County District Court File No. 27-CR-15-13027.
Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda M.
Freyer, Assistant County Attorney, Minneapolis, Minnesota
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.
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).
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.
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.
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
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.
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.
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
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.
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
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