Lead Opinion
OPINION
Following a jury trial, appellant Diamond Lee Jamal Griffin was convicted of first-degree felony murder, Minm.Stat, § 609.185(a)(3) (2014), in connection with the shooting death of Francisco Benitez-Hernandez.
On the night of July 8, 2013, Griffin, his girlfriend K.F., and his childhood friend Ryan Grant drove to an apartment complex in south Minneapolis. About two weeks earlier, Griffin and Grant had jointly purchased a .22 semiautomatic pistol. Griffin and Grant left KF.’s car with the pistol and tried to rob a man who was walking down the street. As part of the robbery attempt, Grant hit the man in the head with the pistol. The man ran away.
After the unsuccessful robbery, Griffin and Grant walked down a nearby alley until they reached the backyard of 3629 Columbus Avenue South, which was the home of Francisco Benitez-Hernandez and L.B-H. Benitez-Hernandez, L.B-H., and their brother-in-law P.Y-E. were in the backyard sitting at a table drinking beer. As Griffin and Grant entered the backyard, Griffin aimed the pistol at Benitez-Hernandez. When Griffin demanded money, Benitez-Hernandez said they had no money. Griffin then hit Benitez-Hernan-dez with the gun in the head above his eyebrow, causing Benitez-Hernandez to bend over and hold his bleeding head. L.B-H. stood up and threw a beer bottle at Griffin in an effort to distract him. Griffin ducked out of the way, fell backward, caught himself, and then “turned around and ... fired at [L.B-H.].” The bullet struck L.B-H. just above the elbow of his left arm. As L.B-H. ran to get help, Benitez-Hernandez grabbed Griffin’s leg. Griffin redirected the pistol at Benitez-Hernandez’s chest and fired a shot. The bullet penetrated Benitez-Hernandez’s chest, fatally wounding him. Griffin and Grant fled the scene before the police arrived.
Although the police did not find a firearm at the scene, they found two spent cartridge casings in the backyard near Benitez-Hernandez’s body. Police also located two cell phones in the yard, one belonging to L.B-H., and the other belonging to P.Y-E. L.B-H. described the robbers as two black men in white t-shirts. Based on the statements of witness J.M., a resident of a nearby apartment building, police searched that apartment building’s parking lot and found an identification card belonging to Griffin’s girlfriend, K.F. Police also located a take-out food container and a fork near the identification card that were later determined to have K.F.’s DNA on them.
Police located K.F. on July 9, 2013 and spoke to her twice that day, once at her place of employment and again at the police department. She was hesitant to speak with the police but eventually told them that she had been with Griffin on the day of the killing. Also on July 9, police stopped K.F.’s car with Griffin and Grant inside. Griffin was driving and Grant was in the passenger seat. The police arrested the men and seized Griffin’s clothing, including a white tank top, a belt, jean shorts, and black Nike shoes. The police seized Grant’s shoes and a cell phone. The police also executed a search warrant at Grant’s home where they seized a white t-shirt, a white tank top, and black shorts with a white stripe.
The items the police collected at the scene and the clothes and shoes seized from Griffin and Grant were sent to the Minnesota Bureau of Criminal Apprehension (BCA) for forensic testing. The serol-ogist found a blood spot on Griffin’s left shoe and a blood spot on his right shoe. The serologist also found blood on four areas of the jean shorts belonging to Griffin. No blood was found on Griffin’s shirt or belt, or on the t-shirt, tank top, shorts,
Grant pleaded guilty as an accomplice to three crimes: the felony murder of Benitez-Hernandez, the attempted second-degree murder of L.B-H., and the aggravated robbery of P.Y-E. In exchange for assisting the police in locating the gun and for testifying against Griffin at trial, Grant received a reduced sentence of 234 months in prison.
A Hennepin County grand jury returned an indictment charging Griffin with six offenses. The first count alleged the offense of first-degree felony murder (Beni-tez-Hernandez), Minn.Stat. § 609.185(a)(3). The second count alleged the offense of second-degree intentional murder (Benitez-Hernandez), Minn.Stat. § 609.19, subd. 1(1) (2014). The third count alleged the offense of attempt, Minn. Stat. § 609.17 (2014), in which the uncompleted offense was first-degree felony murder (L.B-H.), Minn.Stat. § 609.185(a)(3). The fourth count alleged the offense of attempt, Minn.Stat. § 609.17, in which the uncompleted offense was second-degree intentional murder (L.B-H.), Minn.Stat. § 609.19, subd. 1(1). The fifth count alleged the offense of second-degree assault (P.Y-E.), Minn.Stat. § 609.222, subd. 1 (2014). The sixth count alleged the offense of aggravated robbery (P.Y-E.), Minn.Stat. § 609.245, subd. 1 (2014). Griffin pleaded not guilty to each of the charges.
At the jury trial, the State presented evidence consistent with the facts outlined above. Over Griffin’s objection, the district court allowed the' State to present Spreigl evidence of a 2008 incident. In addition, when the prosecutor asked Griffin’s girlfriend “Do you remember telling your boss that you thought your boyfriend killed somebody?” Griffin objected and moved for a mistrial. The district court sustained the objection, provided the jury a curative instruction, and denied the mistrial motion. The jury returned a not guilty verdict on Count 6 and guilty verdicts on Counts 1, 3, and 5. The district court sentenced Griffin to life in prison on Count-1; to 153 months in prison on Count 3, to be served consecutively to Count 1; and to 36 months in prison on Count 5, to be served consecutively to Counts 1 and 3. Griffin now appeals.
I.
Griffin argues the district court committed reversible error when it admitted the 2008 Spreigl evidence.
A district court’s decision to admit Spreigl evidence is reviewed for an abuse of discretion. State v. Rossberg,
At trial, the State called O.R-H., who testified that on January 3, 2008, he was walking to work and was at First Avenue and 27th Street in Minneapolis when he noticed two men walking behind him. Approximately one block later, one of the men ran up behind him. When O.R.-H, turned around, the man punched him in the nose and rummaged through his jacket and pants pockets for money. O.RH. was unable to make an in-court identification. The State then called Officer Keia Pettis, who testified that on January 3, 2008, during a show-up identification procedure, O.R-H identified Griffin as the person who. attempted to rob him.
We need not decide whether the district court erred in admitting the Spreigl evidence because, even if we assume that the evidence was erroneously admitted, there is no reasonable possibility that the Spreigl evidence significantly affected the verdict. The district court gave the jury a cautionary instruction regarding the permissible use of Spreigl evidence and we presume that the jurors followed the district court’s instruction. State v. Clark,
II.
Griffin also argues that the district court committed reversible error when it denied his motion for a mistrial. The denial of a motion for a mistrial is reviewed for an abuse of discretion. State v. Jorgensen,
On direct examination, the following exchange occurred between the prosecutor and Griffin’s girlfriend:
Q: And do you remember confiding, telling your boss some concern that you had?
A: Yes.
*263 Q: What was-it that you told.your boss?
A: Well, I wasn’t, it wasn’t my boss, I was talking to a co-worker.
Q: Okay.
A: But it was just like that, I didn’t know what was going on and I told her some stuff then it was just confusing and then I told her what was . going—like what happened, stuff that was going on.
Q: Okay. Do you remember what it was you told your boss or what it was you told this co-worker that the boss overheard, what were the words you used?
A: .Um,, I’m not for sure. I remember telling her I was scared.
Q: Okay. Do you remember telling your boss that you thought your boyfriend killed somebody?
The defense objection to the last question was immediately sustained and no answer was given. At the conclusion of the direct examination, the defense moved for a mistrial. The district court denied the motion, but granted the alternative request for a curative instruction and instructed the jury that “[i]t was an improper question ... so you are to totally disregard that question, and there was no answer.” The. district court determined that declaring a mistrial was unnecessary in light of the prompt, sustained objection, its strongly worded curative instruction specifically identifying the prosecutor’s question as improper, and the fact that no answer had come from the question. The district court also instructed the jury in opening and. closing .instructions that the questions of attorneys are not evidence, that they may consider only properly admitted evidence, that they should ignore and not speculate about unanswered questions, and that any evidence the court orders stricken must be disregarded.
In light of the strongly worded curative instruction, the presumption bhat juries follow the district court’s instructions, and the DNA evidence suggesting Griffin’s guilt, we conclude that there is no reasonable probability that the prosecutor’s question affected the outcome of the trial. The district court therefore did not commit reversible error when it denied Griffin’s motion for a mistrial.
III.
Griffin argues the State failed to present sufficient evidence to prove that he intentionally killed Benitez-Hernandez. Specifically, he contends that the circumstances proved support a reasonable inference that the firing of the gun was the “product of accidental discharge due to being grabbed and falling.”
When evaluating the sufficiency of the evidence, appellate courts “carefully examine the record to determine whether the facts 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. Boldman,
Minnesota Statutes § 609.185, subd. (a)(3), requires the State to prove beyond a
When the State relies entirely on circumstantial evidence to prove the element of intent, we use a two-step test to determine whether the State presented sufficient evidence of intent. Id. at 53-54. First, we identify the circumstances proved, deferring to the jury’s acceptance of the proof of these circumstances and rejection of evidence in the record that conflicted with the circumstances proven by the State. State v. Matthews,
We begin our analysis by identifying the circumstances proved, which in this case are as follows. Griffin and Grant bought a .22 semiautomatic pistol together. A semiautomatic pistol requires a person to pull the trigger for each round fired. On July 8, 2013, Griffin and Grant took the pistol to south Minneapolis and failed in an attempt to rob a man on the street. Grant hit the man in the head with a .22 semiautomatic pistol in Griffin’s presence. A short time later, Griffin and Grant decided to rob Benitez-Hernandez, L.B-H., and P.Y-E. After Griffin and Grant entered the backyard, Griffin aimed the pistol at Benitez-Hernandez. When Griffin demanded money, Benitez-Hernandez said they had no money. Griffin then hit Beni-tez-Hernandez in the head above his eyebrow with the gun, causing Benitez-Her-nandez to bend over and hold his bleeding head. L.B-H. stood up and threw a beer bottle at Griffin in an effort to distract him. Griffin ducked out of the way, fell backward, caught himself, and then “turned around and ... fired at [L.B-H.].” The bullet struck L.B-H. just above the elbow of his left arm. As L.B-H. ran to get help, Benitez-Hernandez grabbed Griffin’s leg. Griffin redirected the pistol at Benitez-Hernandez’s chest and pulled the trigger.
The second step is to determine whether the reasonable inferences .that can be drawn from the circumstances proved as a whole are consistent with the hypothesis that Griffin is guilty and inconsistent with any rational hypothesis except that of guilt. The circumstances proved support a reasonable inference that Griffin shot Ben-itez-Hernandez with an intent to kill him. Griffin brought a loaded gun to the robbery, fired the gun in L.B-H.’s direction (eliminating any question as to the gun’s functionality), paused to regain his balance, redirected the gun toward Benitez-Hernandez, and then pulled the trigger. Moreover, the close proximity of the gun to Benitez-Hemandez’s chest made fatal damage to a vital organ a near certainty. Thus, the circumstances proved in this case support a rational inference that Griffin shot Benitez-Hernandez with an intent to kill. See State v. Young,
We also conclude that the circumstances proved are inconsistent with a rational hypothesis other than guilt. Specifically, the circumstances proved do not support a rational inference that the firing of the gun was the product of accidental discharge due to being grabbed and falling. Although Griffin and Grant used the handgun to beat Benitez-Hernandez and another man earlier that evening, there is no evidence that the gun accidentally discharged during either of those beatings. Instead, the circumstances proved establish that the handgun was fully functional; Griffin had to pull the trigger to fire each round; and Griffin regained his balance before redirecting the gun toward Beni-tez-Hernandez’s chest and pulling the trigger. Thus, the circumstances proved do not support a rational inference that the firing of the gun was the product of an accidental discharge.
In sum, the circumstances proved in this case are consistent with a reasonable inference that Griffin shot Benitez-Hernandez with an intent to kill and inconsistent with a reasonable inference that the firing of the gun was the product of accidental discharge due to being grabbed and falling. Accordingly, we conclude that the State presented sufficient evidence to support Griffin’s conviction.
IV.
In his pro se brief Griffin presented six additional issues to the court, specifically, whether: (1) the evidence was sufficient to prosecute Griffin for aiding and abetting Grant in the commission of the offense; (2) the district court erred by not, sua sponte, excluding Griffin’s testimony about the earlier attempted robbery; (3) the State failed to corroborate Grant’s accomplice testimony; (4) Grant’s testimony violated the Confrontation Clause of the Sixth Amendment to the United States Constitution; (5) Griffin’s counsel was ineffective for not requesting that a witness’s . cell phone be tested for fingerprints; and (6) the cumulative trial errors deprived Griffin of a fair trial. After thoroughly reviewing each issue, we conclude that none have merit.
Affirmed.
Notes
. Griffin was also convicted of an attempt offense, Minn.Stat, § 609.17 (2014), in which the uncompleted offense was first-degree intentional murder, Minn.Stat. § 609.185(a)(3), in connection with gunfire directed at L.B-H., and second-degree ássault, Minn.Stat. § 609.222 (2014), arising out of conduct involving P.Y-E,
. Spreigl evidence, or evidence of another crime, wrong, or act, Minn. R. Evid. 404(b), is addressed in State v. Spreigl,
. In State v. Huber,
. Griffin claims he was falling when the gun fired the bullet that struck Benitez-Heman-dez in the chest. However, Grant testified that Griffin regained his balance before shooting Benitez-Hernandez. More specifically, the prosecutor and Grant engaged in the following colloquy:
Q: When you said grabbed his leg, do you mean he actually made physical contact with him?
A: I believe so, yes.
Q: Did Diamond Griffin regain his composure or did he stand back up?
A: Yes, he did.
Q: What happened then?
A: The gun went off.
Consequently, Griffin’s contention that he was falling is not one of the circumstances proved in this case. State v. Fairbanks,
Concurrence Opinion
(concurring).
I join the court’s opinion, but write separately to address a strange turn in our law on the admissibility of other-bad-acts evidence, which we have also referred to as Spreigl evidence. Minnesota Rule of Evidence 404(b), which generally renders such evidence inadmissible, states that
[ejvidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The district court’s decision to admit the other-bad-acts evidence in this case demonstrates the problem With our current interpretation of the word “plan.” Over time, we have imported the modus-operan-di analysis from the exception for “identity” evidence into the test for admitting evidence of a “plan.”
This development has distorted the analysis under Rule 404(b) in two ways. First, it has conflated the standards for evaluating the admissibility of identity and plan evidence, which are separate categories of evidence under Rule 404(b). Second, the now-sweeping scope of the plan exception risks the admission of evidence that a person is acting in conformity with his or her bad character, which violates the categorical prohibition on propensity evidence in the first sentence of Rule 404(b). All that is required under the plan exception today is that a defendant’s prior bad acts be “markedly similar” to the acts with which he or she is charged, State v. Ness,
I.
Before addressing how I would resolve the conflict, I begin with a discussion of the evolution of the law on other-bad-acts evidence. In State v. Sweeney, decided long before the Minnesota Rules of Evidence came into existence, we announced six exceptions to the “general rule” that “evidence which in any manner shows or tends to show that the accused has committed another crime independent of that for which he is on trial is inadmissible.”
has certain exceptions not to be stated categorically, but among which evidence of other crimes is admissible to prove the accusation when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) the identity of the accused; (5) sex crimes; (6) a common scheme or plan embracing the commission of similar crimes so related to each other that proof of one or more of such tends to establish the accusation. Such is the common law.
Id. at 455,
Initially, the common-scheme-or-plan exception “was intended primarily to cover such eases as larceny, embezzlement, forgery, and swindling.” State v. Spreigl,
Another admissible category of other-bad-acts evidence discussed in Sweeney was identity evidence, which required a unique “pattern of conduct.” State v. Bowser,
For the most part, these two exceptions were completely separate before 1977, when the Minnesota Rules of Evidence first came into existence. The common-law rule, as enunciated in Sweeney, be
Our holding in Forsman principally depended upon a single case, State v. Taylor, which did not support Forsman’s reasoning.
In a 2006 decision, State v. Ness, we attempted to clarify the test for admitting other-bad-acts evidence under the plan exception, which by the time Ness was decided, had morphed into a substantial-similarity standard.
Though laudable in its goal of reconciling our case law, Ness solved one problem but exacerbated another. It narrowed the circumstances under which courts could admit other-bad-acts evidence by requiring a “marked similarity” between the prior bad act and the charged offense, but it did not solve the problem created by Fors-man, which had inadvertently merged the identity and plan exceptions. By requiring an even closer similarity between the prior bad act and the charged offense, Ness paradoxically preserved the admissibility of the evidence that a jury would be most likely to misuse as propensity evidence. As a matter of logic and contrary to our analysis in Ness, the greater the factual similarities between the charged crime and the prior bad acts, the more likely it is that the jury will improperly draw the inference that the defendant committed the charged crime. Faced with evidence that a defendant has committed five markedly similar robberies, for example, a jury is likely to infer that the defendant committed a sixth robbery even if there is no other evidence of guilt. In other words, after Ness changed the standard back to marked similarity, the plan exception now applies in narrower circumstances and in fewer instances, but it allows courts to admit only the evidence that the jury is most likely to misuse.
Even after narrowing it in Ness, the plan exception is still considerably broader than at common law. The State can admit evidence of a “plan” simply by showing that the defendant has previously committed the same type of crime in a markedly similar manner. But similarity between crimes, even marked similarity, is not evidence of an actual plan, which requires an “overall design or objective,” Webster’s Third New International Dictionary 1729 (1976); see also The American Heritage Dictionary of the English Language 1001-02 (1976) (defining “plan” as “a systematic arrangement of details”), or larger scheme, Ness,
The identity exception has also expanded, which has further contributed to the overlap between the two exceptions. Though we still apply the identity exception to signature crimes, we have loosened its requirements over time to include crimes that are committed in a substantially similar manner, including those connected by time and place. See State v. Cogshell,
II.
In my opinion, the Advisory Committee for the Rules of Evidence should consider whether an amendmént to Rule 404(b) would resolve the inconsistency that Fors-man created and Ness attempted to fix. The common and ordinary meaning of the word “plan” is consistent with our earliest articulations of the plan exception, including from Sweeney. Compare Webster’s Third New International Dictionary 1729 (1976) (defining “plan” as an “orderly ar
The approaches of many federal" courts are also consistent with the common law. For example, in some circuits, the plan exception only extends to prior bad acts that were committed within the same composite scheme or plan as the charged offense. See, e.g., United States v. Carroll,
I fully understand that, other than in Ness, we have been quite reluctant to change our approach to the interpretation of Rule 404(b). For example, in one cáse, we rejected the narrowing of the plan exception for cases involving sexual assault, stating that we had “repeatedly upheld admission of [other-bad-acts] evidence in cases” involving rape or sexual abuse. See State v. Wermerskirchen,
. Consider an example of the common-scheme-or-plan exception at common law. Suppose that a defendant commits a robbery to obtain money to purchase a firearm to commit a murder. If the defendant were successful in the commission of both crimes, the evidence of the earlier robbery would be admissible to show a composite plan—that is, “preplanned steps in a larger scheme.” Ness,
. A textbook example of the "identity” exception will demonstrate its historically narrow scope. Suppose that a defendant committed a robbery several years ago, and did so while wearing a distinctive mask. A recent robbery also involves a person who wore the same type of mask. The defendant’s commission of the prior robbery would be admissible, assuming the identity of the perpetrator of the most recent 'robbery is in dispute, to demonstrate that the same person committed both crimes. See generally United States v. LeCompte,
. At that time, Rule 404(b) stated:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Minn. R. Evid. 404(b) (1978) (emphasis added).