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State v. Harvey

Supreme Court of Minnesota

August 28, 2019

State of Minnesota, Respondent,
Nigeria Lee Harvey, Appellant.

          Court of Appeals Office of Appellate Courts

          Keith Ellison, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County Attorney, Minneapolis, Minnesota, for respondent.

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


         1. The 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).

         2. CSLI 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.

         3. The 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.

         4. 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.




         Appellant 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[1] 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.


         Harvey 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[2] device detected eleven gunshots between 12:06:52 a.m. and 12:07:34 a.m. on July 27.[3] 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.

         As part 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"[4] 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.

         After 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 shootings.[5]

         Following 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 charges.

         Before 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.[6] The district court concluded that the evidence was admissible under Minn. R. Evid. 702, and the case proceeded to trial.

         During 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.

         At 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 Johnson.

         A.A. testified that he had seen Harvey driving a 2003 silver, four-door Chevy Malibu with "Car Hop" plates.[7] And A.A. explained that in the past, he and Harvey had been together in the Chevy Malibu with the same Car Hop plates.

         At some 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 Harvey.

         Harvey 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]."

         When 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.

         At 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.

         Sergeant 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.

         In 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.

         Sergeant 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.

         Sergeant 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.

         Sergeant 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.

         A 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 Harvey.

         Finally, 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.

         In 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.

         Harvey 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.

         The 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).[8] 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.


         On 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.


         We 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).


         Harvey 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).[9] The parties' arguments require us to examine both section 626A.28 and section 626A.42.

         Under 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 subdivision 4.

         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."

         Although 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."

         Under 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 include:

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, if ...

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