State of Minnesota v. James Lamar Davis

This opinion will be unpublished and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
A15-0821
State of Minnesota,
Respondent
vs.
James Lamar Davis,
Appellant.
Filed May 31, 2016
Affirmed
Ross, Judge
Reyes, Judge, dissenting
Hennepin County District Court
File No. 27-CR-14-11916
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara J. Euteneuer, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy,
Judge.
UNPUBLISHED OPINION
ROSS, Judge
A jury heard evidence that James Davis is a member of a Minneapolis street gang
and that he, accompanied by two of his gang allies, confronted and shot two men affiliated
with a rival gang. The jury found Davis guilty of two counts of attempted intentional
second-degree murder for the benefit of a gang. Davis argues on appeal that we should
overturn his conviction on four grounds: (1) the district court should not have admitted
evidence of his prior bad acts; (2) the properly admitted evidence is insufficient to establish
beyond a reasonable doubt that he shot the two victims, that he intended to cause their
deaths, or that his conduct toward one of them was intended to benefit a gang; (3) the
district court failed to instruct the jury on accomplice testimony; and (4) the prosecutor
made statements that constitute misconduct. We hold that the district court did not abuse
its discretion either by admitting the bad-acts evidence or in its jury instructions, that the
evidence supports each element of Davis’s conviction, and to the extent the prosecutor’s
statements crossed the line, they did not affect Davis’s substantial rights because they did
not influence the verdict.
FACTS
K.W. and C.B. left their jobs at Target Field at about 3:00 on an April 2014 morning,
and they encountered three men outside. The three men had been waiting. They wore
hooded sweatshirts with the hoods partially obscuring their faces. One of the men drew a
handgun and fired multiple shots, striking K.W. in the abdomen and C.B. in the spine,
paralyzing him.
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K.W., a former member of the “Taliban” street gang, later told police that the
shooter was James Davis, a member of the “1-9s” street gang. The 1-9s gang rivaled the
Taliban gang in “wild, wild west” fashion. As K.W. described it, “We’re killing each
other.” K.W. also identified Davis from a photo array, and he named another man, J.M.,
as having been another of the three hooded attackers.
The state charged Davis and J.M. with two counts of second-degree attempted
murder for the benefit of a gang. The district court severed the cases to try the two men
separately. This appeal concerns only Davis’s case.
The shooter’s identity was the primary question at Davis’s trial. The state announced
its intent to offer prior-bad-acts (Spreigl) evidence that Davis was the shooter in a previous
gang-related retaliatory shooting that occurred in 2010 beside Lake Calhoun, where Davis
allegedly shot and killed a different Taliban gang member while K.W. stood beside the
victim. At the time of Davis’s trial, Davis had not been charged in that shooting.
The district court conducted a hearing after which it decided that clear and
convincing evidence established that Davis participated in the Lake Calhoun shooting.
Sergeant Gerry Wallerich testified that Davis is a known member of the 1-9s gang and that
K.W. was a member of the rival Taliban gang. The sergeant detailed the 2010 Lake
Calhoun shooting and testified that, two years after that shooting, N.P. (who was an
eyewitness to the shooting) identified Davis “as a party that looked similar, especially with
the nose and other characteristics” to the shooter. He said additionally that K.J. overheard
Davis confess to the shooting. And he testified that Davis told him that he had his cellular
telephone with him the night of the shooting, and cell-tower data established that Davis’s
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phone was “right next to the murder scene.” Sergeant Wallerich said that M.M., a 1-9 gang
member and known gang associate, told him that Davis had admitted to the Lake Calhoun
shooting, and another 1-9 gang member, D.H., said the shooting was to retaliate for a prior
shooting that D.M., the Lake Calhoun victim, was involved in.
K.W. testified at trial, retreating from his post-shooting identification of Davis as
the Target Field shooter. He said that although he had initially told police that Davis was
the shooter, he believes he was unable to see faces. He claimed that his identification of
Davis as the shooter had resulted from being told that J.M. was one of the attackers and
that Davis was the shooter. A police officer testified that Davis is known by police as
having a documented history associating with 1-9 gang members.
The jury heard the testimony of various other witnesses, and it found Davis guilty
as charged. The district court sentenced Davis to serve consecutive prison terms of 186
months and 153 months. Davis appeals his conviction.
DECISION
Davis challenges his conviction by contending that the district court should not have
admitted evidence of the Lake Calhoun shooting. He maintains that the remaining evidence
is insufficient to support the finding that he shot the two gunshot victims outside Target
Field, that he intended to kill them, or that the shooting was intended to benefit a gang. He
argues also that the conviction is infirm because the district court failed to instruct the jury
about accomplice testimony and that the prosecutor made improper statements that require
reversal. We address each argument.
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I
We first consider Davis’s argument that the district court improperly allowed the
state to inform the jury that Davis was involved in the Lake Calhoun shooting. The district
court may allow this type of prior-bad-acts evidence to show motive, intent, knowledge,
identity, absence of mistake or accident, or a common scheme or plan. Minn. R. Evid.
404(b). We review the district court’s decision to admit this evidence, often referred to as
Spreigl evidence, for an abuse of discretion. State v. Ness, 707 N.W.2d 676, 685 (Minn.
2006). The district court may admit Spreigl evidence if five elements are met: (1) the state
has given the defendant notice; (2) the state clearly indicates what the evidence is being
offered to prove; (3) clear and convincing evidence establishes that the defendant
participated in the prior act; (4) the evidence is relevant and material to the state’s case;
and (5) the probative value is not outweighed by its potential unfair prejudice. Angus v.
State, 695 N.W.2d 109, 119 (Minn. 2005). Davis focuses on the third and fifth elements,
arguing that clear and convincing evidence did not show that he was the Lake Calhoun
shooter and that the probative value of the evidence does not outweigh the resulting
improper prejudice.
Clear and Convincing Evidence that Davis Was the Lake Calhoun Shooter
The district court was satisfied that clear and convincing evidence proves that Davis
was the Lake Calhoun shooter, and we see no fault in the conclusion. The district court is
in the best position to weigh the competing evidence. Cf. State v. Kennedy, 585 N.W.2d
385, 392 (Minn. 1998) (noting the district court’s “discretion [in] first weighing the
evidence” to assess the strength of the state’s case when balancing prejudice and
5
“determining whether the Spreigl evidence should be admitted”), modified by Ness, 707
N.W.2d 676. Some of the evidence that supports the district court’s finding includes the
following: eyewitness N.P. identified Davis “as a party that looked similar, especially with
the nose and other characteristics” to the shooter; M.M. “told [police] who the two shooters
were in the murder,” specifically, “Javon [James] Davis and [D.W.],” after M.M. got a
“[d]irect confession from both of them . . . a few hours after the murder”; cellular phone
records corroborated that Davis was present at the community center where M.M. says that
Davis and D.W. confessed to the murder; Davis revealed that he had been previously shot
by a Taliban gang member; the Taliban gang member who assisted in shooting Davis was
the man shot and killed at Lake Calhoun; Davis acknowledged that he was carrying his cell
phone the day of the Lake Calhoun shooting and technical records place Davis’s phone at
the scene of that shooting; based on the cell-phone data, Davis’s claim that he was in
another part of the city at the time of the shooting was false; contemporaneous with the
Lake Calhoun shooting, imprisoned 1-9 members were calling Davis from prison; Davis
laughingly told a 1-9 gang member that investigating police did not know what was going
on.
The inculpatory testimony included evidence of Davis’s confession, and it is true
that the evidence arrived second-hand. But Davis does not contend that the Spreigl hearsay
testimony was not admissible for the purposes of the Spreigl decision; he argues only that
it was not persuasive enough to amount to clear and convincing evidence. The argument
overlooks the district court’s broad discretion at the Spreigl hearing to decide whether to
require eyewitnesses to testify about the Lake Calhoun shooting and about Davis’s
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admission to that shooting. Cf. State v. Kasper, 409 N.W.2d 846, 847 (Minn. 1987)
(faulting court of appeals and holding that trial court at Spreigl hearing had broad discretion
to decide whether or not to require state to call Spreigl witnesses or instead to rely on
prosecutor’s offer of proof). Although the Spreigl testimony about the confession was
hearsay, it was admitted as hearsay because Davis agreed through his counsel that the state
could present the evidence that way, volunteering, “I don’t think that’s unreasonable.” And
we disagree with Davis’s implication that hearsay testimony is, by its nature, insufficient
to prove an asserted fact clearly and convincingly. The unobjected-to hearsay testimony
here, which the district court weighed, established both that Davis contemporaneously
confessed to being one of two Lake Calhoun shooters and that he lied to police by claiming
he had been in a different, distant part of the city during the shooting. As the district court
explained to Davis’s attorney after the trial, “But the bottom line is, for whatever reason,
you chose to let the Spreigl evidence come in the way you let it come in [as hearsay
testimony], and, based on the testimony . . . there was clear and convincing evidence . . .
to link your client to that incident.” A shooter’s confession and his false alibi are clear and
convincing evidence of his participation, and the additional evidence simply girds that
determination.
The dissent begins and ends its disagreement with our holding as to the clear and
convincing quality of the state’s Spreigl-hearing evidence by relying on State v. Kasper,
409 N.W.2d at 847, for the proposition that “[t]he state overstated the strength of its
evidence connecting Davis to the Lake Calhoun shooting at the Spreigl hearing.” The
dissent accurately quotes the Kasper court as stating that “the trial court and the appellate
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courts are always free to grant relief, when appropriate, if the evidence adduced was not
what the prosecutor led the trial court to expect.” (Emphasis added.) But it overlooks the
phrase “when appropriate” and therefore misses the critical procedural hook here. It is not
“appropriate” to grant relief to an appellant on an issue and argument that the appellant
never raised. “A reviewing court must generally consider only those issues that the record
shows were presented [to] and considered by the trial court.” Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988) (quotation omitted). It is therefore not “appropriate” to consider the
relief here, if Davis never made the offer-of-proof argument to the district court. There
Davis argued only that “[t]he evidence presented by the State to the Court in support of its
motion for admission of Spreigl evidence . . . was . . . flawed and . . . not accurate.” He
argued that the hearsay evidence implicating Davis as the Lake Calhoun shooter was
flawed and inaccurate not because the state failed to make good on the offer of proof, but
because other evidence—like statements made by the hearsay declarants—purportedly
indicated that someone other than Davis was the second shooter. Davis argued the point
through counsel: “My . . . ultimate point about that is that it was clear the crime had been
solved, the shooting at Lake Calhoun, because [a different person] was arrested in Chicago
with the murder weapon. . . . I think it was equally clear based on the MPD’s investigation
that they had concluded that [T.W.] was a second shooter.” Davis was arguing only that
the evidence was not clear and convincing.
We observe that the district court did interchangeably refer to the sergeant’s
testimony as “evidence” and as an “offer of proof.” But we see that Davis never made the
Kasper argument that the dissent makes, and, despite the district court’s use of the offer-
8
of-proof phrase, it never analyzed Davis’s argument as if he had made the Kasper
argument.
Independently dispositive, even if Davis made the Kasper offer-of-proof argument
in the district court, he has not made it in this court. “In general, issues not raised in the
parties’ briefs are waived.” State v. Hurd, 763 N.W.2d 17, 32 (Minn. 2009); see also Brocks
v. State, 753 N.W.2d 672, 675 n.3 (Minn. 2008) (“Failure to brief or argue an issue on
appeal results in waiver of that issue on appeal.”). It is not enough to merely “allude” to
issues or arguments; an appellant’s failure to “address them in the argument portion of his
brief” constitutes waiver. McKenzie v. State, 583 N.W.2d 744, 746 n.1 (Minn. 1998). The
Kasper case appears first (and only) in the dissenting opinion, and Davis’s brief never
mentions the term “offer of proof.” We therefore do not address the argument’s merits.1
Balancing Probative Value Against Prejudice
Both the probative value of the evidence that Davis was one of two or more Lake
Calhoun shooters, and the prejudicial weight of the same evidence, are readily apparent.
As to its probative value, the evidence tends to show motive and a common scheme or plan.
Specifically, it reveals the eye-for-eye, life-for-life, retaliatory exchanges between the rival
gangs and specifically involving Davis. But as to its prejudicial nature, the evidence risks
inviting a conviction based on Davis’s bad character or prior conduct rather than on the
evidence of the present charges.
1
Similarly, neither party has raised Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354
(2004), in relation to the hearsay statements, and our decision therefore assumes without
discussion that Crawford does not apply here.
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The supreme court has held that “the closer the relationship between the other acts
and the charged offense, in terms of time, place, or modus operandi, the greater the
relevance and probative value of the other-acts evidence and the lesser the likelihood that
the evidence will be used for an improper purpose.” Ness, 707 N.W.2d at 688. We see an
obviously close relationship between the Lake Calhoun shooting and the Target Field
shooting. Both crimes involve the rival Minneapolis gang members shooting it out. Both
involve a group of assailants lying in wait to attack the enemy unexpectedly. And both
include a tit-for-tat rationale.
The district court attempted to prevent unfair prejudice by ordering that the state
describe the Spreigl incident only as a “shooting,” not a “murder.” It also reminded the jury
that Davis was on trial only in the Target Field shooting, not the Lake Calhoun shooting.
The prosecutor added to the caution by telling jurors not to use the Spreigl evidence to
convict Davis of any other crime. These precautions satisfy us that the evidence was not
unduly prejudicial in relationship to its more weighty probative value.
II
We turn to Davis’s contention that the evidence was insufficient to support the guilty
verdict. We review a challenge to the sufficiency of the evidence by looking to the record
to determine whether the evidence, viewed in the light most favorable to the conviction,
supports the jury’s verdict of guilty beyond a reasonable doubt. State v. Webb, 440 N.W.2d
426, 430 (Minn. 1989). A defendant is guilty of second-degree murder when he “causes
the death of a human being with intent to effect the death of that person or another, but
without premeditation.” Minn. Stat. § 609.19, subd. 1(1) (2012). The crime is more serious
10
if the defendant committed the murder “for the benefit of, at the direction of, in association
with, or motivated by involvement with a criminal gang, with the intent to promote, further,
or assist in criminal conduct by gang members.” Minn. Stat. § 609.229, subds. 2–3 (2012).
Davis maintains that the evidence fails to establish that he shot K.W. and C.B., that he
intended to cause their deaths, and that his action toward C.B. was intended to benefit a
gang. Each argument fails.
Evidence of Davis’s Identity as the Target Field Shooter
We reject Davis’s argument that the evidence fails to allow the jury to find that he
was the Target Field shooter. K.W. identified him as the shooter. He did so when police
interviewed him and again when he picked Davis out of a photographic array within days
after the shooting. We understand that K.W. recanted at trial, asserting that when he
identified Davis he had been merely parroting what others had told him. But the jury
weighed the credibility of K.W.’s police statement against his retraction, and it is not our
prerogative to dismiss their assessment. As to his retraction, the jury was advised of the
“wild, wild west” warfare between the 1-9s and the Taliban, so we doubt the jury had any
trouble reasoning why K.W. would identify Davis and then why he might later back away
from that identification. The jury also heard from J.M., who testified that Davis admitted
to the Target Field shooting. Although Davis offered some exculpatory evidence, we
assume from the jury’s verdict that the jurors did not believe it. The evidence that favors
the conviction was sufficient to prove that Davis shot K.W. and C.B.
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Evidence that Davis Intended to Kill K.W. and C.B.
We likewise reject Davis’s argument that the evidence failed to prove that he
intended to kill K.W. and C.B. Intent may be, and usually is, inferred from the
circumstances. See, e.g., State v. Thompson, 544 N.W.2d 8, 11–12 (Minn. 1996) (holding
that jury could infer intent to kill from the way the defendant shot the victim); State v.
Harris, 405 N.W.2d 224, 229 (Minn. 1987) (holding that jury’s finding of intent to kill was
supported when defendant shot the victim in head at close range). Jurors learned that K.W.
and C.B. left their jobs at Target Field and were walking together when Davis approached
them and, at close range, fired his handgun several times in their direction. He rendered no
aid to either man and did not summon emergency medical assistance to tend to their
gunshot wounds. This is enough for the jury to find that Davis intended to kill the two men.
Evidence that Davis Committed the Attempted Murder to Benefit a Gang
Davis argues that the state did not prove that his shooting of C.B. was for the benefit
of a gang. He maintains that no evidence establishes that C.B. was even a gang member or
that shooting him promotes gang business. We can assume that Davis was targeting only
K.W. and that he struck C.B. recklessly. This does not help his cause. The supreme court
recently observed without further comment that shooting untargeted bystanders during
gang violence may establish a crime committed for the benefit of a gang. State v. Thao,
875 N.W.2d 834 (Minn. 2016); see also State v. Caldwell, 803 N.W.2d 373, 379, 384 (Minn.
2011) (raising no concern with benefit-of-a-gang conviction when victim was bystander).
The evidence of the hostility and retaliatory violence between the rival gangs generally,
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and as perpetrated by Davis specifically, is adequate to establish the gang-benefit element
of Davis’s murder conviction.
III
Davis argues that because “[J.M.] was an accomplice” the district court committed
reversible error by failing to instruct the jury on accomplice testimony. Davis did not object
to the instructions given, and so we review only for plain error. State v. Vance, 734 N.W.2d
650, 655 (Minn. 2007), overruled on other grounds by State v. Fleck, 810 N.W.2d 303
(Minn. 2012). We will reverse based on a plain error only if the error is plain, the error
affected the defendant’s substantial rights, and only “if the fairness, integrity, or public
reputation of the judicial proceeding is seriously affected” by the error. State v. Jones, 678
N.W.2d 1, 17–18 (Minn. 2004).
Whether or not failing to give the instruction was a plain error, we are confident that
the error did not affect Davis’s substantial rights or implicate fairness, integrity, or the
reputation of the proceeding. Davis maintained at trial not only that he was innocent, but
that J.M. was innocent. Davis’s counsel urged the jury, “[J.M.] is just as innocent of this
crime as Mr. Davis,” and “[J.M.] has nothing to do with this crime.” Counsel insisted, “The
fact [J.M.] was dismissed certainly makes sense.” Davis’s appellate counsel takes the
contrary position, insisting, “It is clear that [J.M.] was an accomplice to the offense.” An
accomplice instruction would have contradicted Davis’s defense theory, implying a fact
that Davis denied. It is true that, “[a]s a rule, trial courts have a duty to instruct juries on
accomplice testimony in any criminal case in which it is reasonable to consider any witness
against the defendant to be an accomplice.” State v. Strommen, 648 N.W.2d 681, 689
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(Minn. 2002). But unlike in Strommen, where “there was no question that Townsend was
an accomplice,” id., here there was substantial question, urged by Davis, whether J.M. was
an accomplice. We will not reverse based on the alleged instructional error here.
IV
Davis maintains that the prosecutor engaged in reversible misconduct based on
conduct to which Davis did not object. Again, the standard on review is plain error. State
v. Carridine, 812 N.W.2d 130, 146 (Minn. 2012). If Davis points to a plain error, the burden
shifts to the state to show that “there is no reasonable likelihood that the absence of the
misconduct . . . would have had a significant effect on the verdict of the jury.” State v.
Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (quotation omitted). For the following reasons,
we conclude that to the extent the prosecutor engaged in misconduct, the misconduct did
not cause the verdict.
Facts Not in Evidence
Davis maintains that the prosecutor’s comments regarding C.B. being shot in the
spine during opening and closing arguments was misconduct because it referenced facts
not in evidence. Parties are allowed to “argue reasonable inferences from the facts
presented at trial.” State v. Young, 710 N.W.2d 272, 280 (Minn. 2006). The video recording
of K.W.’s testimony, which was presented to the jury, discusses C.B.’s physical injury and
offers that “he might not walk again.” K.W. testified that C.B. is not walking and is
confined to a wheelchair. The difference between the evidence presented and the
prosecutor’s statement describing the shot as having entered C.B.’s spine is negligible. In
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any event, a reasonable jury would have inferred that detail from the evidence. We see no
misconduct here.
Closing Argument
Davis argues that the prosecutor committed misconduct in his closing argument. He
has a point. It is true that “the prosecutor and the defense have considerable latitude in
closing argument, for neither is required to make a colorless argument.” State v. Smith, 541
N.W.2d 584, 589 (Minn. 1996). But we agree with Davis that the prosecutor went beyond
a properly colorful argument by stating, “This case isn’t worth that much to me. Whatever
you do, I’m sure I’ll see Mr. Davis again.” Davis also complains that the prosecutor said
that the 2010 shooting is a crime “that the [d]efendant hasn’t been charged with yet.”
Davis fails to put the primary statement in its context. The prosecutor made those
remarks specifically responding to Davis’s trial counsel’s allegation that the prosecutor had
offered J.M. an underhanded deal to testify against Davis. The prosecutor more fully stated
as follows:
If I pulled some stunt like that, if I cut an under-the-table deal
with some defendant to suborn perjury, I would have
effectively ended my career. This case isn’t worth that much to
me. Whatever you do, I’m sure I’ll see Mr. Davis again. That
didn’t happen.
And the other thing, you’ll recall, you’re supposed to
render a verdict based on evidence. What evidence do you have
that there’s some shady underhanded deal? The Judge had to
order him to testify.
The prosecutor here was responding to Davis’s counsel’s accusation that he had acted
unfairly, implying that he had taken excessive measures to secure a conviction against
Davis. In context, the first part of the challenged statement, “This case isn’t worth that
15
much to me,” would likely be taken to mean that Davis’s case is not so essential to the
prosecutor that he would use unfair means to obtain a conviction. The problem, however,
is with the second part, “Whatever you do, I’m sure I’ll see Mr. Davis again.” In the best
light, the statement again indicates that the prosecutor is not preoccupied with obtaining a
conviction. But even in that favorable light, the unstated premise abandons the prosecutor’s
duty not to invite a conviction on anything other than a fair review of the evidence. The
implied premise is the prosecutor’s reason for not being preoccupied with a conviction in
this case: that is, even without a conviction, Davis is such a habitual offender that he will
likely offend again. Intentionally or not, this implied premise tends to suggest to the jurors
that, unless they convict, Davis will commit more crime. While the prosecutor has latitude
to respond to the defendant’s arguments, State v. Jackson, 773 N.W.2d 111, 123 (Minn.
2009), he may not make comments that inflame the passions of jurors or make “predictions
of the consequences of the jury’s verdict.” State v. Salitros, 499 N.W.2d 815, 817 (Minn.
1993). The prosecutor’s statement was plain error. It therefore puts the burden on the state
to establish that there is no reasonable likelihood that the result would have been different
but for the misconduct.
The state meets that burden here. The prejudice that results from the statement is
insignificant compared to the substantial evidence of Davis’s guilt. This includes, among
other things, the eyewitness victim identification of Davis as the Target Field shooter, the
account of Davis admitting he was the Target Field shooter, and the similarities between
the charged Target Field attack and Davis’s Lake Calhoun attack. We are convinced that
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there is no reasonable likelihood that the outcome would have been different but for the
prosecutor’s inflammatory comment.
We are less troubled by the prosecutor’s statement that the 2010 shooting is a crime
“that the [d]efendant hasn’t been charged with yet,” given the context and evidence. The
jury had heard evidence that Davis was identified as the Lake Calhoun shooter and other
evidence tying Davis to that shooting. By clarifying that Davis had not yet been charged
with that crime, the prosecutor reminded the jury that it should avoid any temptation to
convict Davis for the uncharged offense. We have held that when “a reference to a
defendant’s prior record is of a passing nature, . . . a new trial is not warranted because it
is extremely unlikely that the [challenged reference] played a significant role in persuading
the jury to convict.” State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (quotations
omitted). The prosecutor’s statement regarding the Lake Calhoun shooting was of a passing
nature and did not play a significant role in the trial. We conclude that Davis was not denied
a fair trial.
Affirmed.
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REYES, Judge (dissenting)
I respectfully dissent. The district court abused its discretion in admitting Spreigl
evidence of Davis’s other crimes that were not proven by clear and convincing evidence at
the Spreigl hearing. In addition, the state’s production of one uncertain eyewitness and
hearsay statements at trial to establish that Davis aided and abetted the attempted murder
of K.W. at Lake Calhoun in 2010 did not conform to its offer of proof and was “simply too
incomplete.” State v. Link, 289 N.W.2d 102, 106 (Minn. 1979) (quotation omitted).
Because the erroneous admission of the other-crimes evidence was not harmless, I would
reverse and remand for a new trial.
I. The state’s Spreigl evidence did not rise to the level of clear and convincing.
Though sometimes admissible, other-crimes evidence, often referred to as Spreigl
evidence, is disfavored because it is “potentially oppressive,” State v. Spreigl, 272 Minn.
488, 494, 139 N.W.2d 167, 171 (1965), and creates a risk that the jury will “convict[] a
defendant for crimes with which he is not charged.” State v. Billstrom, 276 Minn. 174,
177, 149 N.W.2d 281, 284 (1967). The “overarching concern” is that the evidence will be
used for an improper purpose, “such as suggesting that the defendant has a propensity to
commit a crime.” State v. Washington, 693 N.W.2d 195, 200 (Minn. 2005). Appellate
courts have expressed a strong dislike for Spreigl evidence, Link, 289 N.W.2d at 105, and
have encouraged trial courts to be “vigilant in observing the safeguards” provided in Minn.
R. Evid. 404(b) to protect against “the risk of unfair prejudice.” State v. DeWald, 464
N.W.2d 500, 505 (Minn. 1991). It is the trial court’s obligation to “determine that there is
clear and convincing evidence” of a defendant’s involvement in the crimes or other bad
acts. State v. Doughman, 384 N.W.2d 450, 454 (Minn. 1986) (quotation omitted).
The Minnesota Supreme Court has stated:
[T]he trial court has broad discretion in determining whether
or not to require the state to call the Spreigl witnesses at the
hearing to determine the admissibility of the Spreigl evidence.
. . . It is our understanding that most trial judges generally use
the offer of proof procedure at the Spreigl hearing. We see
nothing wrong with this or any reason for requiring a mini-trial
on the issue. The [c]ode of [p]rofessional [r]esponsibility helps
to insure that prosecutors will not intentionally give an
inaccurate statement of what the other-crime evidence will be,
and the trial court and the appellate courts are always free to
grant relief, when appropriate, if the evidence adduced was not
what the prosecutor led the trial court to expect.
State v. Kasper, 409 N.W.2d 846, 847 (Minn. 1987) (emphasis added).
Here, the state’s evidence at trial was “not what the prosecutor led the trial court to
expect” at the Spreigl hearing. Id. Notably, Davis was not arrested, charged, or convicted
of any crime related to the Lake Calhoun shooting. As part of the state’s offer of proof at
the pretrial Spreigl hearing, only Sergeant Wallerich testified. The sergeant testified that
an eyewitness, N.P., identified Davis from a photo lineup “as a party that looked similar”
to one of the Lake Calhoun shooters. The sergeant further testified that Davis confessed
his involvement in the Lake Calhoun shooting to two witnesses and intimated his
involvement to a third. Finally, the sergeant discussed cell-tower evidence placing Davis
in the proximity of Lake Calhoun on the night of the shooting.
At trial, only N.P. and Sergeant Wallerich testified regarding the Lake Calhoun
incident. N.P. testified that it was 10:00 p.m., the perpetrators came out from the bushes
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behind her, she did not see their faces, and she got only a “glimpse” of them in passing.
Additionally, N.P. acknowledged that, immediately following the Lake Calhoun incident,
she did not believe she could identify the perpetrator. Two years later, she identified Davis
from a photo lineup because she “recognized some facial features.” Cf. State v. Lindahl,
309 N.W.2d 763, 766 (Minn. 1981) (noting eyewitness “positively identified defendant”
after spending five to six hours with him, providing “a good opportunity to observe him”).
Thus, N.P.’s identification of Davis as a Lake Calhoun shooter was not as strong as the
prosecutor led the district court to believe through the sergeant’s testimony at the Spreigl
hearing.
Of the three witnesses to whom Davis allegedly confessed or intimated his
involvement in the Lake Calhoun shooting, two of them never testified, and the third
recanted. Instead, the state offered hearsay testimony through the sergeant that individuals
affiliated with the 1-9 gang identified Davis as one of the Lake Calhoun shooters and that
one witness provided corroborating, non-public information linking Davis to the Lake
Calhoun crime. Finally, Sergeant Wallerich again testified about the cell-tower evidence.
But the state did not offer the cell-phone records into evidence at the Spreigl hearing or at
trial.
After he was found guilty, Davis moved for a new trial. Davis highlighted that the
state’s evidence at trial regarding the Lake Calhoun incident did not conform to its offer of
proof at the Spreigl hearing. The district court agreed, “conced[ing] . . . that what was
offered at trial was significantly less than the offer of proof.” Nevertheless, the district
court denied Davis’s motion for a new trial, noting Davis’s failure to object to the hearsay
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statements offered by the state. But see Riley v. State, 819 N.W.2d 162, 169 (Minn. 2012)
(rejecting testimony in affidavits as based on inadmissible hearsay).
At the very least, this case presents a close call, which requires that the evidence be
excluded. State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006) (“If the admission of evidence
of other crimes or misconduct is a close call, it should be excluded.”). The evidence
consists only of an eyewitness’s uncertain identification after getting a glimpse of the
shooter at 10:00 p.m.; cell-tower evidence placing Davis in proximity to Lake Calhoun on
the night in question; and out-of-court statements from biased, gang-affiliated witnesses
with no opportunity for either the judge at the Spreigl hearing or the jury at trial to evaluate
their credibility. State v. Brown, 739 N.W.2d 716, 720 (Minn. 2007) (“Inquiry on cross-
examination into common gang membership may be sufficiently probative to show bias . .
. .”). “Unlike other cases in which we have affirmed the trial court’s admission of Spreigl
evidence on the strength of a conviction, a victim’s clear identification of the defendant as
the assailant, or the defendant’s own confession,” State v. Shannon, 583 N.W.2d 579, 584
(Minn. 1998), in this case, it cannot be said that Davis’s participation in the Lake Calhoun
shooting is “highly probable.” State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998)
(quotation omitted), holding modified by Ness, 707 N.W.2d at 686. The state’s evidence
was not “unequivocal, intrinsically probable and credible, and free from frailties.” Gassler
v. State, 787 N.W.2d 575, 583 (Minn. 2010).
The state overstated the strength of its evidence connecting Davis to the Lake
Calhoun shooting at the Spreigl hearing. Pursuant to Kasper, the district court and
appellate courts have the authority “to grant relief, when appropriate, if the evidence
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adduced was not what the prosecutor led the trial court to expect.” 409 N.W.2d at 847.
Therefore, I would conclude that the district court abused its discretion because the
evidence of Davis’s involvement in the Lake Calhoun shooting did not meet the clear-and-
convincing standard. Minn. R. Evid. 404(b). The evidence connecting Davis to the Lake
Calhoun crime is “simply too incomplete.” Link, 289 N.W.2d at 106 (quotation omitted).
II. Because the evidence of Davis’s involvement in the Lake Calhoun shooting was
erroneously admitted and harmful, Davis is entitled to a new trial.
In order to obtain a new trial, an appellant must show that the district court abused
its discretion by admitting the Spreigl evidence and that its erroneous admission was
harmful. State v. Thao, 875 N.W.2d 834, 839 (Minn. 2016). An error is harmful if there
is a reasonable possibility that the “wrongfully admitted evidence significantly affected the
verdict.” Id. (quotation omitted). Factors to consider include whether a cautionary
instruction was used, whether in closing arguments the state dwelled on the evidence, and
whether there was overwhelming evidence of guilt. Id. As explained above, the admission
of the Spreigl evidence was erroneous, so I next turn to the analysis of whether the
erroneous admission was harmful.
First, the district court provided a cautionary instruction to the jury regarding the
Lake Calhoun shooting. However, in its instructions, the district court charged the jury
with determining whether Davis’s participation in the Lake Calhoun shooting was clear
and convincing. This was an abuse of discretion because it is the court’s duty, not the
jury’s, to determine whether the Spreigl evidence meets the clear and convincing standard.
See Kasper, 409 N.W.2d at 847.
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Second, the record reflects that the state dwelled on the wrongfully admitted
evidence in its closing arguments. The state made seven different references to the Lake
Calhoun shooting. Cf. Thao, 875 N.W.2d at 840 (noting that the prosecutor did not dwell
on prior incident by alluding to it only twice). Notably, with respect to N.P.’s testimony
identifying Davis as the alleged shooter, the state acknowledged that “[m]aybe she wasn’t
positive.” The state also highlighted that the 2010 shooting was a crime “that the defendant
[has not] been charged with yet,” implying that charges for the crime were pending.
Moreover, the state went even further by stating to the jury, “Whatever you do, I’m sure
I’ll see Mr. Davis again.” I agree with the majority that this statement was plain error by
the state and the “implied premise is [that] . . . even without a conviction, Davis is such a
habitual offender that he will likely offend again.” This is precisely the danger of admitting
Spreigl evidence, that it will be used “for an improper purpose, such as suggesting that the
defendant has the propensity to commit a crime.” Washington, 693 N.W.2d at 200.
Third, the state’s evidence against Davis in the Target Field shooting, particularly
with respect to the identification of Davis as the shooter, was weak. The Target Field
victim identified Davis as the shooter in a recorded interview to the police. Yet, prior to
the interview, the victim stated that he would be unable to identify the shooter. Then, at
trial, he recanted his identification of Davis as the shooter. A second biased witness
implicated Davis by testifying that, following the Target Field shooting, Davis insinuated
his participation in the crime. But this second witness was originally charged as a co-
defendant in the Target Field shooting and initially gave two false statements to the police.
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And once he came forward and implicated Davis in the crime, the charges against him were
dropped.
In view of the district court’s erroneous instruction to the jury, the state’s dwelling
on the wrongfully admitted Spreigl evidence during closing arguments, and the limited
evidence of Davis’s guilt in the Target Field shooting, I cannot conclude that the erroneous
admission of the Spreigl evidence did not substantially influence the jury’s decision. Thao,
875 N.W.2d at 839. I acknowledge the challenge the state faces in prosecuting gang-related
cases. I am also cognizant of the significant negative impact that gang-related violence has
on the community and the desirability of obtaining convictions. But trial courts and
appellate courts have an obligation to ensure that the legal standard of clear and convincing
evidence is met for the proper admission of Spreigl evidence and, as the Minnesota
Supreme Court has noted, the courts “are always free to grant relief, when appropriate”
when the state’s offer of proof is not supported by the evidence adduced at trial and fails
to meet the clear-and-convincing standard. Kasper, 409 N.W.2d at 847. Here, after trial,
the district court “concede[d] . . . that what was offered at trial was significantly less than
the offer of proof” and did not meet this standard. As such, I would reverse and remand
for a new trial.
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