STATE of Minnesota, Respondent, v. True THAO, Appellant.
No. A14-1182.
Supreme Court of Minnesota.
Feb. 24, 2016.
834
(b) Respondent shall abide by the Minnesota Rules of Professional Conduct;
(c) Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director, to monitor compliance with the terms of probation. Respondent‘s current probation supervisor may continue to supervise respondent if the supervisor is willing to do so. If not, within 2 weeks from the date of this order, respondent shall provide the Director with the names of four attorneys who have agreed to be nominated as respondent‘s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director shall seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall on the first day of each month provide the Director with an inventory of client files as described in paragraph (d) below. Respondent shall make active client files available to the Director upon request; and
(d) Respondent shall cooperate fully with the supervisor‘s efforts to monitor compliance with probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent‘s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as the Director may reasonably request.
BY THE COURT:
/s/ ____________________
David R. Stras
Associate Justice
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jerness, Assistant State Public Defender, Saint Paul, MN, for appellant.
OPINION
STRAS, Justice.
A jury found appellant True Thao guilty of six counts of murder in the drive-by shooting death of Adlai Xiong and eight counts of attempted murder for the drive-by shootings of T.X. and P.L. The district court convicted him of one count of first-degree premeditated murder for the benefit of a gang;
Thao challenges his convictions on three main grounds. First, he contends that the district court erred when it admitted evidence of a prior drive-by shooting incident that led to his conviction of attempted murder in 2000. Second, he argues that the district court erred when it permitted the State to introduce testimony on gangs from an expert witness. Third, he claims that the district court erred when it instructed the jury on the reasonable-doubt standard using language we approved in State v. Smith, 674 N.W.2d 398 (Minn. 2004), rather than using the pattern instruction from the Criminal Jury Instruction Guide. We affirm.
I.
In the early morning hours of October 26, 2013, Xiong was shot and killed outside of the Moonshine Saloon on the east side of St. Paul. T.X. and P.L. were also present and both suffered non-fatal gunshot wounds. The State‘s theory of the case was that Thao, a gang member, had targeted Xiong, a rival gang member, in retaliation for a fatal gang-related stabbing of another individual at the same bar 8 months earlier. Witnesses at trial identified Thao as a person who associated with, or was a member of, the Oriental Ruthless Boys (“ORB“) gang. Witnesses testified that Xiong was a member of a rival street gang, the Oroville Mono Boys (“OMB“).
Several hours before the shooting, Thao was at a party at a friend‘s house with at least eight other people. Some of the attendees, including Thao, left the party and went to the Moonshine Saloon at around 11:45 p.m. Thao drove to the bar in his 2004 dark blue Acura TL. Xiong and his friend, P.L., arrived at the bar about 45 minutes later, around 12:30 a.m. One witness who was part of Thao‘s group testified that, when Thao saw Xiong and P.L., he became agitated and asked if they were OMBs. The witness could not recall whether she answered Thao‘s question. Surveillance video showed that Thao looked at Xiong and then left the bar just a few minutes before Xiong was shot.
Xiong was shot twice in the legs and once in the head. P.L. was shot in the wrist and the thigh, and ricocheted bullets struck his back. T.X. was shot in her right shoulder, right leg, and right buttock. Police officers recovered 12 cartridge casings and 2 bullet fragments from the crime scene, but did not recover a gun. Through forensic testing, the Minnesota Bureau of Criminal Apprehension (“BCA“) determined that the casings were all from the same gun and had markings that were consistent with having been ejected from a Smith & Wesson Sigma Series semi-automatic pistol.
Thao arrived at the St. Paul home of his friend, B.V., at approximately 1:30 a.m., about 15 minutes after the shooting. B.V.‘s wife answered the door. At trial, she described Thao as appearing “shocked” and “spooked.” Nevertheless, she gave Thao permission to clean his car in her driveway. In response to a telephone call from his wife, B.V. returned home where he found Thao in the driver‘s seat of the Acura. B.V. testified that Thao had appeared “surprised” to see him, and that Thao had asked if there were any police officers nearby. Eventually, Thao “told [B.V. that] he [thought] he [had] shot somebody.” B.V. initially thought that Thao was joking, and inquired again. When B.V. asked Thao whom he had shot, Thao replied, “maybe some OMBs.” When B.V. asked him why, Thao responded, “man, you already know.” Thao told B.V. that he thought he had “f**ked up” and “shot a girl and maybe a guy.” He admitted to having thrown the gun away. Additionally, B.N., who had accompanied B.V., testified that Thao appeared shocked and talked “gibberish.” B.N. overheard Thao say he “did a shoot-out.”
During these conversations, Thao cleaned the driver‘s-side door, window, and dashboard of his Acura with Clorox-type wipes. When Thao finished, he discarded the wipes in a garbage can near B.V.‘s garage. Before leaving, Thao washed his hands, apologized for frightening B.V.‘s wife, and told B.V. that if they never saw each other again, B.V. had been a good friend.
The next day, police officers collected the wipes from B.V.‘s garbage can. The BCA tested them and found particles consistent with the discharge of a firearm. When officers arrested Thao 3 days after the shooting, they swabbed the headliner and driver‘s-side window of Thao‘s Acura. The sample from the window contained “many” particles consistent with gunshot residue, and the headliner sample contained “a few” such particles.
Investigators used records from Thao‘s service provider to ascertain the approximate location of his cellphone immediately before and after the shooting. The records showed that, approximately 3 minutes before the shooting, a call from Thao‘s cellphone was made near the Moonshine Saloon. Another call later that morning
A grand jury indicted Thao on 14 total counts, including one count of first-degree premeditated murder for the benefit of a gang and two counts of attempted first-degree premeditated murder for the benefit of a gang. Prior to trial, the State notified the defense of its intent to offer evidence of three prior incidents: (1) Thao‘s 2000 conviction of attempted murder, which involved a drive-by shooting; (2) a 1998 incident in which Thao was the victim of an assault by a rival gang member; and (3) a 1997 assault for which Thao was adjudicated delinquent. The State also sought to introduce the testimony of a police officer, an expert on gangs, who would testify about his general knowledge of Hmong gangs and his specific knowledge about Thao‘s past gang involvement. After a hearing on the motions, the district court granted the State‘s motion to admit the evidence of the 2000 conviction and the expert testimony, but denied the other motions. The court explained that evidence of the 2000 conviction was admissible “because of the similarity in [modus operandi] ... and the manner that the crime was committed as well as the efforts to hide the crime,” but cautioned the State “not to argue that [Thao] ... acted in conformity with the character that he [had] displayed in 2000.” The court acknowledged that the admissibility of Thao‘s conviction was a close question.
At trial, the State introduced evidence regarding Thao‘s 2000 conviction, including that Thao had fired multiple shots with a semi-automatic pistol out of his car window at a rival gang member. The State also introduced testimony from Sergeant Richard Straka, a member of the St. Paul Police Department assigned to the FBI‘s Twin Cities Safe Streets Violent Gang Task Force, who told the jury that he had interviewed Thao in 2000 in connection with a drive-by shooting, and that Thao had admitted to disposing of his gun in the Mississippi River.
Sergeant Straka also testified more generally about Hmong gangs, including the ORB and OMB gangs. He stated that gang members commonly share guns and ammunition and use gloves when handling weapons to avoid leaving DNA evidence. Straka further testified about his investigation into the 2013 stabbing of a younger brother of an ORB member at the Moonshine Saloon. Straka identified the suspects in that incident as members of the OMB gang. He also discussed the prominent role that retaliation plays in gang culture, including his opinion that the stabbing was the type of incident likely to provoke retaliation from the ORBs. Finally, Straka, who has known Thao since 1997, testified that Thao had told him in 2000 that he was a member of the ORBs. Using photographs, Straka identified three of Thao‘s tattoos as ORB gang tattoos.
The jury found Thao guilty of all charges. The district court convicted Thao of one count of first-degree premeditated murder for the benefit of a gang for Xiong‘s death,
II.
The first question presented by this case is whether the district court abused its discretion when it allowed the State to introduce evidence of Thao‘s prior attempted-murder conviction. Evidence of a defendant‘s past crimes or uncharged conduct is not admissible to show the defendant‘s bad character in order to raise an inference that the defendant‘s conduct conformed to that character.
Thao contends that the State used the evidence regarding his attempted-murder conviction for an improper purpose under Rule 404(b): “to show that [he] was a criminal with the propensity to shoot at rival gang members.” Thao also questions whether the evidence was too generic to be of much probative value, arguing that nothing from the previous crime reflected a modus operandi. The State counters that the 2000 conviction established identity, one of the permitted uses of prior-bad-acts evidence, because a motivation for revenge, similar methods, and a familiarity with the disposal of firearms were present in both crimes.
To receive a new trial, Thao has to show not only that the district court abused its discretion when it admitted the evidence, but also that its admission was harmful. See
First, the district court “instructed the jury to limit the use of the other crime evidence and not to convict [Thao] based on that evidence.” Id. Specifically, the court told the jury that “[Thao] is not
Second, although the prosecutor twice alluded to the 2000 incident during her closing arguments, she did not dwell on it. She stated: “[y]ou know the defendant knows how to shoot. And you know the defendant knows how to shoot from a moving vehicle. One shot, and he hit his victim before.” Moments later, she reminded the jury that Thao knew how to conceal DNA evidence: “[w]e know the defendant knows this. We don‘t recover a gun. He — he tries to conceal the way he looks at the scene, the way he looks after the scene, the evidence the police recover. Of course he‘s concealing his DNA.” However, besides these two isolated references, the latter of which also finds support in Straka‘s general expert testimony on gangs, the prosecutor emphasized other evidence in her closing argument to persuade the jury of Thao‘s identity as the shooter.
Third, the State presented overwhelming evidence of guilt apart from the prior-bad-acts evidence. Witnesses identified Thao‘s Acura as the vehicle from which the gunshots originated. Eyewitness testimony and video surveillance showed Thao leaving the bar just minutes before the shooting. Two witnesses testified that Thao unexpectedly appeared at a friend‘s house in the middle of the night — approximately 15 minutes after the shooting occurred — and discarded his jacket and wiped down his car. Police investigators discovered gunshot residue on the car and the wipes that Thao had used to clean the car. Cellphone evidence corroborated the other evidence of Thao‘s presence at the bar and at B.V.‘s house. Finally, Straka and other witnesses testified that Thao associated with the ORB gang and that the shooting could have been retaliation for the stabbing that had occurred several months earlier at the Moonshine Saloon.
Accordingly, based on the entire record, we conclude that there is no reasonable possibility that the admission of evidence establishing the facts surrounding Thao‘s prior attempted-murder conviction significantly affected the jury‘s verdict. Therefore, the allegedly erroneous admission of the evidence was harmless.
III.
The second question in this case is whether the district court abused its discretion when it admitted Straka‘s testimony about gang culture and Thao‘s history of gang membership. Thao objected to the testimony because, in his view, it was cumulative to the testimony of the lay witnesses, was speculative, and improperly influenced the jury. We disagree.
The admissibility of the expert testimony turns on
Five of the counts in this case required the State to prove that Thao committed the crime for the benefit of a gang. See
To the extent that Straka testified about Thao and his past gang involvement, such testimony was not speculative because it was based on his first-hand knowledge. See DeShay, 669 N.W.2d at 886 (stating that the preferred practice for proving that a crime was for the benefit of the gang is to have witnesses with first-hand knowledge testify). Moreover, although Straka testified that the previous stabbing at the Moonshine Saloon was the type of incident likely to provoke retaliation, he did not speculate that the shooting was in fact motivated by retaliation. Nor did he directly implicate Thao in the murder. See State v. McDaniel, 777 N.W.2d 739, 748-49 (Minn. 2010) (concluding that the admission of generalized gang evidence was helpful to prove motive).
Moreover, Straka‘s testimony was not duplicative of other witness testimony. No other witness testified about Thao‘s gang tattoos or explained that gang members share guns and ammunition and use gloves when handling weapons and bullets to avoid leaving DNA evidence. Thus, Straka‘s testimony describing the nature of gangs was necessary to provide context for the State‘s theory of the case, in addition to proving that several of the charged offenses were committed for the benefit of a gang. See Vang, 774 N.W.2d at 576. We have previously affirmed the admission of such testimony under similar circumstances. See, e.g., State v. Brown, 815 N.W.2d 609, 620 (Minn. 2012) (affirming the admission of gang testimony in which the expert described Minneapolis gangs, including their participation in criminal activities); McDaniel, 777 N.W.2d at 748-49 (affirming the admission of similar testimony). There is no reason to reach a different conclusion in this case.
IV.
The third question presented by this case is whether the district court erred in its instruction on reasonable doubt because it used language from State v. Smith, 674 N.W.2d 398 (Minn. 2004), rather than the language of the pattern jury instruction. See 10 Minn. Dist. Judges Ass‘n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 3.03 (6th ed. 2015). District courts “are afforded broad discretion and considerable latitude in choosing the language of jury instructions.” Smith, 674 N.W.2d at 400 (citing Hilligoss v. Cargill Inc., 649 N.W.2d 142, 147 (Minn. 2002); State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990)). However, jury instructions, when viewed as a whole, must fairly and adequately explain the law. Smith, 674 N.W.2d at 400 (citing State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988)). Although district courts may favor pattern jury instructions, their use is not required. Flores, 418 N.W.2d at 156.
Proof beyond a reasonable doubt is that amount of proof as ordinary men and women would act upon in their most important decisions. A reasonable doubt is a doubt based upon reason and common sense. It is not reasonable doubt if your doubt is based upon speculation or irrelevant details.
The disputed language, which is in italics, is materially the same as the instruction on reasonable doubt that we approved in Smith:
Proof beyond a reasonable doubt is simply that amount of proof that ordinary men and women rely upon in making their own most important decisions. You have a reasonable doubt if your doubts are based upon reason and common sense. You do not have a reasonable doubt if your doubts are based upon speculation or irrelevant details.
674 N.W.2d at 401 (emphasis added).
Thao does not object to the slight wording differences between the two instructions, but rather argues that the words “speculation” and “irrelevant details” in the instruction allowed the jurors to reject reasonable doubts that they formed inferentially. In other words, in Thao‘s view, asking the jury to disregard reasonable speculation impermissibly narrowed the standard and allowed the State to more easily convict him.
We rejected this precise argument in Smith. See 674 N.W.2d at 403. As we observed, “the word ‘speculation’ cannot be viewed by itself, but must be read in context and in tandem with the words ‘irrelevant details,’ the words with which speculation is coupled,” and with the remainder of the instructions. Id. Viewed that way, Smith concluded that the inclusion of the word “speculation” did not “impermissibly narrow the reasonable doubt standard nor mislead, confuse, or misstate the law.” Id. Smith is binding, and Thao provides no reason, much less a compelling one, for us to depart from its holding in this case. See State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009) (stating that a “compelling reason” is required to overrule precedent). Accordingly, we reject Thao‘s claim that the district court erroneously instructed the jury on reasonable doubt.1
V.
Finally, Thao‘s pro se brief contains eight arguments that we construe as claims of prosecutorial misconduct during trial, improper admission of evidence, and ineffective assistance of trial counsel. The ineffective-assistance-of-counsel claim relates to trial counsel‘s failure to hire a video-surveillance expert, object to the search of Thao‘s cellphone records, and challenge the indictment. Thao‘s argu-
VI.
For the foregoing reasons, we affirm Thao‘s convictions of first-degree premeditated murder for the benefit of a gang and attempted first-degree premeditated murder for the benefit of a gang.
Affirmed.
HUDSON, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.