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State v. Powers

January 02, 2003

STATE OF MINNESOTA, RESPONDENT,
v.
VERNON NEAL POWERS, APPELLANT.



SYLLABUS BY THE COURT

The district court did not err in granting the state's motion for joinder for trial of appellant with co-defendants pursuant to Minn. R. Crim. P. 17.03, subd. 2(1), nor did the court err by not severing the case midtrial.

The district court did not abuse its discretion when conducting a Schwartz hearing into improper contact between a juror and a prosecutor.

The prosecutor made improper comments during closing argument, but those comments did not rise to the level of prosecutorial misconduct.

The district court erred by holding several hearings during the course of the trial without the appellant present, but the error was harmless beyond a reasonable doubt.

Appellant's claim that he received ineffective assistance of counsel is without merit; his Sixth Amendment rights were not violated.

Appellant's right to an impartial jury and adequate voir dire was not violated by the requirement that he select the jury with co-defendants.

Affirmed.

Heard, considered, and decided by the court en banc.

The opinion of the court was delivered by: Gilbert, Justice

OPINION

Appellant, Vernon Powers, was convicted of two counts of first-degree premeditated murder in violation of Minn. Stat. § 609.185(1) (2000), two counts of second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2002), two counts of first-degree felony murder in violation of Minn. Stat. § 609.185(3) (2000), two counts of second-degree felony murder in violation of Minn. Stat. § 609.19, subd.á2(1) (2002), one count of first-degree assault in violation of Minn. Stat. § 609.221, subd.á1 (2002), and one count of possession of a pistol by a felon in violation of Minn. Stat. §á624.713, subd. 1(b) (2002). Appellant, in this direct appeal, asks for review on the following grounds: 1) the district court erred by joining appellant with co-defendants for trial and by not issuing a midtrial severance; 2) the district court abused its discretion by not hearing all relevant evidence in a Schwartz hearing into improper contact between a prosecutor and a juror; 3) the prosecutor engaged in prejudicial misconduct during his opening statement and closing argument; 4) the district court erred by conducting several hearings during trial without appellant present; 5) appellant received ineffective assistance of counsel; and 6) selecting a jury with co-defendants denied appellant's right to an impartial jury and adequate voir dire. We affirm.

Juan Ramirez, his 14-year-old nephew, Jorge Ramirez, Raul Gutierrez, Arturo Caballaro-Duran and Benjamin Moreno-Hernandez, all of whom were in town working as roofers, were staying in room 28 of the Downtown Motel in Austin, Minnesota. In the early morning hours of June 30, 2000, a woman knocked on the door of their hotel room. Raul Gutierrez opened the door and the woman entered the room, followed by two men who were both holding guns. The men demanded money from those inside the hotel room. One man stood by the doorway while the other stood by the nightstand. The man by the nightstand came over to the man by the doorway and said, "shoot him, shoot him." The man standing by the door then started shooting. Juan Ramirez and Raul Gutierrez were both shot numerous times and died as a result of their wounds. Benjamin Moreno-Hernandez was shot too, but his injuries were not fatal.

Appellant and three others were indicted for the murders and assault in room 28. Janea Weinand, one of the four indicted for these crimes, pleaded guilty to two counts of second-degree intentional murder and one count of first-degree assault. Her plea agreement was contingent on her testifying in the trial of the other three defendants, which she did. Appellant, Scot Christian and David Christian were joined for trial pursuant to Minn. R. Crim. P. 17.03, subd. 2(1). A joint jury trial was held and appellant was found guilty on all ten counts. A summary of the evidence brought forth at trial follows.

A Bureau of Criminal Apprehension (BCA) team investigating the crime scene found a Halloween mask underneath the body of Juan Ramirez. A forensic scientist from the BCA testified at trial that the predominant profile of the DNA found on the inside of the mask matched that of appellant, and that the probability of selecting "an unrelated individual at random from the general population that would have had that same profile is one in 700 trillion." The same BCA scientist examined a shoe left at the crime scene and testified that the predominant DNA profile present in the shoe was that of the appellant; and that the probability of an unrelated person at random having the "same profile is one in 20 billion."

At the time of the murders, appellant was in Austin and had been staying in the Downtown Motel along with Scot Christian, Janea Weinand, Janet Hall, and Tanisha Patterson. Shortly before the murders, David Christian and Natasha Munos joined the others at the Downtown Motel. Weinand testified at trial that on June 29, 2000, while receiving payment for prostitution, she noticed that Juan Ramirez was carrying a large amount of cash in a red bandana. Weinand then testified that she told Hall and Patterson that Scot Christian and appellant should be informed about the man with the money so they could rob him. Weinand also testified that later that evening appellant, Scot Christian, David Christian, Patterson and Hall discussed the plan for the robbery. Weinand testified that immediately before leaving the hotel room she, appellant, Scot Christian and David Christian discussed the robbery while two guns, two masks, some nylons and handcuffs lay on the bed. According to Weinand, in the early morning hours of June 30, 2000, the group, having packed their belongings into the appellant's Dodge Durango, got in, and David Christian backed the truck into a spot near room 28. Weinand exited the truck and knocked on the door of room 26. Appellant and Scot Christian stood facing Weinand while she knocked. When there was no response, she realized she had the wrong room and moved on to room 28. Appellant was wearing a "Scream mask," and Scot Christian was wearing the "mask of a bald headed white guy." Raul Gutierrez opened the door and Weinand entered, followed by Scot Christian and appellant.

Appellant testified at trial that he was in room 28 with Weinand and Scot Christian the night of the murders but was unaware of any plan to rob the men inside. Appellant testified that once inside the room, Scot Christian turned to him and Weinand and asked, "Who owes the money?" Immediately thereafter, a scuffle broke out and a Mexican man yelled, "Shoot 'em. Shoot 'em." Appellant went on to claim that a shot rang out from the direction of the room where Scot Christian and occupants of the motel room were standing. Appellant ducked down, his hands touching the ground. He then heard shots coming from directly behind him. Appellant turned around and saw Weinand head toward the Durango. A few seconds later, appellant spun around to leave the room, stumbled and lost his shoe in the process. Appellant admitted the mask found in the motel room was his, but denied having brought it to the motel room that night.

Appellant's version of the facts that night is contradicted by the testimony of his companions and the testimony of those inside room 28. Janea Weinand and Tanisha Patterson both testified that appellant was party to the planning of the robbery. Weinand testified appellant was in the motel room when the guns, masks and nylons were lying on the bed. Jorge Ramirez testified that two men came into the room carrying guns and identified appellant as the man standing next to the door who first fired his weapon. Benjamin Moreno-Hernandez testified that two men entered the room demanding money and that each had a gun. Arturo Caballaro-Duran also testified that two men came into the room pointing guns. Natasha Munos testified that Weinand returned before appellant and Scot Christian, that the shooting started after Weinand had returned to the Durango and she saw appellant stumble out of the motel room shooting. Janet Hall also testified that Weinand returned to the truck before the shooting started and appellant and Scot Christian returned later.

Once appellant and Scot Christian returned, David Christian drove the group out of town. Hall testified that she saw appellant and Scot Christian throw a wallet and a jacket out the window as the Durango left Austin. Weinand and Munos also both testified that a jacket was thrown out the window. On Friday morning, June 30, 2000, the group arrived back in St. Paul. Appellant, Scot and David Christian, Tanisha Patterson and Natasha Munos stayed at Weinand's house. Weinand testified that while at the house she, appellant, Scot Christian, Munos and Patterson discussed leaving town and that Scot Christian, Patterson and Munos left the house to obtain fake identification to facilitate travel out of the state. Patterson and Munos corroborated that fact; both testified that they left the house to get fake identification. Weinand also testified that at around 5:00 or 6:00áp.m. appellant became concerned that the police had picked up the members of the group who had left to get fake identification. Either appellant or David Christian took two guns from under the couch. The guns were then wrapped in a beach towel and placed in appellant's Oldsmobile Bravada parked outside. Appellant then directed Weinand to park the vehicle somewhere else so the police, if they came, would not be able to find the guns.

That evening, appellant's girlfriend called and notified him that the license plate number from his truck was on the news. Appellant then decided that they needed to come up with a story to tell the police. He called Janet Hall and a story was concocted. Weinand called her mother and was instructed by appellant to leave a message describing where the Bravada was parked, informing her mother that the keys would be in the apartment, and instructing her to clean up the truck. Later that same day appellant and David Christian were arrested outside of Weinand's apartment. Weinand's mother, Linda Thomas, testified at trial that she did begin to clean out the Bravada pursuant to the instructions she had received. She found two guns and put them in a bag. She then took the vehicle to Minneapolis and sold it to a drug dealer for $40 to prevent it from being connected to her or her daughter. After talking to her lawyer, she turned the two guns over to the police.

I.

Appellant argues joinder was inappropriate in this case, that the district court committed reversible error by joining appellant for trial with co-defendants Scot and David Christian, and that the subsequent failure ...


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