*1 Employee attorney is awarded $600 fees. PETERS, Respondent, Sean BY THE COURT: v. Paul H. Anderson Associate Justice MINNESOTA, Self- UNIVERSITY OF Insured/Sedgwick Management Claims PAGE, J., part took no Services, Relators, or decision of this case. consideration
Carpenters and Health & Joiners Fund, Intervenor,
Welfare
Special Compensation Fund.
No. C5-02-794. Minnesota, Respondent, STATE Supreme Court of Minnesota.
Aug. 2002. THAO, Petitioner, Appellant. Tze Cosgriff, Westphal, Roderick C. Eric S. No. C1-00-2022.
Heacox, Hartman, Mattaini, Koshmrl, Cos- Supreme Court of Minnesota. Johnson, P.A., Paul, MN, griff & for St. Relator. Aug. Lakeville, MN, Thompson,
David A. for
Intervenor. Sundquist, Sundquist
Russell G. & Asso-
ciates, Paul, MN, Respondent. St. Swanton, Paul, MN,
Karen R. St.
Special Compensation Fund.
ORDER files, upon
Based all the records and herein,
proceedings
IT HEREBY IS ORDERED Compensation
decision of the Workers’ 19, 2002, be, Appeals April
Court of filed is, opinion.
and the same affirmed without
See Civ.App. Minn. R. P.
1(b). *3 (# Davis, 20688x), Special
Michael C. Defender, Paul, Assistant State Public St. MN, Appellant. Hatch, A. Attorney
Michael Minnesota General, Gaertner, Ramsey County Susan (#Hill, 45056), Attorney, Darrell C. Assis- Paul, Ramsey County Attorney, tant St. MN, Respondent.
OPINION STRINGER, Justice. parked
A shot fired from a vehicle near public park court in a basketball struck car asked player. Following someone -Zoo and his killed a basketball trial, Tze Thao found jury friends if were members of the Orien- premeditated first-degree guilty Loks, Hmong gang. tal street Before of murder the second murder but anyone replied, gunshots several were drive-by shoot- committing while fired at the basketball court from the win- gang.1 of a The district ing for the benefit car, striking dow of the one Zoo. The car durational de- imposed sped away and soon after Zoo died of the presumptive sen- parture of 1.5 times the gunshot wound. tence, noting that the number Maplewood police A officer on the west fired, prox- close the number offense, gunshots side of the heard the in which the imity, and the location p.m. proceeded around 6:45 to 6:50 significantly made it occurred *4 the basketball courts. A second Maple- shooting. The typical drive-by than a police shortly arrived wood officer thereaf- affirmed, dismissing ap- appeals court of investigation, and in the course of his ter that there was insuffi- pellant’s arguments a eight casings handgun to the verdict and found from small cient evidence proper the court had no basis for the ground on near the vehicle tracks and departing sentence. three at heights discovered bullet holes Thao, 245, 248-51 State v. nearby and ga- between 3’8” 7’8” review and (Minn.App.2001). granted rages that faced the basketball courts. part, part, in in and now affirm reverse - police working A St. officer off- Paul proceedings consistent with remand for duty security guard Target as a at store opinion. police radio regarding heard the broadcast 24, 1999, evening September On shooting recognized descrip- and (Zoo) Yang playing Heu bas- Zoo Chu suspected tion of the vehicles as those he adjacent court to a ketball on a basketball in had seen at the store earlier the eve- public park play- lot in a and parking ning. patrolling He had been store’s in Ma- ground Edgerton near the School parking lot on foot when he noticed Zoo was plewood, accompa- Minnesota. occupants seemed vehicles. Because the others, playing five on the nied six warily, him he ran a check watching to be watching with him and another plate numbers. Thereaf- of their license nearby. The game neigh- from a bench ter, he two females come out of observed boring court—further basketball removed Jeep carrying headed for the the store parking from the road and lot—was also off, he sped As the vehicles basketball. in- occupied, people, and there were other yell from the car back passenger heard a children, and cluding present park playground. at the Jeep to the to meet nearby the time. Zoo’s relayed plate the license numbers from He they friends testified that noticed red radio, police and the vehicles over Toyota Jeep car and a maroon Corolla Paul Police Officer Richard Stra- when St. parking into the lot near the basket- drive them, recognized ka heard he Jeep immediately turned ball courts. Straka, assigned to the car. Officer area, apparently be-
around and left the Force, ap- Gang Strike believed Minnesota basketball courts were use. cause both Hmong of a street however, pellant was member 10-15 stopped The car about feet Tigers joined and playing gang called the White from the court where Zoo 609.66, 609.229, 2, 3; (2000). 1(2); subd. le §§ subds. 1. See Minn.Stat. subd.- appeared by appellant jail, appellant to be calls made investigation when many present dur- gang related.2 also contacted those in an to effort influence night the four occu- Later that same their An account of the incident. inmate Jeep were arrested. Three of pants of the adjacent in an cell testified that he over- occupants testified Hmong heard a conversation which play basketball drove his car to appellant attempted relay message Tar- group purchased after their ball at handgun his sister to hide a .22 caliber immediately did not follow get. Appellant good” “real somewhere outside of the Jeep they occupied park, left the when the police looking house because the were left, appellant later he was driv- but when it. ing very they fast and were unable to up Appellant up Eventually occupants with him. showed appel- catch the three and, they at a movie Initially decided see accord- car lant’s were also arrested. witness, ing to one he said he had shot at they all knowledge denied of the incident group playing basketball. ultimately agreed but one to talk after being girlfriend, assured that he and his day was arrested the next occupant, jail also could avoid if initially being Target denied at the store truth, matched, told the their stories park; or at the he claimed he was out of the facts could be corroborated. The wit- *5 day hunting during town and at a that passenger ness said he was the front girlfriend movie with his later eve- that in appellant’s night car that and look- was however, ning. girlfriend His told a differ- ing through CDs when he heard shots. story. police appel- that ent She told up appellant When he looked he saw hold- lant had driven her to and from school on ing gun, extending his arm out the win- day shooting night of the and that she dow, shooting group playing and at the bowling went with some friends. Accord- girlfriend, sitting directly basketball. His her, appellant ing called around mid- him, appellant behind stated also that fired if night and asked he could come over. passenger agreed the shots. The third appellant “acting She noticed was a little police appellant talk and told that fired the strange” and testified that he told her handgun from a .22 caliber that he “something happened.” Appellant asked possession had seen on a say appellant her to that she and went out trial, previous At occasion. all three testi- that together night, and that is what she appellant that fied was the shooter. initially police told the ques- when tioned her. great weight testimony The present those witnesses on the
Appellant manip- continued his efforts to night of the incident was that the driver of testimony potential ulate the witnesses the car was the shooter. even after incarceration. He One of the five maintained playing that girlfriend, communication with his at one basketball with Zoo testified point say stopped that the car with telling her to the shooter the driver’s side of court, actually acquaintance facing was an named “Jim- the car that the driver them,' my.” According yelled to a translator who lis- out at that and the driver down, phone approximately pulled gun, tened to 100 hours of then looked out a and appellant throwing gang signs photographs 2. Officer Straka testified at trial that Tigers. at least three of ten criteria met used known members of the White Four members, identify gang including associating testifying witnesses at trial also confirmed Tigers part Tigers. with known members of the White and was of the White slight impairment vision and was not wear- group. Although times at their shot 6 or 7 time, lenses at he was out of a corrective pick the driver was unable he facing the car in to- “positive” that he that was the witness testified photo lineup, gunfire and playground that the wards the that percent sure” “a hundred was passenger came from the front side. was the shooter. driver of the car witness, testify. not to was the elected claiming he Another car, jury acquitted appellant testi- on the first-de- player to the closest basketball him directly gree charge at the murder but found looking fied he at the of murder in the second while com- gun the driver aimed a driver when drive-by shooting benefit shooting. play- mitting A third group and started sentencing, grant- At the court agreed gang. er on the court with Zoo dura- facing the ed the state’s motion for side of the car was driver’s imposed court, only departure the driver’s tional and an executed and testified that months, a hand term of 477 a sentence 1.5 times open when he saw window was cit- A the sentence.3 The court out of the window and fire shots. come conclusion supporting basketball ed several factors its watching who was witness compelling circum- testified that she was substantial game from bench warranted a the back of the car and stances about 15 feet from people open. presumptive term: the number only confirmed that one window directly proximity, in close the shots fired testified that she was sure was She them, over, presence pointed a out toward school gun driver who leaned window, vicinity, at the and started safety partic- expectation have an on the court. boys setting. acknowledged ular The court adjacent court testified player A on the guiding minimal case law its there was play- car that he noticed the come into *6 depar- ruling, but concluded the ground he to the ground dropped area and justified shooting the ture was because gunshots. the He looked when he heard typi- significantly more serious than a was where he up “just for a second” from drive-by shooting. cal away about 60 feet and saw lying was appeals affirmed both the the driv- The court of handgun being brought back into sentence, ap- car, rejecting the he conviction and although er’s of the was side that the evidence was pellant’s argument or actually to tell if it was the driver able the verdict because who did the shoot- insufficient passenger the left rear court, testimony and that inconsistencies the player on the same ing. Another depart- no the district court had basis away from the ve- admittedly the farthest Thao, sentencing guidelines. the ing at about 80-95 feet players hicle of all the 247, the sen- distant, 251. As to defense witness and 634 N.W.2d was the sole court ruled that the tencing departure, the “whipped” that he his head testified shots, location of the shoot- when he heard the looked around factor as it consti- second,” was an “split ing and then dove to the for a where one tranquility” a “zone of acknowledged a tuted ground. Although he 609.229; II.G; § see also Appellant's presumptive was 318 lines Minn.Stat. 3. sentence Thao, months, at 249-50. re- 634 N.W.2d presumptive 306 months for sec- days custody 340 and was ceived credit of ond-degree plus an additional 12 murder to the victim's fami- pay ordered to restitution committed for the benefit months for crime ly Reparations Board. Sentencing and the Crime Victims gang. Guide- of a See Minnesota 420 reasonably expect pre-trial argues to be safe. Id. at their statements. He
would addition, testimony regarding In determined his activities shooting, of the following shooting, lying that the randomness such as about crowd, into telling girlfriend number of shots fired and where he was and his “something” happened, the tenuous motivation for the crime were were not tanta- showing compelling guilt facts substantial and mount to a confession of and did making departure ap- nothing presumption circumstances to rebut of his propriate than the sentence. innocence.
Id. testimony, Summarizing the the state points out that four witnesses in Zoo’s
I. group identified the driver of the car as consider car, We first the shooter. The driver of the accord- witnesses, claim that the state’s evidence was not appellant, to six other prove beyond sufficient to a reasonable appellant and of those that named as the appellant guilty doubt that of second- driver, present three —all at the time of reviewing challenge murder. In identified as —also evidence, sufficiency to the of the we re the shooter. The state claims that light view record most favorable testimony identification is reliable because to determine conviction whether the in at quickly least some cases it was forth- reasonably permitted evidence could have coming, and because it came from numer- Webb, jury to convict. State v. 440 ous posi- witnesses who were in the best (Minn.1989). 426, 430 do not N.W.2d We tion to observe the incident. The state facts; retry jury we assume the be points also to other of appellant’s evidence lieved the state’s witnesses and disbelieved guilt alibi, including his discredited his at- Moore, the defendant’s witnesses. State v. tempts testimony to influence and hide the (Minn.1989); State v. gun, purported and his confession to one Merrill, (Minn.1978). N.W.2d shortly witness after the incident that he If jury reasonably could found have was the one who fired the shots at Zoo’s charged defendant of group. fense, regard presump to the giving due that, agree with the viewing state tion of innocence and to the state’s burden light the evidence in the most favorable to doubt, proof beyond a reasonable *7 verdict, the it support ap- is sufficient to verdict will not disturbed. v. be State pellant’s second-degree murder conviction. Johnson, (Minn.1997). 426, 568 N.W.2d 435 only The testimony contradicting that of
Appellant testimony eyewitnesses claims that the of numerous came from a wit- night those the car with on the standing ness who was farthest from the shooting car, is “worthless” because it deficiency, had a vision and made his product improper of questioning upon “split the identification based second” by police by and was induced that glimpse. Appellant’s pointed threats counsel out too, they, might charged be with a crime. potential the weaknesses in the wit- state’s He also discredits the statements that testimony, vigorously ness identification group, noting witnesses, came that cross-examining from Zoo’s the dissecting night speed videotaped police time of of the occurrence interviews and chal- ability their lenging reliability events hindered to see the the witnesses’ and moti- shooter, they and that several of them failed to vation for testifying points as did— name the car emphasized closing driver of the as the shooter further arguments.
421
end, jurors
an
or inadequate,
As the trial came to
were
if
is
there
sufficient evi-
properly
instructed that
were the sole dence
record to
depar-
ture,
judges
credibility
of witnesses and
it
be affirmed.
will
Williams v.
State,
840,
(Minn.1985).
given
to be
each
testi-
361 N.W.2d
weight
witness’s
844
mony.
The core issue
for
district court
long recognized
determining
depart
have
that
whether
duration-
ally
guidelines
of a
an
is
credibility
witness is
issue
whether the
conduct
jury,
jury
position
significantly
as the
is in the best
defendant’s
more
less
than
typically
make such
determination. See State v.
serious
involved
Henderson,
(Minn.
688,
in the commission
620
705
of the crime
N.W.2d
described
Johnson,
435;
2001);
Back,
in the applicable
568 N.W.2d at
State
statute. State v.
Bliss,
385,
273,
(Minn.1983).
(Minn.1990);
Here,
v.
457
390
341 N.W.2d
N.W.2d
276
Rainer,
490,
State v.
411
the district court
multiple
N.W.2d
495
found that
(Minn.1987);
Daniels,
large
fired into a
of people
State v.
361 N.W.2d
number
in close
819,
(Minn.1985);
Pieschke,
proximity in a playground
826
State v.
location
it
made
(Minn.1980); Merrill,
significantly
295
more
than
typical
N.W.2d
584
Further, upon
drive-by shooting.
at 111.
appeals
N.W.2d
review
The
agreed, noting
although
of a
must
a playground
conviction we
assume
jury
testimony
privacy,
is not a
considered the
and believed
zone
is
held
uniquely
Moore,
out to the public
state’s witnesses.
as a “zone of tranquility,”
Merrill,
108;
place
Here,
at
one reasonably expects
tencing. Id. 250-51.
II.
A.
tranquility”
“Zone
as a basis
difficult question
departure
by impos
whether the district court erred
ing an durational
from
argues
the court of
appellant’s presumptive
appeals
by creating
sentence. The de
erred
a new
“zone
depart
factor,
cision to
a presumptive
tranquility” departure
sen
an improper
tence under
Sentencing
pri
Minnesota
extension of the
“zone of
Guidelines is within
district
vacy”
upward depar
court’s dis
factor
justifying
cretion,
State,
see Rairdon
557 N.W.2d ture where the crime occurs in a victim’s
Garcia,
(Minn.1996);
Winchell,
cartilage.
State v.
302 home or
See State v.
*8
643,
(Minn.1981),
747,
(Minn.1985);
N.W.2d
647
but when a 363
750
v.
N.W.2d
State
Kindem,
departs
9,
(Minn.1983);
district court
from
presump
N.W.2d
17-18
338
sentence,
374,
Morales,
tive
it must articulate “substan
see also State v.
324 N.W.2d
Norton,
(Minn.1982);
tial
compelling
justifying
reasons”
v.
376-77
State
328
(Minn.1982).
departure,
Al
Sentencing
Minnesota
Guide N.W.2d
146 n. 3
II.D;
Schmit,
lines
see
v.
though
appeals emphasized
State
601
the court of
(Minn.1999).
N.W.2d
it
equate
public
Even
that
did not
a
home,
though
may
improper
the reasons
a
given
be
with
crime victim’s
as-
Although
clearly
we have
rec
was the
the court’s rationale
serts that
crime in the
ognized the commission of a
long
this court
was discarded
same and
Mortland,
privacy”
justifying
“zone
as
a
victim’s
sentenced to for not B. Other bases years more than three or to payment $6,000, of a fine of not more than or
We next consider whether the both. by other factors identified the lower courts departure, specifically (b)
would a Any person who violates this subdi- firing multiple indiscriminate of into by vision firing or toward a per- group. Appellant argues a that a depar son, occupied or an building or mo- these was an of ture on facts abuse discre vehicle, may tor be sentenced predicate upon tion as are the facts imprisonment for than ten which the sentence a years payment or to aof fine of not is based. See drive-by shooting State $20,000, more than both. or (Minn.1982) Brusven, 591, Section 609.185 defines conduct constitut- it was unfair for trial (holding murder, ing first-degree charge a as to rely upon already factors considered in the appellant which in- acquitted, and presumptive sentence as a basis for a du- cludes: departure). rational (3)causfing] being the death of human a of The definitions the relevant crimes with intent to effect the death of the key analysis. are Murder in the another, person or committing while * * * second is defined as: attempting or to commit * * (1) caus[ing] being the death of a human *. drive-by shooting with intent to effect the death of that Appellant focuses on the language another, person or pre- but without 609.66, le, argues section subd. and meditation or by drive-by definition a shooting involves (2) causing] being death of a human * * * “recklessly discharging] firearm committing while or attempting to person group people4],” [or toward drive-by shooting commit a in viola- essentially and this is the conduct 609.66, le, of section tion subdivision cited the lower courts in under other circumstances than departure. durational Appellant 609.185, those described section legislative history suggesting cites (3). clause drive-by risk to human life associated with 609.19, § 1. Minn.Stat. subd. Section shootings exactly legislature what the le, drive-by shooting defines had mind when this statute.5 enacted provides punishment varying levels of legislature asserts depending target: on the the random sought discharge make
(a) Whoever, just having weapon while ex- from a at or motor vehicle toward vehicle, crime, recklessly
ited from a motor group that be- discharges a firearm at or toward cause that is what was convicted (2000) (audio 645.08(2) § tape) (including testimony 4. Minnesota Statutes re- garding interpretation provides of statutes drive-by proponents bill that generally, singular person) (e.g., in- exposes everyone shooter near the in or line (e.g., plural people). cludes the injury to the of fire risk death or serious essentially neigh- terrorizes the “entire See, e.g., Hearing on H.F. H. Sub- borhood”). L., Leg., Just. comm. & Fam. 78th Minn. Feb. *10 referred here, impermissibly are not dissimilar those district of the .court hearing in as at risk legislative to the. statutory predicates of the relied on the of in or the line they because are near departure. the sentence support to crime on by trial court fire. The reliance the predi- question It is a whether close risk, they or that bystanders the ten statutory forth in the conduct set cate appellant, is not a were unknown in section drive-by shooting definition of distinguishing feature from the defini- depar- le, to the is so similar justify a tion of the crime itself to court, forth the district ture factors set departure. appeals in by the court of upon and relied (cid:127) The court also setting. The district in effect was affirming, on occurrence of the shoot- relied convicted of differently than others treated ing at the near school his was en- sentence this offense because park, setting and makes and rather on offense factors hanced based particularly using those facilities On balance aggravating than factors. they believed vulnerable because however, was. The believe he we reasoning is place. were safe This strikingly defining the crime are not words relat- based on the same consideration court in those of the district different from concept ing tranquility” to the “zone of departure: for the its rationale rejected and it also we above therefore (cid:127) gun. drive-by The firing The sentencing as for the de- support fails crime relates to reckless parture. The of a firearm. district discharge by any Appellant’s crime was heinous to fir- in its court referred standard, here was but conduct on toward ing eight shots not so different than offense described specific courts but without basketball we in section 609.66 that can conclude the dis- target. the facts before While typ- “significantly more serious than was the stat- certainly put trict most court drive-by as trial court shooting,” ical context, they did utory definition appeals and affirmed. ruled the court clear- that. little more than resentencing. therefore remand for gun recklessly, ly discharged the but and part, part, Affirmed in reversed in legislative neither the statute nor proceedings remanded for consistent fir- the random history suggests opinion. significantly shots so eight MEYER, J., having a member been statutory refer- than argument of this court at the time that an discharge ence a reckless submission, part took no jus- sentencing upward departure of this case. consideration or decision tified. (cid:127) GILBERT, part (concurring target. The crime refers Justice dissenting part). “at or to- firearm
discharging person.” ward a The district majority’s opinion I concur with the eight cited appellant’s discharge there sufficient evidence ten unknown to people, toward drive-by shooting second-degree murder him, trying any without to shoot conviction, respectfully but dissent on particular person. Appellant dis- sentencing and would affirm remand charged person— his firearm toward depar- the lower court’s durational others, the victim Zoo—-but the while ture of 1.5 times the sentence. circum- shooting, There were severe certainly endangered by the *11 425 present respect stances with to this seemingly neighborhood of- safe park, which by fense as found the district court. awas factor that the district court consid- ered. To do so was not an abuse discre- of firing eight The violent act shots to tion. gathered public place people ward ten in a presents sufficient circum The majority states that it is a “close depart stances to from the question” whether the district court sen- true, is majority appellant sentence. It as the tenced twice for the same crime states, public park goes that a traditional appellant’s is not but on to conclude that ly privacy. a zone of v. See State Mort behavior was no different than which land, (Minn.1987). 95 n. 2 required N.W.2d is to be convicted under Minn. Also, I agree public may 609.66, (2000), § that a park not subd. Stat. le which al- necessarily a tranquility. appellant be within zone of lowed to be convicted second- However, important beyond it is to move Notwithstanding murder. the leg- by labels that were used history lower islative cited majority, courts and decide the case its on merits. district court did abuse in its discretion We must finding decide whether the district court firing of eight random by ordering up abused its discretion group shots into a of ten people signif- was ward appel icantly durational on based more serious than statutory act firing multiple lant’s at close reference to a reckless discharge. As the out, range directly people toward a number of majority points to be convicted under attempting enjoy their freedom a the drive-by shooting one statute must public place. gathering recklessly discharge a firearm at or toward (or person a toward another motor vehicle If sufficient there is evidence Here, building). or Id. reckless- departure, record to we are to ly firearm discharged eight times ten State, affirm the sentence. Williams park. in a public majori- While the (Minn.1985). It is just ty is typical drive-by concludes this important to note that although Mort- shooting, recognize varying fails public we that a park land held was not degrees may of recklessness that exist and within privacy, a victim’s zone of we went interplay drive-by between the shoot- on to overturn the court appeals’ reduc- the second-degree statute and murder tion of defendant’s total sentences re- statute. instated the district court’s sentence. 399 statutes, N.W.2d at 95. One of the factors the Under the relevant a defendant Mortland district court recklessly discharges considered was who a firearm once fact place “the snatching person took from vehicle toward a single seemingly neighborhood park standing safe close to in the middle of the field or va- disagreeing the victim’s home.” Id. While parking guilty cant lot would also be second-degree district court’s conclusion that murder if the victim died park within the gunshot. victim’s zone of See Minn.Stat. 609.66, le, 1(2) privacy, explicitly 609.19, §§ we referenced subd subd. (2000). fact, recognition aggrava- court’s that one In defendant who reckless- ting circumstances was that crime ly discharges took a firearm once from a vehicle place seemingly neighborhood safe toward building another motor vehicle or going before on to affirm the court’s also murder if second-degree Here, departure. somebody, Id. happens durational the bullet to kill even place also thought we have a crime that took in a if the defendant vehicle the motor See Minn. unoccupied. building 1(2). le, 609.19, §§ subd Stat. case facts in this indicate
Certainly the level of recklessness was *12 in either than that There is dramatic hypotheticals.
above in-
difference in the level recklessness on the number depending
volved of shots
fired, directly people number
vicinity shooting, where the Here, place. eight shots
shooting took public park— ten in a
were fired at in the record to
this is evidence sufficient depar- district court’s I would hold that the Accordingly,
ture. its
district did not abuse discretion appellant’s convic-
and would affirm both
tion and sentence. ODENTHAL, Appellant,
Steven R. OF
MINNESOTA CONFERENCE ADVENTISTS,
SEVENTH-DAY
Respondent, Seventh-Day Ad-
General Conference
ventists; Seventh-Day Minnetonka Church, Defendants,
Adventist Rideout, Respondent.
Lowell C1-01-278, C4-01-291.
Nos. Court of Minnesota.
Supreme
Aug.