State of Minnesota v. Michael Marshall Johnson, a/k/a Michael Tate ( 2016 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0391
State of Minnesota,
Respondent,
vs.
Michael Marshall Johnson, a/k/a Michael Tate,
Appellant.
Filed March 7, 2016
Affirmed
Rodenberg, Judge
Hennepin County District Court
File No. 27-CR-13-35834
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
On appeal from his conviction of being a prohibited person in possession of a
firearm, appellant Michael Marshall Johnson, n/k/a Michael Tate, challenges the
sufficiency of the evidence and argues that the prosecutor committed misconduct. We
affirm.
FACTS
In the early morning hours of October 28, 2013, gunshots were reported in North
Minneapolis. Within two to three minutes, Minneapolis Police Officers Jeff Sworski and
Will Gregory arrived at the scene and saw appellant limping across the street. Appellant
disobeyed the officers’ commands to stop and show his hands, instead continuing toward
a garbage can on the street corner. When appellant reached the garbage can, he dropped
a gun into it. Officer Sworski then knocked appellant to the ground, and the officers
physically restrained him.
As the officers were restraining appellant, he said he had been shot and that
somebody had robbed him. Appellant told the officers that this occurred down the street.
An ambulance took appellant to the hospital, where a loaded .45-caliber handgun
magazine was recovered from appellant’s jacket. At the scene of appellant’s arrest,
police recovered a .45-caliber black pistol from the garbage can.
Sergeant Stephen McCarty did follow-up investigation, interviewing appellant at
the hospital after reading him his Miranda rights. The interview was recorded and later
played in its entirety for the jury. Appellant told Sergeant McCarty that, while he was on
his way to his cousin’s ex-girlfriend’s house from a gas station, two men approached him
on the sidewalk and told him to “run [his] pockets,” meaning to empty them and turn
over anything of value. Appellant told Sergeant McCarty that he responded: “[I]s you
practicing[?] [C]ause they empty . . . [R]ob me, I ain’t got nothing.” The man closest to
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appellant then aimed a gun at appellant. According to appellant, he began trying to
wrestle the gun away from the first man. During that struggle, the second man came up
behind appellant and shot him in the leg. Appellant fell to the ground with the first man’s
gun. Appellant told Sergeant McCarty that he was then “shot . . . two more times.”
Appellant said that, at that point, he used the gun he wrestled from the first man to shoot
in the direction of the two men. The men ran away, and appellant began walking toward
his “cousin’s ex-girlfriend[’s] house,” taking the gun with him. Sergeant McCarty asked
appellant to describe the men, but appellant said he was unable to see the faces of the two
men, who wore hooded sweatshirts with the hoods up. As a result, appellant was able to
say little more than that one man was “probably [a] little shorter than [appellant],” and
weighed around 220 pounds.
Sergeant McCarty followed up on appellant’s statements about the robbery, and
learned of a possible robbery at the same location, at around the same time that night.
Sergeant McCarty created a photo-identification lineup that included the two suspects
from that other possible robbery. Appellant was unable to identify anyone in the
photographs. Sergeant McCarty also collected DNA samples from the two suspects in
the other possible robbery and of appellant to test against DNA collected on the gun
appellant had dropped into the garbage can. The results indicated that neither suspect’s
DNA sample matched the DNA on the gun, but that appellant’s DNA could not be
excluded as contributing to the mixture of DNA on the gun.
Appellant was charged with one count of being a prohibited person in possession
of a firearm, in violation of Minn. Stat. § 624.713, subd. 1(2) (2012). Appellant
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stipulated that he was ineligible to possess a firearm. Officer Sworski, Officer Gregory,
and appellant all testified at the jury trial that appellant possessed the gun and tossed it
into the garbage can. Appellant asserted the affirmative defense of necessity. The jury
was instructed accordingly.
At trial, appellant’s necessity defense relied exclusively on his testimony. His trial
testimony was similar to what he told Sergeant McCarty in the hospital interview, with a
few variations and additions. For example, there were differences concerning when
appellant began shooting back at the men after he wrestled the gun away. Appellant was
also inconsistent in recounting the order of the injuries he received. Appellant also never
told Sergeant McCarty that the gun did not work the first time he tried to shoot it or that
he reloaded the gun at the end of the attempted robbery, as he claimed at trial. During
closing argument, the state emphasized these and other inconsistencies between
appellant’s various recitations of what happened.
The prosecutor also said during closing argument that “to accept this defense of
necessity, you must buy the whole story hook, line, and sinker. You got to buy the whole
thing. If you don’t buy part of it, [appellant] hasn’t met his burden and he’s not
credible.” The prosecutor also noted that “[t]here is no independent evidence that
corroborates [appellant’s] rather fanciful tale,” that appellant’s statements were
inconsistent concerning where he was living at the time of the incident, and that appellant
did not identify the suspects in the photo-identification lineup because “if he confirms the
identities of the suspects, there are people that might come and tell a different story about
what happened that night.”
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The jury found appellant guilty, and the district court sentenced appellant to 60
months in prison. This appeal followed.
DECISION
I. Sufficiency of the evidence
Appellant argues that the evidence is insufficient to support his conviction of
being a prohibited person in possession of a firearm because his possession of the gun
was a necessity. In reviewing the sufficiency of the evidence, we “review the evidence to
determine whether the facts in the record and the legitimate inferences drawn from them
would permit the jury to reasonably conclude that the defendant was guilty beyond a
reasonable doubt of the offense of which he was convicted.” State v. Al-Naseer, 788
N.W.2d 469, 473 (Minn. 2010) (quotation omitted). We assume “the jury believed the
state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438
N.W.2d 101, 108 (Minn. 1989). Inconsistencies in testimony go to witness credibility,
which is an issue for the fact-finder, not the reviewing court. State v. Pendleton, 706
N.W.2d 500, 512 (Minn. 2005).
Appellant was convicted under Minn. Stat. § 624.713, subd. 1(2), which prohibits
certain people from possessing firearms, and appellant stipulated to being ineligible to
possess a firearm. Officer Sworski, Officer Gregory, and appellant all testified that
appellant possessed the gun on October 28, 2013. Appellant’s sufficiency-of-the-
evidence argument therefore only concerns his necessity defense.
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The necessity defense “applies only in emergency situations where the peril is
instant, overwhelming, and leaves no alternative but the conduct in question.” State v.
Johnson, 289 Minn. 196, 199, 183 N.W.2d 541, 543 (1971).
To successfully assert the defense, a criminal defendant must
show that the harm that would have resulted from obeying the
law would have significantly exceeded the harm actually
caused by breaking the law, there was no legal alternative to
breaking the law, the defendant was in danger of imminent
physical harm, and there was a direct causal connection
between breaking the law and preventing the harm.
Axelberg v. Comm’r of Pub. Safety, 831 N.W.2d 682, 685 (Minn. App. 2013), aff’d, 848
N.W.2d 206 (Minn. 2014).
Here, appellant’s version of wrestling the gun away from one of his would-be
robbers would, if believed, support a conclusion that appellant had “no legal alternative
to breaking the law,” “the harm to be prevented [was] imminent,” and “a direct, causal
connection [existed] between breaking the law and preventing the harm.” See id.
(defining the elements of the necessity defense). But whether the necessity defense
applies depends on the credibility of appellant’s testimony. That determination is for the
jury, and not for a reviewing court. Pendleton, 706 N.W.2d at 512. The jury was
instructed on the necessity defense, and appellant does not challenge those instructions on
appeal. The jury found appellant guilty of being a prohibited person in possession of a
firearm. To reach that verdict, the jury necessarily disbelieved appellant’s testimony, and
found it more likely than not to be untrue.
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Our thorough review of the record reveals nothing that would warrant overturning
the jury’s credibility determinations. The evidence is sufficient to support appellant’s
conviction.
II. Prosecutorial misconduct
Appellant argues that the prosecutor committed misconduct during summation.
“[W]e reverse only if the misconduct, when considered in light of the whole trial,
impaired the [appellant’s] right to a fair trial.” State v. Swanson, 707 N.W.2d 645, 658
(Minn. 2006). Where, as here, a defendant fails to object at trial to claimed prosecutorial
error or misconduct, we review under a modified plain-error standard. State v. Ramey,
721 N.W.2d 294, 302 (Minn. 2006). This two-tiered test first requires appellant to
establish that the prosecution committed error that is plain in that the prosecutor’s
conduct contravenes caselaw, a rule, or a standard of conduct. Id. If appellant makes this
showing, the burden shifts to the state to demonstrate that the error did not affect
appellant’s substantial rights. Id. “Plain error is considered prejudicial if there is a
reasonable likelihood that the error had a significant effect on the jury’s verdict.” State v.
Young, 710 N.W.2d 272, 280 (Minn. 2006) (quotations omitted). Even where error
occurs, we will reverse only when an appellant was denied a fair trial. State v. Porter,
526 N.W.2d 359, 365 (Minn. 1995).
We review closing arguments in their entirety when determining whether
prosecutorial misconduct occurred. State v. Vue, 797 N.W.2d 5, 15 (Minn. 2011); see
State v. Jackson, 714 N.W.2d 681, 694 (Minn. 2006) (quotations omitted) (noting that
this court should consider “the closing argument as a whole rather than focus on
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particular phrases or remarks that may be taken out of context or given undue
prominence”). A prosecutor is allowed “considerable latitude” in closing and is not
required to make a “colorless” argument. State v. Smith, 541 N.W.2d 584, 589 (Minn.
1996). However, “[m]isstatements of the burden of proof are highly improper and would,
if demonstrated, constitute prosecutorial misconduct.” State v. Hunt, 615 N.W.2d 294,
302 (Minn. 2000).
Appellant challenges four portions of the prosecutor’s closing argument. We
review each of those portions in turn, applying the modified plain-error standard.
A. Independent corroborating evidence
Appellant challenges the prosecutor’s statement that “there is no independent
evidence that corroborates [appellant’s] rather fanciful tale.” Appellant argues that this
statement was error because it implied that appellant has the burden of producing
evidence to prove his innocence.
Here, appellant’s entire defense at trial amounted to his claim that he possessed the
gun out of necessity. Appellant had the burden of proving the elements of necessity by a
preponderance of the evidence. In that context, the prosecutor’s statement was part of the
state’s legitimate, broader effort to argue that appellant’s affirmative defense lacked
merit. See State v. MacLennan, 702 N.W.2d 219, 236 (Minn. 2005) (“As part of the
state’s right to vigorously argue its case, it may specifically argue that there is no merit to
the particular defense. . . .”). Specifically, because appellant’s hospital interview and
testimony were the only pieces of evidence supporting appellant’s version of events,
because other evidence was inconsistent with appellant’s testimony, and because
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appellant had the burden of proof concerning the necessity defense, the prosecutor’s
commentary concerning the lack of independent corroborating evidence concerning the
defense of necessity was proper. The comment was not error, much less plain error.
B. Statement concerning identification of possible robbery suspects
Appellant argues that the prosecutor improperly attacked appellant’s character
with his statement: “[I]f he confirms the identities of the suspects, there are people that
might come and tell a different story about what happened that night.” Appellant asserts
that this comment was designed to imply that appellant was a liar and to inflame the
jury’s passions.
A prosecutor may not make arguments that are not supported by the evidence or
that are designed to inflame the jury’s passions or prejudices against the defendant. State
v. Rucker, 752 N.W.2d 538, 551 (Minn. App. 2008), review denied (Minn. Sept. 23,
2008). Prosecutors may present “all legitimate arguments on the evidence, to analyze
and explain the evidence, and to present all proper inferences to be drawn therefrom,”
Smith, 541 N.W.2d at 589, but it is “unprofessional conduct for the prosecutor
intentionally to misstate the evidence or mislead the jury as to the inferences it may
draw.” State v. Bobo, 770 N.W.2d 129, 142 (Minn. 2009) (quotations omitted).
Appellant frames the prosecutor’s statement as commentary on appellant’s “failure
to call a witness.” Were it so, that would be impermissible. See State v. Mayhorn, 720
N.W.2d 776, 787 (Minn. 2006) (explaining how such a comment prejudices a criminal
defendant).
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In context, the prosecutor was recounting certain pieces of evidence immediately
before making the statement, including the discrepancies between appellant’s statements
and appellant’s ultimate inability to identify the two suspects when Sergeant McCarty
presented him with a photo-identification lineup. The prosecutor made no comment on
appellant’s decision not to call those suspects as trial witnesses. Instead, the comment
was a reasonable argument concerning why appellant did not identify the two suspects in
the photo-identification lineup.
We conclude that the prosecutor’s statement was a reasonable inference based on
the evidence. As such, it was not error. See State v. Jones, 753 N.W.2d 677, 691-92
(Minn. 2008) (“A prosecutor’s closing argument need not be colorless, so long as it is
based on the evidence or reasonable inferences from that evidence.”).
C. Statement concerning obstruction of investigation
Appellant next argues that the prosecutor improperly suggested that appellant
obstructed the police’s investigation by stating:
Isn’t that what [appellant is] doing in this entire case, is
telling half-truths? I want you to consider that. He says he’d
been living in abandoned houses. That’s what he tells the
officer, sends him off to Dupont Avenue as to where he gets
his mail and stuff like that, occasionally goes there to take a
shower. He tells you on the stand that he’s living in Crystal,
frequently spends time with a cousin on Aldrich Avenue and
33rd. Nowhere did he tell that to the officers. If indeed that
was true when he was on the stand, he didn’t tell it to the
officer at the time. And why wouldn’t he do that? Well,
police can execute search warrants. They can go to places
where people live. They can look for evidence that supports
the crime. But if you don’t tell them where you live, you
don’t give the police the information they need to be able to
further investigate a crime.
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The state’s argument properly emphasized that appellant gave inconsistent
statements concerning where he was living at the time of the offense. In context, where
appellant’s credibility was crucial, the argument was not improper.
D. Burden of proof
Finally, appellant argues that the prosecutor committed misconduct by stating:
“[T]o accept this defense of necessity, you must buy the whole story hook, line, and
sinker. You got to buy the whole thing. If you don’t buy part of it, [appellant] hasn’t met
his burden and he’s not credible.” We note that appellant’s initial brief framed this issue
as one of a misstatement of appellant’s burden. In his reply brief, appellant re-casts the
issue as one of an improper shifting of the burden of persuasion to appellant. Because
appellant did not raise the burden-shifting argument until his reply brief, the argument is
not properly preserved. Minn. R. Civ. P. 128.02, subd. 3; see State v. Thompson, __
N.W.2d __, __, 2015 WL 9437538 at *2 n.1 (Minn. App. Dec. 28, 2015) (“Generally,
issues not raised or argued in appellant’s principal brief cannot be revived in a reply
brief.”).
On its merits, appellant’s creative burden-shifting argument relies on State v.
Hage, in which the Minnesota Supreme Court held that a criminal defendant bears the
burden of production, but not persuasion, when a necessity defense negates an element of
the crime. 595 N.W.2d 200, 204-07 (Minn. 1999). Appellant argued in his reply brief
that the necessity defense negates the “entitled to possess” element of Minn. Stat.
§ 624.713, subd. 1.
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Even if the burden-shifting argument were considered to have been preserved,
appellant stipulated to the element in question at the district court. He agreed that he was
not a person entitled to possess a firearm. He cannot argue on appeal that the
prosecutor’s comments impermissibly shifted the burden on an element to which he
stipulated at trial. We therefore turn to appellant’s argument that the prosecutor’s
statement was a misstatement of appellant’s burden.
1. The prosecutor’s statement was plain error.
Appellant’s burden concerning his necessity defense did not require him to prove
his innocence, but only required that he prove it to be more likely than not that he acted
out of necessity. Hage, 595 N.W.2d at 204-05 (“[O]nce the state has met its burden of
proving beyond a reasonable doubt every element of the crime charged, the state may . . .
impose upon a criminal defendant the burden of proving by a preponderance of the
evidence that her conduct should be excused by some mitigating circumstance or issue.”).
Despite the latitude afforded a prosecutor’s closing argument, the “hook, line, and
sinker” statement misstates the burden of proof. The jury plainly did not need to believe
every detail of appellant’s story. The necessity defense required only that the jury find it
more likely than not that appellant possessed the gun because he wrestled it away from a
would-be robber. The prosecutor’s statement instead suggested that the jury needed to
believe every detail of appellant’s story. The prosecutor’s “hook, line, and sinker”
comment was plainly erroneous.
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2. The plain error did not affect appellant’s substantial rights.
Under the modified plain-error standard, the state bears the burden of showing a
lack of prejudice where the prosecutor committed plain error. Ramey, 721 N.W.2d at
302. We consider “the strength of the evidence against the defendant, the pervasiveness
of the improper suggestions, and whether the defendant had an opportunity to (or made
efforts to) rebut the improper suggestions.” State v. Hohenwald, 815 N.W.2d 823, 835
(Minn. 2012) (quotation omitted). Additionally, “a prosecutor’s attempts to shift the
burden of proof are often nonprejudicial and harmless where, as here, the district court
clearly and thoroughly instructed the jury regarding the burden of proof.” State v.
McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001).
The prosecutor’s “hook, line, and sinker” comment was a single line in what
amounted to 34 pages of closing argument and rebuttal by the prosecutor. Upon careful
review of the closing argument, we conclude that the “hook, line, and sinker” comment
was the only instance where the prosecutor misstated the law. Both the prosecutor and
the district court correctly explained to the jury that the state had the burden of proving
appellant was guilty beyond a reasonable doubt and that appellant has the burden of
proving necessity by a preponderance of the evidence. And finally, appellant’s trial
counsel had the opportunity to rebut the misstatement, which occurred during the
prosecutor’s main closing argument. Appellant’s trial counsel took the opportunity in
closing to clarify the necessity defense and the preponderance-of-the-evidence standard.
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Even though the prosecutor committed plain error with the “hook, line, and
sinker” comment, we conclude that the comment did not substantially influence the jury
to convict appellant.
Affirmed.
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