State v. Cosey, A19-1616

State of Minnesota, Respondent, v. Antwan Darnell Cosey, Appellant.

A19-1616

STATE OF MINNESOTA IN COURT OF APPEALS

December 14, 2020

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).

Affirmed

Slieter, Judge

Hennepin County District Court

File No. 27-CR-18-6128

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Bratvold, Judge; and Cochran, Judge.

UNPUBLISHED OPINION

SLIETER, Judge

In this direct appeal from the judgment of conviction, appellant challenges his second-degree murder conviction on the ground that the district court impermissibly instructed the jury on the order in which to consider the offenses and improperly excluded evidence necessary to his claim of self-defense.¹ Because appellant's substantial rights were not affected by the district court's error in its instruction to the jury and appellant was not prejudiced by the district court's evidentiary rulings, we affirm.

FACTS

Appellant Antwan Darnell Cosey shot and killed victim F.G. in February 2018. Following the shooting, the state charged appellant with second-degree intentional murder, in violation of Minn. Stat. § 609.19, subd. 1(1) (2016). The district court later submitted for jury consideration the lesser-included offense of unintentional second-degree felony murder, in violation of Minn. Stat. § 609.19, subd. 2(1) (2016). Whether appellant acted in self-defense when he pulled the trigger was the main issue at trial. Appellant encountered the victim on the sidewalk in front of the apartment of the victim's girlfriend. During an exchange, both men were facing each other for a confrontation when appellant reached for a firearm and shot the victim in the chest. The exchange lasted approximately 46 seconds. Appellant fled the scene and was arrested in Florida in March 2018. He gave a statement to Minneapolis police the day after his arrest.

After closing arguments, the district court instructed the jury that "you don't consider the lesser crime unless or until you decide there's a reasonable doubt on the greater crime." Appellant's counsel did not object to this jury instruction. The jury found appellant guilty of second-degree intentional murder and did not return a verdict for the lesser-included offense. This appeal follows.

DECISION

I. The district court did not commit reversible error by its jury instruction.

Appellant argues the district court committed reversible error by its jury instruction and that such instruction significantly impacted the jury's verdict. We agree the instruction constituted error that is plain, but we are not persuaded that this error affected appellant's substantial rights.

A district court has broad discretion in selecting jury instructions. State v. Kelley, 855 N.W.2d 269, 274 (Minn. 2014). Absent an objection, this court may reverse if a jury instruction constituted plain error. Id. at 273-74. Appellant must first satisfy three requirements pursuant to the plain-error doctrine by showing: 1) an error; 2) that is plain; and 3) that affected his substantial rights. State v. Woodard, 942 N.W.2d 137, 144 (Minn. 2020). If appellant satisfies this burden, this court "may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Kelley, 855 N.W.2d at 273 (alteration in original) (quoting State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (citation omitted)); see also Woodard, 942 N.W.2d at 144 (stating court will address error to ensure fairness and integrity of judicial proceedings only if appellant satisfies burden on plain-error doctrine).

A. The district court committed plain error.

Plain errors are those that are "clear or obvious," which may be demonstrated by contravening case law. State. v. Prtine, 784 N.W.2d 303, 314 (Minn. 2010) (quotation omitted). A district court commits plain error when "suggest[ing] the order in which the jury should consider the charges." Id. at 317. The district court instructed the jury not to "consider the lesser crime unless or until you decide there's reasonable doubt on the greater crime." The district court again told the jury, "[o]nly if there's a not guilty verdict on count 1 [second-degree murder] do you consider the other count." Because the district court committed plain error by so instructing the jury, we next consider whether that error affected appellant's substantial rights.

B. Appellant's substantial rights were not affected.

Appellant bears the "heavy burden" to prove his substantial rights were affected by a plain error. Kelley, 855 N.W.2d at 283. A defendant's substantial rights are affected if "there is a reasonable likelihood that giving the instruction in question had a significant effect on the jury verdict." Id. (quotation omitted). It follows that an instruction directing a jury to consider a greater offense first does not have a significant effect on a verdict "if no rational jury would have acquitted the defendant of the more serious charge based on the evidence at trial." Woodard, 942 N.W.2d at 145. This court considers the effect of the instruction by analyzing the strength of the evidence presented and the nature of the defense. Kelley, 855 N.W.2d at 284.

1. The Evidence Presented at Trial

To convict appellant of second-degree intentional murder, the state had to prove beyond a reasonable doubt that appellant caused the death of another "with intent to effect the death of that person . . . ." Minn. Stat § 609.19, subd. 1(1). The lesser charge of unintentional second-degree murder requires a defendant to cause the death of another "without intent to effect the death of any person, while committing or attempting to commit a felony offense." Id., subd. 2(1).

The state called 19 witnesses to testify during the trial, including three witnesses who observed the shooting. The state also presented surveillance video of the shooting. The evidence demonstrated the following:

• Appellant walked away then back towards the victim three times.

• As reflected by eyewitness testimony and appellant's statements, appellant was aware of the apartment camera's location and, according to eyewitness testimony, appellant said he would not fight on camera and thereafter "lured" the victim away from the building's cameras.

• Two witnesses, T.B and D.S, rejected appellant's claims that the victim was the initial aggressor. Contrary to the testimony of appellant, neither witness heard the victim threaten to kill appellant.

• A third witness, D.Q., a tenant of the building with a view of the sidewalk, heard a loud, verbal altercation with swearing from both sides.

• Appellant shot the victim in the chest from what appeared in the video to be a close distance, stepping forward to do so.

• Testimony from the medical examiner established that the bullet entered on the victim's left side, struck the left lung, heart, right lung, and exited the right side of the victim's body.

• The victim was unarmed.

• Appellant fled the scene without offering aid to the victim.

• Appellant requested money from an acquaintance to obtain a bus ticket out of state, ultimately to Florida, and did not inform the acquaintance of any legal trouble.

• On March 9, appellant was arrested in Florida on a bus bound for Texas.

• Nine months after speaking with police, appellant wrote to his former landlord, who initially identified appellant for the police, asking the landlord to retract his statement.

The Minneapolis police interviewed appellant for two hours while in Florida after his arrest, resulting in a 70-page transcript. The transcript presented to the jury contained all but six pages redacted by the district court's order. Appellant also testified. Appellant presented evidence from both the interview transcript and testimony as follows:

• Appellant testified that he purchased a gun about a month before the shooting for purposes of self-defense.

• Appellant testified he was polite throughout the exchange, only raising his voice to tell the victim to calm down, and that the victim was "hostile and aggressive."

• Appellant stated he could have initially walked away from the exchange, but said as it progressed he felt the victim would not let him walk away.

• Appellant agreed there was nothing "blocking" the sidewalk, alley, or street to prevent him from leaving the encounter.

• Appellant extensively testified that the victim threatened to take appellant's gun and shoot appellant, after appellant warned the victim he was armed. The latter testimony contradicts appellant's earlier statement to police, also heard by the jury, in which he told the interviewing officers the victim "assumed" appellant had a gun.

• Appellant, as his explanation for leaving the state after the shooting, said he wanted to "buy time" before his ultimate arrest and that he planned to turn himself in to police in Florida.

As required by Kelley, after analyzing the strength of the evidence presented, we next turn to the nature of the defense. 855 N.W.2d at 284.

2. The Nature of the Defense

Appellant presented testimony and argued that he shot the victim in self-defense. Because appellant claimed self-defense, "[the] state has the burden of disproving one or more" elements of self-defense "beyond a reasonable doubt." State v. Johnson, 719 N.W.2d 619, 629 (Minn. 2006) (quotation omitted). A successful self-defense justification requires:

(1) the absence of aggression or provocation on the part of the defendant; (2) the defendant's actual and honest belief that he or she was in imminent danger of . . . bodily harm; (3) the existence of reasonable grounds for that belief; and (4) the absence of a reasonable

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