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STATE OF MINNESOTA

IN SUPREME COURT

A20-0756

Carlton County Hudson, J.
Took no part, Chutich, J.
State of Minnesota,

Respondent,

vs. Filed: March 24, 2021
Office of Appellate Courts
James Francis Montano,

Appellant.

______________________________

Keith Ellison, Attorney General, Peter Magnuson, Assistant Attorney General, Saint Paul,
Minnesota; and

Lauri A. Ketola, Carlton County Attorney, Carlton, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.

________________________

S Y L L A B U S
1. The district court did not abuse its discretion in denying a request for an
accomplice-testimony jury instruction under Minnesota Statutes section 634.04 (2020)

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where there was no evidence that the defendant and witness acted together to commit the
murder.
2. Appellant’s pro se claims do not merit relief.
Affirmed.
O P I N I O N
HUDSON, Justice.
We are asked to decide here whether the district court abused its discretion when it
denied a request for an accomplice-testimony jury instruction under Minnesota Statutes
section 634.04 (2020), and whether any of appellant James Montano’s pro se claims merit
relief. Montano was charged with first-degree premeditated murder of Andrew Gokee and
attempted first-degree premeditated murder of Gokee’s son, Hudson Gauthier. Montano
requested an accomplice-testimony jury instru ction under Minn. Stat. § 634.04, arguing
that the jury could reasonably find that the St ate’s witness, Gauthier, was an accomplice.
The district court denied the requested instruction, reasoning that under State v. Larson ,
787 N.W.2d 592 (Minn. 2010), the instructi on was precluded as a matter of law because
Montano intended to present evid ence identifying Gauthier as an alternative perpetrator.
The jury found Montano guilty as charged. He now appeals, arguing that the district court
abused its discretion when it denied his request for an accomplice-testimony jury
instruction. He also filed a pro se supplemental brief, asserting additional claims. Because
there is no evidence that Montano and Gauthier worked together as accomplices to murder
Gokee and because none of the pro se claims merit relief, we affirm.

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FACTS
Andrew Gokee was shot in the head on the night of April 20, 2018 and died of his
injuries two days later. Only three other people were present at the time Gokee was shot:
Montano, Gauthier, and Montano’s father. The shooting occurred at the rural property of
Montano’s father in Carlton County. Montano’ s father did not see or hear the shootings,
but called 911 immediately afterwards. He told the 911 operator that his son shot Gokee
and that he had taken the gun away from his son before his son ran off into the woods. The
police arrived and after sending Go kee to a hospital, they took statements from Gauthier
and Montano’s father.
In his pretrial statements and testimony, Gauthier noted that earlier in the day, while
Gokee and Montano’s father were at work, Mo ntano showed him how to load and fire a
.22 caliber revolver so that they could hunt birds. After Gokee and Montano’s father
returned from work around 5 p.m., Gauthier spent several hours alone with Gokee catching
up and telling stories. Gokee then mentioned he was planning to sp end the night at his
girlfriend’s home and offered to drop Gauthier off at the casino if Montano’s father would
give him a ride home. Gokee also offered to give Gauthier some money for the casino.
Gauthier said that he went out to the garage to ask Montano’s father for a ride, where he
found Montano’s father and Montano smoking methamphetamine. Gauthier then smoked
some methamphetamine with them.
Montano’s father agreed to gi ve Gauthier a ride home. Gauthier went back inside
while Gokee finished packing. They then both left the ho use and walked to a nearby
vehicle when Montano jumped out with a gun. Gauthier thought it was a joke and began

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laughing, but Montano responde d that this wasn’t a joke and that he was going to kill
Gauthier. Gauthier ducked his head, but tho ught a bullet grazed him. He began running
away to hide from Montano when he heard another gunshot.
Gauthier stated that after he tripped an d fell, Montano approa ched him and began
hitting him with a weapon. Gauthier said that Montano’s father then arrived and shouted,
“What the f*** are you doing? You just shot your uncle.” Gauthier ran to Gokee as
Montano’s father struggled with Montano. Gauthier claimed that Montano said he killed
Gokee and was going to kill him next. Gauthier said that he asked Montano why he shot
Gokee, to which Montano replied, “You guys don’t appreciate the work I do.” Gauthier
stated that he retrieved the revolver from the house and, after more threats from Montano,
fired a shot at Montano’s feet. After Monta no kept approaching, Gauthier fired a second
shot that struck Montano and stopped him. Montano eventually fled to the woods before
law enforcement—who were called to the scene by Montano’s father—arrived.
After arriving, an officer observed an injury on the right side of Gauthier’s head
near his ear. The paramedic on the scene also testified about treating a graze wound on the
back of Gauthier’s head. Gauthier identified a nearby .22 caliber rifle lacking a stock that
he claimed was the weapon used by Montano. Gauthier also identified a nearby .22 caliber
revolver as the one he used in an attempt to keep Montano away from Gokee.
Montano’s father also gave pretrial statements and testimony. He stated that as soon
as he got home from work that afternoon, he went to work in his shop with his son.
Montano’s father agreed that Gauthier had come into the shop and asked for a ride, noting
that “[e]verybody was in a good mood.” He did note, however, that Gauthier complained

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about Gokee only giving him $10 for the casi no and that Gauthier asked him for money
too. Montano’s father also testified that he then went to work with a grinder that made “a
lot” of noise. He worked on the grinder fo r about 20 minutes befo re he heard muffled
hollering outside. Montano’s father then left the garage, saw Gokee lying on the ground,
and heard Gauthier shouting. Montano’s father testified that Gauthier said that Montano
had shot Gokee and tried to shoot him, too. Montano’s father then went into the house to
get a spotlight, and when shining the light around outside saw Gauthier on his back in the
middle of the yard. He then saw Montano “ quite a ways away” from Gauthier. Montano
appeared “big-eyed like in shock or somethi ng.” Montano’s father did not see Montano
holding anything at that time. Montano’s father said that Gauthier indicated that he had
been shot in the foot. Montano’s father repe atedly told Montano to get away, then went
inside to call 911. He testified that he never made physical contact with Montano, nor did
he handle either of the .22 caliber weapons that night. Montano’s father also stated that he
had not used drugs or done any drinking that night.
After arriving at the scene, police searched the woods and located Montano several
hours later. Montano suffered a bullet woun d to the chest and was taken to a nearby
hospital. When asked in the woods who shot him, Montano replied that he did not know.
At the hospital, police asked Montano if he ha d shot anyone, to which he responded no.
He reaffirmed that he did not know how he had been shot. Blood tests from Montano later
showed that he had methamphetamine and amphetamine in his system that night. But law
enforcement did not note findi ng any methamphetamine or pa raphernalia at the property
during their investigation.

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Investigators recovered two .22 caliber we apons from the scene. The first was a
bolt-action rifle with its stock missing that was on a flatbed trailer parked nearby on the
property. The chamber was partially open w ith one spent case in the chamber and one
cartridge remaining in the magazine. Investig ators found latent fingerprints on the rifle,
but they did not belong to either Montano or Gauthier. Two spent cases lying on the ground
next to the vehicle where the shooting occurred came from the rifle. The second weapon
was the revolver. The revolver had two spen t cases and four copper-coated cartridges
remaining. DNA found on the revolver belong solely to Gauthier. The siding of the house
had one defect that indicated bullet dama ge. Additional weapons and ammunition were
found in the house.
A Carlton County grand jury indicted Montano for first-degree premeditated murder
of Gokee and attempted first-degree premedita ted murder of Gauthier. Before trial,
Montano filed a motion in limine requesting an order allowing him to offer evidence that
Gauthier caused Gokee’s death as an alternative perpetrator. For the alternative perpetrator
theory, Montano pointed to in consistencies in Gauthier’s testimony, Gauthier’s possible
motive to kill Gokee, and gr and jury testimony from Goke e’s attending physician who
believed the gunshot wound potentially came from a handgun and not a rifle.
Montano also sought a jury instruction that explained to the jury that it could not
convict him based on the uncorroborated test imony of an accomplice, Gauthier. For
accomplice corroboration, Montano argued that because Gauthier could have been indicted
with the same crime, he was an accomplice as a matter of la w, which required that the

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district court give an accomplice-testimony instru ction to the jury. At the very least, he
argued, it was a question of fact for the jury to decide.
In support of the accomplice-testimony instruction, Montano presented the
following evidence. Gauthier admitted that he was at the scene of the crime at the time it
occurred. Gauthier also ad mitted that he had possession of the revolver—one of the
potential murder weapons—and fired two shots with it. Gauthier’s DNA was also found
on the revolver. Gauthier further made incons istent statements to law enforcement, the
county attorney, and the grand jury regarding the night of the murder. In particular,
Gauthier claimed that Montano fired the .22 caliber rifle at him, but Montano’s DNA and
fingerprints were not found on the rifle nor was Montano wearing gloves that night which
would preclude DNA or fingerpri nts. Investigators were unable to determine which .22
caliber weapon killed Gokee, but Gokee’s attending physician believed that the weapon
was fired at close range. Fi nally, Montano pointed out that he believed the statement of
Montano’s father was inconsis tent with Gauthier’s in se veral respects; namely, that
Montano’s father did not hear any gunshots that night, did not hear Montano making
threats, and did not know how Gauthier obtained the revolver.
The State responded that b ecause Montano was attempting to portray Gauthier as
an alternative perpetrator—that is, Gauthier was the sole person responsible for killing
Gokee—Gauthier could not, as a matter of law, also be an accomplice. The State further
noted that Montano had not alleged any fact s that showed Gauthier and Montano were
working together as accomplices . The district court agreed with the State, citing our
precedent, including State v. Larson, 787 N.W.2d 592, 602 (Minn. 2010).

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One week before trial, Montano asked the district court to reconsider its ruling on
the accomplice-testimony jury instruction. The district court reviewed additional case law
submitted by Montano, but reaffirmed its prior decision and reasoning.
Montano did not renew his objection to th e lack of an accomplice-testimony jury
instruction at trial. The jury found Montano guilty of first-degree premeditated murder of
Gokee and attempted first-degree premeditated murder of Gauthier. The district court
convicted Montano and imposed a sentence of life without the possibility of parole and a
consecutive sentence of 180 months. Montano filed a direct appeal.
ANALYSIS
Montano’s only argument in his principal brie f is that the district court abused its
discretion by denying his request for the accomplice-testimony jury instruction. He also
asserts multiple claims in hi s pro se supplemental brief. We address the accomplice-
testimony issue first.
I.
When a party requests a jury instruction, “trial courts must look at the evidence in
the light most favorable to the pa rty requesting the instruction.” State v. Dahlin ,
695 N.W.2d 588, 598 (Minn. 2005). District courts have “considerable latitude in selecting
jury instructions” and a “refusal to give a re quested jury instructio n is reviewed for an
abuse of discretion.” State v. Anderson, 789 N.W.2d 227, 239 (Minn. 2010). “A district
court abuses its discretion when its decision is based on an erroneous view of the law or is
against logic and the facts in the record.” State v. Guzman, 892 N.W.2d 801, 810 (Minn.
2017).

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Minnesota Statutes section 634.04 requi res corroboration for the testimony of an
accomplice. This statute codifies a long-st anding common law rule that precludes a
conviction based on the uncorroborated testimony of an accomplice. See State v. Durnam, 75 N.W. 1127, 1131 (Minn. 1898). “The rationale for this rule is that the credibility of an
accomplice is inherently untrustworthy.” State v. Evans , 756 N.W.2d 854, 877 (Minn.
2008). An accomplice is someone wh o “intentionally aids, advises, hires, counsels,
conspires with or otherwise procures the other to commit the crime.” Minn. Stat. § 609.05,
subd. 1 (2020); see also Minn. Stat. § 611A.52, subd. 2 (2020) (defining an accomplice as
“any person who would be held criminally liable for the crime of another pursuant to
section 609.05”). A district court may deny a request for an accomplice-testimony
instruction if there is no evid ence that the defendant and witness worked together as
accomplices. State v. Flournoy, 535 N.W.2d 354, 359 (Minn. 1995). That is, to warrant
an accomplice-testimony instruction, “there must be some evidence that the defendant and
witness were accomplices.” State v. Swanson , 707 N.W.2d 645, 653 (Minn. 2006).
Accordingly, “[a] witness who is alleged to have committed the crime instead of the
defendant is, as a matter of law, not an accomplice under section 634.04.” Id.
Montano argues that there was “ample” evidence that Gauthier was an accomplice
in Gokee’s murder. First, Montano and Gaut hier “spent the entire day preceding the
shooting together” during which Montano taug ht Gauthier how to load and fire the
revolver. Second, both Montano and Gauthier were angry at Gokee that day. Gauthier
was angry because, after Gauthier learned to load and fire the revolver, he asked Gokee for
money for the casino and only received $10. And Montano was angry because he felt that

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Gokee did not appreciate him. Third, both Gauthier and Montano were present at the
shooting. And fourth, both the rifle and revolver were fired.
Montano emphasizes that Gauthier admitted to firing the revolver and that his DNA
was on the gun. Montano also notes that Gokee was killed with .22 caliber copper-coated
ammunition that was consistent with the amm unition used in the revolver. According to
Montano then, “the jury could have found that Gauthier . . . was an accomplice because he
‘assisted’ Montano in the commission of the crime ‘as principal’ by firing the fatal shot.”
Montano also asserts that the district court misunderstood the rule of law in Larson,
where we stated, “when a defendant presents evidence and argues at trial that a witness is
an alternative perpetrator, th at witness is not an accomp lice as a matter of law.”
787 N.W.2d at 602. Instead, Montano s uggests that the rule discussed in Larson was
developed in cases where “there was no ev idence that the defendant and the alleged
accomplice [] had committed the crime together.” According to Montano, these cases only
stand for the principle that there must be so me evidence that the witness committed the
crime with the defendant to allow the accomp lice-testimony to go to the jury. And he
maintains that he presented such evidence to thus warrant the instruction. Montano further
argues that a literal reading of Larson’s clear statement would impermissibly preclude the
jury from their fact-finding role. See State v. Leinweber, 228 N.W.2d 120, 123–26 (Minn.
1975).
The State responds that Montano’s cited ev idence is devoid of any indication that
Montano “sought to assist Gauthier in Gokee’ s murder.” Instead, th e State contends, the
evidence cited by Montano shows only that Gauthier “was a possible alternative

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perpetrator—his theory of defense below.” Th e State maintains that the evidence at best
suggests that Montano and Ga uthier independently sought the same objective: killing
Gokee. The State also counte rs Montano’s interpretation of Larson by suggesting that
there was some evidence of cooperation between th e defendant and witness in that case.
See 787 N.W.2d at 596.
We need not resolve the parties’ dispute over the scope of Larson. Instead, we rely
on the long-held rule that a district court may deny a request for an accomplice-testimony
instruction if there is no evidence that the defendant and witness worked together to commit
the crime. See Flournoy, 535 N.W.2d at 359.
Although the evidence presented by Montano may s how that Gauthier could have
been charged in Gokee’s murder, there is no evidence that Montano and Gauthier worked
together to murder Gokee.1 Instead, even when we view the evidence in a light favorable
to Montano, it simply suggests that either Montano or Gauthier was merely present when
Gokee was shot. See State v. Jackson, 746 N.W.2d 894, 898–99 (Minn. 2005) (stating that
“mere presence at the scene, inaction, knowledge and passive acquiescence” does not make
the witness an accomplice (citation omitted) (internal quotation marks omitted)). Although
we do not require evidence of an explicit ag reement between the defendant and witness
when applying the test for accomplice liability, we still require some evidence that one
assisted the other. We see no such evidence here.

1 Gauthier’s testimony that he and Montano shot the .22 revolver earlier in the day
does not support an inference that Montano a nd Gauthier planned to assist each other,
partly because it occurred before Gokee gave Gauthier $10 fo r the casino—the act that
allegedly provided Gauthier a motive to kill Gokee.

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Under our long-standing precedent, the dist rict court was not obligated to provide
the jury an accomplice-testim ony instruction because there was no evidence of Montano
and Gauthier working together as accomplices. See Swanson, 707 N.W.2d at 653; see also
State v. Dobbins, 725 N.W.2d 492, 506 (Minn. 2006) (concluding that defendant was not
entitled to an accomplice-testimony jury instruction “[b]ecause there was no testimony that
[the witness] participated in the murder”). The district court’s decision to deny the request
for an accomplice-testimony jury instruction was therefore not an abuse of discretion. State
v. Cox, 820 N.W.2d 540, 550 (Minn. 2012).
II.
We turn next to the arguments raised by Mo ntano in his pro se brief. Claims in a
pro se supplemental brief that are “unsupport ed by either arguments or citation to legal
authority” are forfeited. State v. Reek , 942 N.W.2d 148, 165–66 (Minn. 2020) (quoting
State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008)). Su ch arguments will not considered
unless prejudicial error is obvious on mere inspection. Id.
First, Montano argues that the State failed to state a claim upon which relief can be
granted when the State “failed to bond the case and serve [him] with said bond required by
law.” Montano has not cited, nor have we found, any law requiring the State to file a bond
in a criminal case. Because this is not a civil case seeking a default judgment or injunctive
relief, the bond provisions of Minn. R. Civ. P. 55.01 and Minn. R. Civ. P. 65.03 do not
apply. Moreover, the bond provision of Minn. R. Civ. App. P. 107.02 does not apply
because this is a criminal ca se. Minn. R. Civ. App. P. 107.03 (cost bo nd may not be

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required in an appeal of a criminal case). We therefore conclude that Montano is not
entitled to any relief based on his bond argument.
Second, Montano argues that because the State of Minnesota prosecuted him, the
United States Supreme Court possesses original and exclusive jurisd iction under Article
III of the United States Constitution, which grants original jurisdiction where “a State shall
be a Party.” U.S. Const. art. III, § 2, cl. 1. But the United States Supreme Court’s original
jurisdiction is not exclusive when only one state is a part y. 28 U.S.C. § 1251(a) (“The
Supreme Court shall have original and exclusive jurisdiction of all controversies between
two or more States.”); see also Maryland v. Louisiana , 451 U.S. 725, 735 (1981)
(explaining that the Court exercises original jurisdiction only when “ ‘the complaining
State has suffered a wrong through the action of the other State, furnishing ground for
judicial redress, or is asserting a right against the other State which is susceptible of judicial
enforcement according to the accepted principles of the common law or equity systems of
jurisprudence.’ ” (quoting Massachusetts v. Missouri, 308 U.S. 1, 15 (1939))). Nor does
the Court have original jurisdiction in cases where a state brings an action against a citizen
of its own state. See 28 U.S.C. § 1251(b)(3). Montano is therefore not entitled to relief
based on his jurisdictional argument.2

2 Montano also argues that his attorney was ineffective when counsel failed to assert
this jurisdictional argument. Because the jurisdictional argument lacks merit, his attorney’s
failure to raise the argument did not violate Montano’s right to effective assistance of
counsel. See Griffin v. State , 883 N.W.2d 282, 287–88 (Mi nn. 2016). We also observe
that Montano was properly trie d in Carlton County, which is the county wh ere the crime
occurred. See Minn. Stat. § 484.01, subd. 1(2) (2020); Minn. R. Crim. P. 24.01.

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Third, Montano argues that because he consumed methamphetamine before the
offense, he did not have the requisite mens rea for intentional murder. But “[t]he fact that
a defendant consumed intoxicants prior to an offense does not raise a presumption that the
defendant was incapable of premeditation.” State v. Griese, 565 N.W.2d 419, 430 (Minn.
1997). “Rather, the burden is on the defendant to prove by a preponderance of the evidence
that he was so intoxicated as to be incapa ble of forming the requ ired premeditation.” Id.
Montano presented no such defense at trial, nor does the record contain any facts regarding
the level of his impairment. Accordingly, his mens rea argument does not merit relief.
Finally, Montano states in his pro se supplemental brief that at one point during the
trial, one of the jurors star ted to cough and under her breat h and said, “Guilty Guilty.”
Although the trial transcript indicates that th e district court gave water to the coughing
juror, it does not include the juror’s alleged statement. Because Montano’s juror bias
argument is “unsupported by the re cord,” it does not merit relief. 3 State v. Benton ,
858 N.W.2d 535, 542 (Minn. 2015) (concl uding that pro se argument was meritless
because it was unsupported by the record and devoid of legal authority).
Montano’s remaining claims 4 lack argument and citation to legal authority or the
record, nor do we see any obvious prejudicial error in those claims . Accordingly, we
decline to address them. State v. Palmer, 803 N.W.2d 727, 741 (Minn. 2001).

3 Our conclusion should not be read to preclude a properly submitted post-conviction
petition.

4 Montano made the following additional clai ms in his pro se supplemental brief:
(1) motion for autrefois conviction; (2) motion for autrefois attaint; (3) motion for acquittal;

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In sum, we have carefully reviewed Montano’s pro se brief and conclude that none
of his claims merit relief. Becau se we also conclude that the district court did not err in
denying Montano’s request for an accomplic e-testimony instruction, we affirm his
conviction.
CONCLUSION
For the foregoing reasons, we affirm the judgment of conviction.
Affirmed.

CHUTICH, J., took no part in the consideration or decision of this case.

(4) motion for new trial; (5) motion to vacate judgment and sentence; (6) motion to dismiss
for Stahl criminal charges or delay in charging pursuant to Minn. R. Crim. P. 30; (7) First
Amendment right to redress grievances of government in a timely manner; (8) Fifth
Amendment right to due process; (9) Sixth Am endment right to speedy trial; (10) Ninth
Amendment rights; (11) motion for void judgment; (12) motion to apply any treaties.