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State v. Mosby

Court of Appeals of Minnesota

June 17, 2013

State of Minnesota, Respondent,
v.
Nakerrick Dierrie Mosby, Appellant.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27-CR-11-29424

Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O Freeman, Hennepin County Attorney, Elizabeth Johnston, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

David W. Merchant, Chief Appellate Public Defender, Roy G. Spurbeck, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Cleary, Presiding Judge; Hooten, Judge; and Huspeni, Judge.

HOOTEN, Judge

Appellant challenges his convictions of three counts of attempted murder and one count of assault, arguing that the district court committed reversible error by admitting a recorded 911 telephone call and hearsay testimony and closing the courtroom to the public. He also contends that the evidence was insufficient to sustain his convictions of attempted first-degree premeditated murder and attempted first-degree murder committed during a drive-by shooting. Because there is insufficient evidence to support an attempted first-degree murder committed during a drive-by shooting, and the state concedes this issue, we reverse and vacate this conviction and remand for resentencing. We otherwise affirm appellant's remaining convictions.

FACTS

Appellant Nakerrick Mosby stood trial for attempted first-degree premeditated murder (Minn. Stat. §§ 609.17, .185(a)(1) (2010)), attempted first-degree murder committed during a drive-by shooting (Minn. Stat. §§ 609.17, .185(a)(3) (2010)), attempted second-degree intentional murder (Minn. Stat. §§ 609.17, .19, subd. 1(1) (2010)), and first-degree assault (Minn. Stat. § 609.221, subd. 1 (2010)) relative to an incident that occurred in September 2011. Prior to trial, the state moved to admit a recorded 911 telephone call made on the evening of the shooting. Because it was unable to locate the 911 caller, the state argued that the call was admissible pursuant to the excited-utterance hearsay exception. Appellant objected, arguing that the 911 caller lacked personal knowledge of the matter. The district court ruled that the 911 call was admissible under both the excited-utterance and residual hearsay exceptions.

The jury heard evidence of the following facts at appellant's trial. On the evening of September 16, 2011, T.H. testified that he left his home on the 3600 block of Columbus Avenue in Minneapolis and met his aunt at around 9:30 p.m. near the corner of 36th Street and Columbus Avenue. As they were visiting, a van drove past and its passenger yelled, "What up, Blood?" Shortly after, T.H. and his aunt went their separate ways. As he was walking home, T.H. noticed someone, later identified as appellant, approaching him. They made eye contact, and T.H. observed that appellant was wearing a red shirt and blue jeans, was bald, and had a mustache and goatee. T.H. said, "What's up?" and appellant responded, "What's up?" in return. T.H. continued walking and realized that the van that had driven by earlier was parked further down on Columbus Avenue. As he turned to look back over his shoulder, T.H. saw two sparks from a gun. He went numb and fell to the ground. Appellant was only two or three steps away and continued to fire shots. After being shot a total of five times, T.H. watched appellant walk away and enter the van, which left the scene.

Officer Adam Hakanson responded to the shooting and testified that a witness approached him at the scene who described the shooter, the course of events, and the vehicle involved in the shooting. When the police officer attempted to speak with the witness later that evening, she was uncooperative. At that time, the witness would not provide her name and information, and she denied witnessing the shooting.

The jury heard the 911 recording and was allowed to review its transcript. The caller told the dispatcher that she saw the shooter and the shooting, and relayed details about the van located at the scene and how the appellant left the scene of the shooting. The caller identified herself but hung up before giving the dispatcher her phone number.

A police officer testified that T.H. participated in a sequential-photo lineup two days later. T.H. identified appellant as the person who shot him and the van as the vehicle involved in the shooting. Another police officer testified that the city's ShotSpotter system detected and recorded gunshots on the 3600 block of Columbus Avenue at 10:04 p.m. on September 16, 2011.

Another police officer testified that phone records indicated that appellant used his cell phone within blocks of the shooting near the time of the shooting. A call placed to appellant's phone at 10:04 p.m. went unanswered. Phone records also indicated that appellant was using his phone and traveling northbound shortly after the time of the shooting.

Officers also testified that they recovered the van which appellant entered to flee the scene of the shooting. A forensics expert testified that appellant's DNA was present on two items in the van—a straw in a cup and a piece of red fabric that appeared to be a torn red t-shirt. Officers testified that they stopped a separate vehicle in connection with an unrelated shooting and recovered a revolver. Ballistics testing revealed that the revolver was the weapon used to shoot T.H. DNA evidence belonging to an individual that appellant had spoken with several times prior to the shooting was found on the revolver.

After closing arguments, the district court locked the courtroom doors and instructed that no one may leave or enter during the reading of jury instructions. After deliberating, the jury returned guilty verdicts on all counts. Appellant was later sentenced to 220 months in prison. This appeal follows.

DECISION

I.

Appellant challenges the admission of the 911 recording and Hakanson's testimony regarding his discussion with the on-scene witness, claiming that both are inadmissible because the declarant witnesses lacked personal knowledge of the shooting. "A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter." Minn. R. Evid. 602. This rule also ...


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