The district court did not clearly err when it concluded that the state's questioning of a veniremember and the state's use of a peremptory strike against that veniremember did not show purposeful discrimination under Batson v. Kentucky,476 U.S. 79 (1986).
Defendant's Sixth Amendment Confrontation Clause rights under the rule articulated in Bruton v. United States, 391 U.S. 123 (1968), were not violated by admission of a co-defendant's statements because the statements were not prejudicial.
The district court did not err when it granted the state's motion for joinder of defendant's trial with that of a co-defendant under Minn. R. Crim. P. 17.03, subd. 2(1).
District court erred in admitting expert testimony on gangs, but the error was harmless.
Prosecutor's use of poorly chosen language injecting personal opinion into case was inadvertent and idiosyncratic and did not deny defendant a fair trial.
Post-conviction court did not err in concluding that defendant failed to establish that his trial counsel's performance fell below an objective standard of reasonableness and that, but for counsel's errors, the outcome of the trial would have been different.
The district court did not abuse its discretion in imposing consecutive sentences through an upward departure from the sentencing guidelines.
The opinion of the court was delivered by: Anderson, Paul H., Justice.
Took no part, Anderson, G. Barry, J.
Heard, considered, and decided by the court en banc.
In 1999, appellant Kawaskii Blanche was convicted and sentenced in Hennepin County District Court for premeditated first-degree murder in connection with the shooting death of 11-year-old Byron Phillips. Blanche was also convicted and sentenced for conspiracy to commit first-degree murder and a crime committed for the benefit of a gang. Blanche did not file a direct appeal, but more than three years after his conviction, he filed a petition for post-conviction relief alleging numerous errors by the district court. He specifically alleged racial discrimination because the state used a peremptory challenge to strike a veniremember who appeared to be "Hispanic"; Confrontation Clause violations through the admission of statements by his co-defendant in their joint trial; improper joinder of his trial with the trial of his co-defendant; prosecutorial misconduct; ineffective assistance of counsel; and erroneous sentencing. The post-conviction court denied Blanche's petition for relief. We affirm.
At around 6:15 p.m. on June 2, 1996, 11-year-old Byron Phillips was playing with his cousin and a friend on the front porch of the friend's North Minneapolis home. While Phillips was playing, a bullet fired from a passing car hit him in the chest. Phillips died at the scene as a result of the shooting.
Phillips' cousin and friend both stated that the passing car was driven by an African American male, who appeared to be in his teens and who wore a baseball type cap. The cousin and the friend disagreed on other details about the driver and they could not remember how many other people may have been in the car. The cousin testified that the car was a full-size blue car with rust spots, but the friend testified that he had seen a full-size red car with rust spots. Neither of the boys was ever asked to identify any individuals or cars in a photographic line-up.
The police recovered ten 9-mm shell casings on a street just west of Phillips' home and some bullet fragments in the surrounding area. Bullets had hit nearby bushes and had gone through the wall of a garage. Forensic evidence showed that seven of the ten shell casings found at the scene had been fired from the same gun and matched shell casings found at the scenes of three recent shootings that had occurred in Minneapolis and Saint Paul on May 17, May 31, and June 1. Witness testimony indicated that these shootings were the result of a feud between two rival gangs: the "Bogus Boyz" and the "Shortys Taking Over" ("S.T.O.").
On May 17 in Saint Paul, Caylon Williams, a member of the Bogus Boyz, shot Richard Smaller. S.T.O. member Corey Scott shot Bogus Boyz member Robert Williams on May 31 in Minneapolis, but did not cause him serious injury. Robert Williams testified that he fired back at Scott with a gray 9-mm Smith & Wesson semi-automatic handgun that he had found in Caylon Williams' car. Robert Williams was admitted to the hospital with wounds to his face and right arm, and was released the next day. On June 1 in Minneapolis, Caylon Williams, while armed with the same gray 9-mm Smith & Wesson used by Robert Williams, was shot and seriously wounded by Scott. Blanche had been a passenger in Caylon Williams' car. When Caylon Williams was shot, Blanche took over as driver and drove Caylon Williams to the hospital. Robert Williams testified that later that same day, he, Blanche, and some others discussed killing Scott in retaliation for the shooting of Caylon Williams.
Around noon on June 2, Blanche, Montay Bernard, David Allen, and Robert Williams set out to visit Caylon Williams in the hospital. They were driving there in a maroon Nissan Maxima owned by Bernard's mother. Before going to the hospital, Blanche wanted to drive through a part of North Minneapolis near where Scott lived. As they drove through this neighborhood, the four spotted Scott walking down the sidewalk. Williams and Allen got out of the car in an attempt to go after Scott, but they were stopped by police officers responding to a call that there was a man in the area with a gun. The officers arrested Williams and charged him with being a felon in possession of a handgun. Allen was detained, but was released a short time later that day. Blanche and Bernard drove off when Williams and Allen were detained. Later that day, at approximately 6:15 p.m., Phillips was shot and killed.
The police investigation of Phillips' shooting led them to interview Blanche, but he was not charged at that time. The police had several leads, including the shell casings from the gang-related shootings, but the investigation stalled, and no one was charged with Phillips' murder.
More than a year after the shooting, in July 1997, a woman named Vanessa Gaines came forward with information about Phillips' shooting. Gaines had seen a billboard near her house with a picture of Phillips and a message which read: "You know who killed me. Why won't you help?" Gaines called the police, but hung up the first two times that she called. She testified that she eventually told the police that sometime between 6:00 and 9:00 p.m. on June 2, 1996, she saw her nephew Duan Gaines at her home, talking to Blanche and Bernard. She had not known Bernard's name on June 2, but she identified him at trial. She had recognized Blanche on June 2 because he would hang out with her nephew.
Gaines testified that she overheard the three men talking. She heard Blanche mention a shootout in North Minneapolis with S.T.O. gang members and state his belief that a little boy had been hit with a bullet because he saw the boy fall to the ground. She also saw that Blanche was carrying an automatic handgun. Later that same evening, she saw on the news that a little boy had been killed in a North Minneapolis shootout. At trial, Gaines admitted that she has several criminal convictions and had received reward money for the information that she provided, but she denied that the reward was the reason for her testimony.
In August 1997, Robert Williams told Minneapolis Police Detective David Zimmer that he knew something about the Phillips shooting. Robert Williams, who was incarcerated when he spoke to Zimmer, initially did not talk about Blanche's involvement in the shooting when he first spoke to Zimmer in June 1997. Later, Robert Williams contacted Zimmer through his friend, Caylon Williams, and requested that Zimmer come to see him. Robert Williams then implicated Blanche and Bernard in Phillips' murder, telling Zimmer that Blanche had said that he and a friend were "rolling over north [Minneapolis]" and bumped into Scott. According to Robert Williams, Blanche said that he only drove the car, that his friends started shooting at Scott, and that this was the incident where Phillips was killed. In return for his testimony, the state granted Williams immunity from being prosecuted for the Phillips shooting and the conspiracy to kill Scott.
After receiving the information from Vanessa Gaines and Robert Williams, the police arrested Blanche and Bernard for Phillips' murder. Both Blanche and Bernard were charged with first-degree murder under Minn. Stat. § 609.185(1) (2004), second-degree murder (drive-by shooting) under Minn. Stat. § 609.19, subd. 1(2) (2004), conspiracy to commit murder (Corey Scott) under Minn. Stat. § 609.175, subd. 2(2) (2004), and crime committed for the benefit of a gang under Minn. Stat. § 609.229, subd. 2 (2004). Allen was also arrested, but he was charged only with conspiracy to commit murder under Minn. Stat. § 609.175, subd. 2(2). On June 30, 1998, a grand jury indicted all three for the foregoing charges. The state then moved to join the trials of Blanche, Bernard, and Allen under Minn. R. Crim. P. 17.03 and Minn. Stat. § 631.035 (2004). Blanche, Bernard, and Allen each opposed a joint trial. The district court granted the state's motion to join the trials of Blanche and Bernard, but denied the state's request to join Allen's trial. Blanche and Bernard were tried together in March 1999.
During jury selection, the state exercised a peremptory challenge against veniremember #4. Noting that the veniremember appeared to be Hispanic and was the first member of a racial minority questioned, Bernard's counsel raised a Batson challenge, which Blanche's counsel joined. Defense counsel asserted that the state's exercise of the peremptory challenge was racially discriminatory.
The state justified its use of a peremptory challenge by arguing that veniremember #4 was "evasive or unresponsive in a way which caused [the state] concern about [the veniremember's] attentiveness to some of the questions." The state also argued that the veniremember did not give direct or logical explanations about how he assessed credibility, and that the veniremember was "laboring over responses," causing the state concern about the veniremember's capacity to make credibility assessments. Defense counsel argued that the veniremember's service on two previous juries, including one the previous week, indicated that two other prosecutors had found that the veniremember had the capacity to make appropriate decisions.
The state countered that its concerns over the veniremember's capacity to make credibility assessments were race neutral. The state also argued that previously sitting on a jury does not mean that the prosecutors in those cases approved of this veniremember. Moreover, the state suspected that, when the veniremember served as a juror in a case the previous week, he and the jury had not appropriately followed the law. Following a recess, the state told the court that after speaking with the prosecutor in the earlier case, it confirmed that the veniremember had served on the panel that the prosecutor in that case believed had not appropriately followed jury instructions.
The district court concluded that it would not base its decision on the Batson challenge on any information regarding the veniremember's service on other jury panels because that information "became known to [the state] through [an outside source], not through any questioning of this juror." The court did not conduct the three-step Batson analysis on the record, but concluded that, under the totality of the circumstances, there was not "any inference" that the peremptory challenge was brought for any racial reason--step one of Batson. The court therefore allowed the peremptory challenge.
Robert Williams' Testimony and Letter
The state called numerous witnesses who testified that Blanche and Bernard told them about their involvement in the Phillips shooting. Among those witnesses was Robert Williams, who identified himself as a Bogus Boyz gang member at the time of the shooting. Williams testified about the information that he had previously given the police which implicated Blanche and Bernard in Phillips' murder. On cross-examination by Bernard's counsel, Williams admitted that while in prison in September 1997, he wrote a letter to Blanche. Bernard moved for admission of the letter without objection. In the letter, Williams told Blanche that the "feds" had been investigating the Bogus Boyz and knew "about the little boy and everything." Williams wrote that he did not want to do any time in prison and that he "told [the police] what [he knew] so Montae [sic] will only go down for that [crime]." Later, Blanche's counsel also cross-examined Detective Zimmer about the letter. Zimmer admitted that Williams' letter to Blanche was written in his presence and with his help, and that the letter's content was designed to lead anyone who read it to believe that Blanche knew what Williams was talking about, despite its vague reference to the shooting.
The state also called witnesses to testify to incriminating statements made by Bernard. Monta Davis, who is both Robert Williams' cousin and related to Phillips, testified that he had been a member of another gang, but had hung out with members of the Bogus Boyz. Davis testified that in February 1998, while he and Bernard were in the "workhouse," Bernard admitted to him he was involved in Phillips' death--that "him and one of his friends" had "got into a shoot out" with Scott while Bernard drove his mother's car. Davis testified that Bernard told him that Scott had been the intended target, but that a friend named Jamoke Jackson had told Bernard that a little boy had been killed instead. According to Davis, Bernard also told him that he had been shooting a 9-mm "high point" gun and his friend was using a gray 9-mm Smith & Wesson. After the shooting, Bernard and his friend went to Allen's house in North Minneapolis and then to Peavey Park in South Minneapolis.
Detective Charles Kelly likewise testified that in his interview with Davis, Davis had told him of Bernard's statements about the shooting. Kelly also stated that he had no independent verification of the content of conversations between Davis and Bernard nor any proof that they took place.
Duan Gaines testified that in 1996 he was a member of the Bogus Boyz gang and that, on the night before Phillips was shot, he had been involved in a plan to shoot Scott. But in response to the state's questions, Gaines recanted much of his earlier grand jury testimony. Gaines admitted that he had testified to the grand jury and told Detective Zimmer in 1998 that on the evening Phillips was shot, Blanche and Bernard had come to his aunt's house and asked for a change of clothes. But at trial, Gaines stated that no one had come to his aunt's house on June 2 and that his testimony to the grand jury was what his attorney had told him to say. Gaines also denied the truth of his previous grand jury testimony where he stated that, during a conversation in Peavey Park shortly after Phillips' murder, Blanche said, "I wasn't the only one shooting." Over objections by both Blanche and Bernard, the state elicited from Gaines that in 1998 he told Zimmer that Bernard had said to Blanche, "We should have got out. You saw whoopty fall." Blanche responded, "Nathan, I'm dumping on Snyp. You saw he was dumping back." Earlier, Gaines had testified that "Snyp" was a nickname for Caylon Williams.
Another witness, whose testimony has not been challenged by Blanche on appeal, testified that a "couple [of] days" after Phillips was shot, this witness overheard Blanche tell Gaines to "keep his mouth shut," that Gaines should not "be running around here telling females that, * * * we had shot this little kid; that we supposed to have been the one that shot the little kid." This witness was also a Bogus Boyz gang member with multiple felony convictions.
Another witness, Sid Strickland, whose direct testimony has also not been challenged in this appeal, testified that while he was in prison, Blanche told him that "they had gotten into some problems with [Scott]. And when they seen him, they shot at him, and a little boy ended up wounded, got shot." Strickland also testified that Blanche admitted to him that, when the incident took place, he had the "9"--a 9-mm handgun. On cross examination, when Blanche's counsel was attempting to discredit his testimony, Strickland spontaneously said, "[Blanche] sold bags to me and numerous amounts of things." Blanche's counsel did not object to Strickland's comment. Strickland also admitted that he testified because of an agreement that could help him get a reduction in his sentence for a separate crime.
Lieutenant Michael Martin, a former investigator for the gang unit in the Minneapolis Police Department, testified as an expert witness on gang culture. Martin began by testifying about general gang characteristics and some specific characteristics about the Bogus Boyz and the S.T.O.'s. Martin then testified that he had investigated gang activities where rival gang members assaulted or shot at each other. Martin said that, to maintain their respect within the community, gang members have to retaliate if a gang member is involved in an incident with a rival gang. In general, according to Martin, gangs are not cooperative with the police; instead, gang members "get even" on their own.
On cross-examination by Bernard's counsel, Martin reiterated his earlier testimony that gang members generally do not talk to the police. In response to a question by Bernard's counsel asking him to define a gang, Martin provided the general law enforcement definition of a gang. See Minn. Stat. § 609.229, subd. 1 (2004). Also on cross-examination, Martin testified that while gang members generally do not cooperate with the police, there are exceptions. Martin agreed with Bernard's counsel that "some gang members will falsely accuse other gang members of a crime." On redirect, the state attempted to clarify Martin's testimony, asking him, "Have you had experience with gang members falsely accusing people within their own gang of crimes?" Martin responded that he had never had experience with gang members ...