of Appeals Office of Appellate Courts
Ellison, Attorney General, Saint Paul, Minnesota; and Michael
O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt,
Assistant County Attorney, Minneapolis, Minnesota, for
Cathryn Middlebrook, Chief Appellate Public Defender,
Benjamin J. Butler, Assistant Public Defender, Saint Paul,
Minnesota, for appellant.
State obtained the cell-site location information (CSLI)
evidence consistent with the Fourth Amendment to the United
States Constitution and the substantive requirements of Minn.
Stat. § 626A.42 (2018).
evidence does not involve a novel theory of science, and even
if expert testimony regarding Gladiator Autonomous Receiver
drive-test evidence involves a novel theory of science that
is not generally accepted in the relevant scientific
community, admission of the expert testimony was harmless
under the circumstances of this case.
district court did not clearly err when it determined that
appellant failed to make a prima facie showing of
discrimination under step one of the Batson inquiry.
Appellant is not entitled to any relief based on the claims
raised in his pro se supplemental brief because defense
counsel's failure to raise a meritless argument did not
constitute ineffective assistance of counsel and because the
State's reliance on evidence deemed admissible by the
district court was not prosecutorial misconduct.
GILDEA, CHIEF JUSTICE
Nigeria Lee Harvey appeals his convictions for first-degree
murder and attempted first-degree murder. Harvey argues that
the district court admitted evidence in violation of the
Fourth Amendment to the United States Constitution, Minn.
Stat. § 626A.42 (2018), and Minn. R. Evid. 702. Harvey
also argues that the district court erred when it overruled
his Batson challenge. Finally, he raises claims of
ineffective assistance of counsel and prosecutorial
misconduct in his pro se supplemental brief. We conclude that
the admission of the challenged evidence did not violate the
Fourth Amendment or the substantive requirements of Minn.
Stat. § 626A.42, and to the extent that it violated
Minn. R. Evid. 702, the error was harmless. We also conclude
that the district court did not clearly err when it
determined that Harvey failed to make a prima facie showing
of discrimination under step one of the Batson
inquiry. Finally, we conclude that the issues raised in
Harvey's pro se supplemental brief are without merit.
Accordingly, we affirm.
was convicted of the premeditated first-degree murder of
Omarr Johnson and the attempted premeditated first-degree
murder of Harvey's drug supplier, A.A. The crimes
occurred just after midnight on July 27, 2015, when Johnson
and A.A. were shot in Minneapolis at the intersection of 34th
Avenue North and Morgan Avenue North. A
ShotSpotter device detected eleven gunshots between
12:06:52 a.m. and 12:07:34 a.m. on July 27. A.A. survived a
gunshot wound to the head and drove himself to the hospital,
but Johnson died at the scene from multiple gunshot wounds.
At the hospital, A.A. told the police that Harvey had shot
him and Johnson.
of their investigation, police sought records for
Harvey's cell phone, including cell-site location
information (CSLI). The police wanted Harvey's cell phone
records because A.A. told police that
"Najee" and Johnson had been in contact via cell
phone shortly before the shootings. Johnson's cell phone,
which police recovered at the scene, contained a record of
two calls, just before the shootings, with a contact named
"Nige." Police sought records for the phone number
associated with Nige and obtained a court order authorizing
the disclosure of the CSLI for that number. The records
confirmed that the number associated with Nige was the number
for Harvey's cell phone.
police obtained Harvey's cell phone records, FBI Agent
James Berni analyzed the CSLI to form an opinion regarding
Harvey's whereabouts before, during, and after the
shootings. In August 2016, before Harvey's trial, Agent
Berni also conducted a drive test using a device called a
Gladiator Autonomous Receiver (GAR) to determine the outer
limits of the cell tower and sector that the cell phone
records showed Harvey's phone accessed at the time of the
the police investigation, the State charged Harvey. A
Hennepin County grand jury subsequently indicted Harvey for
first-degree premeditated murder and attempted premeditated
first-degree murder. The grand jury also indicted Harvey for
first-degree murder while attempting to commit aggravated
robbery and attempted first-degree murder while attempting to
commit aggravated robbery. Harvey pleaded not guilty to these
trial, Harvey moved to suppress the CSLI evidence, arguing
that it was collected in violation of the Fourth Amendment
and Minnesota Statutes. The district court denied
Harvey's motion. The court also held a
Frye-Mack hearing to determine whether the
CSLI and GAR drive-test evidence involved novel scientific
theories and, if so, to provide the State an opportunity to
demonstrate that the theory was generally accepted in the
relevant scientific community and that the particular
scientific evidence had foundational
reliability. The district court concluded that the
evidence was admissible under Minn. R. Evid. 702, and the
case proceeded to trial.
jury selection, the State used a peremptory challenge to
remove an African-American venire member, prospective Juror
18. Harvey objected to the peremptory challenge, arguing that
it violated Batson v. Kentucky, 476 U.S. 79 (1986).
After determining that Harvey failed to make a prima facie
showing of discrimination under step one of a Batson
inquiry, the district court overruled the objection.
trial, A.A. testified to the following facts. He and Johnson
had known each other since they were 14 years old and were
very close friends, like "brothers." In the summer
of 2015, A.A. was "selling drugs" and "dealing
with the ladies." He had a couple of guys "copping
from [him, ]" which means they were buying drugs from
him, and they, in turn, sold to others. Johnson was
"copping" from A.A., and although Johnson was new
to drug dealing, he was "like [A.A.'s] right-hand
man." At some point, Johnson introduced Harvey to A.A.,
and Harvey started "copping" from A.A. as well.
A.A. "fronted" drugs to Harvey, meaning that A.A.
would give Harvey the drugs up front with the expectation
that A.A. would be paid back, because Harvey was close to
testified that he had seen Harvey driving a 2003 silver,
four-door Chevy Malibu with "Car Hop"
plates. And A.A. explained that in the past, he
and Harvey had been together in the Chevy Malibu with the
same Car Hop plates.
point, A.A. learned that Harvey was upset with Johnson
because Johnson had taken up with Harvey's girlfriend,
Jas (Jazzy). Jas would sometimes sell drugs for Harvey. Some
weeks before the shootings, Harvey told A.A. that Johnson
"knows better 'cause [Harvey is] good with the hands
[meaning his fists] and good with the pistol." A.A.
explained that Jazzy being with Johnson "kind of messed
[Harvey's] money up" and was hurting him financially
because Jazzy started selling drugs for Johnson instead of
owed A.A. $175 for an "eightball of hard," which is
crack cocaine. On the night of July 26, A.A. wanted to talk
to Harvey about the money he owed him, but Harvey was dodging
his calls and said his phone was broken, so A.A. had Johnson
call Harvey. A.A. told Johnson that if Harvey did not pay,
Johnson would have to pay "because [A.A.] only gave [the
crack cocaine] to [Harvey] because of [Johnson]."
Johnson called Harvey, using a speakerphone, Harvey answered,
saying he was at 32nd and Clinton, at the home of the mother
of his child. A.A. and Johnson went to that home and then
called Harvey back, saying, "you ain't over
there," and Harvey responded, "I'm over north
now, I'm on 34th and Morgan." They told Harvey,
"We'll be over there in 15 minutes." A.A. and
Johnson drove to 34th and Morgan in a white Buick Lucerne.
When they arrived, A.A. and Johnson sat in the car smoking
marijuana, drinking lean (a mix of promethazine and codeine),
and talking. They were there about 15 minutes and had decided
to leave when they finished smoking. Soon after, Harvey
pulled up behind them. A.A. saw the headlights of
Harvey's Malibu about eight feet behind them through his
side mirror. He was sure it was a Malibu. A.A. saw Harvey-or
Najee, as A.A. knew him-get out of the driver's side of
the Malibu. Harvey jumped in the backseat of the Buick, with
A.A. and Johnson sitting in the front.
first, the three men talked and laughed. Harvey was shuffling
money in the backseat and said he was getting the money
together. When A.A turned around after Johnson said something
funny, Harvey shot him in the head, at his ear. Neither A.A.
nor Johnson were armed, and A.A. explained that, after being
shot, he just laid there, bleeding. He slumped down and
"[e]verything went white." A.A. next remembered
feeling someone go into his pocket and take some money. He
said that on that night, he was carrying $2, 770 in drug
money. He then heard somebody say, "where'd he
go." After that, A.A. heard "like five more shots[,
]' which "startled [him] to the point [that he] sat
up and threw it in drive and . . . sped north of Morgan"
to the hospital.
Charles Green of the Minneapolis Police Department came to
the hospital to question A.A. Concerned about his own and his
family's safety, A.A. told the police what happened
because he felt he "ha[d] to do the right thing. My
brother was killed." At trial, A.A. described his
conversation with Sergeant Green, including identifying Najee
as the shooter, relating the events leading up to the
shootings, and Sergeant Green telling him that Johnson had
died. As part of his testimony, A.A. identified Harvey in
court as the person who shot him and Johnson.
addition to A.A.'s testimony, the State offered testimony
from law enforcement. Forensic scientist Tracy MacDougall of
the Minneapolis crime lab unit testified that she processed
the Buick Lucerne that A.A. drove to the hospital. She
testified that she found bullet fragments and conducted a DNA
swab of the vehicle's interior. MacDougall also testified
about processing a 2003 Chevy Malibu on August 4, 2015.
Police saw Harvey in this vehicle approximately four days
before the shootings. MacDougall testified that there were
two license plate placards for Car Hop located on the rear
passenger floor. MacDougall also testified that she found a
T-Mobile bill, addressed to Harvey, inside the Malibu.
Green testified regarding the timing and location of the
gunshots, as provided by the ShotSpotter. The jury heard
recordings of the gunshots. Sergeant Green also confirmed
that A.A. identified Harvey as the shooter when Green spoke
to A.A. at the hospital.
Green further testified that there were surveillance video
cameras on Lowry Avenue North, just south of the scene of the
shootings, and that he obtained footage from July 26, 2015 at
11:50 p.m. through July 27 at 12:20 a.m., from just before
and after the shootings. Sergeant Green showed the jury still
shots from the video footage of a vehicle that the State
contended was the Chevy Malibu that A.A. said Harvey was
driving. Green's presentation showed the "target
vehicle" at various locations along Lowry Avenue North.
The still shots showed the vehicle two blocks south of the
scene of the shootings traveling towards the scene of the
shootings just before the first shots were heard. And the
still shots showed the vehicle driving away from the scene
just after the last shot was fired. Sergeant Green testified
that the vehicle in the video footage appeared to be the same
make and model of the vehicle-Chevy Malibu-that he was
searching for in connection with the shootings.
Green also testified that a forensic examination of
Johnson's phone recovered at the scene showed that
"Johnson communicated with a phone number
[(XXX)-XXX-2786] two times before he was killed, and in his
contacts that number is for a Najee, N-A-G-E." The
forensic examination showed that Johnson's phone had a
call with that phone number at 11:17:54 p.m. and that the
last time the phone communicated with that number was a call
at 12:00:12 a.m. He further testified that he learned that
Harvey was the Sprint subscriber registered to the phone
number in question.
forensic scientist who performs DNA analysis for the
Minnesota Bureau of Criminal Apprehension also testified for
the State. She tested various swabs of what was apparently
blood from the street where the shootings occurred and
determined that each swab matched Johnson, but not A.A. or
FBI Agent James Berni testified for the State. Through Agent
Berni, the State sought to establish that Harvey's cell
phone was in the area of the shootings at the time the shots
were fired. Agent Berni's testimony relied on both CSLI
and GAR drive-test evidence. The State also sought to
disprove Harvey's contention that, at the time of the
shootings, he was at the home of a friend's mother on the
2700 block of Girard Avenue North.
defense, Harvey chose to testify. He testified that he had
known Johnson since 2013 or 2014 and that they "were
extremely close." Harvey said that Johnson introduced
him to A.A. in late May of 2015. His relationship with A.A.
was mostly about "business," meaning selling drugs.
testified that he had two cell phones and that one phone was
for drugs, and one phone was for friends and family. He
acknowledged that (XXX)-XXX-2786 was his phone number for
drugs. Harvey denied shooting either Johnson or A.A., and he
explained that he was at the house of his friend's mother
around the time of the shootings.
jury found Harvey guilty of the first-degree premeditated
murder of Johnson (Count I) and first-degree premeditated
attempted murder of A.A. (Count III). The district court convicted
and sentenced Harvey to life without the possibility of
release for Count I and 210 months for Count III, to be
served concurrently. This direct appeal follows.
appeal, Harvey argues that he is entitled to a new trial and
reversal of his convictions. First, he argues that the police
obtained the CSLI in violation of the Fourth Amendment and
Minn. Stat. § 626A.42, and therefore the district court
erred in admitting this evidence. Second, he argues that the
CSLI and GAR evidence was inadmissible under Minn. R. Evid.
702. Third, he argues that the district court committed
reversible error when the court overruled his Batson
challenge to the State's peremptory challenge to Juror
18. Fourth, he raises claims of ineffective assistance of
counsel and prosecutorial misconduct in his pro se
supplemental brief. We address each issue in turn.
first to the question of whether, as Harvey argues, the
police obtained the CSLI evidence in violation of Minn. Stat.
§ 626A.42 or the Fourth Amendment to the United States
Constitution. We consider the statutory question first.
See State v. Bourke, 718 N.W.2d 922, 926 (Minn.
2006) ("Our general practice is to avoid a
constitutional ruling if there is another basis on which a
case can be decided.") (citation omitted) (internal
quotation marks omitted).
argues that the State obtained the CLSI evidence in violation
of Minn. Stat. § 626A.42. In essence, the State argues
that it complied with the substantive requirements of section
626A.42 when it obtained the CLSI under a different statute,
Minn. Stat. § 626A.28 (2018). The parties' arguments
require us to examine both section 626A.28 and section
Minn. Stat. § 626A.28, subd. 2,
[a] governmental entity may require a provider of remote
computing service to disclose the contents of electronic
communication . . . (1) without required notice to the
subscriber or customer, if the governmental entity obtains a
warrant; or (2) with prior notice if the governmental entity:
. . . obtains a court order for such disclosure under
Minn. Stat. § 626A.28, subd. 4, "[a] court order
for disclosure under subdivision 2 . . . must issue only if
the governmental entity shows that there is reason to believe
the contents of a wire or electronic communication, or the
records or other information sought, are relevant to a
legitimate law enforcement inquiry."
Minn. Stat. § 626A.28 applies to some types of cellular
data, Minn. Stat. § 626A.42, governs how governmental
entities may obtain "location information." The
term "location information" is defined by the
statute as "information concerning the location of an
electronic device that, in whole or in part, is generated or
derived from or obtained by the operation of an electronic
device." Minn. Stat. § 626A.42, subd. 1(e). Section
626A.42, subdivision 2, provides that, except under
circumstances inapplicable to this case, "a government
entity may not obtain the location information of an
electronic device without a tracking warrant."
subdivision 2, "a warrant granting access to location
information must be issued only if the government entity
shows that there is probable cause the person who
possesses an electronic device is committing, has
committed, or is about to commit a crime."
Id. (emphasis added). Warrant applications must
a full and complete statement of the facts and circumstances
relied on by the applicant to justify the applicant's
belief that a warrant should be issued, including (i) details
as to the particular offense that has been, is being, or is
about to be committed, and (ii) the identity of the person,