1. The introduction of unobjected-to gang expert testimony, even if misconduct, did not affect the defendant's substantial rights and thus does not warrant a new trial.
2. The prosecutor's statements in closing argument regarding the "gang world" and the victim's race did not constitute misconduct.
3. The submission of a special interrogatory to the jury regarding an aggravating sentencing factor, even if error, did not affect substantial rights and thus does not warrant a new trial.
4. Defendant was not denied his right to effective assistance of counsel.
5. The cumulative effect of the trial errors did not deprive defendant of a fair trial.
The opinion of the court was delivered by: Page, Justice.
Concurring, Hanson, Anderson, Paul H., Meyer, JJ.
Heard, considered, and decided by the court en banc.
A Hennepin County grand jury indicted appellant Tyree Leland Jackson for first-degree murder for the benefit of a gang, first-degree premeditated murder, second-degree murder for the benefit of a gang, and second-degree intentional murder for the death of Thomas Olson. Jackson initially pleaded guilty to second-degree murder for the benefit of a gang and was later permitted to withdraw his guilty plea. After a trial, a Hennepin County jury returned guilty verdicts for aiding and abetting first-degree premeditated murder, aiding and abetting second-degree intentional murder, and aiding and abetting second-degree intentional murder for the benefit of a gang. The jury returned a verdict of not guilty for aiding and abetting first-degree premeditated murder for the benefit of a gang. Jackson was sentenced to life imprisonment for first-degree premeditated murder. On appeal, Jackson raises five issues: (1) whether the prosecutor engaged in misconduct by eliciting inadmissible and prejudicial gang expert testimony; (2) whether the prosecutor engaged in misconduct by vouching for the state's witnesses and improperly injecting race into the closing argument; (3) whether the trial court erred when it submitted to the jury a special interrogatory regarding an aggravating factor for sentencing purposes; (4) whether he was denied his right to effective assistance of counsel; and (5) whether the cumulative effect of these alleged errors denied him a fair trial. We affirm.
On May 16, 2003, the victim, Thomas Olson, attended a party at 4725 Elliot Avenue in South Minneapolis with three of his friends, Roberto Aspholm, John Bobo, and Abdul Omari. The four drove to the party in two cars, with Bobo and Omari in Omari's car, and Aspholm and Olson in Olson's car. Arriving at approximately 10:30 p.m., they walked to the back porch of 4725 Elliot Avenue and entered the house. Appellant Jackson and several of his friends attended the same party. The night of the party, Michael Earl McCaskel picked up Jackson, Alaiena Charlton, Alonna Charlton, and Nakeisha Ferguson and drove them to the party in his Bronco. Witnesses testified that all of these individuals were associated with the Bloods gang. On the way to the party, McCaskel stopped to pick up Martise Bowie, who was also associated with the Bloods. At Bowie's request, McCaskel made another stop at an alley near 38th Street and Chicago Avenue so Bowie could retrieve a gun. Alonna Charlton identified the gun as a "38 Western Silver" revolver.
Upon arriving at the party, Olson, Omari, Aspholm, and Bobo went downstairs to the basement where music was playing and people were dancing. Bobo recognized a few people at the party, including Stephens Wilburn, the Charlton sisters, and Ferguson, all of whom he believed were associated with the Bloods. Aspholm also observed that there were a number of gang members at the party. Omari, Aspholm, and Bobo testified that the three of them and Olson were not gang members.
After a few minutes in the basement, Omari, Olson, Bobo, and Aspholm went back upstairs. Once upstairs, they saw a fight break out. The Charlton sisters, members of a rival gang, and others were involved in the fight. Bobo, Olson, Omari, and Aspholm did not participate in the fight.
When the fight broke up, Bobo, Olson, Omari, and Aspholm attempted to leave the party. As they were doing so, Omari got into a confrontation with Jackson, which began when Jackson "grabbed [Omari's] pockets" as though he were going to rob Omari. Bobo stepped between Omari and Jackson and told Jackson that Omari was not looking for trouble. Jackson responded, "F that, this Blood gang" and then swung at Omari. At that point, several bystanders joined the ensuing fight. During this fight, Olson was knocked down and, according to Alaiena Charlton, at some point the focus of the fight appeared to center on an effort to beat up Olson. Bobo testified that he thought Olson was targeted because he "didn't look like he fit in."
Bobo, Omari, and Aspholm extricated themselves from the fight and left the house. On their way out, Bobo and Omari saw a man wearing a black hooded sweatshirt standing near the door holding a 9-millimeter gun. Not noticing the gun, Aspholm punched the person holding the gun, and the three ran out of the house.
Once outside, Omari, Bobo, and Aspholm ran to Bobo's and Olson's cars. When they got to the cars, they realized that Olson was not with them and returned to the house to look for him. They ran in the front door, through the house, and out the back door. In the backyard, Omari stopped to look for his cell phone, which he had lost. As Bobo and Aspholm left the house and ran towards the front yard, they saw Olson running away from the house with two people chasing him. When Bobo and Aspholm caught up to Olson, the two people chasing him ran off. Both Charlton sisters identified Jackson as one of the two people chasing Olson. Alonna Charlton testified that Olson was pleading with Jackson to be left alone.
Olson and Aspholm got into Olson's car. As Olson drove away, heading south on Elliot Avenue, gunshots were fired at the car. Aspholm turned and saw a black male approximately six feet tall with a "light to medium complexion" wearing a black hooded sweatshirt shooting at the car. A single gunshot struck Olson in the head, and he slumped over the wheel. Olson died about five days later.
The police investigation of the shooting revealed that at least five shots were fired from two different guns, one a Colt .32 semi-automatic pistol and the other either a .38 revolver, a .357 revolver, or a 9-millimeter semi-automatic. Police concluded that either the .38 revolver, the .357 revolver, or the 9-millimeter semi-automatic inflicted the fatal wound.
A grand jury indicted Jackson for first-degree premeditated murder for the benefit of a gang, first-degree premeditated murder, second-degree intentional murder for the benefit of a gang, and second-degree intentional murder. After the indictment, Jackson pleaded guilty to second-degree murder for the benefit of a gang, but was subsequently permitted to withdraw his guilty plea based on his claim that he was not guilty and had been induced to enter the plea out of fear of receiving a life sentence at trial.
At trial, the state called the Charlton sisters, Wilburn, McCaskel, Omari, Bobo, Aspholm, and several police officers who worked on the case to testify. The state also called Ramsey County Deputy Sheriff Paul Meskan, a member of the Minnesota Gang Strike Force, as an expert witness on gangs. Jackson did not testify and did not call any witnesses in his defense.
At trial, Bobo, Alaiena Charlton, and Alonna Charlton each identified Jackson as one of the two people who shot at Olson's car, though their stories regarding the details of the shooting varied somewhat. The other person identified as a shooter was Bowie. The Charlton sisters' testimony was part of a plea agreement with the state stemming from assault charges that arose out of their part in the first fight at the party. They both testified that they were near McCaskel's Bronco when they saw Jackson, who was standing next to the Bronco, pull out a gun and shoot several times at Olson's car as it drove past. After Jackson fired his gun, Alaiena Charlton heard a window break and then a car crash. Both Charlton sisters further testified that Bowie, who was also standing next to the Bronco, fired his gun at Olson's car after Jackson finished shooting. Though McCaskel too was near the Bronco at the time of the shooting, he testified that he did not see the shooters. However, McCaskel stated that Jackson later told him that Jackson had "unloaded" on Olson's car.
After the shooting, Jackson, the Charlton sisters, McCaskel, and Bowie drove off in McCaskel's Bronco. Soon after driving away, McCaskel stopped the Bronco, and Wilburn came up to the Bronco on foot. Bowie passed a gun from the Bronco to Wilburn, and Wilburn later dumped the gun in a trash can. Alonna Charlton identified the gun as the .38 revolver she had seen Bowie with earlier. Jackson had a second gun in the Bronco, which he did not give to Wilburn. Alaiena Charlton testified that McCaskel attempted to return to the party house after the shooting to pick up another person, but that Jackson opposed the idea, saying, "Don't go back there and try to have me in jail. I just got done shooting."
The Charlton sisters' trial testimony implicating Jackson in the shooting contradicted their initial statements to police in which Alaiena Charlton stated that she did not know who the shooters were, and Alonna Charlton identified people other than Jackson and Bowie as the shooters. At trial, the sisters testified that they lied initially because they were afraid of reprisals from gang members.
Bobo testified that he was standing near Omari's car when he heard someone scream "Martise, no" and saw an individual running and firing a gun at Olson's car. Bobo then saw a second person, whom he later identified as Jackson, step off the sidewalk approximately seven or eight feet from Olson's car and shoot into the car. After the shooting, Bobo observed one of the shooters getting into a Bronco but did not see where the other shooter went.
In his testimony, Meskan, the state's gang expert, discussed the Bloods gang generally, describing their territory and identifying hand signs and colors. He testified that the primary purpose of the Bloods gang is "to conduct criminal activities" and described the types of crimes that Bloods members commit. In addition, Meskan testified about the roles of respect and intimidation in Bloods culture. He explained that Bloods members earn respect within the gang by committing crimes.
Meskan testified that, in his opinion, Olson was "murdered for the sake of the Bloods, [for] showing disrespect." He stated that a person who is not a gang member and who "shows up some place where there is all gang members there" and appears unwilling to fight would be viewed as showing disrespect to the gang. In addition, Meskan testified that Jackson, the Charlton sisters, Wilburn, McCaskel, Ferguson, and Bowie were all associated with the Bloods gang. Jackson's counsel did not object to any of this testimony.
On cross-examination, Jackson's counsel questioned Meskan at length regarding the basis for his conclusion about Jackson's gang membership, eliciting testimony about the ten criteria used by the Minnesota Gang Strike Force to determine gang affiliation and that Jackson met three of the ten criteria, qualifying him as a gang member. On redirect, the state elicited additional details regarding the ten criteria.
As part of the verdict forms given to the jury, the district court included a special interrogatory regarding an aggravating factor to be used for sentencing purposes. The special interrogatory read, "Did the state prove beyond a reasonable doubt that the defendant or co-defendant posed a great danger to the safety of people other than Thomas Olson?" The interrogatory was included on the "verdict of guilty" forms for each crime charged. The jury answered the interrogatory in the ...