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State v. Gail

May 18, 2006



1. Search warrant issued for search of apartment where defendant had just been arrested was supported by probable cause.

2. Defendant did not meet burden of establishing subjective expectation of privacy in records obtained from cell phone provider.

3. The district court did not err in denying motions to empanel a different jury venire because of alleged under-representation of African-Americans or in denying motion for additional discovery relating to the selection process for petit jury pools.

4. Sufficient evidence supports defendant's conviction of first-degree felony murder.

5. Any error in the district court's failure to allow jury to decide whether witness was an accomplice for purposes of accomplice corroboration instruction was harmless.

6. The district court did nor err in ordering the jury to be sequestered or in ordering that the jury begin deliberations on a Friday afternoon.

7. State did not commit prosecutorial misconduct in closing argument.


The opinion of the court was delivered by: Gildea, Justice.

Hennepin County

Concurring, Page, J.

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


Reginald Lee Gail appeals from his conviction for the first-degree murder of Yvain Braziel while committing or attempting to commit the felony crime of unlawful sale of powder cocaine. We affirm.

On February 2, 2004, Braziel contacted Gail to arrange for the purchase of marijuana and powder cocaine. Braziel and his friend Andre Hollingsworth left Bemidji in a red, two-door Chevrolet Cavalier to meet Gail in the Twin Cities. Braziel and Gail spoke via cell phone during the trip, and the parties met at approximately 5:15 p.m. in north Minneapolis. Gail, wearing a black, down jacket, got into Braziel's car, told him what the price would be for the cocaine, and directed Braziel where to drive. The Cavalier pulled up behind a red, four-door Dodge Neon driven by De-Andre Hill. A passenger identified as Low was also in the Neon. After the two cars met, Gail got out of the Cavalier and talked with Hill and Low. Gail then went back to the Cavalier, got in, and told Braziel to follow the Neon.

The Neon stopped at a yellow house, and Gail went to talk to one of the men in the Neon. Braziel and Hollingsworth circled the block and when they came back, the man Gail had spoken to was coming back from the house. Gail told Braziel to follow the Neon to another "stash" because they could not get into the yellow house. Gail got into the Neon and the two cars drove to an apartment building. Gail and one of the men from the Neon went into the apartment for about 10 minutes and after coming out, Gail told Braziel to follow the Neon to a side street "to make the transaction." Both cars drove near a park; Gail got out of the Neon and told Braziel to get into the Neon. Braziel resisted initially, but after both cars drove to a convenience store parking lot, Braziel got into the back seat of the Neon. The Neon then left the parking lot and Hollingsworth followed the Neon in the Cavalier.

The Neon stopped in the middle of the street a short distance from the corner of 39th and Emerson, with Hollingsworth stopping the Cavalier about "a car length and a half" behind the Neon. Gail got out of the Neon, left the front passenger door open, and stood between four and six feet from the passenger side of the car. Braziel then climbed from the back seat to the front, and began to exit the Neon while facing the rear of the vehicle. Hollingsworth saw a struggle and believed that someone in the car was pulling on Braziel's leg as he tried to exit the car. Hollingsworth saw Gail shoot at Braziel once while Braziel's leg was still in the car, and then Gail shot Braziel five or six more times. Braziel fell face down in the snow. Hollingsworth then saw the Neon "take off" and Gail leaving on foot.

A.L. also witnessed the shooting. She was shoveling snow one or two houses southeast of where the shooting occurred. A.L. saw the two vehicles in the street with an individual standing outside of each vehicle. A.L. saw the person near the Neon, who was wearing a dark, bulky coat, fire one shot, take a brief pause, and fire "four or five" additional shots. A.L. saw the shooter's "arm go rigid in a downward motion in front of him" and then saw "flashes from the gun." The shooter, standing on the passenger side of the car and partially blocked from A.L.'s vision by the hood of the car, was shooting downward "at something close by him." A.L. saw the shooter start to run and the Neon start to move southbound before she ran into her house to call 911 at 6:19 p.m.

When police arrived a few minutes later, Braziel had no pulse. The cause of Braziel's death was determined to be multiple gunshot wounds and the manner of death was homicide.

Police found Braziel's cell phone at the scene. The last call Braziel received was from a Verizon Wireless cell phone number. Police contacted Verizon on February 3 to request information about this phone number.*fn1 On February 3, Verizon provided the requested information, indicating that the phone number was listed to Erick Larkins, at an address in Minneapolis. Police went to this address and spoke to Byron Davis, who explained that he paid Larkins to use Larkins's name to lease cell phones. Davis told the police that he had "sublet" the Verizon phone that was used to call Braziel to a man he knew only as "Red or Reggie" and that Davis paid the bills attributed to that phone. On February 10, Davis identified Gail as the "Reggie" to whom he had sublet the cell phone. Because of the "Caller ID" function on his phone, Davis knew that Gail had used the Verizon cell phone to call Davis several times on the day of the shooting.

Hollingsworth positively identified Gail as the shooter. Specifically, Hollingsworth made a photo identification of Gail on February 11, 2004, writing, "This is the shooter," on the back of the picture of Gail shown to him by an officer.

On February 12, 2004, Minneapolis Police Sergeant Gerhard Wehr was completing an application for a search warrant for Gail's apartment in Minneapolis when he learned that Gail had been apprehended at a Plymouth apartment. Wehr then completed an application for a warrant to search the Plymouth apartment. In the warrant application for the Plymouth apartment, in addition to providing information tying Gail to the murder and indicating that the Minneapolis apartment was Gail's residence, the application set forth the following information:

On 2/12/2004 Sgt. King advised your affiant that Reginald Gail had been in contact with his probation officer on this day, and that Gail had called from phone number 763-[deleted]. Your affiant learned that this number list[s] to the [Plymouth Apartment]. Officers from the Minneapolis police went to this address. Officers knocked on the door and Reginald Gail came outside and was placed under arrest. Officers have since entered this apartment and have it secured.

A district court judge issued the warrant.

During the subsequent search of the Plymouth apartment, the police found a 9 mm Ruger semi-automatic handgun on top of a kitchen cabinet located above the refrigerator and a few feet from the entrance to the apartment. An expert testified that a bullet retrieved from Braziel's body was, "to ...

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