State of Minnesota v. Lorenzo Leontay Washington

This opinion will be unpublished and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
A15-0031
State of Minnesota,
Respondent,
vs.
Lorenzo Leontay Washington,
Appellant.
Filed February 16, 2016
Affirmed
Bjorkman, Judge
Hennepin County District Court
File No. 27-CR-13-29611
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Charles F. Clippert, St. Paul, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Ross, Judge; and Larkin,
Judge.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges his convictions of aiding and abetting attempted second-
degree murder and aiding and abetting second-degree assault, arguing that the district court
improperly admitted Spreigl evidence, the prosecutor engaged in prejudicial misconduct,
the evidence was insufficient to sustain the attempted-murder conviction, and the district
court’s sentencing decision was improperly influenced by appellant’s exercise of his trial
rights. We affirm.
FACTS
Appellant Lorenzo Leontay Washington was charged with aiding and abetting
second-degree assault, aiding and abetting attempted first-degree aggravated robbery, and
aiding and abetting attempted second-degree murder following a July 11, 2013 incident.
The state alleged that on that day, Washington, Cartrell Smith, and O.W. confronted D.P.,
chased him for several blocks on their bicycles, and then shot him. Washington and
Smith’s cases were joined for trial. The jury acquitted both men of attempted aggravated
robbery, but could not agree on a verdict on the other charges. Washington and Smith were
retried together on the assault and attempted second-degree-murder charges.
At the second trial, D.P. testified about the relationships among the various
individuals. In 2010 or 2011, Juwon Osborne—also known as “Skitz”—shot D.P. D.P.
did not report this incident to the police because he did not want to be called a “snitch.”1
He knew that Osborne and Washington were associated, and he had issues with
Washington. In 2012, D.P. and Washington resided together at a treatment facility. While
at the facility, the two argued after Washington told other residents that Osborne shot D.P.’s
testicles off. D.P. described himself and Washington as “always . . . in a conflict.”
1
Subsequently, Osborne was fatally shot.
2
D.P. also testified about the July 11, 2013 shooting. On that day, he was confronted
by a group of individuals on bicycles, one of whom called out the name “Skitz.” D.P.
recognized several of the individuals, including Washington, Smith, and O.W. D.P. fled
on his bicycle, and the group followed. When D.P. was approximately one block from his
friend J.J.’s house, he heard gunshots and a “ting sound” on his bicycle, which he thought
was made by a bullet. D.P. attempted to enter J.J.’s house, but no one responded when he
knocked on the door and windows. While standing in J.J.’s backyard, D.P. saw Smith
holding a gun in the middle of the street and Washington standing near the front of the
house. D.P. attempted to run and heard Washington say, “there he goes, there he goes.”
Smith shot at D.P. four times, hitting him in the buttocks. The group then rode away on
their bicycles.
After he was shot, D.P. saw a police car approaching and went to the officer for
help. D.P. told Officer Michael Killebrew that he had been shot and that Washington and
O.W. were members of the group that shot him. D.P. testified that he did not identify the
shooter at that time because he did not “want to be telling on nobody.” D.P. was then
transported to North Memorial Hospital.
Sergeant Kelly O’Rourke testified that he spoke with D.P. in the hospital five days
after the shooting. D.P. reported that Washington and O.W. were in the group that
confronted him, and that Smith shot him. D.P. again stated that a member of the group
called out “Skitz,” and that Washington was the person who said “there he is, there he is”
before the shots were fired. On July 18, Sergeant O’Rourke returned to the hospital with
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his partner, who administered a photo lineup. D.P. again identified Washington, Smith,
and O.W., and stated that Smith was the shooter.2
Sergeant O’Rourke also testified that he reviewed video footage from public-safety
cameras located in close proximity to the shooting, but the footage did not contain relevant
information. A defense investigator also reviewed the footage and testified that it did not
show any type of chase, but revealed one or two people riding bicycles in a casual manner.
A map showing the location of the cameras demonstrates that none are present at the
intersection where the shooting occurred.
The jury found Washington guilty of aiding and abetting second-degree assault and
aiding and abetting attempted second-degree murder. Washington moved for a downward
dispositional sentencing departure. The district court denied the motion and imposed a
presumptive 131-month sentence. Washington appeals.
DECISION
I. The district court did not abuse its discretion by admitting evidence of prior
contact between Washington and D.P. without conducting a Spreigl analysis.
As a general rule, relevant evidence is admissible. Minn. R. Evid. 402; State v.
Swinger, 800 N.W.2d 833, 839 (Minn. App. 2011), review denied (Minn. Sept. 28, 2011).
Evidence of motive is typically relevant—even when not an element of the charged
offense—because it can explain the reason for a person’s actions. See State v. Ness, 707
2
D.P. previously testified at O.W.’s trial that Washington, Smith, and O.W. were present
at the scene, but he did not know the identity of the shooter. At Washington and Smith’s
second trial, D.P. explained that he did not identify Smith as the shooter at O.W.’s trial
because he did not want to be a “snitch,” and he was concerned for his safety.
4
N.W.2d 676, 687 (Minn. 2006). But “[e]vidence of another crime, wrong, or act is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Minn. R. Evid. 404(b). Such evidence may be admissible for another purpose,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake. Id.; State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965).
We review a district court’s evidentiary ruling for an abuse of discretion. State v. Loving,
775 N.W.2d 872, 879 (Minn. 2009).
Washington challenges the admission of D.P.’s testimony that Washington
associated with Osborne, that D.P. and Washington argued in 2012 at a treatment facility,
and that D.P. and Washington were “always . . . in a conflict.” The testimony did not
include details of the contacts and relationship between Washington and D.P., and did not
reference criminal acts or gang affiliation. In short, the challenged testimony provided
background about how D.P. and Washington knew each other, and Washington’s potential
motive for the shooting. Because we conclude that this does not constitute Spreigl
evidence, the district court was not required to conduct the five-step process for admitting
such evidence. See Ness, 707 N.W.2d at 686 (stating the five-step analysis for admitting
Spreigl evidence). And even if this evidence did constitute Spreigl evidence, it was
admissible because it explained the relationship between Washington and D.P. and
established a motive for the commission of the offense. State v. Schweppe, 306 Minn. 395,
402, 237 N.W.2d 609, 615 (1975); see also Ness, 707 N.W.2d at 687 (stating that although
motive is not an element of most crimes, the state is usually entitled to present motive
evidence to help explain the reason for an act).
5
Although we discern no abuse of discretion by the district court in admitting this
evidence, we note that any prejudicial effect is minimal. The court did not permit any
references to gang affiliations and there was no suggestion that Washington’s prior
encounters with D.P. constituted criminal activity. Moreover, any prejudice that occurred
by admitting evidence of the incident at the treatment facility and the continued animosity
between Washington and D.P. also worked against the state. The strained relationship
between Washington and D.P. could provide an incentive for D.P. to lie, which the defense
expressly asserted in its closing argument.
II. The prosecutor did not commit prejudicial misconduct.
Washington argues that the prosecutor engaged in both unobjected-to and objected-
to misconduct. We look at the trial as a whole to determine whether prosecutorial
misconduct warrants a new trial. See State v. Johnson, 616 N.W.2d 720, 727-28 (Minn.
2000) (stating when courts consider claims of prosecutorial misconduct in closing
argument the arguments are considered as a whole); see also State v. Hoppe, 641 N.W.2d
315, 321-22 (Minn. App. 2002) (holding that a new trial was warranted after considering
all instances of prosecutorial misconduct), review denied (Minn. May 14, 2002). We apply
a different standard of review to unobjected-to and objected-to misconduct. Accordingly,
we address each category in turn.
Unobjected-to misconduct
We review unobjected-to prosecutorial misconduct under a modified plain-error
standard, considering whether there is “(1) error, (2) that is plain, and (3) affects substantial
rights.” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). On the third element, the
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state bears the burden of proving that the misconduct did not affect the defendant’s
substantial rights. Id.
Washington first argues that the prosecutor disparaged the defense when he stated
that one of its theories was “absurd” and argued that the defense investigator “cherry-
picked” the photographs he described. We are not persuaded. In Hoppe, we held that a
prosecutor committed misconduct when he stated the defendant’s argument was
“ridiculous” and told the jury not to be “snowed” by the defense. 641 N.W.2d at 321. But
in State v. Matthews, our supreme court held that a prosecutor did not engage in misconduct
by describing the defense’s explanation of events as “concocted,” “ridiculous,” and
“unbelievable.” 779 N.W.2d 543, 552 (Minn. 2010). The supreme court reasoned that the
prosecutor’s statement was directed at witness credibility rather than the defendant’s
broader theory of defense. Id. We conclude this case is more like Matthews. The
prosecutor’s statements, considered in context, urged the jurors to find D.P.’s testimony
credible. As such, they do not amount to misconduct.
Next, Washington contends that the prosecutor committed misconduct by telling the
jury that their duty was to find the truth. In State v. Ashby, the supreme court concluded
that the prosecutor’s admonition to the jury to “keep its eyes on the prize” of truth was not
misconduct because the statement was made in the context of the jury’s duty to evaluate
witness credibility. 567 N.W.2d 21, 28 (Minn. 1997). Similarly, in State v. Bailey, the
supreme court held that it was not misconduct for the prosecutor to tell the jurors they were
“truth seekers” and to argue that they should “search for the truth in the evidence.” 677
N.W.2d 380, 403 (Minn. 2004). Here, the prosecutor referred to the jury’s duty to find the
7
“truth” or render a “true verdict” on at least eight occasions. But the majority of these
references were made in the context of evaluating the credibility of witness testimony,
particularly D.P.’s credibility, on which the state’s case largely turned. On this record, we
discern no misconduct.
Washington also asserts that the prosecutor improperly shifted the burden of proof
to the defense by arguing that “if someone wanted to challenge [D.P.]’s assessment that
[Washington and Osborne] were aligned, someone could have done that.” This argument
has merit. A prosecutor may not comment on a defendant’s failure to contradict testimony.
State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (concluding that arguing testimony is
“uncontradicted” or is “without impeachment by any cross-examination” constitutes
misconduct). By suggesting that Washington should have presented evidence regarding
Washington’s claimed association with Osborne, the prosecutor violated clear precedent,
thereby committing misconduct.
Because we conclude that the prosecutor committed misconduct, we must determine
whether Washington’s substantial rights were affected. See Ramey, 721 N.W.2d at 302
(stating that the state must prove there is no reasonable likelihood that the absence of the
misconduct would have significantly affected the jury’s verdict). Washington cites Porter,
where our supreme court held that the prosecutor’s misconduct was not harmless beyond a
reasonable doubt. 526 N.W.2d at 365-66. But that conclusion was not solely based on the
prosecutor’s improper burden-shifting comment. Id. Rather, the prosecutor’s misconduct
in Porter included appealing to the passions and prejudices of the jury, arguing the
consequences of the jury’s verdict, bolstering the credibility of the state’s expert witness,
8
distorting the burden of truth, and alluding to the defendant’s failure to contradict certain
testimony. Id. (stating that the prosecutor’s misconduct “permeated the entire closing
argument”).
In contrast, the prosecutor’s misconduct here falls substantially short of Porter’s
mark. The misconduct consisted of one improper burden-shifting statement; it did not
permeate the entire closing argument. The improper statement was only one sentence out
of a closing argument and rebuttal that spanned approximately 45 pages. See Matthews,
779 N.W.2d at 552 (stating misconduct limited to “a few lines in a 48-page closing
argument” did not affect defendant’s substantial rights). Accordingly, we conclude that
the misconduct did not affect Washington’s substantial rights.
Objected-to misconduct
When an objection is made at trial, we first determine whether the prosecutor
engaged in misconduct, and then apply a “two-tiered harmless-error analysis.” State v.
Jackson, 773 N.W.2d 111, 121 (Minn. 2009). If the misconduct is unusually serious, the
court must decide whether it was harmless beyond a reasonable doubt. Id. If the
misconduct is less serious, we consider whether it likely played a substantial part in
influencing the jury’s verdict. Id.
Washington argues that the prosecutor committed misconduct by asking the defense
investigator, on cross-examination, “[s]o your job isn’t to find the truth, right?”
Washington offered no legal basis for his objection, but asserts on appeal that the question
disparaged the defense. Washington points to State v. Griese for the proposition that
disparagement occurs when the prosecutor argues that a particular defense was presented
9
because it was the only one that could succeed. 565 N.W.2d 419, 427 (Minn. 1997).
Because the prosecutor made no such argument, we are not persuaded. Washington also
argues that the question implied that the investigator was not testifying truthfully. The
prosecutor asked the investigator about his job duties, if he worked for the defense, and
whether his job was to assist the defense. The objected-to question may have more directly
challenged the investigator’s credibility but we do not view this as outside the scope of
permissible cross-examination. Moreover, the state essentially conceded the primary
substance of the investigator’s testimony—that the chase and the shooting did not appear
on any of the video footage. On this record, we discern no prejudicial error.
III. The evidence was sufficient to prove that Washington aided and abetted
attempted second-degree murder.
When considering a sufficiency-of-the-evidence challenge, our review is limited to
determining whether the evidence was sufficient to permit the jury to reach the verdict that
it did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We review the evidence in the
light most favorable to the verdict and assume that the fact-finder disbelieved any
testimony conflicting with that verdict. State v. Chavarria-Cruz, 839 N.W.2d 515, 519
(Minn. 2013); State v. Hokanson, 821 N.W.2d 340, 353 (Minn. 2012). We defer to the
fact-finder’s credibility determinations, State v. Buckingham, 772 N.W.2d 64, 71 (Minn.
2009), and will not disturb a verdict if the jury, acting with due regard for the presumption
of innocence and the requirement of proof beyond a reasonable doubt, could reasonably
conclude that the defendant was guilty of the charged offense. Bernhardt v. State, 684
N.W.2d 465, 476-77 (Minn. 2004).
10
Washington asserts that the evidence was insufficient to prove that he was involved
in the shooting. We disagree. Identification is a question of fact for the jury to decide.
State v. Oates, 611 N.W.2d 580, 586 (Minn. App. 2000), review denied (Minn. Aug. 22,
2000). D.P. testified that Washington was one of the individuals who pursued him on the
day in question and that Washington shouted “there he goes, there he goes” immediately
before Smith shot him. D.P. identified Washington in his initial contact with Officer
Killebrew, his interview with Sgt. O’Rourke at the hospital, during a photo lineup, during
O.W.’s trial, and again in court during Washington’s trial. Whether D.P.’s testimony was
credible is a jury determination to which we must defer. Buckingham, 772 N.W.2d at 71.
Because a verdict can be based on the testimony of a single credible witness, we conclude
that the evidence is sufficient to support Washington’s conviction. See Caldwell v. State,
347 N.W.2d 824, 828 (Minn. App. 1984).
IV. The district court’s sentencing decision was not improperly influenced by
Washington’s decision to exercise his constitutional trial rights.
We review sentences imposed by a district court for abuse of discretion. State v.
Delk, 781 N.W.2d 426, 428 (Minn. App. 2010), review denied (Minn. July 20, 2010). It is
a “rare” case in which we reverse a sentence within the presumptive guidelines range. Id.
But the fact that a defendant exercises his constitutional trial rights must have no bearing
on his sentence. State v. Mollberg, 310 Minn. 376, 388, 246 N.W.2d 463, 471 (1976). On
appeal, the record must show that the district court sentenced the defendant based on the
facts of the case and his personal history, and not as a punishment for pleading not guilty.
State v. Knaak, 396 N.W.2d 684, 689 (Minn. App. 1986).
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Washington argues that the district court imposed a 131-month presumptive
sentence based, at least in part, on Washington’s decision to exercise his trial rights. He
points out that during a May 5, 2014 pretrial hearing, the district court stated the following
while in chambers:
So I don’t know what a jury would do, but I think that under
the circumstances probation is a reasonable offer given the fact
[that the defendants have] already spent a year in. And I’m not
saying that [the state] should do that. I’m saying that under the
circumstances on a straight plea I would do that . . . .
Washington asserts that these statements create an inference that the district court punished
him for pleading not guilty and going to trial.
Washington cites United States v. Medina-Cervantes to support his assertion that
his sentence was improperly influenced by his decision to stand trial. 690 F.2d 715, 716-
17 (9th Cir. 1982). In that case, the sentencing judge stated that the defendant’s insistence
on proceeding to trial cost the government money, and reflected the defendant “thumbing
his nose at [the] judicial system.” Id. at 716. The Ninth Circuit vacated the defendant’s
sentence because there was nothing in the record to rebut the inference that a more severe
sentence was imposed because the defendant exercised his trial rights. Id. at 716-17. In
contrast to Medina-Cervantes, the record before us rebuts the inference that Washington
was punished for pleading not guilty.
First, the district court’s statement concerning a probationary sentence was made in
the context of the parties’ plea negotiations. On May 5, the district court ruled on various
pretrial motions—primarily evidentiary motions—in open court. The attorneys and the
judge then continued discussing the trial in chambers. The conversation in chambers
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largely focused on whether the state intended to proceed with trial. In light of that
discussion, the judge’s statements appear to have been directed toward the state to advance
a settlement offer, rather than toward Washington to encourage him to plead guilty.3
Second, the district court articulated several grounds for its decision at the
sentencing hearing. These reasons included Washington’s rehabilitative-treatment history,
criminal history, known gang affiliation, and present conviction. This shows that the
district court based its sentencing decision on the facts of the case and Washington’s
personal history. On this record, we conclude that Washington was not punished for
exercising his trial rights.
Affirmed.
3
The district court was encouraging plea negotiations, but the parties do not contend that
the court’s involvement in the negotiations was excessive. See State v. Anyanwu, 681
N.W.2d 411, 414-15 (Minn. App. 2004) (stating that a court should not inject itself into
plea negotiations and step into the position of one of the parties to the negotiation).
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