State v. Davis

982 N.W.2d 716

STATE of Minnesota, Respondent,

v.Berry Alexander DAVIS, Appellant.

A21-1309

Supreme Court of Minnesota.

Filed: December 21, 2022

Keith Ellison, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota, Sarah Jane Vokes, Assistant County Attorney, Minneapolis, Minnesota, for respondent.

Melissa Sheridan, Eagan, Minnesota, for appellant.

OPINION

GILDEA, Chief Justice.

Appellant Berry Alexander Davis appeals his convictions for first-degree premeditated murder, attempted first-degree murder, and kidnapping. Davis argues that the district court erred by joining his and his codefendant Cedric Berry's cases for trial and by denying subsequent, midtrial severance motions. Davis also argues that the State committed prejudicial prosecutorial misconduct during closing arguments by improperly belittling and disparaging his defense and defense counsel. Finally, Davis asserts six claims in his pro se supplemental brief. We conclude that the district court did not err by conducting a joint trial. We also conclude that the State did not commit prosecutorial misconduct in closing arguments. Finally, we conclude that the issues raised in Davis's pro se brief do not entitle him to relief. Accordingly, we affirm.

FACTS

This case arises from the kidnapping and murder of Monique Baugh and attempted first-degree premeditated murder of her boyfriend, Jon.¹ Davis and Berry were tried together for these crimes, and the facts surrounding the crimes are detailed in the opinion resolving Berry's appeal, which we release simultaneously with this opinion. State v. Berry , No. A21-1310, 982 N.W.2d 746 (Minn. Dec. 21, 2022). We discuss here only those facts relevant to Davis's appeal.

The State charged Davis and Berry with first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2022), attempted first-degree murder, Minn. Stat. §§ 609.17, subd. 1 (2022), 609.185(a)(1), kidnapping to commit great bodily harm or terrorize, Minn. Stat. § 609.25, subd. 1(3) (2022), and first-degree intentional murder during a kidnapping, Minn. Stat. § 609.185(a)(3) (2022), all based on a theory of aiding and abetting liability, Minn. Stat. § 609.05 (2022). Before trial, the State moved for joinder of Davis's and Berry's cases for trial.

Over the objections of the defendants, the district court granted the motion. The court explained that the case was complex, with the State disclosing over 200 pieces of physical evidence, thousands of hours of digital records, and over 100 potential witnesses. The court also relied on the State's allegation that the two defendants committed the crimes together, acting in "close concert." In terms of the impact of separate trials on the victim, the court noted that the attempted murder victim, Jon, would have to testify twice and thus "relive the trauma" he suffered. The court also considered the potential prejudice to the defendants, concluding that the defendants did not have antagonistic defenses. Finally, the court determined that the case had garnered a great deal of media attention, which "could impact the potential jurors in [a] second trial." The court also noted that "it will be easier to accommodate social distancing and to occupy one of the few courtrooms large enough for felony trials for only three to four weeks instead of the six to eight weeks that separate trials would require."² Based on this analysis, the court held that the defendants should be tried together.

During trial, Davis twice moved to have the cases severed, once after opening statements and once after Berry testified. Davis argued that the cases needed to be severed because the defenses were antagonistic. The district court denied the motions, determining that the defenses were not sufficiently antagonistic. Specifically, with respect to whether Berry's testimony created antagonistic defenses, the court noted that "there was no direct statement by Mr. Berry that [ ] Davis did this ... or anything else that would be so antagonistic that it would require severance."

After closing argument—to which Davis made no objection—the jury found Davis guilty of the crimes charged. The district court convicted Davis of first-degree premeditated murder, attempted first-degree murder, and kidnapping, and sentenced Davis to life without the possibility of release for first-degree premeditated murder, consecutive to 161 months for kidnapping, and to 240 months for attempted first-degree premeditated murder. This appeal follows.

ANALYSIS

On appeal, Davis argues that he is entitled to a new trial. Davis first contends that the district court erred by joining Davis's and Berry's cases for trial and by denying Davis's midtrial motions to sever. Next, he asserts that the prosecutor committed misconduct during closing arguments.

Finally, Davis raises six claims in his pro se supplemental brief. We address each issue in turn.

I.

We first consider whether the district court improperly joined Davis's and Berry's cases for trial and erred by refusing to sever the cases once the trial was underway. We address the joinder question first.

A.

Davis contends that the district court erred by granting the State's joinder motion. Minnesota Rule of Criminal Procedure 17.03, subdivision 2, governs joinder of criminal trials. This rule neither favors nor disfavors joinder. State v. Jackson , 773 N.W.2d 111, 118 (Minn. 2009). In deciding whether to join cases for trial, the rule requires that the district court consider four factors: "(1) the nature of the offense charged; (2) the impact on the victim; (3) the potential prejudice to the defendant; and (4) the interests of justice." Minn. R. Crim. P. 17.03, subd. 2. The district court examined each of these factors and concluded that the trials should be joined.

The district court found that the nature of the offenses charged favored joinder. We agree. When the "codefendants act in close concert with one another," our precedent recognizes that joinder is appropriate. State v. Powers , 654 N.W.2d 667, 674 (Minn. 2003). Codefendants act in close concert if they face the same charges and the evidence against each is "nearly identical." State v. Greenleaf , 591 N.W.2d 488, 499 (Minn. 1999). Here, Davis and Berry faced the same charges and the State's evidence against each was nearly identical. See Jackson , 773 N.W.2d at 118 (upholding joinder where defendants "were charged with the same crimes and ... the evidence against them was virtually identical"). The State's evidence showed that each codefendant played a role in planning the crimes and that they worked together on the day of the kidnapping and shootings to commit the crimes and cover them up. Cell-site location data placed each codefendant near the scenes of the crimes. And the State relied on surveillance footage, DNA evidence, and witness testimony to place vehicles connected with the codefendants near the scenes of the crimes. As a result, the district court properly determined that this factor weighed in favor of joinder.³

The district court also determined that the impact of separate trials on the victim weighed in favor of joinder. The court's determination is consistent with Powers . There, we considered "the violent nature of the crime charged" and need for witnesses, including a "surviving shooting victim," "to testify to the same facts on numerous occasions" in upholding the decision to join the defendants for trial. 654 N.W.2d at 675. As in Powers , here, the surviving victim of the attempted murder would have to testify to the same facts twice if the codefendants were tried separately. The district court properly determined that this factor weighs in favor of joinder.

We now move to the factor evaluating potential prejudice to the defendant. One way for a defendant to show potential prejudice is to demonstrate that the codefendants would assert antagonistic defenses at trial. See Santiago v. State , 644 N.W.2d 425, 446 (Minn. 2002). We have said that antagonistic defenses exist when the defendants "seek to put the blame on each other," forcing the jury "to choose between the defense theories advocated by the defendants." Id.

Davis argues that he demonstrated that his and Berry's defenses were antagonistic, relying on Santiago. There, the codefendants had antagonistic defenses because each defendant "sought to shift the blame for the shooting to the other." Santiago , 644 N.W.2d at 446. Santiago argued that his codefendant "was the shooter and ... acted alone." Id. By contrast, the codefendant argued that Santiago was the shooter. Id. Santiago thus presented a "classic example[ ]" of antagonistic defenses. Id. This case is unlike Santiago .

At a pretrial hearing addressing the issue of joinder, Davis pointed out that Berry had listed him as a potential alternative perpetrator and argued that he and Berry would "point the finger" at each other at trial. But, as the district court properly reasoned, Davis and Berry were each charged under an aiding and abetting theory of liability, and the State's theory was that they worked together to set up and commit the crimes. Given the charges, it did not matter who pulled the trigger because the State must simply show that the crime was committed and that the defendants intentionally aided the commission of the crime. The defenses Davis argued that each would offer—that the other one did it—are not antagonistic because both defendants could still be liable so long as they each assisted in the commission of the crime. In other words, the jury would not have to choose between defense theories. The jury could accept both theories and find each defendant guilty because they helped in the commission of a crime that another person committed. Accordingly, there is no prejudice to the defendants for purposes of this factor.

Finally, we address the interests of justice factor. The district court found that this factor weighed in favor of joinder based on the case's complexity,...