Louis County District Court File No. 69VI-CR-15-1566
Swanson, Attorney General, St. Paul, Minnesota; and Mark S.
Rubin, St. Louis County Attorney, Michelle M. Anderson,
Assistant County Attorney, Duluth, Minnesota (for respondent)
K. Lew, Sixth District Public Defender, Bruce R. Williams,
Assistant Public Defender, Duluth, Minnesota (for petitioner)
Considered and decided by Cleary, Chief Judge; Ross, Judge;
and Jesson, Judge.
Although the Minnesota Rules of Evidence do not apply to
grand jury proceedings, the state must comply with Minn. R.
Crim. P. 18.05 and demonstrate that hearsay evidence
presented to a grand jury will be admissible at trial.
an out-of-court statement to be admitted as a prior
consistent statement in a grand jury proceeding, the witness
must testify, the prior statement must be consistent with
that testimony, and the statement must be helpful in
evaluating the witness's credibility.
SPECIAL TERM OPINION
CLEARY, Chief Judge.
John Joseph Plevell was charged by indictment with the
first-degree premeditated murder of his former girlfriend.
See Minn. Stat. § 609.185 (2014).
Petitioner's motion to dismiss the indictment was denied
by the district court and petitioner seeks discretionary
review of the order, arguing that: (1) the evidence presented
to the grand jury is insufficient to sustain the offense
charged, because it involves hearsay statements of witnesses
and does not comply with Minn. R. Crim. P. 18.05, subd. 1;
(2) the state failed to present material exculpatory evidence
to the grand jury; and (3) the indictment must be dismissed
because of the cumulative effect of errors in the
proceedings. We conclude that the hearsay statements were
improperly admitted, but we also conclude, based on our
review of the grand jury proceedings, that sufficient
admissible evidence was presented to sustain the allegation
of premeditation. Because petitioner has not otherwise
established a compelling reason for discretionary review, we
deny the petition.
was fatally shot while she was outside the American Legion in
a town in northern Minnesota on November 8, 2015. The
woman's current boyfriend was standing next to her when
she was shot. The primary investigator reviewed documents
from other law enforcement agencies and summarized the
investigation for the grand jury. Petitioner, who was the
woman's former boyfriend, became "a person of
interest" based on conversations that law enforcement
officers had with several witnesses who did not testify
before the grand jury. The investigator testified that, at
the time of the shooting, there was a domestic abuse
no-contact order that prohibited petitioner from contacting
the woman. A search warrant was obtained and executed at
petitioner's residence where investigators found clothes
in the washing machine that appeared to match clothes
petitioner was wearing the night of the shooting.
Investigators also found a wet towel on the bathroom floor,
several deer rifles, and ammunition. One of the rifles fired
the fatal bullet. A compact disc containing body camera
videos from the officers who responded to the 911 call and
attempted to resuscitate the woman was played for the grand
jury. Investigators testified and summarized their interviews
with numerous lay witnesses who did not testify before the
grand jury. The grand jury also considered petitioner's
post-Miranda statement to investigators.
seeks discretionary review of an order denying his motion to
dismiss the first-degree murder indictment, which is an order
that is not appealable as of right. See State v.
Johnson, 441 N.W.2d 460, 467 (Minn. 1989)
("Defendants do not have an appeal as of right from an
order denying the dismissal of an indictment."). In the
interests of justice, this court may grant discretionary
review of an order that is not otherwise appealable. Minn. R.
Crim. P. 28.02, subd. 3; Minn. R. Civ. App. P. 105. But this
court will only grant discretionary review if a
"compelling reason" is shown. State v.
Jordan, 426 N.W.2d 495, 496 (Minn.App. 1988). In
deciding whether to grant discretionary review, this court
considers a multi-factor test articulated in Gordon v.
Microsoft Corp., 645 N.W.2d 393, 399-402 (Minn. 2002).
See Doe 175 v. Columbia Heights Sch. Dist., 842
N.W.2d 38, 47 (Minn.App. 2014) (explaining that an appellate
court should consider the Gordon factors to the
extent that they are appropriate when considering a petition
for discretionary review outside of the class-certification
context). These factors are not exclusive, and this court has
discretion to consider additional factors and circumstances
that may apply to the particular case. Doe 175, 842
N.W.2d at 47. In this case, petitioner did not address these
factors. Nonetheless, we acknowledge that a direct appeal may
not afford an adequate remedy because the reviewing court
generally rejects arguments challenging the grand jury