Man kicked into unconsciousness, stabbed 15 times in the chest, and then dumped in a river near Morton for showing up at the wrong party.

2007-M-042          State of Minnesota, Respondent, vs. Keith Hapana Crow, Appellant.

THE CRIME:  On September 23, 2004, Crow hosted a party at the casino near Morton and at a home nearby on the reservation.  Young adults and teens consumed alcohol and marijuana.  Robert Berry, aged 50, arrived at the party and a fight ensued.  Testimony indicated that Crow kicked Berry into unconsciousness.  Berry was robbed of his wallet, the keys to his vehicle, and some jewelry.

Crow and others loaded the unconscious Berry into Berry's vehicle and drove around the reservation, debating whether to drop Berry and his car or to kill him and burn the vehicle.  They chose the latter option.

After Crow stabbed Berry 15 times in the chest and dumped his body in the Minnesota River and burned his Tahoe, he turned around and met two police squad cars that had just arrived.

THE VERDICT:  A Redwood County jury orally announced that it had found Crow guilty of lesser offenses of aiding and abetting first-degree felony murder while committing a kidnapping and aiding and abetting second-degree intentional murder.

When the jury responded to the judge’s inquiry that they had not signed verdict forms on all the charges, he instructed them to return to the jury room and to sign the forms.

When they returned, they provided signed forms that found Crow guilty of first-degree felony murder in the course of a kidnapping and not guilty of the aiding and abetting charges and a lesser included offense.  The trial judge sentenced to the mandatory life sentence.

THIS DIRECT APPEAL:  The Supreme Court rejected this direct appeal on several grounds and upheld both the conviction and sentence of Crow.

DOUBLE JEOPARDY:  Crow first argued that because the jury had orally declared him innocent on the murder charge and then later convicted him when they signed the verdict forms, his conviction and sentence were unconstitutional under the “double jeopardy” protections of the U.S. Constitution.

The Supreme Court held that the jury’s oral verdict was not completed until all the jurors had returned to the jury room and signed the mandated verdict form to prove that they had reached a unanimous verdict on the first-degree murder charge.

“The record here establishes that the district court sent the jury back to the jury room before polling ever took place.  The verdicts were not final until the jury completed and returned all verdict forms, the verdicts were read in open court, and the jury polled.  There was no implied acquittal, and Crow’s conviction was not barred by double jeopardy.”

EXPERT TESTIMONY:  Second, Crow appealed the trial court’s admission of the testimony of a forensic pathologist who testified that the evidence could not show whether Crow was the only person who had stabbed Berry.

The Supreme Court held that Crow’s attorney had effectively cross=examined the pathologist and had presented his own expert witness to claim that there could have been additional stabbers, but the jury had nevertheless convicted Crow with the weight of the evidence.

SUFFICIENT EVIDENCE:  Third, Crow appealed that the evidence was insufficient to sustain a guilty verdict.  The Supreme Court disagreed.

Berry’s blood was found on Crow’s clothing and boots which he had abandoned in the darkness near the burning Tahoe before being apprehended at the scene.  Berry’s blood was found at the home where Crow had kicked Berry into unconsciousness. Witnesses testified that Crow had kicked Berry into unconsciousness, had instructed men to wrap him in blankets and carry him to the car, had led the discussion about whether to release Berry or kill him and dump him in the river, had instructed men to carry Berry to the river’s edge, had set the Tahoe ablaze, had instructed others to clean up evidence at the house, and had tried to tamper with the testimony of a witness.  While police were investigating the crime before charging Crow, he dyed his hair blond and fled to Minneapolis, Bemidji. And Seattle, Washington before being arrested in Billings, Montana.  The Supreme Court held that the evidence was sufficient to justify the guilty verdict.

Russell Anderson (Page, Paul Anderson, Hanson, Meyer, Barry Anderson, and Gildea)

DATE OF DECISION:  April 19, 2007

RECORD NUMBER:  2007-052

FULL OPINION:  A06-229

DESCRIPTION: [MURDER]  [KIDNAPPING] 

Execution at the Little White Earth housing complex in Minneapolis

2007-M-041    State of Minnesota, Respondent, vs. Wambli S. McArthur, Appellant.

THE CRIME:  After midnight on June 23, 2005, a crowd was partying in a courtyard at the Little White Earth housing complex in Minneapolis.  MacArthur and another man came out of an alley and stood behind Vincent LaRoque.  MacArthur shot LaRoque in the back of the head.  The two men walked out of the courtyard while laughing.

Twelve eyewitnesses testified either that they had seen MacArthur shoot LaRoque or that they had seen that MacArthur and another man approaching or leaving the murder site.

A Hennepin County jury convicted MacArthur of first-degree, premeditated murder, and McArthur was sentenced to life imprisonment.  McArthur brought this direct appeal to the Supreme Court.

SUMMARY:  First, the Supreme Court held that the evidence was sufficient to sustain the guilty verdict of premeditated murder where, although no motive was shown, the defendant was armed, walked purposefully to where the victim was standing, shot the victim in the head at close range, and immediately fled the scene. 

Second, the Supreme Court held that the district court did not abuse its discretion by permitting testimony regarding witnesses’ fears of the defendant

Third, the Supreme Court held that the prosecutor did not misrepresent the evidence, vouch for witnesses’ testimony, or otherwise commit misconduct in closing argument. 

Fourth, the Supreme Court declined to rule on a separate appeal which was added later and would be decided appropriately by a lower post-conviction court.

The Supreme Court affirmed MacArthur’s conviction and life sentence.

SUFFICIENT EVIDENCE:  MacArthur argued that his conviction and sentence should be reversed because the prosecution provided no evidence of a motive for the killing was provided to demonstrate that he had premeditated the execution.

The Supreme Court rejected this argument on the basis that the overwhelming evidence that MacArthur had armed himself, walked up and stood behind LaRoque, shot him in the head from twelve inches, and fled the scene while laughing.

WITNESS FEARS:  MacArthur complained that he was harmed when witnesses testified that they had been less than forthcoming in initial conversations with police or even had to be arrested for evading a subpoena before they testified.  They testified that they were afraid of MacArthur and his family and friends because of his reputation for violence and his affiliations.  One witness testified that police had given her $600 to keep her off the streets after word circulated that MacArthur’s brother (the father of her children) would kill her if she testified.  Another witness cried about her fear on the witness stand.

The Supreme Court noted that the trial judge had prohibited the prosecutor from introducing MacArthur’s gang affiliations, past crimes, and criminal record in either the direct case, cross examination, or statements to the jury.

The Supreme Court noted that “bias, which may be induced by self-interest or by fear of testifying for any reason, is almost always relevant because it is probative of witness credibility.”

CLOSING ARGUMENT:  MacArthur argued that during closing arguments, the prosecutor had misrepresented the evidence, vouched for witnesses’ testimony, or otherwise committed misconduct in closing arguments.

First, the Supreme Court held that the prosecutor did not misrepresent the evidence when he mentioned one witness’ repeated tears or another witness’ need to be arrested and hauled to court because her child’s father had threatened to kill her or harm her child if she testified.

Second, the Supreme Court held that the prosecutor spoke factually about the witnesses’ testimony about their fears and did not improperly vouch for the credibility of their testimony or improperly enflame the passions of the jury.

LATE ARGUMENT:  After he filed the above three arguments in this direct appeal, MacArthur filed a claim that an order prohibiting his attorney from discussing witnesses’ identities with him until seven days before the trial was improper and prejudicial. 

The Supreme Court noted that the trial record had no information about how this could have harmed MacArthur’s defense.  It held that the issued would require fact-finding and a record by a lower court before an appeal could be considered by the Supreme Court.

CONCLUSION:  The Supreme Court upheld MacArthur’s conviction and sentence and remanded the fourth claim to a lower post-conviction court for a hearing and judgment.

                    Hanson (Russell Anderson, Page, Paul Anderson, Meyer, Barry Anderson, and Gildea)

DATE OF DECISION:  April 12, 2007

RECORD NUMBER:  2007-0

FULL OPINION:  A06-853,

DESCRIPTION: [MURDER] [GANG]

Shooting a Minneapolis woman whose Fruend had Ridiculed a Drug Dealer's Fancy Tire Rims

2007-M-040                                    Michael C. Francis, petitioner, Appellant, vs. State of Minnesota, Respondent

 :

THE CRIME:  When Marvin Pate ridiculed the specialized tire rims on drug-dealer Michael Francis’ truck, Francis took offense.  Later, Pate was assisting his girlfriend Pamela to exit his car in Minneapolis when he noticed the large blue truck pulling up.

Francis was convicted of shooting Pate in the abdomen, back and hip, and killing Richardson with a single shot to the head.  He was sentenced to a mandatory life sentence for the murder and a 15-year sentence for the attempted murder.

THIS DIRECT APPEAL:  Francis represented himself in this direct appeal. 

He contended that:1) there was insufficient evidence to sustain his conviction; 2) that he was deprived of a fair trial by prosecutorial misconduct, evidentiary errors, incomplete jury instructions, lack of effective assistance of counsel, and other improprieties at trial; and 3) that he should have been granted a post-trial hearing of his claims against the sufficiency of the evidence and the trial’s procedures. 

SUFFICIENCY OF THE EVIDENCE:  The Supreme Court held the evidence was extensive and sufficient. 

In the ambulance on the way to the hospital, Pate identified the shooter as “Mike” and later gave police at both the full name and physical description of ”Mike Francis.”  An observation camera caught Francis’ truck turning into the intersection of the shooting at the time of the shooting.   Francis’ cell phone was triangulated to be at the scene of the shooting ate time of the shooting.  Francis testified that he did not know where he was at the time of the shooting.

DIRECT EXAMINATION:  When the prosecutor asked the lead detective to describe how he had investigated the case, the detective said he had consulted aging-unit officer and retrieved Francis’ photo from a crime-unit data base. The Supreme Court said that the prosecutor had advised the detective to avoid such prejudicial testimony, and that the trial court had properly issued mandatory jury instructions to ignore such testimony.

CROSS EXAMINATION:  When Francis offered a character witness to say that he was non-violent, the prosecutor then asked the witness about specific events in Francis’ past.  The Supreme Court ruled that the trial judge had properly limited these questions to the witness’ direct testimony, the trial court properly limited the prosecutor to inquiries about specific acts that directly contradicted the witness’ original testimony, and that the trial court gave the jury the required instructions on how to construe the cross-examination.

CLOSING ARGUMENT:  In her closing argument, the prosecutor made references to Francis as a drug dealer.  The Supreme Court noted that Francis had described himself as a drug dealer in his own testimony to the jury.

ADMISSION OF CELL RECORDS AND TRAFFIC VIDEO:  The Supreme Court held that the trial court had properly approved both the foundation and the relevance of the cell records and traffic video to show the presence of Francis and his vehicle at the scene and time of the shooting.   It was for the jury to determine both the weight and the credibility of this evidence. 

ADMISSION OF TESTIMONY OF AN ILL WITNESS:  Francis challenged the admission of testimony of a witness who had been diagnosed with “bipolar schizophrenia.  The Supreme Court ruled that here, the witness’s illness and response to medication were thoroughly explored by defense counsel on cross-examination and the record reflects that the witness was plainly competent to testify.

EXCLUDE EVIDENCE OF AN ALTERNATIVE PERPETRATOR:  Francis asserted error in the exclusion of his proffered evidence of an alternative perpetrator.  Alternative perpetrator evidence is inadmissible absent some evidence having an inherent tendency to connect the alternative perpetrator with the crime.  Francis put Ragland’s former boyfriend forward as an alternative perpetrator, but Francis did not have sufficient evidence to connect the former boyfriend to the crime so as to satisfy the alternative perpetrator standard. 

FRANCIS’ FIREARMS CONVICTION AND PATE’S PRIOR ARREST:  Francis asserted error in the district court’s rulings in allowing the prosecutor to impeach him with a conviction for misdemeanor possession of a firearm and in limiting his inquiry into Pate’s pretrial confinement.  “We need not determine whether these rulings were an abuse of discretion where, even cumulatively in light of the entire record, error, if any, was not prejudicial.”

LESSER OFFENSE:  Francis asserted error in the denial of his request for jury instructions on lesser-included second-degree unintentional murder offenses.  An instruction on a lesser-included offense should be given “‘if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.’”

“Here, where the jury was given a lesser-included-offense instruction as to second- degree intentional, unpremeditated murder and attempt of the same, yet found Francis guilty of first-degree premeditated murder and attempt of the same, we conclude that Francis was not prejudiced by the court’s refusal to give instructions as to unintentional murder.”

INEFFECTIVE ASSISTANCE OF COUNSEL:  Francis claimed he was deprived of effective assistance of counsel, asserting that counsel failed to investigate his case, failed to call alibi witnesses, failed to prepare his character witness, failed to question him carefully on direct examination and otherwise failed to defend him adequately at trial.  The Supreme Court held that “as the post-conviction court noted, Francis’s allegations of inadequate legal representation are refuted by the record and otherwise fail to show that had trial counsel presented additional evidence and otherwise addressed Francis’s concerns, the result would have been different. “

NINE OTHER TRIAL CHALLENGES:  Francis challenged the seizure of his Tahoe, the jury selection process, the admission of the photographic lineup and the admission of “blurry” photographs; he asserted discovery violations, juror misconduct, and the denial of a speedy trial; and he also stated that his convictions rest on invalid laws and that consecutive sentencing is in error.  The Supreme Court held that “after a careful examination of these claims, we find them meritless.”

DENIAL OF A POST-TRIAL HEARING:  Francis contended that the post-conviction court abused its discretion in denying him an evidentiary hearing.  An evidentiary hearing is not required unless facts are alleged that, if proved, would entitle the petitioner to relief.

“A petitioner’s allegations must be more than argumentative assertions without factual support.  Francis contends that an evidentiary hearing was needed to evaluate the claims he raised in his post-conviction petition and now on appeal to this court.  We agree with the post-conviction court’s denial of a hearing in that the facts as alleged would not entitle Francis to relief.”

CONCLUSION: “In conclusion, we are satisfied from our meticulous review of the trial record that Francis was properly convicted and received a fair trial.  We further conclude that the denial of post-conviction relief without an evidentiary hearing was not an abuse of discretion.”

Russell Anderson (Page, Paul Anderson, Hanson, Meyer, Barry Anderson, and Gildea)

DATE OF DECISION:  April 5, 2007

RECORD NUMBER:  2007-050

FULL OPINION:  A05-190, A06-940

DESCRIPTION: [MURDER] [DRUGS]

Kidnapping and Execution over $100 Rent Dispute in St. Paul

2007-M-039              State of Minnesota, Respondent, vs. Quanartis DaLee Turnage, Appellant.

THE CRIME:  On March 2, 2004, Turnage and Wa Vang argued about $100 that Vang may have owed Turnage on a rent refund.  Police were called and settled the disruption.

On March 24, 2004, Turnage, his brother Quantez, and their friend Damien Robinson took a heavily-inebriated Vang away in a car.  Vang had served his kidnappers as a translator in their drug operations.

Quantez and Robinson later testified that Turnage stabbed Vang 38 times with two or three knives and many times with a screwdriver, and bashed Vang’s skull repeatedly his head repeatedly with a bat. 

Quantez and Robinson both pleaded guilty to intentional second-degree murder and received sentences of 339 and 299 months respectively.

Turnage was convicted in 2005 of two counts of first-degree murder (intentional murder during a kidnapping and premeditated murder) and one count of intentional second-degree murder in connection with the death of Wa Vang.

FIRST APPEAL:  On January 28, 2007, The Minnesota Supreme Court rejected Turnage’s direct appeal.  Turnage had argued that Vang’s confinement and transportation were too brief to constitute a murder during a kidnapping.  Turnage also contested the prosecution’s use of tapes of Turnage’s phone calls to accomplices from the county jail.

The unanimous en banc decision was delivered by Justice Sam Hanson.

THIS APPEAL:  While Turnage’s direct appeal was pending, Quantez recanted the testimony he gave at Turnage’s trial.  Turnage filed a petition for post-conviction relief, which the post-conviction court denied without holding an evidentiary hearing.

The question presented in this appeal is whether Turnage is entitled to a new trial, or at a minimum to an evidentiary post-conviction hearing, based on Quantez’s recantation.  Turnage has the burden of proving that he is entitled to the relief requested.  The majority applied a three-prong test known as the Larrison test to determine whether a petition for post-conviction relief warrants a new trial based on recantation of trial testimony.    

THE MAJORITY  A petitioner is entitled to a new trial due to witness recantation of trial testimony if (1) the court is reasonably well-satisfied that the testimony given by a material witness was false; (2) without the testimony, the jury might have reached a different conclusion; and (3) the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial. 

“Based on this record, we hold that while the post-conviction court did not articulate the correct legal formulation of the second Larrison prong, the post-conviction court’s denial of the petition was not an abuse of discretion.   Because Turnage did not meet the second prong of the Larrison test, the post-conviction court did not err in denying Turnage’s petition and his request for an evidentiary hearing.”

DISSENT:  Justices Hanson and Paul Anderson opined: “I agree that Turnage had not yet satisfied his burden of proof to establish the right to a new trial because the presentation of the handwritten recantation statement by Quantez was not sufficient to do so.  But they concluded that the recantation statement is sufficient to entitle Turnage to an evidentiary hearing.”

Gildea (Russell Anderson, Page, Meyer, and Barry Anderson)

Dissent:  Hanson and Paul Anderson

DATE OF DECISION:  April 5, 2007

RECORD NUMBER:  2007-0

FULL OPINION: A06-1124,

DESCRIPTION: [MURDER] [GILDEA]

Murderer may be forced to pay Expenses of Victim's Family

2007-0M-038     State of Minnesota, Respondent, v. Anthony John Palubicki, Appellant.

Compensation from Burglar who Fatally Beat a 90-year-year-old Victim in Park Rapids Home

ISSUE: Under state law, may a trial judge include a sentence for a convicted murderer which included requiring him to reimburse the adult children of an elderly victim for their expenses for cleaning the murder scene and attending the trial of their father’s murderer?

 DESCRIPTION OF CRIME:  Two burglars robbed the home of a 90-year-old man near Park Rapids, and beat the victim to death.  In addition to a life sentence, the judge ordered the murderer to compensate the man’s adult children for expenses which include requiring him to reimburse the adult children of an elderly victim for their expenses for cleaning the murder scene and attending the trial of their father’s murderer.

HELD:  The unanimous Supreme Court upheld both the statute and the order for compensation.

               Meyer (Russell Anderson, Page, Paul Anderson, Hanson, Barry Anderson, and Gildea)

DATE OF DECISION:  February 22, 2007

RECORD NUMBER:  2007-0

FULL OPINION:  A06-401,

DESCRIPTION:  [MURDER] 

Stripped, Beat and Robbed a Senior Newspaper Courrier on Dawn Route in Duluth

2007-M-037      State of Minnesota, Respondent, vs. Wintersun Lemieux, Appellant.

DESCRIPTION OF CRIME:  On July 9, 2003, Lemieux stripped and beat to death 68-year-old Irwin Teitelbaum while Teitelbaum was making his pre-dawn newspaper deliveries.

Before trial, Lemieux moved to suppress the evidence discovered during the warrantless sweep-search of 15 East 13th Street, and all evidence derived from that search.  Following a three-day omnibus hearing, the district court denied the motion, concluding that the warrantless entry was justified under the emergency-aid exception to the warrant requirement. 

At trial, in addition to evidence from the search, the state presented the physical evidence and forensic analysis of the evidence collected from 729 West 4th Street; and also, evidence from the crime scene, including Lemieux’s bloody thumbprint on top of the bundle of newspapers, a water bottle with Lemieux’s fingerprints and DNA, and miscellaneous papers with bloody shoe prints similar to the treads on Lemieux’s shoes. 

There were also Lemieux’s police statements.  The resident from 729 West 4th Street testified about Lemieux’s confession made in the early morning hours of July 9, 2003, and the taxi driver testified about picking up Lemieux from that residence and driving him by the crime scene.  

The medical examiner testified that Teitelbaum’s death was caused by blunt-force trauma to the head and neck region, and that he died relatively quickly after the attack started. 

The jury found Lemieux guilty as charged, and he was committed to the custody of the Commissioner of Corrections for the mandatory life term. 

THE HOLDING:  Justice Gildea joined the 5-2 majority opinion by Chief Justice Russell Anderson which upheld Lemieux’ conviction and life sentence.

MAJORITY:  Appellant Wintersun Lemieux was convicted and sentenced in St. Louis County District Court for the crime of first-degree murder in connection with the death of 68-year-old Irwin Teitelbaum.  The Court held that police entry of a residence in close proximity to a brutal and seemingly random homicide was justified under the emergency-aid exception to the warrant requirement because the officers had reasonable grounds to believe that a burglary was in progress or had recently occurred, the entry was motivated primarily to look for possible victims, and the scope of the search was limited to the emergency.

DISSENT:  Justice Meyer opined:  I would not require that an emergency-aid search be supported by evidence establishing probable cause to believe an emergency exists at a particular location, and instead I would inquire whether the emergency-aid search was based on a reasonable belief supported by specific and articulable facts.  I disagree with the majority’s conclusion that the facts of this case give rise to an objectively reasonable belief that an emergency-aid search was justified.  Finally, I would conclude that the evidence obtained as a result of that search was improperly admitted, prejudicing defendant Wintersun Lemieux as to two of the three counts against him.

CONCUR & DISSENT:  Justice Page opined:  I join Justice Meyer’s dissenting opinion except as to her conclusion that an emergency-aid search may be justified by mere reasonable suspicion.  While I agree with the court that the higher probable cause standard applies to emergency-aid searches, for the reasons stated in Justice Meyers dissent, the facts of this case fail to establish reasonable suspicion, much less probable cause.

Russell Anderson (Paul Anderson, Hanson, Barry Anderson, and Gildea)

                    Dissent:  Meyer

                    Concur & Dissent:  Page

DATE OF DECISION:  January 18, 2007

RECORD NUMBER:  2007-016

FULL OPINION:  A05-554,

DESCRIPTION:  [MURDER]  [ROBBERY]

Latino Gang Revenge in Minneapolis

2007-0M-036     State of Minnesota, Respondent, vs. Arturo Montano Martinez, Appellant.

DESCRIPTION OF CRIME:  On December 2, 2000, Montano Martinez was standing outside near Lake Street and Portland Avenue in Minneapolis with members of the Latin Kings gang.  A car with members of the rival 18th Streeters gang, including the victim, Ernesto Ayala, approached the group.  Shots were fired from the car and two Latin Kings members were wounded.  Montano Martinez assisted one of the victims into a vehicle and accompanied him to the hospital. 

After leaving the hospital, Montano Martinez went to the home of Roberto Lopez-Rios, where a group of Latin Kings members were hanging out with members of a separate gang, the Sureños 13.  According to Vargas, at some point he, Montano Martinez, Lopez-Rios, and two Sureños 13 gang members set out to find 18th Streeters to shoot in retaliation for the earlier shooting.  The plan was for either Vargas or Lopez-Rios to do the shooting.  Just before the shooting, Lopez-Rios attempted to hand Vargas a gun but dropped it on the floor between Montano Martinez’s legs.  Montano Martinez then picked it up, got out of the vehicle by crawling over Vargas, and shot Ayala to death.

Montano Martinez fled to Mexico, but turned himself in to authorities in California in April 2004.  Two Minneapolis detectives interviewed Montano Martinez while he was in custody in California and recorded a statement in which Montano Martinez admitted killing Ayala. 

In that statement, Montano Martinez indicated that on the night of the shooting the group in the car went to the scene of the shooting to retaliate against 18th Streeters gang members for the earlier shooting.  He also indicated that the plan was for either Vargas or Lopez-Rios to be the shooter, but when Lopez-Rios dropped the gun, Montano Martinez picked it up, exited the vehicle, and shot Ayala.  When the detectives asked Montano Martinez why he and the others in the vehicle went searching for the 18th Streeters, he responded, “[I]t was just some stupid stuff with gangs.” 

THE TRIAL:  Montano Martinez testified in his own defense.  He testified that he was a member of the Latin Kings gang and had been a member for approximately six months before shooting Ayala.  He further testified that the Latin Kings commit crimes of violence, including drive-by shootings and murders.  When asked about the role of retaliation and respect, he testified that when an enemy of the Latin Kings “disrespects” a King, “something” has to be done and that “[something] is harm.”  With respect to the night of the Ayala shooting, Montano Martinez testified that he remembered very little because he had been drinking heavily and had smoked crack and marijuana.

In his testimony, Montano Martinez admitted getting into the vehicle with Lopez-Rios, Vargas, and two others, but denied knowing about a plan to retaliate against the 18th Streeters.  Montano Martinez explained that he was not aware of what was going on because he was intoxicated and under the influence of drugs.  Montano Martinez testified that he fell asleep in the car, but awoke when they encountered the 18th Streeters because he felt a gun fall into his lap.  According to Montano Martinez, he picked up the gun and crawled out of the vehicle and then, out of fear, shot at Ayala.

There was also testimony that Montana Martinez told other people that he was involved in Ayala’s shooting.  Bryanna Redbird, who was with Montano Martinez when the 18th Streeters gang members carried out their shooting, testified that after the Ayala shooting Montano Martinez told her that “they went and blasted them fools.”  Armando Jaramillo testified that Montano Martinez admitted to him that he shot at the 18th Streeters gang members.

On December 14, 2004, a Hennepin County jury found appellant Arturo Montano Martinez guilty of four counts of first-degree murder.   The trial court sentenced Montano Martinez to life imprisonment on count one—first-degree premeditated murder, and a 24-month consecutive sentence on count two—first-degree premeditated murder committed for the benefit of a gang.

THIS APPEAL:  On this direct appeal, the Minnesota Supreme Court rejected Martinez’ first two claims: (1) whether the admission of accomplice Francisco Vargas’s testimony from the trial of another accomplice was error; and ((2) whether the admission of certain gang expert testimony was error.

For the reasons discussed below, the Supreme Court affirmed Montano Martinez’s conviction, but vacate his sentence and remand for resentencing consistent with this opinion.

Justice Gildea joined the unanimous decision by Justice Alan Page which upheld Martinez’ convictions and revised his sentence.

First, the Minnesota Supreme Court rejected Martinez’ claim that the admission of accomplice Francisco Vargas’s testimony from the trial of another accomplice was error.

there is no confrontation problem, nor is there any doubt about whether Vargas made the statement or what it contained.  Before Vargas’s testimony from the Lopez-Rios trial was admitted into evidence, Vargas admitted giving the testimony and indicated that he told the truth at the time that he gave it.  Moreover, because Vargas admitted giving the testimony, there is no dispute over whether he made the statement or what it contained.  Finally, it should be noted that Vargas ultimately testified at Montano Martinez’s trial and was subject to cross-examination.  While Vargas was a reluctant witness, his testimony was largely consistent with his testimony from the Lopez-Rios trial.

Also, as in Ortlepp, there was a significant amount of evidence introduced at trial pointing towards Montano Martinez’s guilt.  That evidence included Montano Martinez’s trial testimony and his self-incriminating statement to the police, both of which corroborate much of Vargas’s testimony from the Lopez-Rios trial and point toward finding Montano Martinez guilty.  The state also introduced testimony from Redbird and Jaramillo indicating that Montano Martinez had told them that he was involved in Ayala’s murder.

Based on the totality of the circumstances, we conclude that Vargas’s statements from the Lopez-Rios trial are sufficiently trustworthy and were admissible as substantive evidence under Rule 803(24).  Therefore, the trial court did not abuse its discretion when it admitted them.

Second, the Minnesota Supreme Court rejected Martinez’ claim that the admission of certain gang expert testimony was error.

We have considered the admissibility of gang expert testimony in four recent cases:  State v. In each case, there was ample independent evidence linking the defendant to the gang and supporting a conclusion of guilt as to the crime charged.  In each case, we concluded that the expert corroborated the testimony of numerous witnesses and likely was no more influential than much of the other evidence presented linking the defendant to the crime.  And, in each of those cases, we concluded that reversal was not warranted because the error did not affect substantial rights. 

Third, the Minnesota Supreme Court accepted Martinez’ claim that Montano Martinez’s sentence was unlawful.

Montano Martinez was sentenced to life in prison on count one, first-degree premeditated murder, and a consecutive sentence of 24 months in prison on count two—first-degree premeditated murder committed for the benefit of a gang.  Montano Martinez argues, and the state agrees, that the court erred when it imposed Montano Martinez’s sentence in that manner.  They are correct. 

As we said in State v. LaTourelle, 343 N.W.2d 277, 284 (Minn. 1984): “[T]he proper procedure to be followed by the trial court when the defendant is convicted on more than one charge for the same act is for the court to adjudicate formally and impose sentence on one count only.”  (Emphasis added.)

Here, Montano Martinez was found guilty on four counts and the court adjudicated formally and imposed sentences on counts one and two.  Therefore, we vacate Montano Martinez’s sentences and remand to the trial court for resentencing.

Page (Russell Anderson, Paul Anderson, Hanson, Meyer, Barry Anderson, and Gildea)

DATE OF DECISION:  January 11, 2007

RECORD NUMBER:  2007-011

FULL OPINION:  A05-696,

DESCRIPTION:  [MURDER] 

Tribal Gang Fight at Party near Morton

2007-M-35       State of Minnesota, Respondent, vs. Morris Jerome Pendleton, Jr., Appellant.

DESCRIPTION OF CRIME:  On the evening of September 23, 2004, Shelly Williams hosted a party in Morton, Minnesota.  Guests at the party included Pendleton, Keith Crow, Vernon Jones, J.P., and W.S. (“the five men”), all of whom were principally involved in Berry’s death.  Other party guests included Alicia Connor and L.B., among others.  Approximately 15 people attended the party, many of whom were consuming alcohol and smoking marijuana. 

            Berry arrived later and began arguing with J.P.  The confrontation escalated, and they began punching one another.  Crow came to J.P.’s aid, and both proceeded to punch and kick Berry.  Soon Berry was bleeding and unconscious on the floor.  One witness, S.E., saw Morris Pendleton stomp on Berry.

            During the fight, many of the guests left the party, leaving Berry, Pendleton, Crow, Jones, J.P., W.S., Connor, Williams, and L.B.  The five men robbed Berry, taking his wallet, jewelry, and car keys.  The five men, Connor, Williams, and L.B. left Berry unconscious in the dining room and took Berry’s Chevrolet Tahoe for a ride, with Pendleton driving.  During the drive, Pendleton suggested that J.P. stab Berry and cut off his head.  Crow agreed and suggested that Berry’s body be dumped in the river.

The group returned to Williams’s house, where Berry continued to lie unconscious.  The five men carried Berry, who was wrapped in a blanket, out to the Tahoe, placing him in the rear of the vehicle.  Crow told Williams and L.B. to stay at the house and clean up Berry’s blood.  As the rest of the group got into the Tahoe, Pendleton warned Williams that her child would be harmed if she told anyone what happened.

            Pendleton drove the Tahoe toward the Minnesota River, taking Oxford Avenue, a rural dirt road, which branches off to a trail that leads down to the river.  After backing the Tahoe up to an embankment, the five men took Berry out of the back and dragged him down the embankment to the riverbank.  Connor remained with the Tahoe.  Five to ten minutes later, the men returned one at a time.  Pendleton returned first and said that J.P. fell into the river.  When all five men had returned, Pendleton said, “[W.S.] had got him good,” and he also mentioned that he had blood on his shoes. 

            Pendleton suggested burning the Tahoe, and he drove the group to his parents’ house where he retrieved a can of gas.  They drove back to Oxford Avenue after dropping off W.S. and Jones.  Connor and Crow got out of the Tahoe some distance down Oxford Avenue, and Pendleton and J.P. continued down the road.  The Tahoe was burning a few minutes later.  Two police officers soon arrived at the scene, but they never saw Pendleton. 

            Pendleton later arrived at Floyd Fischer’s house, asked Fischer for a pair of shoes because his were “bloody and muddy,” and also asked for a ride because there were police around.  When asked what Pendleton told him about the night’s events, Fischer responded: “That they torched the vehicle and that they stabbed up Junior.”^[2]  Sandra Larsen-Matray, Fischer’s daughter, gave Pendleton a ride to his parents’ house, and he told her about dumping a body in the river, torching a vehicle, and running from the police.   

            Berry’s autopsy revealed fifteen stab wounds to his chest.  Based on the groupings and angles of the stab wounds, Dr. Paul Nora testified that there was a greater chance than not that there were multiple stabbers.  Dr. Nora also determined that the stab wounds caused Berry’s death.  

Evidence recovered at or near the crime scene included two tee-shirts.  Analysts determined that among the people involved, one tee-shirt contained a mixture of DNA from which only Berry and Pendleton could not be excluded.  Defense counsel argued that this shirt was worn by J.P. and contained Pendleton’s DNA because J.P. had borrowed the shirt from Pendleton when they had recently stayed at the same house.

Pendleton testified at trial.  He denied participating in Berry’s beating at the party.  He also denied ever driving Berry’s Tahoe, stating that J.P. drove.  He testified that he never suggested that Berry be killed, and he did not help the others carry Berry to the Tahoe or place him in the vehicle.  Pendleton testified that once at the river embankment, he did not help take Berry out of the Tahoe, and he remained at the top of the embankment, where he witnessed J.P. stab Berry at least twice.  He testified that he then left through a cornfield, arriving at Floyd Fischer’s house two hours later.  While on the way to Fischer’s, Pendleton stated that he saw a fire and emergency vehicles in the distance.    

            On September 24, 2004, Pendleton and his girlfriend, Jamie Renville, went to Renville’s house in Sisseton, South Dakota.  Sometime during the following two days, Pendleton went to Minneapolis, where he turned himself in to police on October 4.  In statements to police, Pendleton initially denied even witnessing the stabbing.   

THE TRIAL: Pendleton was indicted on three counts of first-degree murder: Count I – premeditated murder, in violation of Minn. Stat. § 609.185(a)(1) (2004); § 609.05 (2004) (aiding); Count II – felony murder while committing kidnapping, in violation of Minn. Stat. § 609.185(a)(3) (2004); § 609.05; and Count III – felony murder while committing aggravated robbery, in violation of Minn. Stat. § 609.185(a)(3); § 609.05.

The jury found Pendleton guilty of counts one and two, premeditated murder and felony murder while committing kidnapping, and acquitted him of count three.  The district court sentenced Pendleton to life imprisonment without the possibility of parole for felony murder while committing kidnapping.   

THIS APPEAL:  On this direct appeal, the Minnesota Supreme Court

Justice Gildea joined the unanimous decision of Justice Barry Anderson which upheld Pendleton’s conviction and sentence.

First, the Minnesota Supreme Court rejected Pendleton’s claim that the district court’s denial of the appellant’s objection to the state’s peremptory challenge to a prospective juror was not clearly erroneous even though the court failed to follow the prescribed procedure set out in Batson.

Second, the Minnesota Supreme Court rejected Pendleton’s claim that the district court clearly abused its discretion by determining that the probative value of two of the appellant’s prior convictions outweighed their prejudicial effect and admitting the convictions into evidence for impeachment purposes.

The court admitted evidence of a conviction for fleeing a peace officer, to which Pendleton pleaded guilty in June 2000, and a conviction for making terroristic threats, to which Pendleton pleaded guilty in July 2000.  The facts underlying these convictions were not referred to during trial.  Pendleton argues the prejudicial effect of these convictions outweighed their probative value. 

Third, the Minnesota Supreme Court rejected Pendleton’s claim that the district court committed error in its jury instruction for felony murder while committing kidnapping, where the court did not require the jury to unanimously agree on a single purpose under the purpose element of kidnapping, because the appellant failed to establish a due process violation.

DATE OF DECISION:  January 11, 2007

RECORD NUMBER:  2007-010
FULL OPINION:  A05-1758

DESCRIPTION:  [MURDER]  [KIDNAPPING]