*1 373 appealing duty a criminal conviction has no But I mean were those affida- Q. No. issues.”). you, Accordingly, just possible that I handed to did raise all vits prejudi- “strong that it was a Boitnott does not overcome the they indicate place try presumption” appellate per- cial case? counsel’s range formance fell “the of within wide people That’s what said. A. those ” professional ‘reasonable assistance.’ Id. they people Those indicated 236). Jones, (quoting at 885 a decision as to whether had made guilty not he was or not. or summary, grounds none stated postconviction petition Boitnott’s or arguments also do not Boitnott’s that, appeal prov- his brief on state facts if publicity prove pretrial “affect[ed] en, postconviction would warrant relief. specific jurors involved in the minds of We therefore affirm the decisions of the new in a case” so as to warrant a trial postconviction court. Fratzke, jurisdiction. State v. different (Minn.1984). 402, “[E]x- 354 406 N.W.2d Affirmed. jurors
posure reports of some to news GILBERT, J., trial does not mean that the before part took no Salas, v. 306 was biased.” State N.W.2d consideration or decision of this case. 832, survey question 836 community
Boitnott cites involved six
members, whom, according two of to Boit-
nott, percent said that 50 or less of their
acquaintances believed that Boitnott was Thus, the record does not contra
guilty.10 presumption the strong
dict that counsel’s change decision to withdraw the of venue Minnesota, Respondent, STATE of objectively motion was reasonable and did v. not affect the trial’s outcome. Jeffrey McDONOUGH, William lastly alleges Boitnott that he re Appellant. appellate
ceived ineffective assistance of appeal on direct “as a basis for not counsel No. C6-00-1626. advancing [ineffective assistance of tri Supreme Court of Minnesota. al herein.” counsel] claims As the district held, court below Boitnott’s ineffective as Aug. 2001. claim appellate
sistance counsel fails underlying
because his ineffective assis
tance of trial counsel claims have no merit. State,
See Sullivan N.W.2d
(Minn.1998). Furthermore, Boitnott does explain why
not it was unreasonable for appellate counsel to raise issues some State,
but not others. See Wilson v. (Minn.1998). (“[Counsel alleged proves change already rejected allegation We that her bias that a 10. have actually Sowada was biased and there- necessary. venue was argument fore need address Boitnott's *6 Russett, Seven P. Assistant State Public Defender, Office of the State Public De- fender, Minneapolis, appellant. for Hatch, General, Attorney Mike State Gaertner, Ramsey County Attorney, Susan Hill, Ramsey County Darrell C. Assistant Paul, Attorney, Respondent. St. Rodgers occupied. vehicle Crenshaw OPINION Rodgers say that he Crenshaw heard GILBERT, Justice. “Leo,” McDonough, drove a thought a/k/a McDonough was con- Appellant William approach- the man white Cadillac and that murder first-degree of one count victed began firing the man ing gun. had a As mur- first-degree attempted count and one acceler- Rodgers, Crenshaw Crenshaw der, imprison- life was sentenced to and he boulevard, around a ated his car over the and a con- first-degree murder ment for tree, in an effort to es- and off the curb attempted months for term of 180 secutive cape. Rodgers Both Crenshaw appeal, McDon- first-degree murder. On down, of the first shots hit ducked but one to a new that he is entitled ough argues attempted to es- Rodgers. As Crenshaw (1) court erred the district trial because: man, eye past the made cape, he drove made by admitting statements him, gun in his and saw the contact in- after officer immediately recognized hand. Crenshaw (2) attorney, right to an voked his McDonough, as whom Cren- the shooter by allowing prose- court erred district elementary has known since school. shaw African American the sole cutor to strike fired was at The last shot (3) by court erred juror, the district shoulder, Crenshaw, his which struck (4) indictment, the state dismissing the driv- nonetheless able to continue he was district evidence and the preserve failed to apartment. his ing and soon reached (5) action, any take remedial court failed to by allowing wit- the district court erred apart- returned When Crenshaw McDonough had a dis- testify ness ment, to Ansera quickly explained he what admitting as brothers and pute with his including identifying the shoot- happened, another witness’s tes- substantive evidence “Leo,” telephoned 911. and Ansera er McDonough with timony that she observed paramedics arrived and and the (6) shooting, weeks before the gun two was dead. The Rodgers determined three instances prosecutor committed transported then Crenshaw paramedics (7) misconduct, the evidence was insuffi- was treated for a hospital where he (8) verdicts, and support jury’s cient to *7 told wound. Crenshaw superficial gunshot was flawed. We af- the search warrant that a man hospital officers at the firm. Al- Rodgers. him and named “Leo” shot a.m. Shortly after 10:30 on June possi- indicate a did not though Crenshaw Rodgers and Steven Cren- Reginald motive, Mc- at trial he testified that ble shared left the Crenshaw shaw dispute in a Donough was involved marijuana to deliver with Gebriela Ansera began police The brothers. Crenshaw’s left in Rodgers and Crenshaw to a friend. immediately. investigation their Su- blue Oldsmobile Cutlass Ansera’s Iglehart east on preme. Crenshaw drove Ansera’s vehicle police The secured driveway Igle- pulled into a near 985 and Rodgers’ body was still processing while pulled up A white behind hart. Cadillac casing a .9mm shell They it. found inside Crenshaw, Crenshaw prevented which passenger a in the rear top on seatbelt driveway. Cren- backing out of the from area, a hole— they also found bullet and had a blue noticed that the Cadillac shaw in the hole—on with the bullet still the wheel. interior and rust above and between the front post side passenger addition, a of lead piece In rear seats. got the driver Crenshaw testified the driver’s was found on from a bullet approached and out of the Cadillac mat, jacket a copper neighbor walking and bullet’s Still another who was side floor mat. along was the other side of the found on home the sidewalk saw a blue car a hole in the vehi- There was also bullet with two African-American males travel- Rodgers’ body cle’s windshield. After ing Iglehart. got east on As he vehicle, during from and removed Ansera’s edge driveway, gunshots of his he heard a an in- inspection, police later found him up ahead of and he looked to see the spent alongside tact bullet the driver’s car that him passed same blue earlier baggie seat and a containing door and boulevard, tree, drive across the around a police believed to be mari- substance Iglehart get and back on to in order to juana. police The returned Ansera’s vehi- around a white blocking path vehicle its days photographing, cle to her 3 later after neighbor back onto the street. The also measuring in- recording, and all items of young observed a African American male investigation. terest to the running firing after gunshots the blue car neighbor at the car. The blue then ob- police investigated The also the scene get served the shooter into the white car driveway Iglehart near the at 985 where speed away, and passing neighbor shooting place. police took The ob- westerly Iglehart. the white car drove began served skid marks that at the drive- neighbor testified that he saw way proceeded grassy over the boule- car, person one in the white which he vard and back onto They the street. also early as an described 1980’s General Mo- casings. found two .9mm shell tors model with rust. located several The police interviewed Crenshaw at Re- eyewitnesses. neighbor One heard a noise gions just Hospital day. that same before 11:13 a.m. and looked out her Crenshaw told the officer that “Leo” him see midsize shot moving window to blue car slowly eastwardly Rodgers, and Crenshaw being an direction described “Leo” by a man as African American male with a wearing chased dark clothes who light complexion, 24-years-old, 23- or firing gunshots. neighbor Another wearing who braids on both sides of his by was awakened 11:13 a.m. head. Based on gunshots description, po- sound of four Crenshaw’s coming from lice computer-generated created a photo front of his home looked out his window lineup traveling containing McDonough see a car and five oth- being blue south chased er similar light-skinned looking single males on a sheet African-American male paper gun with a with no names underneath the neighbor his hand. That Crenshaw, 20s, photos. who only per- described the shooter as in his was the medi- face, braids, um son to see the large build with shooter’s identified wearing *8 McDonough as pants. black shirt and black the shooter. neighbor
One other screeching heard That evening, police the went to the by gunshots tires followed four apartment McDonough and ob- Hope shared with “light-skinned served a male with braids” Green to execute a search warrant. Mc- in black glove there, dressed with a black on Donough was not police but right hand who holding gun a and found jacket, and seized a black black crouching on the looking pants, boulevard east and a right-handed glove. black towards Chatsworth. She also police McDonough observed Green told that wore go the man to a white car she described as day those clothes earlier when he an “older” or Cadillac Lincoln get gas Continental left to and see if he get could with a rear package. tire Green’s white Cadillac fixed. Green also Apprehension Bureau of Criminal McDonough The thought that she police told (BCA) a.m., casings tests on the shell performed a mechanic at 11:00 and at about left police that found in Ansera’s car fragments station told and bullet nearby service car by with Green’s crime The BCA deter- McDonough came and at the scene. told a.m. also casings after 10:30 Green were fired sometime mined that the shell after 10 McDonough returned police fragments that gun one and the bullet from car, called Mc- minutes without the or 15 gun, fired from one BCA were McDonough and Donough’s cousin Santo casings not determine whether could Powers, came to who both friend Vernon all fired from the fragments and something with discussed apartment, gun. same bedroom, and William charges on McDonough was indicted Dur- men left at 11:54 a.m. then the three murder, first-degree attempt- first-degree search, accidentally dis- ing police murder, murder, second-degree and ed erasing ID box its connected Green’s caller murder. He second-degree attempted memory. trial, Before McDon- guilty. pleaded McDonough on apprehended police The the indictment as- ough challenged 13,1999 conducting after surveillance June present the state failed to serting that Minneapolis sister’s McDonough’s on grand jury. exculpatory evidence custody then taken into home. He was jury grand asserted that the found police The also interrogated. and. told, among things, other was not apart- of an garage car near the Green’s originally told Crenshaw apartment. complex ment near Green’s McDonough before pulling he had seen Paul McDonough was then taken St. driveway into the and that Crenshaw he told an offi- Headquarters Police where driveway go in the “to making a U-turn he shared apartment that he left the cer Leo;” that told and talk to Green back p.m. after 12:00 on Green sometime with left his police that and that day shooting, Green later, 11:00, fifteen minutes at returned verify that. would the shoot- at noon or that again and left County Medical Examiner Ramsey The apart- miles from the ing occurred 5.6 body. autopsy Rodgers’ on conducted ment; had McDonough’s clothes and that and exit autopsy revealed entrance that no for blood and been examined vjounds Rodgers’ right forearm gunshot found. spatter blood had been fired from at least right leg that were indict- challenged the McDonough also could have been caused away two feet presented by arguing that the state ment separate by the same bullet. poten- misleading grand gun- a .9mm or .38mm projectile caused testimony consisting of two tially false Rodg- shot entrance wound the back The officer by police officer. statements neck, con- and the medical examiner ers’ no evi- uncovered stated fired from at that bullet was also cluded have led to the conclu- that would dence away, Rodgers’ then entered least two feet at the McDonough was at home sion skull, brain, through exited struck his *9 shooting and that there time of the forehead. The medical ex- Rodgers’ upper response to possible suspects no other track the wound aminer concluded whether there were jury’s question of had his Rodgers probably indicated court dis- The district suspects. additional for- may have been bent head down McDonough’s argument with agreed at the waist. ward motion to I McDonough’s McDonough: denied dismiss can’t seem to aget hold now, lawyer right indictment. of the so all I can do is wait. challenged validity McDonough also Ok, up you. Officer: that’s to of the He asserted that search warrant. McDonough: Ok. applied for officer who Whatever, you Officer: I know like said search made a false statement warrant Leo, you’re, you’re before the one in in her application. material omission charge making here. You’re the one disagreed But the district court and deter- all the decisions. sup- mined that the search warrant was (affirmative). McDonough: Uh huh ported by probable cause. if you lawyer Officer: And need the to McDonough filed a motion help you make that decision on what suppress gave po- to the statement he to you say wanna you or what wanna tell during interrogation lice a custodial us. day he was home until noon the reviewing After the transcript of McDon- shooting. After invoked his ough’s interrogation, the court determined counsel, right to the officer continued talk- that McDonough unequivocally invoked his ing McDonough, stating: with counsel, right to but that the officer’s sub- continuing Officer: [W]e’re this investi- sequent sugges- statements were “subtle * * * gation if you story [b]ut have a tions that [McDonough] should make up * * * tell, ok. You told the other talking his own mind about talking or not you something you officers have want- her, were not a [and] coercive influence me, ed to tell ok. on the intelligent, defendant who is street smart, and a prior felony experience.” has The court also determined that it was Mc- McDonough: I don’t going know what’s Donough who reinitiated conversation with Ok, my lawyer. on. I’ll wait officer, and the court denied McDon- up, you Officer: It’s know. ough’s motion suppress the statement. McDonough: just I’ll wait for my law- selection, During jury the state exer- know,
yer. I don’t you even know. cised peremptory against strike just. This is juror. African-American challenge, raised a Batson1 but the district It’s, Officer: it’s up to. court allowed upon finding the strike McDonough: I don’t understand it. juror state’s reason for striking the to be adult, you Officer: You’re an can make race neutral. Ok, these yourself. decisions for trial, During objected here, you’re you’re the one in control testimony Crenshaw’s that at the time of in charge. one You talk Ok. to the shooting Crenshaw’s brothers had your lawyer, you talk to whoever it dispute McDonough, but the court help you takes to make this decision. testimony determined that this was admis- Ok, if you righteous have a story to sible. McDonough attempted also to ad-
tell. mit into evidence the 911 “incident recall
log,”
log
court determined that the
challenge
objection
1. A Batson
is an
Kentucky,
as outlined in Batson v.
476 U.S.
race,
peremptory challenge
(1986).
use of a
based on
106 S.Ct.
regarding
ment that the district court erred
admit
at
trial.
McDonough
testify
did not
McDonough made to a
ting the statement
However,
in an
witnesses testified
several
interroga
during
officer
a custodial
police
McDonough’s alibi.
to
effort
establish
apartment
that he
at his
with
tion
was
manager
apartment
at Ansera’s
until
Neither
dis
p.m.
party
12:00
Green
when
re-
testified that
Crenshaw
complex
the district court’s determination
putes
shooting,
frantic
after the
he was
turned
this
af
McDonough
that
made
statement
may
“they”
hysterical and
have said
and
right
invoked
to
unequivocally
ter he
his
A
at the same
shooting.
resident
Thus,
to
attorney.
required
we are
testified that another
apartment complex
begin our review with the court’s determi
from
returned
vehicle besides Crenshaw’s
that
was admissible
nation
the statement
shooting,
got
or seven men
out
and six
McDonough made the statement
because
cars,
Rodgers’
and
body,
of both
examined
attorney by
right
he waived his
to an
after
congratulate
to
each other before
appeared
of
reinitiating
police
with the
conversation
Also, a
was
leaving again.
woman who
Munson,
ficer. State
appre-
McDonough when he was
(Minn.1999)
v. Ari
(citing Edwards
138-39
throughout the morn-
testified that
hended
zona,
484-85,
451 U.S.
S.Ct.
she
notice
ing until
arrest
did not
his
(1981)).
L.Ed.2d 378
McDonough’s de-
anything
about
unusual
any
and
not notice
evasive
meanor
did
test,
the Ed^vards
which
Under
Fur-
his arrest.
just
movements
before
Munson,
if a
in
applied
defendant
we
thermore, a
testified
investigator
defense
right
during
his
to counsel
a custodi
vokes
shooting
from the
driving
that
time
con
then reinitiates
interrogation,
al
apartment where
Hope
scene to
Green’s
officer,
with a
and
versation
living
approximately
was
has
knowingly
intelligently
defendant
11 or 12 minutes.
counsel,
right
any statements
waived his
arguments, McDonough
During closing
at
trial.
may
he makes
be admissible
object
the state’s characteriza-
did not
Munson,
However,
140.
if
at
proof.
tion of the burden
after the
initiate conversation
object
prosecu-
did not
counsel, any
right
defendant invokes
personal
expressing
tor’s statement
her
any
invalid
state
subsequent waiver is
lying,
opinion
Green
makes must be
ments that the defendant
testi-
was mistaken in her
another witness
Id. The state has the burden
excluded.
mony.
showing the defendant’s waiver
evidence,
subsequent
prod
statements were not the
considering the
After
counts,
consti
and uct of words or actions
would
all
convicted
reinitiating
him
life
conversation
sentenced
tute
the district court
Id.
141.
police.
murder
first-degree
for the
imprisonment
*11
case,
sponse.
In this
the district court de
Id. at 141.
areWe
also con-
McDonough
right
waived his
by
prosecutor’s
termined that
cerned
decision to use
attorney by reinitiating
improperly
to an
conversation
this
elicited statement at trial
that the
with the officer and
officer’s “sub
and the district court’s decision to admit
up
tle
that he should make
suggestions
the statement. The court’s determination
talking
talking
own mind
or not
to
that McDonough knowingly
about
waived his
her,
not a coercive influence on the
right
attorney
were
to an
based on the court’s
smart,
intelligent,
defendant who is
street
finding
suggestions”
of “subtle
prior felony experience.”
smart,
and has a
How McDonough
intelligent,
“is
street
ever, a detailed examination of McDon- and
prior felony experience”
has a
an
is
ough’s
interrogation
inappropriate
custodial
indicates
making
basis for
this deter-
McDonough—
that it
the officer—not
mination. We conclude that the
did
state
who initiated further conversation. After
showing
meet its burden of
that Mc-
McDonough told the officer that he wanted Donough’s alleged retraction and subse-
attorney,
McDonough
an
the officer told
quent responses
product
were not the
“continuing
were
this inves words or action on the part
police.
* * *
tigation
you
Munson,
if
story
have a
to
[b]ut
594 N.W.2d at
According-
143.
* * *
tell,
ly,
ok.
You told the other officers
McDonough’s statements were admit-
* *
you
something you
have
wanted to tell
in
ted
error.
n .” McDonough then reiterated his re
Nonetheless, a statement admit
quest
speak
attorney,
to
with an
but the
generally subject
ted
error is
to a harm
said,
officer
“you talk to whoever it takes
Munson,
analysis.
less error
Ok,
help you
you
to
make
if
this decision.
at 143. An error
beyond
is harmless
* * *
righteous story
have a
you’re
to tell
reasonable doubt
if the verdict was
charge
the one in
here. You’re the one
surely
to
unattributable
the error.
Id.
making
you
all
if
[but]
the decisions
need
Here, McDonough
confessed,
never
lawyer
to
help you make
decision
his statement
that he left his
on
you
say
you
what
want
to
or what
p.m.
12:00
is not direct evidence that he
wanna tell us.” The officer’s statements
was the shooter —or that his actions satis
warning
were
of a
and an
nature
fied an element of the crime for which he
talk,
inducement to
and the officer should
was convicted.
McDonough
statements,
have known that her
which
opportunity
had an
to challenge the state’s
were made after
invoked his
present
own,
evidence and
evidence of his
counsel,
right
reasonably
to
likely
and the state did not mention this testimo
elicit
incriminating response.
an
ny during closing arguments. Although
error,
the statement was admitted in
we
We are
the interrogat
troubled
determine that it was harmless error be
ing officer’s apparent willingness to in
cause the verdict was surely unattributable
fringe McDonough’s
right to
attor
the statements
made after
ney
light
of our mandate prohibiting
he
right
invoked his
to an attorney.
impermissibly
officers from
resuming a
Therefore, McDonough
not entitled
amounting
interrogation.
discussion
to an
new trial based on
Munson,
this claim.
statements individual that are rea argues next sonably likely incriminating to elicit an re- the district court erred when it determined *12 up person and that would pulled get it’s articulated a race-neutral state the off, at get get placed the off—not African Ameri striking the sole for reason they actually of the crime when scene a Batson make successful juror. can To wasn’t. make a first the defendant must challenge, exer showing that the state prima facie stated, also “if is juror The someone so on the basis challenge peremptory cised a and they point finger they and the upset the state race, burden then shifts to the somebody lineup, per- out if that of a pull explanation, a race-neutral articulate alibi, it goes have then doesn’t an son court must determine then the district get through, then it’s kind of hard to out of the defendant met his burden whether it.” State
proving intentional discrimination.
answers,
on these
the state be-
Based
(Minn.
Martin,
214, 221
v.
614 N.W.2d
juror
that the
would be influenced
lieved
Batson,
98,
2000)
at
106
(citing
476 U.S.
evidence,
not in
and the
by factors
state’s
1712).
court consid
S.Ct.
When district
juror
striking the
articulated reasons for
burden,
met his
ers whether the defendant
solely to
issues McDon-
specific
related
the
validity
pros
facial
of the
is the
“the issue
as
defense of misidentifi-
ough asserted
a discrimina
explanation. Unless
ecutor’s
disparity
of resources. Both of
cation
prosecu
inherent
in the
tory intent was
themes,
which were referenced
these
will
the
offered
explanation,
tor’s
reason
attorney
McDonough’s
during
defense
222 (quot
neutral.” Id. at
be deemed race
closing arguments,
precise
the
issues
York,
352,
ing
v. New
500 U.S.
Hernandez
juror
which the African American
exhib-
1859,
395
111
114 L.Ed.2d
S.Ct.
defense.
ited a bias favorable to the
Furthermore,
(1991)).
the district court’s
surface,
juror’s
the
the
an
On
unless
will not be reversed
determination
basis for the
provide
adequate
swers
Hernandez,
at
500 U.S.
clearly erroneous.
that the
court to conclude
state’s
district
369,
In the instant we neutral; however, if the state’s was race appeal the both issue parties the would elicited same questions have when it the district court erred whether person, from responses any fair-minded the reason for state’s determined juror the striking reason the state’s juror African-American striking McRae, the sole race neutral. v. was not State exercised Here, race-neutral. The state (Minn.1992). the against prospective preemptory strike ques virtually asked same jurors were juror expressed his belief order, who roughly tions in the same more on depends of a case often outcome follow-up ques in the only variations were are people resources and that lawyer’s McRae, changed its the state tions. of commit wrongfully accused frequently general about questions asked person they look like the ting crimes when system began ques it when fairness crime. The actually committed the who juror. an African-American Id. tioning juror stated: the state’s articulated determined that We race neutral the strike was not investigator reason for lawyer has the best one
[I]f juror an the African American researching, dig- his or her back because behind in the same questions the state’s presenting swered up, finding facts ging * * * in fair-minded lawyer, way that other reasonable you, it to whereas another Id. Because the would just necessary have re- dividuals answer. doesn’t know, prospective that, sometimes, this case asked you state sources 1989). juror virtually African American the same effect of undisclosed evi dence on jurors grand proceeding must questions prospective as other who judged looking be questions same after all of the evi did not answer the grand jury dence that the bias received. State way that exhibited a favorable to the Olkon, defense, for striking the state’s reason In, addition, proper it is juror often factor in was race neu- sole African American *13 jury’s analysis the verdict in the of wheth Therefore, tral. the district court did not er the district denying court erred when determined clearly err when it that Mc- defendant’s motion to dismiss an indict Donough prov- his burden of did not meet ment, jury’s petit subsequent because a discrimination, ing intentional and McDon- guilty verdict not that means there ough to a new trial is not entitled based probable was to that cause believe the claim. this guilty charged, defendant was as but also the is in fact guilty III. defendant as charged beyond a reasonable doubt. State McDonough argues next (Minn. Lynch, 75, v. 590 N.W.2d 79-80 he is entitled to a new trial because the 1999) Mechanik, (citing States United v. have district court should dismissed the 66, 70, 938, 475 U.S. 106 S.Ct. 89 L.Ed.2d grand as jury indictment the state failed to (1986)). 50 present evidence exculpatory and misled jury. grand members of the He also ar Although grand jury the was not gues pro se supplemental his brief that informed of statement Crenshaw’s to the presented grand jury the evidence police that into pulled driveway he the to support grand was not sufficient to the go make a U-turn “to back and talk to jury’s finding cause. A probable grand Leo” or of to Green’s statement jury a trial proceeding is not on the merits McDonough left grand jurors not guilt do determine or 12:00, 11:00 grand and at jury knew innocence whether rather there is McDonough Crenshaw identified probable cause to believe accused has grand jury shooter. The also knew v. Inthavong, committed the crime. State description gave that the Crenshaw (Minn.1987). 402 pre N.W.2d 801 A description consistent with the several sumption regularity attaches to the in eyewitnesses provided, all the eyewit dictment and it is a rare case where an consistently they nesses stated observed a indictment invalidated. will be Id. Be white car similar to a Cadillac or Lincoln cause of this presumption, criminal de rust, Continental with some and McDon- heavy fendant bears a burden when seek ough driving a car on day such ing to indictment. overturn an State v. shooting. Scruggs, compelling Even more is that in a trial heightened burden is when the defen merits, on the McDonough which had guilty beyond dant has been found a rea opportunity impeach to witnesses and following sonable doubt fair trial. Id. discredit the state’s case with the evidence
A failure prosecutor’s to that was not to grand jury dis disclosed close exculpatory grand evidence McDonough with evidence that be- jury require will dismissal of the misleading, indict lieved to be false or the petit ment if the materially jury evidence would have McDonough guilty found of first-de- grand proceeding. gree affected the attempted first-degree State murder and (Minn. Moore, Therefore, murder. conclude that we not abuse its denying Mc- trict court did discretion not err court did district McDonough was the indict- when it determined that Donough’s motion dismiss relief, not ment, McDonough entitled to a not entitled to because he has is not on this claim. shown that the evidence at issue had excul- new trial based Therefore, patory value.
IV. not to a new trial based on this entitled argues that he is next claim. new trial because district entitled it de its discretion when court abused V. remedy al sanctions to impose clined argues that he is it determined prejudice and when leged to a new trial because the district entitled in bad faith that the state did act (1) al court its when it abused discretion *14 in victims were
releasing the car which the
testify as whether
lowed Crenshaw to
erasing a
ID box. On
by
shot and
caller
“any
prob
particular
he knew if there was
facts,
determine whether McDon-
these
any
lem
of
brothers
[Crenshaw’s]
between
on the
entitled to relief based
ough is
[McDonough]”
day
the
of the
and
on
evidence, we
preserve
failure to
state’s
lacked
shooting because the statement
the
in
consider whether
destruction was
(2)
foundation,
when it admitted Green’s
exculpatory val
tentional and whether the
as
prior
statement
substantive
inconsistent
destroyed
of the
or
evidence was
ue
lost
providing the
evidence without also
Friend,
material. State v.
apparent and
instruction,
(3)
it
limiting
and when
with a
(Minn.1992).
493 N.W.2d
request
copy
to introduce a
refused his
Here,
police intentionally
the
re
department’s “incident recall
the police
vehicle, McDonough
not
the
has
leased
in
the 911 call
log,” which summarizes
issue had excul
shown that the evidence at
men
which a
states that she saw two
caller
only
patory
argues
value.
in a
car.
away from the scene
white
speed
available,
if the
he could have
car
only overturn a district court’s
We will
trajecto
determine the
expert
had his own
ruling if
court
its
evidentiary
abused
of the
ry of the bullets and location
shoot
Ferguson,
discretion. State v.
collected,
However,
photo
the
er.
(Minn.1998).
Even if
court
the
recorded all the relevant
graphed, and
evi
discretion and admitted
abused its
in
from
car
which the victims
data
the
error, a
trial is not warrant
dence in
new
McDonough had access to this
were shot.
beyond a rea
if
is harmless
ed
the error
information,
trajectory
the
and
bullet’s
doubt, ie.,
“surely
if the verdict is
sonable
in
were never
the location of
shooter
v. Jua
to the error. State
unattributable”
dispute.
rez,
286, 292
box,
caller ID
respect to the
With
Lack Foundation
not
the de
McDonough has
shown
McDonough’s hearsay
Despite
information recorded was
struction of the
objection,
addition,
and lack of foundation
Crenshaw
intentional.
In
the information
box,
rehable,
if
that his brothers
involved
caller ID
testified
recorded in the
asking
McDonough. Before
helped McDonough’s
dispute
de
with
not have
would
if his
were involved
it
have estab Crenshaw
brothers
fense because would
asked
McDonough,
state
particular
dispute
at a
lished that someone called
to his
time,
whether he was “close”
McDonough was actual Crenshaw
and not that
brothers,
affirmative an-
and Crenshaw’s
Accordingly,
in the
the dis-
ly
apartment.
police,
may
provided
have
foundation for
statement
to the
intro-
swer
state
However, even if
questions.
state’s
duced her earlier statement
a prior
error,
testimony was admitted in
inconsistent
The
statement.
court did
motive
is harmless because
is not an
admit
prior
error
Green’s
inconsistent statement
Instead,
element
crimes
as substantive evidence.
609.11; 609.17;
§§
charged. Minn.Stat.
court
stated “the fact
[counsel] asked
1(2) (2000).
609.185,
3; 609.19,
cl.
subd.
if it
question
[the
was their
officers]
result,
surely
unattri-
As
the verdict
made
question
their
as well as
substantive
* *
dispute
answer,
butable to evidence
between
court did not
McDonough,
brothers
state that
prior
Crenshaw’s
Green’s
inconsistent state-
Therefore,
which would indicate a motive.
evidence, only
ment itself was substantive
questions
the district court did not abuse its discre-
the police officers’
and answers.
statement,
in admitting
tion
Crenshaw’s
In
instructions
jury,
its
entitled to a new
is not
the court stated:
based on this claim.
trial
weight
deciding
believability
given
testimony
to be
of a witness
Prior Inconsistent Statement
you may consider evidence of a state-
argues
McDonough also
that the
ment
prior
the witness
some
occa-
*15
court
district
abused
discretion when it
its
sion that
is inconsistent
present
allowed the state to use as substantive
testimony.
any prior
Evidence of
incon-
prior
evidence
state
Green’s
inconsistent
sistent
should
statement
be considered
that she
ment
saw
at
the
believability
weight
to test the
gun”
with a
black
“little
two
of the
testimony.
witness’
shooting.
weeks
the
A
before
witness’s
This instruction
consistent with
is
the rec-
prior inconsistent
is admissible
statement
jury
ommended
prior
instruction on
incon-
impeachment
it
purposes,
gener
is
Minn,
sistent
10
Judges
statements.
Dist.
ally not admissible as substantive evidence. Ass’n,
Jury
Minnesota
Instruc-
Practice—
Martin,
214,
See State v.
614 N.W.2d
224
Guides, Criminal,
tion
(4th
CRIMJIG 3.16
(Minn.2000);
613(b).
Minn. R. Evid.
ed.1999); Thames,
The asked Green if remembered asserts that telling the time officer at of the district court erred in refusing his shooting request she copy the last time saw Mc- to introduce Donough with a gun department’s was about two weeks log,” “incident recall which the shooting. indicating before After she call placed summarizes the 911 approxi did not making mately remember that earlier 46 after shooting minutes
389 eyewit and an personal opinion that two that Green an caller states which unidentified lying. ness were When a defendant fails away from the a white sped men scene statement, object a prosecutor’s to to court must follow a two- car. A district typically right defendant forfeits his whether a hear- step inquiry to determine appeal. v. have the issue considered on State may admitted. State say be statement (Minn. (Minn.2001) Sanders, 650, 800, v. 656 807 598 622 N.W.2d King, 1999). 56, Roberts, 65, 100 If the comments are prosecutor’s (citing v. U.S. Ohio (1980)). so, to do reverse a The sufficient we can convic 65 L.Ed.2d S.Ct. tion even when the defendant failed to necessity hearsay statement must Johnson, object. by showing the una State be established first (Minn.2000). However, Roberts, may 448 728 we de vailability the declarant. appellant’s prosecuto- an cline consider S.Ct. 2531. If unavailabili at U.S. rial claim when there is sub ty the statement must bear misconduct proved, is also against ensuring him reliability” for it be stantial evidence “indicia of adequate harmless be alleged misconduct was admissible. Id. Sanders, yond a reasonable doubt. Here, anonymous placed caller Here, did N.W.2d at 656. not call that erased. The caller the 911 object prosecutor’s statements. Ac identified, not been and the statement has prose- we to address his cordingly, decline call reliability. contains indicia of no cutorial misconduct claims because contrary to the tes contained information him, against substantial evidence Mc by every who timony provided eyewitness a, entitled to new trial Donough they one man— testified trial that saw on this claim.2 based vehicle, not two—in the before and after away. sped Accordingly, it district *16 VII. did not abuse its discretion in refus
court evidence, hearsay this and to admit ing McDonough argues also McDonough not a trial. is entitled to new pro supplemental se that the evi brief trial presented
dence was not sufficient VI. In support jury’s guilty to the verdicts. sufficiency reviewing jury a verdict for of McDonough argues that even evidence, any objection, of he the we view the evidence in the absence an is enti to drawn from prosecutor a trial the reasonable inference be tled to new because light most that in the favorable to committed misconduct when she elicited evidence Ferguson, a 581 testimony inferring McDonough that had the verdict. State v. (Minn.1998). 824, record, focus allegedly when she N.W.2d 836 Our prior criminal jury, acting with proof in “whether the the of her clos on review is misstated burden presumption her for the of inno- argument, expressed regard and when she due ing nonprejudicial prosecutori proof and harmless if were are often 2. Even we to consider his claims, where, here, clearly we would nonetheless al misconduct the district court alleged the was conclude that misconduct jury regarding thoroughly the instructed the beyond Al a reasonable doubt. harmless proof. Buggs, of State v. 581 N.W.2d burden though testimony in prosecutor the elicited 329, (Minn.1998). prose- Finally, the 341-42 prior ferring McDonough had criminal credibility opinion regarding the cutor’s record, always testimony type of does not this harmless if there defendant’s witness often Henriksen, require 522 a new trial. State v. against defendant. is substantial evidence addition, 928, (Minn. 1994). In Sanders, at 656. 598 N.W.2d of prosecutor’s attempts to shift the burden testimony, necessity overcoming cence and for the the jury could conclude that doubt, by proof beyond it a reasonable McDonough guilty was of the charged of- could conclude that defen- reasonably Therefore, [the] fenses. the evidence was suffi- proven guilty dant was crime jury’s verdicts, cient to support Clark, 359, charged.” State 296 N.W.2d McDonough is not entitled to a reversal (Minn.1980). We also assume that the based on this claim. jury state’s and dis- believed the witnesses any contrary.
believed
evidence
VIII.
Buchanan,
State v.
argues
supple
in his
pro
mental
se brief
he is
entitled to a
new trial
because the
officer apply
case,
In
present
jury
had
ing for the search warrant made a false
support
sufficient
McDon-
evidence
statement and a
material omission
her
ough’s
of first-degree
convictions
murder
application,
identify
but he
not
does
first-degree
and attempted
murder. View
false statement or material omission—
ing the
light
evidence'
favor
most
from asserting
aside
that the
knew
verdict,
able to the
the evidence
suffi
was
he
could not have committed the
jury
beyond
cient
for the
conclude
McDonough challenged
crime.
the search
reasonable
doubt
trial,
warrant at
but the district court ap
murderer. Crenshaw identified McDon-
Delaware,
plied
Franks v.
438 U.S.
ough
shooter,
as the
and Crenshaw’s de
171-72,
98 S.Ct.
PAGE, (dissenting). Justice I agree generally
I respectfully dissent. analysis resolution of
with the court’s by McDonough
all of the issues raised one, I regard
except one. With in-
agree McDonough unequivocally right Amendment coun-
voked his Sixth interrogation transcript
sel. he did so least times.
indicates failure that the district court’s agree
I also suppress statements invoked his unequivocally
made after he However, I
right to counsel was error. of this
disagree with the court’s resolution Wuorinen’s con-
issue. Because Officer disregard such blatant
duct constituted rights, I McDonough’s constitutional supervisory this court’s au-
would exercise
thority for a trial. See and remand new Salitros,
State