the case was "old"; (3) the nature of the evidence—T.S.'s account of what appellant told him in jail about the shooting—is the type of evidence that the defense could respond to without adding a significant amount of preparation time; and (4) the state would call T.S. as a witness later in the trial and a transcript of T.S.'s interview with police would be provided to the defense.
Appellant argues that by denying his request for a continuance, he was denied a fair trial because he lacked adequate time to prepare for trial. We disagree. Appellant had requested a continuance until Monday, June 15, 2015, to adequately prepare for T.S. as a witness. But, although appellant was given late notice of the state's intent to call T.S., the district court ensured that T.S. would be called later in the trial. In fact, T.S. did not testify until Friday, June 12, 2015, only a few days before appellant's requested continuance date. Thus, appellant had time to determine avenues of cross-examination and trial strategy. Moreover, appellant's counsel effectively cross-examined T.S. on the plea-deal he received for testifying against appellant and effectively discredited T.S. by showing that appellant's legal papers were readily accessible to T.S. in jail and provided him the opportunity to learn specific details of the case. Therefore, based on the circumstances presented, we conclude that the district court did not abuse its discretion by denying appellant's request for a continuance.
A district court has "considerable latitude" in the selection of language for jury instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011) (quotation omitted). "The refusal to give a requested jury instruction lies within the discretion of the district court and no error results if no abuse of discretion is shown." State v. Hensel, 874 N.W.2d 245, 255 (Minn. App. 2016) (quotation omitted). A defendant is entitled to a jury instruction on his or her theory of the case if there is evidence to support it, but the court need not give the requested instruction if the substance of the request is contained in the court's charge. State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989).
Appellant argues that the district court abused its discretion by not giving the standard jury instruction on eyewitness identification testimony contained in CRIMJIG 3.19. See 10 Minnesota Practice, CRIMJIG 3.19 (2012). We disagree. Whether CRIMJIG 3.19 should be given as a cautionary instruction depends on the circumstances of the case. State v. Bishop, 289 Minn. 188, 195, 183 N.W.2d 536, 540 (1971). In Bishop, identification was an issue contested at trial, but the district court noted that as the trial progressed it clearly appeared to the court that the eyewitnesses' "identification of the defendant throughout the entire sequence of events was based on observation made at the time of the robbery and that it was strong, unequivocal and thoroughly convincing." Id. at 195-96, 183 N.W.2d at 541. In...
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