>> Good morning, please be seated.
We have two cases for argument
this morning.
Segura versus the state of
Minnesota and Chrz versus
Mower County.
We will take Segura.
Justice McKay is participating
in these cases but she's unable
to be with us today.
We will give you 3 minutes of
time and interrupted at the
beginning of your argument and
then at the three minute mark I
will interrupt you and see if
the members of the courts have
arguments.
You have 10 minutes for
rebuttal.
Please proceed when ready.
>> Good morning, may it please
the court, Counsel.
My name is Stephen Russett and I
represent Elsa Segura, the
appellant in this case.
This is an aiding and abetting
case and it is another and what
is becoming a long line of cases
where the jury instructions on
liability are critically flawed.
Unlike some of these past cases,
the flaws in this case require a
neutral that this case
determined that evidence is
otherwise sufficient to support
convictions of the case.
To hold a person liable for a
crime committed by another
person, the state must first
prove that the other person
committed the crime.
The state must then prove that
the defendant engaged in conduct
that she furthered to the crime.
This Court recognized that these
are two separate and distinct
legal concepts that should not
be incorporated into a single
hybrid jury instruction.
That nonetheless is exactly what
the district court that in this
case.
For example, when instructing
the jury on premeditated murder,
the District Court toured the
jury that they needed to prove
the "defendant or others acted
with premeditation."
This was improper because as the
court explained, it allowed the
jury to convict Segura if any
one of the multiple actors in
this case acted with
premeditation.
A correct instruction would have
required the state to prove that
the principal, the person who
actually committed the killing,
acted with premeditation.
The use of the hyper instruction
was particularly egregious
because immediately following
that instruction, District Court
toured the jury that if the
state prove the charge crimes
were committed by Segura or
another or others, Segura was
guilty.
That is true only if the state
proves Segura committed the
crimes.
If the crimes were committed by
some other person, Segura would
not have been guilty unless the
state also proved that she
knowingly and intentionally
aided that person to commit
those crimes.
And what the District Court next
told the jury I submit rendered
the instruction in this case
nonsensical.
The court told the jury that if
it found the state did not prove
that Segura or another person
committed the charge crime, then
Segura was guilty.
Was not guilty.
Unless the state proved she was
liable as an accomplice.
Segura could not be guilty as an
accomplice if the state failed
to prove she or some other
person committed the charge
crime.
Why does this matter?
It matters because in this case,
there is no claim that Segura
committed the crime is the
principal.
There was no claim that she was
even present when the crimes
were committed.
This entire case was about
whether the state could prove
that she knowingly and
intentionally aided the persons
who committed the charge crimes.
The instructions however relieve
the state of having to prove
that she did because in the
district court's own words, "if
another person committed the
charge crimes, the defendant is
guilty."
>> Let me stop you and see if
members of the court have
questions.
Justice Moore?
>> I would like to talk to you
about the evidence and the
sufficiency of the evidence in
the claims that your client is
making.
I want to focus a little bit
initially on the inferences
based on the circumstances to
prove regarding whether or not
your client knew about what
turned out to be a kidnapping
murder plot committed by three
other individuals.
Principles.
The state presented evidence
that those three men were near
her house during the night that
she called the realtor to set up
what turned out to be a total
sham real estate showing and
that your client knew of the
dispute between one of the
principals, Mr. Wiggins and
Mitchell Momo, the victim of the
attempted murder, your client
admitted that the instructions
that Mr. Wiggins gave her to set
up the real estate showing was
not like anything else he had
asked her to do for the drug
business previously.
She was asked to use a fake
name, leave her house, use a
burner phone so it was not
connected to her residence, the
set up this phony real estate
showing.
Based on those facts, why is it
unreasonable to infer from those
circumstances that your client
knew about the kidnapping murder
plot that Wiggins, Barry, and
Davis planned when she set up
that showing?
Why is it an unreasonable
inference?
>> Even if it is a reasonable
inference, the question becomes
is it an unreasonable inference
to state that she not know?
It has to be both.
>> We will talk about the second
part and a second, but I'm
wondering on your second
position.
>> I'm not sure if you could
make that based on the evidence
that the state presented.
Our primary argument is that it
is one possible inference that
could be drawn in this case, but
it does not exclude the
reasonable possibility that she
did not know.
Everything you laid out there
really establishes, I would
suggest, three things.
Number one, that Barry and Davis
kidnapped and killed Bob and
shot Mitchell.
Secondly, Segura furthered the
commission of those crimes by
setting up the fake house
showings.
Third she knew that Wiggins was
up to no good.
The specific question here was
did she know that they were
planning to commit premeditated
and intentional murder?
It's important to remember that
these events occurred after
Mr. Wiggins is residence that he
was using in his drug business
had been rated and drugs and
guns and cash had been seized
from him.
It's also important to remember
that he was the subject of an
ongoing drug investigation.
Is it unreasonable for Segura to
have believed that when he asked
her to set up that's how showing
that he wanted to buy the house
to use it in connection with his
drug business because his other
houses had been compromised?
Our position is it's not an
unreasonable inference even if
we could have inferred that she
might have known or did know,
the thing that is missing here
is anything in the circumstances
proved that they discussed their
plans with her.
Yes, she was in contact with
them throughout the day and the
days before, she had
conversations with them.
She set up the fake showings and
I think that we can infer that
she knew she was assisting to
commit some illegal activity in
doing so.
Did she know they were going to
kidnap and kill Ms. Bow?
I think it's reasonable to infer
that she did not just as
reasonable as it was that she
did.
>> Why is it reasonable to infer
from the circumstances that your
client did not know about the
murder kidnapping plot given the
circumstances that were
approved?
>> Again, the two key factors
are the events that occurred
before the crimes in this case
dealing with the drug business
and the rating on Mr. Wiggins
residences and the lack of any
evidence showing that they ever
communicated what their plan was
to her.
If the circumstances improved
and included a situation or a
testimony that Ms. Segura was
present when there was a
discussion held between
Mr. Wiggins and Mr. Berry and
Mr. Davis about what the plan
was, then I would agree that it
would be reasonable to infer
that she did not know about it.
>> Can't we assume that?
It seems like there were many.
Each time she goes and makes a
call, she comes back to her
house in Fridley or whatever it
was and they always seem to be
there.
The other three folks always
seem to be there.
They come back together, come
back together, come back
together.
They are at her house.
Does that tell us anything
question Rick >> I think there
is a difference between making
inferences from what was proven
in what was proven.
Everything you laid out is true.
Can we infer that they discussed
with her their plan?
Possibly.
Can we infer that they didn't
and they led her to believe or
she believed that perhaps this
had to do with the drug business
like she testified?
An absence of something showing
that they communicated to her
what their plan was, I think we
are left in the dark to know
what she knew and what did not
know and what she thought.
It is the state's burden to
prove that she knew.
>> What do we do with language
in some of our cases that say
that we can't rely on things?
We've used it in some.
What we do with that?
>> I think we need to look at
the dichotomy between
circumstances proved and
inferences.
You can list out the
circumstances that are most
favorable to the verdict from
the states perspective.
To the extent that there are
gaps in those circumstances
prove that it allows for
inferences other than that of
guilt.
That is something that the court
under the case law takes into
account.
That's the whole point of the
circumstantial evidence
standard.
If you are not going to do that,
than to be very frank with you,
the circumstantial evidence
standard that you will plight
becomes worse than the regular
standard.
Under the regular standard, you
would look at the evidence as a
whole of determining whether a
reasonable jury would have found
the guilty.
The circumstantial evidence
standard is intended to be a
stricter standard and if we are
going to discount what is proven
and not impossible inferences,
my arguments in the future would
be based on the regular
standard.
Not the circumstantial evidence
because it turns out that it
would be a more scrutinizing
standard than the circumstantial
evidence standard.
Assuming the evidence is
sufficient, that does not mean
that we need a new trial in this
case.
As I indicated and I believe.
>> Could I ask you one more
question before we leave the
sufficiency of the evidence?
>> Absolutely.
>> If we look at the
circumstances proved and we say
it is not reasonable that this
is part of the drug business,
what more does the state have to
do?
Is it enough that the
circumstances are proved that
there will be some different
type of crime here and there is
suggestions of violent crime?
When Segura was at her house
with a Wiggins the of the actual
kidnapping and murders, she was
googling death row records.
There are inferences there that
show that there is going to be
some kind of violent crime
taking place.
She's not only instructed to
burn the piece of paper with the
realtor, she is told to flush it
down the sink.
If we say under these
circumstances it is not
reasonable that this was drug
related, I guess what I'm asking
is do they have to show that she
knew it was a kidnapping
specifically or is it enough
that she knew there was going to
be some sort of assault?
That's the point of my question.
>> I understand.
That leads into my second
argument.
>> I don't know that we have
ever said -- we've never said in
a case, I don't think, that you
have to set out the target
offense.
I think you get my question.
>> I do.
Thank you.
And again, I recognize that your
question comes up in the context
of sufficiency, but it also
relates to the question about
jury instruction that the
defense actually requested.
The Rosemont instruction which
the defense asked the district
court to give to the jury
instructing them that the state
did indeed have to prove that
she knew and intended to assist
the commission of the specific
crimes charged on the
indictment, premeditated murder,
kidnapping, and attempted
premeditated murder and felony
murder.
I recognize that this Court has
not expressly ruled on that
issue.
It came up in a prior case, the
awning will be case.
The court there sidestepped the
issue and set instruction in
that case and it would not help
the defendant because there was
no evidence or claim that she
was assisting some other crime
than what the indictment
alleged.
That is not this case.
There's plenty of evidence in
this case.
Ms. Segura's own testimony that
she thought she was aiding some
other crime then premeditated
murder and kidnapping.
I think the issue is before
her -- and by the way, the
prosecutor in closing argument
specifically told the jury
believe what she says appeared
she is guilty because she's
admitting that she was aiding a
drug crime.
It is foreseeable in the drug
business that someone is going
to get killed and therefore she
is guilty.
When the defense counsel tried
to correct the statement in her
closing argument by saying that
the state has to prove that she
intended to further the
commission of specific crimes in
the indictment, the prosecutor
objected, asserted that counsel
was misstating a lot, they
obtained the objection, and told
the jury to disregard.
It is an issue in this case and
it's a very important issue in
this case.
I don't know that it takes a lot
of analysis to get to the point
where the answer to your
question is yes, they have to
prove the specific crimes
charged on the indictment.
This Court's prior cases,
including the decisions in state
fee Huber and other cases all
require and recognize that under
the accomplice liability
statute, the state has to prove
that the defendant knew another
person was going to commit a
crime and intended her actions
to further the commission of
that crime.
The crime, the a crime in this
case, is a kidnapping and/or
premeditated murder or
intentional murder.
For her to be guilty as an
accomplice, under your
pre-existing cases, she would
have to have the intent to
further the commission of that
crime or those crimes in order
to be guilty.
>> Can I turn back to the
argument about the instruction
that you started your argument
with?
The fact that the court included
the defendant or another or
others in the jury instruction.
Given that the state's theory
here was only that your client
was an accomplice.
There was never any argument
from the state that your client
committed the kidnapping in the
murder.
Why isn't the error, assuming it
is error, harmless in the
instructions?
>> We presume that the jury
follows the district court
judge's instructions.
In fact, the judge tells the
jury that if councils are given
different than what my
instructions tell you, follow
the instructions.
The instructions in this case
allowed the jury to stop before
they ever got to the question of
aiding and abetting.
That's what I referred to as a
transitional instruction from
the hybrid to the liability for
crimes of another instruction
and told the jury that if
somebody committed the crime, we
are done.
You do not have to go to the
next step.
>> There were instructions about
the elements of aiding and
abetting and in order to find
your client guilty.
There were instructions about
accomplice liability.
>> They were instructions about
accomplice liability that
followed the elements
instructions, but the
transitional instruction between
those two said to the jury if
you find the defendant or
another or others committed the
crimes, the defendant is guilty.
We are done.
You do not need to go further.
What it did say was if you find
that the state did not prove any
of those elements, then the
defendant is not guilty unless
you find her guilty as an
accomplice.
The judge's instructions that go
to the couple's liability
instructions only if you find
they did not prove the elements.
And that is where the
instructions become nonsensical
in my opinion.
>> Which jury instructions were
done?
What you just said to us.
You can refer to your brief.
>> What the District Court did,
premeditated murder, here are
the elements.
When going through the elements,
a defendant, another, or others
committed the crime with intent
of premeditation.
Right after that it then said if
you find any of these elements
have not been proven, and again,
the exact line which escapes me,
but the transitional instruction
that tells the jury if somebody
else committed the crime, she is
guilty so you don't need to go
further.
You only need to go further if
you find they did not prove the
elements.
>> Am I correct that the judge
did that for each crime?
>> Yes.
And it permeated all the
elements instructions on all of
the offenses.
Keep in mind that the jury
returned a verdict in between
3-4 hours in this case.
It would indicate that they
found an easy way to get there.
This was a complicated case and
testimony went on for weeks.
>> Did they ask a question
before they reached a verdict?
>> They did.
And it takes me to my third
instruction issue.
I think when added to everything
else here, even if the evidence
is sufficient, it warrants a new
trial.
The judge's initial instructions
in this case on the murder and
attempted murder included
transferred intent instruction
which informed of the that if
you find the defendant -- if the
principal premeditated or
intended to kill one of the two
victims in this case, you can
transfer that premeditation and
intent to the actual killing in
this case.
During closing arguments, the
prosecutors pointed the jury to
that instruction and said we
aren't sure whether killing was
a part of the plan.
It doesn't look like it was.
We don't know what happened or
why she was killed.
Don't worry about it.
Because a judge told you the
instruction.
If you find that the plan was to
kill Mr. Mitchell Momo, you can
transfer that to the killing of
Ms. Powell.
In jury deliberations after
deliberating for three hours,
the jury asked a question which
said we can do that to Mark the
judge answered that question by
saying I'm going to refer you
back to my instructions
including the transferred intent
instruction.
It was close to 12 minutes later
that the jury came back with
guilty verdicts on all of these
crimes.
>> Wasn't that objected to it?
>> It was not objected to, but
we know it was plainly erroneous
based on other decisions.
>> We are in plain error.
What do we do with the final
step of plain error here?
Applying what we said in recent
cases about the standard for
plain error and it violates
substantial rights but then you
get to does it affect the
fairness?
What do we do with that?
>> I think that is an easy one
in this case.
This whole case was about aiding
and abetting and whether the
actors acted with premeditation
and intent.
These were disputed issues in
the case appeared there was no
concession on any of the
elements in the case.
The state itself acknowledges.
>> But that sounds like this
case.
Is your argument because we will
not tolerate and the public
would not tolerate a decision of
a court where the state did not
prove their case?
>> They did not prove the
essential elements of the crime
of conviction and as a result,
the defendant is in prison for
the rest of her life without the
possibility of parole.
>> And that's unfair which is
the point.
>> I believe that before we sent
for prison for the last of their
life without the possibility of
parole, the state should be
required to prove each and every
element of the charge crimes.
>> Counsel, if we agree with you
that the transferred intent
instruction was erroneous, the
state contends that it did not
have any effect on a couple of
the accounts.
The kidnapping and of the felony
murder.
Would you agree with that?
>> I don't.
I understand their argument and
as I acknowledge at the
beginning, the transferred
intent instruction was given in
the context of premeditated and
attempted premeditated murder
counts.
Nothing in the instructions
however that would've precluded
the jury from applying
transferred intent to the other
crimes.
Those are specific intent
crimes.
Kidnapping has to be done with a
specific intent to terrorize or
inflict great bodily harm on the
victim.
The felony murder, because it is
first degree, requires
intentional killing.
The transferred intent could
have influenced the decision.
And I cannot get away from the
fact that the jury in this case
did not sign any of the jury
verdicts until after the judge
told them you can transfer the
intent and 12 minutes later they
are signing all of the verdicts
in the case.
That would suggest to me that
there was some discussion in the
jury room about this transferred
intent issue and once that was
resolved, it was easy for them
to convict of all of the
offenses showing that the
instruction affected the
decision on everything.
No, I don't agree that it did
not affect the other verdicts.
And the other thing I would say
is the transfer of a tent is one
of many instruction layers in
this case.
It permeated all of the offenses
and when you put them -- when
all of these errors get
together, I think it warrants a
new trial and everything.
We just need to go back and
start over and do it right.
>> Remind me.
Did the District Court issued
the intent?
How did it come up question work
>> It's not clear whose idea
was.
At least from my recollection it
was included in the proposed
jury instructions and there was
no objection to it.
That's about all I know.
Who initially put it into the
instructions, I don't know the
answer to that question.
>> Counsel, have we ever held
that murder can be a foreseeable
consequence of a kidnapping?
Is there any law on that issue
in Minnesota, do you know?
>> To be frank, I don't know off
the top of my head, your honor.
I don't want to say no.
There's a lot of case laws these
days.
I'm not aware of a specific
case.
I don't think I would argue it
can't be.
I suppose it is certainly
possible that if the accomplice
is aware that they are going to
kidnap somebody and tortured
them, let's say, that one of the
people she is aiding might end
up killing that person
intentionally or may have in
their mind that they are going
to kill them.
That does not make her guilty
necessarily unless she knew
that.
But I think the facts of a
particular case might allow for
that.
I see that my time is up.
I will be back in a few a few
minutes.
>> We will see you on rebuttal,
Counsel.
Ms. Vokes.
>> May it please the Court,
Counsel.
My name is Sarah Vokes,
Assistant Hennepin County
attorney and I represent the
respondent state of Minnesota in
this order.
This court should affirm because
the state prove beyond a
reasonable doubt that appellant
aided and abetted in these
crimes resulting in the death of
Ms. Bao.
She was charged as an Aid and a
better and she had to prove that
she intended to aid her
codefendants in committing the
crime, so long that it was done
in the furtherance of that crime
and was a foreseeable
consequence of that intended
crime, she is liable as an
accomplice.
She did not intend specifically
to engage in a murder, but
simply that it was a crime where
murder was reasonably
foreseeable consequence of the
intended crime.
The circumstances proved when
widow down to the evidence that
supports the verdict showed that
the appellant aided and abetted
in a plot to ambush Ms. Bao
under the guise of a fake house
showing trying to extract
information on her on her
boyfriend, Mr. Mitchell Momo.
The ultimate plan was to kill
Mr. Mitchell Momo and result in
the murder of Ms. Bao.
The instructions included all of
the required concepts to convict
under an accomplice liability
theory.
The instructions to the jury
were not an abuse of instructor.
The state of Minnesota for
specular request that the state
affirm and I'm happy to address
any questions at the court may
have.
>> Counsel, why is the sixes
hypothesis of innocence
unreasonable?
Why?
>> the state's position is that
only the circumstance to support
the verdict, that is not a
reasonable conclusion.
The only circumstances that make
that very reasonable are pieces
of testimony of the appellant
herself that she did not know
anything and those are not
circumstances proved that
support the verdict.
That is a theory that the jury
rejected upon being able to
assess her credibility as a
witness and they clearly
rejected that.
>> What circumstances did the
state prove in this case that
connected the appellant to
Mr. Barry and Mr. Davis, the
U-Haul truck, the items they
purchased at Walmart, et cetera.
That part of the plot here.
What evidence is there that
shows that she knew about those
things?
>> there is not direct evidence
that she knew about the evidence
purchase and that signing, and
this is one of those cases.
This court uses the language
that we cannot look at the
circumstances piecemeal and this
is a case where that is pretty
critical.
Sometimes we can point to three
concrete circumstances that
prove a particular element and
when it comes to what the
appellant knew, it is a whole
host of circumstances paired
some of which you identified in
your questions to opposing
Counsel in terms of appellant
meeting up with Wiggins, Barry,
and Davis, setting up a showing,
the dispute that she knew about
with Wiggins and Mr. Mitchell
Momo, the instruction she was
given, the things that she did
more nothing like tasks she had
done in the past.
This is all in a context where
Wiggins and the appellant were
obviously in a romantic
relationship which is a close
relationship before and after.
She was a probation officer.
She knew his criminal history
including armed robbery with a
kidnapping component.
She knew obviously about this
conflict between Wiggins and the
victim of the attempted murder.
She knew that he not only had a
past criminal history, but had
current criminal involvement
that she assisted with.
There's this whole host of
background of their closeness of
the relationship and what she
knew about Wiggins.
>> Why does that make it
unreasonable?
I agree with all of you things
that it probably makes it
reasonable, but why can't you
draw the alternative inference
that she did not know that they
were going to kidnap and did not
know that they were going to
commit premeditated murder?
Part of your argument is that
does not matter because she knew
there was going to be a crime
committed, but if we reject that
argument, why is the other not
reasonable?
>> the states position is that
it is not reasonable.
What is a burner phone acquired
for but committing criminal
activity where you do not want
to be traced back to.
>> What about kidnapping and
murder?
The acknowledging that there's
going to be kidnapping and
murder, not just that there's
going to be a crime committed.
>> The number of phone calls,
the meetings, the timing of it
in terms of appellant left her
house, made these phone calls
and texts, came back, met back
up with Barry and Davis and she
met with Barry, Davis, and
Wiggins ahead of the time and
she was in frequent
communication with Wiggins
before and after.
>> These facts are just
unreasonable.
We are sitting up here and we
either agree with you or we
don't agree with you and we make
an arbitrary decision.
>> I don't think it's arbitrary.
I think it is based on the facts
of the case, but the states
position is that.
That this collection of evidence
is not reasonable to conclude
that she had no idea that she
was a naive player who asked no
questions.
>> but that's not the point.
The point is that it did know
about the kidnapping and the
murder.
I'm just going to go in circles.
I will stop it someone else can
go.
>> I would like to talk about
the jury instructions.
>> Do you agree that the state
has to show that the inferences
drawn from the circumstances
need to show that she knew a
kidnapping is going to happen?
>> not necessarily.
I think they do here, but as
long as she knew that the
principal offenders were
intending to commit a crime that
was violent and serious enough
that murder was a foreseeable
consequence, that it would be
enough.
>> assault and threatening her
would suffice to support this
verdict?
>> I think based on the overall
facts of this case, yes.
>> Any drug crimes can get you
aiding and abetting for murder.
That is the implication of your
argument.
>> I think there is certainly
cases.
>> Even if it isn't charged as a
drug crime.
>> Here, the jury rejected this
was her claim that it was a
vague and unspecified related to
the drug business.
Change the facts of it.
She is setting up a transaction
that she knows is happening.
>> I just want to zero in on the
question because I think that is
important here.
In response to her, the answer
there, you basically just said
that as long as there was some
crime that might've been
committed and she knew about it.
Say this drug crime.
Even if the jury believed in
your position and if they
believe that it was a drug
crime, the states position is
still that it is enough for an
aiding and abetting offense
where the charges are kidnapping
and premeditated murder.
>> It connects expansive
liability which means that the
defendant can be found guilty of
other crimes.
Maybe not whatever the first
part of the plot was, whatever
they were all intending.
She can be held liable for other
crimes.
Murder, kidnapping, but it needs
to meet the requirements so that
it was done with the furtherance
of the original crime, it was
reasonable for Saints.
>> What is the original crime?
Because the states position is
that it is the kidnapping.
It was a plot to eventually kill
Mr. Mitchell Momo.
>> The jury needs to find that
she knew about the fact that
they were going to kidnap and
commit murder, not just that
they were going to be involved
in a drug crime.
>> The jury instructions do not
specify.
>> I'm saying what is the lot.
The jury instructions could be
wrong, of course.
>> the law is what the jury
instructions include for
accomplice liability which is
you need to know that the
principal offenders were going
to commit a crime and you
intended to aid in that crime
and additionally, you have to
read it as a whole, the other
requirements.
If they end up committing other
crimes, murder, if it is in
furtherance of the original
crime and it is reasonably
foreseeable, there's the
expansive liability.
>> And the original crime being
kidnapping.
>> Correct.
>> Not just a generalized drug
crime
>> No.
Not a generalized drug crime.
>> So the jury instructions
could be right is wrong.
>> I do not believe it is, but I
will look.
>> I would like to turn to jury
instructions if we could.
In your brief, you say that
there was not an error with what
opposing counsel calls a hybrid
instruction.
The use of the others.
You say that the state says
because the jury could only find
her guilty if they found she was
an accomplice, any error in the
using of the extra words other
or others is harmless.
I think that is part of your
argument in your brief.
But the defendant in his brief
quotes what Counsel calls the
transition instruction with says
if you find that each of these
elements has been proven beyond
a reasonable doubt, the
defendant is guilty of this
charge.
Couldn't you read that
instruction as if you find that
somebody else committed the
kidnapping, the defendant is
guilty?
>> I think that the answer to
that is it's important to look
at the instructions as a whole.
In addition to that transition
instruction as we are calling
it, if you look up farther,
between the definition and the
elements, there's an
introductory sentence that says
that the defendant is charged
with committing this crime or
intentionally aiding in the
commission of the crime.
I think you have to look at the
introduction sentence that it is
she committed it or she aided
and abetted and then there's the
elements and then there's
something that the wreck some to
what does it mean to aid and
abet.
The states position is when you
look at the instructions as a
whole coupled with -- it's clear
that she was never alleged to be
the principal.
Jury has to look at them as a
whole.
>> If she was never alleged to
be the principal, what is the
extra language doing and here in
this instruction?
>> Which aspect?
>> The other.
The other did this.
Why is that in there?
>> Because that's what fits
effects of the case.
You would not just list that it
was her sense she was never
alleged to be the principal.
>> Just a follow up on that
question there.
As I read this transition in the
instruction, the jury was told
if they did not find an element
had been proven beyond a
reasonable doubt, the defendant
is not guilty of the charge
unless they find that the state
has proven beyond a reasonable
doubt the defendant is liable
for the crime committed by
another person under the
language after that.
Why is the defense counsel right
that that allowed the jury to
convict a person for aiding and
abetting, a crime that the jury
did not find that the state had
proven beyond a reasonable doubt
occurred?
Isn't that the logical inference
from the language?
>> the states position is that
the language directs the jury to
figure out if she is liable for
the crimes of another.
I know that the jury
instructions were recently
re-crafted and this is what is
in the jury instruction guide
with a commentary of how to lay
it out.
Obviously, if this court thinks
that it needs to be constructed
in a different way, there has
been a lot of cases on this
trying to incorporate all of the
elements of the law.
It's hard to say that there's an
abuse of discretion when the
district court is using the jury
instruction guide and
incorporates all of the things
that Milton requires, that it
incorporates all of the pieces
of the aiding and abetting
statute.
>> How about the transferred
intent instruction?
As I understand, many was killed
at a different location than the
attempted murder of Mr. Mitchell
sometime afterwards.
The classic understanding that I
have of transferred intent would
be you intend to kill letter a
and B is standing by the wayside
and B ends up being killed at
that time.
There's transferred intent.
This does not seem to be that
scenario.
How is this transferred intent
instruction workable under those
facts?
>> Under hall, it appears that
it was error to include this
instruction because Hall casts
the transferred intent doctrine
to be one of limited
application, as you just
described.
The classic example of bad aim,
perhaps.
The question was asked of
opposing counsel how did the
instruction come to be included.
It's not clear from the record.
I think a lot of the litigation
of jury instructions often
happens over email.
It was included in the proposed
instructions and so we can
assume that the District Court
may have been the one to include
that, but I cannot say for
certain.
I think that under Hall, unless
this court wishes to revisit
when the doctrine applies, it
would be error.
Here however, in Hall, the court
held that it could not find
beyond a reasonable doubt that
it did not affect the verdict.
Hall has such distinct facts
where the intended alleged
victims had nothing to do with
the actual eventual victim.
Completely different conflicts
that had occurred between these
unrelated parties where's here,
we have something completely
different where it is one
mastermind plot where evidence
of premeditation or the same
evidence might be used by a jury
to find premeditation versus one
victim in the other.
And here, based on the evidence
that it was certainly harmless
beyond a reasonable doubt
because there is such ample
evidence of separate
premeditation and intent for
each of them.
The intent is obviously separate
evidence of how many times they
were each shot.
The premeditation, there is
ample evidence to each victim.
>> Counsel points out the timing
of the jury's verdict coming
half an hour after the question
that was submitted to the judge
was answered regarding this
precise issue.
Transferred intent.
You are confident that assuming
there was ever here which I
think that the state is
conceiving, we can be certain
this was harmless beyond a
reasonable doubt given the fact
that the jury asked the specific
question and it came to all of
its verdicts immediately after
it was answered?
>> That is the states position
and that is based not so much on
the jury question and the
timing, but based on the
evidence.
Here, in terms of premeditation
as to the murder, she was found
with duct tape and had bruises
all over her body.
Her acrylic nails had been
ripped off.
The period of time that they had
her in captivity was over three
hours and there is a period of
time between the time when they
went and shot Mr. Mitchell Momo
who is what we assume to be the
original intended victim, they
did not know whether he survived
or not, I would assume, and it
was another hour before they
killed Ms. Bao.
There's ample time to dispose of
a witness to this crime.
The evidence is fairly
overwhelming on meditation and
intent which is why the state
believes that's harmless beyond
a reasonable doubt.
This is certainly a case where
the issue argued below was not
about whether the principal
actors had meditation or had
premeditation and intent.
Obviously it is still the
state's burden to prove all of
the elements, but below how it
was argued to the jury and the
primary issue that is before
this court is what did appellant
no?
Did she know enough and did she
intend to aid in the crimes?
>> Does that intersect with the
requirement that they have to
prove her knowledge?
Could a jury have read that she
had knowledge of something and
then she would have knowledge of
the next thing?
>> I don't think so based on
where the transferred intent
instruction was included.
I believe -- I'm fairly certain
it was just under the first
count and it was just about the
premeditation in the intent to
cause death aspect.
The states position is certainly
that appellant did not need to
have the intent to cause
Ms. Bao's death.
That overstates what the state
had to prove.
If there are no further
questions, the state
respectfully requests that this
Court affirm.
Thank you.
>> Thank you, Counsel.
Mr. Russett, you have 10 minutes
for rebuttal.
>> The state suggestion here
that the evidence of guilt was
overwhelming in this case on the
issue of premeditation is
directly contrary to what the
prosecutor told the jury on the
issue of premeditation.
They conceded to the jury that
it was not clear why Ms. Bao was
killed.
Whether it was part of the plan
and also acknowledge that they
did not know exactly what is
updated the killing.
We don't know whether this was a
spur of the moment decision to
kill Ms. Bao as she tried to
flee, for example.
Whether it was part of the
original plan altogether.
The state conceded to the jury
that it does not appear to have
been.
Not knowing exactly what
happened at the time that
Ms. Bao was killed precludes an
argument that the evidence of
premeditation is overwhelming.
It is certainly contrary to the
position of the state down
below.
I want to talk a little bit
about the idea of as long as the
state proves an attempt to
commit some crime that the
defendant is guilty of anything
that is foreseeable.
I think that misreads to a
certain degree the statute
itself on accomplice liability.
Under subdivision one, the state
must identify the specific crime
that the defendant is aiding
another person to commit.
The defendant has to engage in
content with the intent to
further that crime.
The indictment in this case is
very specific about what crimes
the state is alleging in a grand
jury alleged.
Premeditated murder.
Attempted premeditated murder,
kidnapping, felony murder.
Those of the charges in this
case.
To say that it is enough that
the state prove that they were
engaged in something criminal, I
don't think that comports with
the statute.
The expense of liability under
the statutes subdivision two
does not come into play until
the jury first finds the
intended crime was committed.
For the jury to make that
decision, we have to define for
the jury with the intended crime
is.
And that's what the judge did in
this case.
The judge identify the crimes
and to say that it does not
matter, she knew they were
engaged in criminal activity.
We are going to allow juries to
decide what is criminal and what
is a crime without any
instructions defining what the
crime is?
We have to identify for the jury
what the intended crime is,
identify the elements of that
crime, require the state to
prove that somebody committed
that crime before we then saved
by the way, you are responsible
for any other crimes that may
have been committed as a
consequence of committing the
intended crime.
The other thing I want to
address is this idea, if I
understand correctly and I think
that the states efficiency
argument focuses on count three,
the kidnapping charge.
As I understand it, they are
saying that the evidence shows
she knew they were going to
commit a kidnapping.
We dispute that and I don't
think that the evidence proves
that beyond a reasonable doubt.
Assuming that, the state's
argument is that it was
foreseeable that something was
going to get killed and Josie is
responsible for the premeditated
murders in the intentional
murders and everything that
followed.
I asked the court to look at the
indictment.
The indictment and Count three
is aiding and abetting
kidnapping.
That's it.
It does not allege that the
defendant is guilty for other
crimes committed during the
course of the kidnapping.
The jury verdict on Count three
is guilty of kidnap.
Not guilty of anything else.
The jury did not add to find the
defendant guilty of kidnapping
and other crimes committed in
furtherance of the kidnapping.
That's not the verdict is in
this case.
They found her guilty under
Count one of aiding and abetting
in the intended crime of
premeditated murder.
The instructions on the
kidnapping do include the
expense of liability provisions
of the statute, but it does not
define what those other crimes
are that the state is claiming
were committed and that she knew
would be committed in
furtherance of the kidnapping.
I don't really know that there
is any basis given the nature of
the indictment and the nature
and the instructions in the
nature of the jury verdict
itself that would allow this
court to say they convicted her
of kidnapping and she is guilty
because it was foreseeable as a
result of that that these other
crimes were going to be
committed.
The jury never made any such
finding.
I don't believe it is reasonable
to infer that finding.
Unless there are any other
questions.
>> Your position is
insufficiency -- there's a
question would that there was
knowledge that they were going
to kill somebody and that's a
separate question and we can
look at the evidence on that.
But we cannot do is say there
was sufficient evidence of a
kidnapping and we can infer that
she is guilty of the felony
murder.
>> right.
For the court to draw that
conclusion, the jury would have
had to be instructed with
account three that if you find
the defendant guilty of
kidnapping, you may convict the
defendant of any crimes that the
defendant herself could
reasonably foresee as a
consequence in the state is
alleging that includes
premeditated murder which is
defined.
Thank you.
>> Thank you, Counsel.
Thank you for the help you
provided to the court in this
case.
We will issue an opinion in due