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State v. Drew

Court of Appeals of Minnesota

January 3, 2017

State of Minnesota, Respondent,
v.
Lionel Curtis Drew, Appellant.

         Hennepin County District Court File No. 27-CR-15-13027.

         Affirmed.

          Lori Swanson, Attorney General, St. Paul, Minnesota; and

          Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and Kirk, Judge.

         SYLLABUS

         Sequestration of a deliberating jury is a matter of trial procedure, not of substantive law; therefore Minn. R. Crim. P. 26.03, subd. 5, controls, not Minn. Stat. § 631.09 (2014).

          OPINION

          KIRK, Judge.

         Appellant challenges his convictions of ineligible person in possession of a firearm and terroristic threats. He argues that the district court: (1) abused its discretion in denying his motion to sequester the jury during deliberations; (2) committed plain error by admitting the victim's statement to officers that he saw appellant with the gun, in violation of the Sixth Amendment's Confrontation Clause and the Minnesota Rules of Evidence; and (3) committed plain error by admitting an officer's testimony that the gun was loaded and ready to fire, in violation of the Minnesota Rules of Evidence. Appellant requests that this court either reverse his convictions and order a new trial based on the evidentiary errors, or remand to the district court for further proceedings on the question of whether the jury may have been tampered with or improperly influenced. Because we conclude that the district court did not abuse its discretion in denying appellant's motion to sequester the jury, and because the alleged evidentiary errors did not affect appellant's substantial rights, we affirm.

         FACTS

         On May 14, 2015, respondent State of Minnesota charged appellant Lionel Curtis Drew with being an ineligible person in possession of a firearm and terroristic threats. The district court held a two-day jury trial. Before the state presented its case, the district court instructed the jurors not to conduct any research related to the case or to discuss the case with anyone, including each other. During opening statements, defense counsel claimed that because the state did not conduct fingerprint or DNA testing on the gun recovered from the scene, it could not meet its burden of proof on the firearm-possession charge.

         On the first day of trial, Investigator Steven Lorentz of the City of Brooklyn Center Police Department testified that on the day in question, he and other members of the Hennepin County Violent Offender Task Force were conducting surveillance in unmarked squad vehicles and plain clothes in a commercial area. Shortly after 2:00 p.m., two people, later identified as appellant and E.D., came to the attention of the officers because they were arguing. E.D. yelled at appellant, "Then shoot me then. Then shoot me." Appellant quickly moved towards E.D. in an aggressive manner, and E.D. began walking backwards. Appellant's hands were in the front pocket of his hoodie, and he was moving them up and down. Investigator Lorentz testified that there was something heavy "clunking" down in appellant's pocket. Investigator Lorentz believed law enforcement needed to intervene.

         E.D. continued to back up until he was approximately three to five feet in front of Investigator Lorentz's vehicle. E.D. continued saying, "If you're going to shoot me[, ] then shoot me, " and then fled. Appellant, who still had his hands in the front pocket of his hoodie said, "I'll fucking shoot your ass, " and then chased after E.D. Members of the task force pursued appellant both by vehicle and on foot.

         After losing sight of appellant behind a pillar, Investigator Lorentz "heard a thud and then a scraping on the ground, " which he believed to be "[t]he sound of a metal gun hitting . . . concrete." Investigator Lorentz was approximately four feet away when he heard the sound, and he did not see the gun land or see appellant throw it. After helping Officer Jason Kotecki of the City of Brooklyn Center Police Department arrest appellant, Investigator Lorentz saw a gun in the area where he had heard the sound.

         Hennepin County Crime Scene Investigator Devan McNamara was called to the scene to process the gun. Investigator McNamara testified that she met with Deputy Jason Hughes of the task force, and then photographed the gun, visually examined it, unloaded it, and packaged the ammunition she removed from the gun separately so it could be transported safely back to the crime lab. Investigator McNamara identified photographs she took of the gun on-scene, as well as the actual gun and ammunition she processed, which were all admitted into evidence.

         Investigator McNamara also testified about the physical state of the gun and explained that it was in rusty condition and that the hammer was in the cocked position when she collected it, which meant that the gun could be fired as soon as the trigger was pulled. Investigator McNamara testified that Deputy Hughes did not order DNA or fingerprint testing because he saw appellant throw the gun. The only forensic testing conducted on the gun was a test fire to determine whether the gun had been used in another crime.

         Before releasing the jurors at the end of the first day of trial, the district court again instructed them not to discuss the case with anyone and not to conduct any research related to the case.

         On the second day of trial, Officer Kotecki testified that while he chased appellant on foot, appellant came around a pillar and saw that he and Investigator Lorentz were coming toward him. Appellant's left side then "dipped back around that pillar." Officer Kotecki did not see what appellant did with his hands, but he was approximately five feet away from appellant and heard the sound of "metal hitting the ...


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