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State v. Taylor

Court of Appeals of Minnesota

April 2, 2018

State of Minnesota, Respondent,
v.
Cicero Deshawn Taylor, Appellant.

          Ramsey County District Court File No. 62-CR-16-3689

          Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. Paul, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Andrea Barts, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Halbrooks, Presiding Judge; Connolly, Judge; and Reilly, Judge.

         SYLLABUS

         A search warrant that mistakenly includes an incorrect person's name does not lack sufficient particularity when the warrant provides a description of the correct person to be searched that includes the correct person's name, date of birth, and location, and the person intended to be searched was searched.

          OPINION

          HALBROOKS, Judge

         Appellant challenges his convictions of assault with a dangerous weapon, drive-by shooting, unlawful possession of a firearm, and committing a crime for the benefit of a gang, arguing that the district court erred by failing to suppress DNA evidence and abused its discretion in admitting prior crimes and testimony from a gang expert. We affirm.

         FACTS

         On May 19, 2016, A.B., a member of the Bang Out Boyz (BOB), a street gang based in the Rice Street area of St. Paul, shot at T.R. because of a dispute between T.R.'s younger brother, S.L., and BOB. The dispute between S.L. and BOB began when S.L. posted a rap video critical of a gang member associated with BOB. BOB responded to the video by shooting at S.L. as they drove past him. S.L. then posted another video showing BOB that he was still alive and that included lyrics stating that he would continue rapping. BOB then created a video of D.B., a BOB gang member, rapping about how easy it was to shoot at S.L. on the freeway.

         T.R. was not a gang member and disliked the fact that his brother S.L. was. Using a social-media post, T.R. attempted to discourage S.L. and BOB from escalating their dispute. The next day, T.R. noticed two males in a blue four-door car circling the block where he was driving. The passenger, A.B., made eye contact with T.R. as T.R. turned onto another street. T.R. knew A.B. T.R. stopped and heard A.B. state, "That's his brother. That's his brother." A.B. exited the blue car, pointed a gun at T.R., and fired at least five times before the car sped away. T.R., unhurt, followed the car to get a license-plate number. Although T.R. was unable to get the license-plate number, he noticed a scuff mark on the car's front bumper. T.R. called 911 and informed the dispatcher that he was shot at by A.B. from a blue, four-door car and explained that A.B. had a "rap beef" with S.L.

         The police met T.R. at the scene of the shooting and recovered five bullet casings. T.R. informed the police that A.B. shot at him because of an ongoing dispute between A.B.'s gang and his brother. T.R. told the police that he was not sure who drove the car but that he believed he would recognize the driver if he saw him. The police searched A.B.'s name in their system and discovered a license-plate number from a blue vehicle that A.B. was associated with from a previous police encounter. The police then drove to A.B.'s address and saw a blue Chevy Cobalt with a license-plate number that matched the number in the system parked further down the street where A.B. lived.

         In order to assist, Officer Robert Lokhurst and a second officer drove to A.B.'s address and saw A.B. and another male with short dreadlocks standing on A.B.'s driveway. Officer Lokhurst recognized one male as A.B. and noticed that the other male had short dreadlocks. When Officer Lokhurst and the other officer exited the squad car and identified themselves, the two males took off running. A third officer saw the males running when he arrived in response to the call. The third officer followed them and observed that one was wearing dark clothing and carried something in his hand. The police eventually stopped both males, arrested them, and identified the man with short dreadlocks as appellant Cicero Taylor and the other as A.B. When the police brought T.R. to the scene, he identified both A.B. and Taylor as the individuals in the car.

         Following the arrests of Taylor and A.B., the police found a dark-colored sweatshirt by a dumpster that the two had run past and reviewed security video from a credit union that captured them running away. The police returned to the area the next day and found a Glock handgun in the garden of a yard that Taylor and A.B. had run through. The police also searched the Chevy Cobalt and found shell casings in the car.

         Based on the May 19 shooting, the state charged Taylor with one count of drive-by shooting under Minn. Stat. § 609.66, subd. 1e(a) (2014); one count of second-degree assault with a dangerous weapon under Minn. Stat. § 609.221 (2014); one count of ineligible possession of a firearm under Minn. Stat. § 624.713, subd. 1(2) (2014); one count of committing a drive-by shooting for the benefit of a gang under Minn. Stat. §§ 609.66, subd. 1e(a), .229, subd. 2 (2014); and one count of committing a second-degree assault for the benefit of a gang under Minn. Stat. §§ 609.222, subd. 1, .229, subd. 2 (2014).

         Before trial, a St. Paul police officer applied for a search warrant to obtain Taylor's DNA in order to compare it to the DNA on the handgun. The district court authorized a search warrant. A police officer subsequently performed a buccal DNA swab on Taylor, and a Bureau of Criminal Apprehension (BCA) forensic scientist compared the DNA samples. The DNA profile on the gun excluded two-thirds of the population but did not exclude Taylor.

         The state presented the DNA evidence at trial. In addition, a resident who lived in the neighborhood where the chase occurred testified that he heard two men anxiously whispering in the alley behind his house. Thinking that was suspicious, the resident told the two men that he was "calling the police." In response, both men, one of whom was wearing a dark-colored sweatshirt, ran away. A second neighbor testified that she saw A.B. fire at T.R. five times. And T.R. testified about the incident and the dispute between S.L. and BOB.

         The state also presented expert testimony from Officer Natalie Davis, who testified generally about gang culture, identified some of BOB's members, discussed the BOB rap video, stated that rap videos disrespecting other gangs are the type of incident likely to provoke retaliation, and discussed the dispute between S.L. and BOB. In addition, the state played the video that showed D.B. rapping about shooting at S.L.; a video showing Taylor and A.B. running past a credit union during a police chase; and a squad-car video showing A.B. asking Taylor whether he "stashed that b-tch good" immediately after they were arrested. The state also admitted into evidence photos of Taylor and BOB members.

         A jury found Taylor guilty of all counts. The district court sentenced Taylor to 129 months for the committing-a-crime-for-the-benefit-of-a-gang conviction and to a concurrent 60 months for unlawful possession of a firearm. This appeal follows.

         ISSUES

I. Did the district court err by failing to suppress Taylor's DNA that was acquired as a result of a search warrant that mistakenly included the name of a person not involved in the case?
II. Did the district court abuse its discretion by admitting evidence of a prior drive-by ...

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