State v. CaineState v. Caine
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- Before:
- Paul
Lead Opinion
OPINION
ANDERSON, PAUL H., Justice.A Hennepin County jury found Tony M. Caine guilty of first-degree intentional felony murder, second-degree intentional murder, and second-degree unintentional felony murder for the death of Brandon
In 2004, appellant, Tony M. Caine, was residing in Chicago with his mother and his son. While Caine was in Chicago, his cousins, Mario Davis and Kevin Reese, called him and told him they had stolen “a lot of weapons.” They also mentioned that Jermaine Jackson and Brandon Lynch had participated in the weapons theft. After Thanksgiving, 2004, Caine traveled to Minneapolis with his son so his son could spend the holidays with his mother, Lola Martina Medved.
Medved testified that on December 19, 2004, she woke up to find Caine, Reese, and Davis in her house. Caine, however, testified that only he and Reese were in the house. Reese and Caine took Med-ved’s car and drove to the Glenwood area of Minneapolis where Reese proceeded to sell some drugs. According to Caine, this is when Davis joined them. While the three men were still in the Glenwood neighborhood, Jackson and Lynch pulled up in a maroon van. There was a conversation about Jackson and Lynch exchanging marijuana for an assault rifle that Reese had in his possession as the result of the earlier weapons theft. The men agreed to meet at Jackson’s house later in the afternoon to make the exchange. Both Caine and Jackson testified that Caine was not a part of this discussion. Jackson and Lynch then left. Reese, Caine, and Davis returned to Medved’s house where Reese brought the assault rifle out of the house and placed it in the trunk of Medved’s car. The three men then drove to Jackson’s house in North Minneapolis.
When Caine, Reese, and Davis pulled up to Jackson’s house, Reese telephoned Jackson to say they had arrived. Shortly thereafter, Jackson and Lynch arrived at the house and went inside. Jackson’s mother was at home and in the kitchen at the time. Jackson then came out of the house and invited Reese and Davis inside while Caine remained in the car. Jackson testified that Lynch stayed outside with Caine, but Caine stated he did not see Lynch at that time. Inside the house, Reese, Jackson, and Davis went into Jackson’s bedroom to talk about the exchange. Caine testified that Lynch later came outside and asked for the assault rifle, which Lynch then took from the trunk of the car. Lynch and Caine then went into the house. Lynch carried the rifle wrapped in a blanket and Caine walked behind him. Once inside the house, Caine and Lynch passed by Jackson’s mother, who first asked Lynch what was inside the blanket and then said it looked like a gun. Lynch and Caine joined Jackson, Reese, and Davis in Jackson’s bedroom, and Jackson unwrapped the rifle and placed it under his mattress. The two pounds of marijuana meant for the trade were on Jackson’s bed.
At trial, the State called Jackson, Davis, a medical examiner, and a police officer to
Jackson’s testimony
Jackson testified that when all five men were in the bedroom, Caine was standing in the doorway while Jackson, Lynch, Reese, and Davis were inside the room. Jackson said that he argued with Lynch about bringing the assault rifle into the house. At that point, Reese picked up a gun that was sitting on Jackson’s television set and put the “gun in [Jackson’s] face.” Jackson stated that he then heard a shotgun being cocked back and when he turned around to look he saw Caine “waving [a shotgun] around like guarding the door.” Reese, gun in hand, then threatened Jackson and Lynch, saying, “I’ll kill all you * * *,” and told Jackson and Lynch to get on the floor. Reese then told Davis to check Lynch’s pockets. Davis patted Lynch down and took a gun and some money while Reese asked Jackson where the rest of the marijuana was. Jackson stated that while these events took place, Caine was still standing in the doorway pointing the shotgun at him and Lynch. Davis, with the gun and money he took from Lynch, then took the assault rifle and the marijuana meant for the exchange and left the room.
Reese, while still pointing the gun at Jackson and Lynch, told them that if he ever saw them in the streets again, he would kill them. As he was leaving the room, Reese told Caine to “shoot,” but Caine hesitated. At that point, Jackson threw the television at Caine and Caine backed up into the doorway. Lynch jumped up from the floor in an attempt to close the door. At the same time, Jackson saw Reese standing behind Caine, “tapping [Caine] on the shoulder.” Jackson then heard Reese again telling Caine to “shoot [’e]m.” Within seconds, Jackson saw the shotgun come through the doorway and heard a shot. Reese and Caine then ran off. After seeing that Lynch had been shot and “wasn’t doing too well,” Jackson went to find his mother and called the police.
Caine’s testimony
Caine testified that when all five men were in Jackson’s bedroom, Lynch pulled a gun out of his pants. When Lynch put the gun back, Reese grabbed a gun that was on top of Jackson’s television. Reese, waving the gun around, told everyone to get down. Caine said that he thought he was going to get shot, so he jumped onto the bed. Reese told Davis to take Lynch’s gun. Davis took the gun and the marijuana and ran out of the room. Reese began threatening to “kill everybody.”
Caine testified that Reese told him to pick up a shotgun that was lying on the floor and to “act like [he knew] how to use it.” Caine picked up the shotgun and “act-, ed like [he knew] how to use it” by pumping it. Reese then told Caine, “Time to get the cherry busted and shoot,” which Caine understood to mean that he should kill somebody for the first time. Caine testified that he did not want to shoot anyone, so he started backing out of the room. At that point, a television flew at Caine and he jumped back, “in the hallway kind of.” Caine said that as he moved backward, he was stopped by Reese, who had his hand on Caine’s shoulder and a gun pointed at the back of Caine’s head. According to Caine, Reese once again told him to shoot. Caine said that he then closed his eyes and pulled the trigger. Caine testified that after the television
Caine testified that after he shot Lynch, Reese grabbed Caine by the collar and threw him back, saying, “run, run.” Caine ran out of the house with the shotgun in his hand. Caine said that he, Reese, and Davis then drove back to Medved’s house. At the house, Caine ran upstairs to wake Medved to tell her what had happened. He told Medved that someone might have been killed. Reese then told Caine that they had to go. Caine, Reese, and Davis got into a cab that Reese had called and went to Prior Lake, where Reese knew some girls. The girls then drove the three men to Chicago. Caine stated that when they stopped at a gas station in Chicago and the others went inside, he took a bag of marijuana, got out of the car, and ran home.
Medical examiner’s testimony
At trial the State called a medical examiner who testified that a shotgun “slug” killed Lynch. The direction of the slug was front to back in a downward direction, entering Lynch’s body in front of his neck, above his sternum. The examiner also displayed to the jury pictures of Lynch’s body that showed the position of the gunshot wound almost perfectly centered on Lynch’s body, in line with his chin. The examiner stated that the shotgun was shot at very close range, possibly while in contact with Lynch’s body. The examiner also stated that the wound was consistent with the shooter standing and Lynch lying down and trying to get up. On cross-examination, the examiner conceded that the shot could have been fired from up to 2 feet away and that the wound was also consistent with Caine’s version of the incident.
Davis’s testimony and guilty plea transcript
Before Caine’s trial, Davis pleaded guilty to second-degree murder for his participation in Lynch’s shooting. The plea agreement required Davis to testify truthfully against Reese and Caine in return for a downward sentencing departure. During Caine’s trial, the State called Davis, but Davis testified that he no longer remembered anything about the day of the incident because he was assaulted in prison and had since lost his memory. The State attempted to refresh Davis’s recollection by showing him his guilty plea transcript, but Davis still claimed he had no memory of the incident or the details of the plea agreement. The State, arguing that Davis was feigning memory loss, moved to admit Davis’s plea transcript for both substantive and impeachment purposes as a prior inconsistent statement under
On cross-examination, Caine elicited testimony about why Davis might be lacking memory at trial. Caine asked if the State threatened Davis with more jail time if he did not testify cooperatively. Davis replied affirmatively. Caine’s counsel then said, “And that’s the reason why you have sort of a lack of memory, because you don’t want to get in more trouble, is that a fair statement?” Davis agreed. After the State rested, the district court admitted Davis’s guilty plea transcript but granted Caine’s request to redact one part of it.
At his plea hearing, Davis had stated that he, Caine, and Reese had decided to rob Lynch of his marijuana. Davis had
Caine’s investigator’s testimony
During his case-in-chief, Caine called Fred Anderson, a criminal investigator, to testify about what Davis said during a pretrial interview. Anderson indicated that Davis said Caine did not have a shotgun before entering Jackson’s house. Davis also told Anderson about the gun-for-marijuana trade, that Caine wore a short jacket to Jackson’s house, and that Davis was not in the bedroom when Caine shot Lynch. Anderson further testified that, based on the prosecutors’ statements, Davis “felt like whatever [prison] time he[ ] agreed to do would be in jeopardy if he didn’t testify according to” the information in the State’s investigation. Anderson also stated that Davis never indicated he was suffering from memory loss or that he had been assaulted in prison. Caine asked Anderson if “Davis mentioned that his fiancee had been threatened by [Caine] if [Davis] were to testify.” Anderson said that Davis “kind of laughed and said that didn’t happen.”
Police officer’s testimony
During rebuttal, the State called Sergeant Richаrd Zimmerman, who was present when the State interviewed Davis before trial. Zimmerman testified that during the interview, Davis did not mention any memory problems or any injuries he sustained in prison. Further, Zimmerman testified that neither he nor any prosecutor threatened Davis, although the prosecutors warned Davis of the consequences of perjury at trial. Zimmerman also stated that Davis said the shotgun used to kill Lynch was Caine’s and Caine brought it to Jackson’s house under a long coat.
When the State asked Zimmerman if Davis mentioned that he was injured in prison, Zimmerman said, “No. He told me he was worried about his girlfriend being threatened by the defendant’s family.” This answer was stricken from the record as nonresponsive. Later, during questioning regarding whether any prosecutor threatened Davis, the following exchange occurred:
[State]: Did [Davis] mention being threatened by anyone?
[Zimmerman]: No, he didn’t, other than the defendant’s family threatening his girlfriend.
[State]: And what did you do in response to his mentioning that threat to his girlfriend?
[Zimmerman]: I wrote out my phone number and gave it to [Davis] to have his girlfriend contact me, and we would provide any assistance as far as those threats were related to.
[State]: Was [Davis] concerned about these threats to his girlfriend?
[Zimmerman]: Oh, absolutely.
Caine did not object during this exchange and later cross-examined Zimmerman on other matters.
Jury instructions and verdict
At trial, Caine asserted the defense of duress and requested a jury instruction on duress under
Caine appeals claiming (1) the district court committed several errors when it admitted Davis’s guilty plea transcript; (2) the State failed to prove beyond a reasonable doubt that Caine was not under duress; (3) the court committed reversible error when it failed to instruct the jury that the State’s burden to disprove duress is beyond a reasonable doubt; (4) the court erred when it denied Caine’s request to instruct the jury on first-degree manslaughter under
I.
Caine argues that the district court committed several reversible errors when it admitted Davis’s guilty plea transcript as a prior inconsistent statement under
Admissibility of Davis’s guilty plea transcript under
Caine asserts that because the district court failed to make a finding that Davis was subject to cross-examination about the circumstances of his plea hearing statement and because Davis was not, in fact, subject to cross-examination at trial, admission of Davis’s plea testimony under
In Amos, a witness testified at her brother’s trial concerning facts that incriminated him in a drive-by shooting incident. Id. at 203. Two weeks later, at her father’s trial for the same incident, the witness claimed that she remembered nothing from the day of the incident. Id. The district court fоund the witness was feigning memory loss, and the court admitted her testimony from her brother’s trial under
In this case, the district court did not make an explicit finding that Davis was subject to cross-examination at Caine’s trial about his prior testimony. But Amos does not require that the court expressly make such a finding. Further, Davis was subject to cross-examination concerning the circumstances of his prior statement because like the witness in Amos, Davis testified that he remembered pleading guilty to second-degree murder and other facts surrounding the giving of his plea.2 Davis also testified about certain facts surrounding the underlying incident that were favorable to Caine.3 Further, Caine elicited testimony from Davis about why Davis
Relevant parts of Davis’s guilty plea testimony
Caine argues that even if Davis’s guilty plea testimony was admissible under
Caine first argues that the parts of Davis’s plea transcript that contained his waiver of rights and plea of guilty were inadmissible. We stated in State v. Cermak that “generally evidence of a plea of guilty, conviction or acquittal of an accomplice of the accused is not admissible to prove the guilt or lack of guilt of the accused.” 365 N.W.2d 243, 247 (Minn.1985). But in State v. Dukes we reasoned,
[t]he distinguishing feature from Cer-mak * * * is that [the witness’s] account of events leading up to and after the crime was not offered to establish [the witness’s] guilt, as was the case in Cermak, but rather for the value of the first-hand narrative of what happened. Therefore, we conclude that the plea admission was not barred by the rules of criminal procedure, rules of evidence, or Cermak.
544 N.W.2d 13, 18 (Minn.1996) (holding the admission of an accomplice’s plea transcript under
Caine also argues that the attorney and court statements in the guilty plea transcript was inadmissible because they are not Dаvis’s statements. But we have held that statements of third parties may be admissible to provide context for the responses and admissions sought to be admitted. State v. Tovar, 605 N.W.2d 717, 726 (Minn.2000) (holding that an interview including police statements was admissible because the police statements were offered not “for their truth, but rather to give context to [the defendant’s] responses and admissions on the tape”); but see Bernhardt v. State, 684 N.W.2d 465, 475-76 (Minn.2004). Davis’s plea transcript consists largely of either the attorneys or the court making statements and asking Davis if the statements are correct. The third party statements provide context for Davis’s responses. Thus, we conclude it was not error, much less plain error, to allow the other parties’ statements to be submitted to the jury.
Caine also claims that the parts of the transcript where Davis responded with a nod or “Um-hmm” were unclear and so
Admission of Davis’s guilty plea transcript as an exhibit
Caine argues that even if the content of Davis’s prior guilty plea testimony was admissible, the district court erred in admitting the transcript itself into evidence. Caine likens the admission of Davis’s plea testimony under
Under
Transcripts have also been held to be the appropriate form of evidence for submitting a prior inconsistent statement for substantive purposes under the parallel
Admissibility of Davis’s guilty plea transcript after the State rested its case
Caine also argues that the admission of Davis’s guilty plea transcript after the State rested its case prevented him from effectively cross-examining Davis about his guilty plea testimony. But this claim lacks merit because the State moved to admit the transcript during its direct examination of Davis. Thus, Caine wаs on notice before he cross-examined Davis that the transcript might be admitted. Because Caine had ample time to prepare to cross-examine Davis about his plea testimony, we conclude that the district court did not err when it admitted the transcript after the State rested its case. Based on all of our foregoing conclusions, we hold that the district court did not err when it admitted Davis’s guilty plea transcript.
II.
Caine also argues that it was error for the district court to deny his request to re-cross-examine Davis after admitting Davis’s plea transcript.4 We re-
In Jouppis, we held that it was an abuse of discretion to deny the defendant’s request to reopen the case because (1) the request was made right after the defense rested; (2) the evidence was material, not cumulative, and concerned a controlling issue; and (3) there was no improper purpose for failing to produce the evidence earlier. 147 Minn, at 89-90, 179 N.W. at 679. Conversely, in holding that it was not an abuse of discretion to deny the defendant’s request to reopen the case in Daniels, we noted that “the defense knew of [the] evidence, and of its possible relevance, before it rested, yet chose to rest anyway.” 361 N.W.2d at 831 n. 1.
In this case, Caine did not make the request to reopen his case until both the State and he had rested — -just before closing arguments. Further, Caine knew about the admission of the transcript for both impeachment and substantive purposes before he began his case-in-chief and decided to rest his case anyway. Additionally, Caine had the opportunity to question Davis before starting his case-in-chief, and the requested reopening apparently would have been for the purpose of further cross-examining Davis, not introducing new direct testimony. Caine offers no reasonable explanation as to why he needed to re-cross-examinе Davis. The district court did attempt to discern what Caine wanted to achieve, but Caine provided no concrete answers. We therefore hold that the court did not abuse its discretion when it denied Caine’s request to reopen his case.
III.
While Caine did not object to the jury instruction on duress during trial, he now argues that the district court erred when it “failed to inform the jury that it must be proven ‘beyond a reasonable doubt’ that Caine did not act under duress before [the jury] could return a verdict of guilty.” Jury instructions must “adequately instruct the jury on the State’s burden to prove defendant’s guilt beyond a reasonable doubt.” State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995). Nevertheless, district courts have “considerable latitude in selecting language for jury instructions”; a particular instruction is therefore error only “if it materially misstates the law.” State v. Moore, 699 N.W.2d 733, 736 (Minn.2005). If a defendant does not object to an instruction at trial, we will reverse for plain error “if the instructions were misleading or confusing on fundamental points of law.” State v. Ihle, 640 N.W.2d 910, 916 (Minn.2002). We review instructions “as a whole, in their entirety,” when determining their sufficiency. Auchampach, 540 N.W.2d at 816.
In State v. Charlton, we addressed whether the jury instructions given by the district court impermissibly shifted thе
In Charlton, we also stated that the appropriate jury instruction for a duress defense was contained in the CRIMJIG in effect at the time, which stated that “ ‘[t]he burden of proof on this issue is on the State; unless you find beyond a reasonable doubt that the defendant did not act as he did because he had a reasonable fear of imminent death, defendant is not guilty.’ ” Id. at 29 n. 6, 31 (quoting 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 7.01 (1st ed. 1977)). Here, the current CRIMJIG 7.01 instruction was read tо the jury almost verbatim. See 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 7.01 (5th ed. 2006). But CRIMJIG 7.01 has been altered since Charlton. While both versions indicate that the burden of proof is on the State to prove lack of duress, the current version does not include an explicit statement that the State has the burden to prove lack of duress beyond a reasonable doubt.
In this case, the district court gave the following instruction to the jury:
The defendant is not guilty of a crime if the defendant participated in the crime only because of a reasonable fear caused by the threats of another person engaged in the commission of the crime that the defendant would be immediately killed if he refused to participate in the commission of the crime. The burden of proof on this issue is on the state. The state must prove that the defendant did not engage in the commission of the crime because of a reasonable fear of imminent death. If the state does not so prove, the defendant is not guilty.
That threats of future danger to the defendant’s life have been made is not a defense. The defendant’s reasonable fear of instant death must сontinue throughout the time the crime is being committed, and it must not have been possible for the defendant to withdraw in safety.
The current CRIMJIG instructions that were read to the jury in this case included what we required in Charl-ton — the burden is on the State to prove lack of duress and if the State fails to meet its burden, Caine is not guilty. In Charl-ton we said that the burden to prove intent must be on the State and that CRIMJIG 7.01 was a proper instruction. But we did not state what exactly made 7.01 proper. We therefore conclude it was not plain error for the district court to read the current CRIMJIG instructions to the jury, despite the fact that the instructions did not include the level of the burden of proof on the State.
Further, when considering the district court’s instructions as a whole, we conclude that the instructions were not “misleading or confusing on fundamental points of law,” Ihle, 640 N.W.2d at 916, because the State’s burden to prove each element — including the element of intent— beyond a reasonable doubt was made clear throughout the rest of the instructions. This is evidenced by the following instructions:
Mr. Caine is presumed innocent of the charges made, and that presumption abides with him unless and until he has been proved guilty beyond a reasonable doubt. * * *
The burden of proving guilt is on the state. The defendant does not have to prove his innocence.
Proof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs. A reasonable doubt is a doubt based upon reason and common sense. It does not mean a fanciful or capricious doubt, nor does it mean beyond all possibility of doubt.
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You must consider these instructions as a whole and regard eaсh instruction in the light of all the others. * * *
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If you find that each of [the elements of first-degree murder] has been proven beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.
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If you find that each of [the elements of second-degree murder] has been proven beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.
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If you find that each of [the elements of unintentional murder] has been proven beyond a reasonable doubt, the defendant is guilty. If you find that any element has not been proven beyond a reasonable doubt, the defendant is not guilty.
Because the court, as required by Charl-ton, made clear that the burden was on the State to disprove duress, and because the
IV.
We next address Caine’s claim that the State failed to meet its burden of proving beyond a reasonable doubt that Caine was not under duress when he killed Lynch. When a conviction is challenged based on sufficiency of the evidence, “we are limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach their verdict.” State v. Hatfield, 639 N.W.2d 372, 375 (Minn.2002).
There are three elements to the duress defense: “(1) [defendant], due to threats, was under a present reasonable apprehension of instant death should he refuse to participate in the crime; (2) fear of instant death must have continued throughout the commission of the crime; and (3) defendant could not safely withdraw.” Charlton, 338 N.W.2d at 31. The defendant “is required to adduce sufficient evidence on duress to make the defense one of the issues of the case.” Id. at 30. But once the defendant meets this standard, the burden shifts to the State “tо show lack of duress, or its converse, specific intent.” Id. at 30-31.
Based on the record, we conclude that it was reasonable for the jury to infer that Caine intended to shoot Lynch. The State presented evidence that Caine brought the shotgun to Jackson’s house. Further, Davis’s plea testimony indicated that Reese, Davis, and Caine decided to rob Jackson and Lynch before they went to Jackson’s house. Caine admitted that while in Jackson’s bedroom he was holding and pumping the shotgun. Caine also admitted that he shot Lynch. Caine then fled the scene, which we have held is evidence of consciousness of guilt. State v. Bias, 419 N.W.2d 480, 485 (Minn.1988). The jury was shown pictures of Lynch’s perfectly centered fatal gunshot wound, which supports an inference that the wound could not have been caused accidentally by Caine closing his eyes and shooting while Lynch happened to jump up at the same time. The medical examiner stated that the wound was consistent with a close contact shot and with Lynch getting shot while trying to get off the ground. Based on the foregoing evidence, we concludе that the jury could have reasonably found Caine shot Lynch intentionally and was not acting under duress. Therefore, we hold that the State met its burden of proving beyond a reasonable doubt that Caine intentionally killed Lynch.
V.
Caine argues that the district court erred when it declined to give the jury an instruction on first-degree manslaughter under
Minnesota Statutes
intentionally causes the death of another person because the actor is coerced by threats made by someone other than the actor’s coconspirator and which cause the actor reasonably to believe that the act performed by the actor is the only means of preventing imminent death to the actor or another.
See also 9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice — Criminal Law and Procedure § 47.17 (3d ed. 2001) (defining manslaughter under
The State argues that the district court properly refused to give the manslaughter instruction under
Nevertheless, for a denial of Caine’s request to be error, there must be a rational basis for the jury to find that Reese’s threats coеrced Caine into killing Lynch and that Caine was not Reese’s coconspirator. See
Based on the foregoing coconspirator evidence, there would appear to be no rational basis for a jury to find Caine guilty of first-degree manslaughter under
Because a jury could not have found that Caine assisted with the robbery because he was under duress, it follows that no jury could have found that Caine was not Reese’s coconspirator in the robbery. Thus, based on Caine’s own testimony, even if he did not intend to rob Jackson and Lynch initially, by picking up the shotgun Caine became Reese’s coconspirator. We therefore conclude that even if the jury believed that Caine was coerced into killing Lynch because Reese was holding a gun to Caine’s head when Caine shot Lynch, Reese’s threats could not be a basis for the jury to find that Caine was guilty of manslaughter under
VI.
Finally, Caine claims that the State engaged in several forms of misconduct that warrant reversal of his conviction. When a defendant fails to object to prosecutorial misconduct at trial, he ordinarily “forfeits appellate consideration of the issue.” State v. Ramey, 721 N.W.2d 294, 297 (Minn.2006). But we may review such conduct under the plain error doctrine. Id. In the context of unobjected-to prosecutorial misconduct, once error is shown, the burden is on the State to demonstrate that its plainly erroneous misconduct “did not prejudice the defendant’s substantial rights.” Id. at 299-300. But even if the plain error test is met, we must still decide whether we should address the
Prosecutorial threats
Caine claims that the State pressured Davis into silence by threatening Davis with more prison time and threatening to make his life “hell” in prison if he did not testify the way the State wanted him to testify. The State argues that it did not intimidate Davis but only warned him about the consequences of perjury. In Opsahl v. State, we held that the State’s warnings about the consequences of committing perjury, even when inaccurate, are appropriate. 710 N.W.2d 776, 783 (Minn.2006). Our holding was supported by numerous factual findings, including that (1) “no witnesses were so intimidated that they did not testify”; (2) two of the witnesses testified favorably for the defendant; (3) the witnesses were properly warned about the consequences of perjury, even if the prosecutor misstated the potential for liability; (4) the State was questioned about its detective’s behavior at the hearing; and (5) five witnesses testified that the State did not intimidate them. Id. In this ease, Davis intimated that his loss of memory was a result of threats by the State. But, as discussed above, Davis nonetheless testified favorably to Caine in some respects. Further, Sergeant Zimmerman, the investigator present at the interview in question, testified that the prosecutors only warned Davis that if he lied it would be perjury. As Opsahl indicates, such warnings about the consequences of perjury are proper. Based on Zimmerman’s testimony that the prosecutors did not threaten Davis and the fact that Davis did, in some respects, testify favorably to Caine, we conclude that there was no prosecutorial misconduct concerning threats to witnesses in this case.
Hearsay testimony of threats made to Davis’s girlfriend
Caine argues that the State engaged in misconduct when it еlicited testimony from Sergeant Zimmerman on rebuttal that Caine’s family had threatened Davis’s girlfriend. The State may offer evidence in rebuttal of the defense evidence.
Improper closing arguments
Caine also argues that, like improper “were they lying” questions posed to one witness about another witness, the State impermissibly argued during closing argument that the jury must find that the State’s witnesses were lying in order to acquit Caine. We have held that “were they lying” questions can impermissibly create “the impression that the jury must conclude that * * * witnesses were lying in order to acquit” the defendant. State v. Morton, 701 N.W.2d 225, 235 (Minn.2005). Such questions are permissible, however, “in the circumstance when the defendant ‘[holds] the issue of the credibility of the state’s witnesses in central focus.’ ” Id. (quoting State v. Pilot, 595 N.W.2d 511, 518 (Minn.1999)). Here, Cаine did not dispute many of the facts that were presented by the State’s witnesses but instead emphasized favorable facts and pointed out that the witnesses were either mistaken or had no knowledge of facts surrounding the
But we conclude that the State’s closing argument did not include statements analogous to “were they lying” questions. The State made statements such as “what we’ve got is a credibility determination”; “it really has come down to who are you going to believe”; and “I want you to contrast [Caine’s] testimony with Jermaine Jackson * * *. And we’re back to [Jackson’s] credibility versus the defendant’s.” It is the job of a jury to determine the credibility of the witnesses. In fact, in this case the district court instructed the jury that it is up to the jury to decide which witnesses to believe and explained what factors to consider in making this determination. Whether the jury believed Caine was the crucial question in the case because a great deal of evidence, both testimonial and physical, pointed to the fact that Caine did intentionally shoot Lynch. The only contrary evidence was Caine’s testimony. The State telling jury members during closing arguments that they must decide who they believe is not analogous to “were they lying” questions of witnesses on the stand. We therefore conclude that the State did not make improper closing argument statements.
For all the foregoing reasons, we hold that the State did not commit acts of pros-ecutorial misconduct during Caine’s trial; therefore, we conclude that a new trial is not warranted on these grounds.
Affirmed.
DIETZEN, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.Notes
. In Amos we looked to federal case law for guidance. We noted that the term “inconsistent statements” covers not only statements that are “diametrically opposed or logically incompatible,” but also covers situations where a witness testifies about an incident and later feigns loss of memory. Amos, 658 N.W.2d at 204.
. Davis remembered enough about the plea to dispute the charges to which the state said he pled guilty. Davis also remembered stating at the plea hearing that the police had coached him through their initial interview with him about the murder of Lynch. On redirect, Davis admitted that he remembered that the plea agreement was reached because he promised to testify truthfully at Caine’s trial.
.While testifying, Davis admitted to remembering the following facts: (1) the assault rifle came from a theft that Davis, Reese, Jackson and Lynch had done; (2) the deal with Jackson and Lynch was made because Jackson wanted sole possession of the assault rifle; (3) Davis was not in the room during the shooting; and (4) the identification of the jacket Caine was wearing on the day of the incident.
. The chain of events concerning the transcript and examination of Davis was as fol
. In Charlton, the court instructed the jury on the duress claim as follows:
The defendant * * * claims he is not guilty because he acted under duress. Having made this claim as an affirmative defense, the defendant has the burden of proving it by a fair preponderance of the evidence in order to be relieved of criminal responsibility for his acts, if you find that the State has proven all of the essential elements of the crime charged.
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Although the defendant, having raised the affirmative defense of duress, has the burden of presenting evidence of duress and the burden of establishing his claim of duress by a fair preponderance of the evidence, the State still has the ultimate burden of proving beyond a reasonable doubt defendant’s intent to commit the crime of aggravated robbery. * * *
If you find that the State has proven beyond a reasonable doubt all of the essential elements of the crime charged, aggravated robbery, and also find that the defendant has not proven his claim of duress by a fair preponderance of the evidence, you would then find the defendant guilty.
338 N.W.2d at 28 n. 5.
. We acknowledge that aspects of the concurrence have appeal as an alternative analysis of the lesser-included offense issue. Nevertheless, we conclude that ultimately the approach taken by the concurrence raises more questions than it answers. Moreover, the answers to these questions are not determinative in this case.
. For example, when cross-examining Jackson, the defense attorney never attempted to expose Jackson as a liar but instead focused on eliciting truthful testimony from Jackson concerning the incident, attempting to emphasize those facts that would help support the defense of duress.
Concurrence Opinion
(concurring).
I join in the majority’s conclusion that Caine’s conviction should be affirmed. I write separately becаuse I disagree with the way in which the majority resolves the issue relating to the lesser-included offense of first-degree manslaughter under
The district court instructed the jury on Caine’s duress defense that “[t]he defendant is not guilty of a crime if the defendant participated in the crime only because of a reasonable fear caused by the threats of another * ⅜ * that the defendant would be immediately killed if he refused to participate in the commission of the crime.” Under this instruction, in order to accept the defense, the jury would have had to find that Caine committed the murder because he reasonably believed that if he did not kill Lynch, Caine would be killed. See
Similar to the duress instruction given, the lesser-included offense instruction would have required the jury to find that Caine reasonably believed that he had to kill Lynch in order to prevent his own
Concurrence Opinion
(concurring).
I join in the concurrence of Justice Gil-dea.