Wednesday, November 2, 2016

Minneapolis Street Execurion for Drug Revenge




2006-M-05          State of Minnesota, Respondent, vs. Reginald Lee Gail, Appellant.

BACKGROUND:  On November 20, 2004, Reginald Lee Gail was found guilty of intentional murder while committing or attempting to commit the crime of unlawful sale of a controlled substance.  The district court sentenced Gail to life in prison.  This was his first, direct appeal.

DESCRIPTION OF CRIME:  Drug-pusher Gail argued with customer Yvain Braziel about the quality and amount of cocaine in a proposed sale of $250 of drugs, so Gail shot Braziel repeatedly and left him dead in the street in front of witnesses.

THIS DECISION:  Justice Gildea wrote the opinion to uphold Gail’s conviction and sentence.

First, Justice Gildea rejected Gail’s claim that the search warrant issued for the Plymouth apartment violated the United States and Minnesota Constitutions because it was not supported by probable cause.  When examining whether a search was supported by probable cause, the ultimate question is whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.”  We look only to information presented in the affidavit in making this determination.   The application for the search warrant, interpreted in a common-sense and realistic manner, must be found to contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched.

The application stated that Gail had been positively identified by an eyewitness as the shooter. The application also established that Gail had a connection to the Plymouth apartment; he did not simply happen upon it or briefly pass through the apartment. Rather, the application establishes that Gail had enough of a connection with the Plymouth apartment to contact his probation officer using the telephone in this residence. According to the application, Gail remained at the apartment long enough for the probation officer to call the police, for the police to locate the address of the apartment, and for the police to travel to the apartment and find Gail there. The murder weapon had not been located and the application establishes that the Plymouth apartment was the last place available to Gail to hide evidence of the crime for which he had been identified as the perpetrator.  Because of Gails connection to this apartment and his arrest there just 10 days after the murder, we conclude it was reasonable to infer that the murder weapon might be found there.

In sum, the application, interpreted in a common-sense and realistic manner, contained information which would lead a person of reasonable caution to believe that the gun might have been left behind in the Plymouth apartment.  The great deference that this court affords to an issuing judges determination of probable cause, and the preference that we accord to warrants, support our conclusion that there was probable cause to issue the search warrant for the Plymouth apartment.  We hold that Gails constitutional rights were not violated because the warrant to search the Plymouth apartment was supported by probable cause.

Second, Justice Gildea rejected Gail’s claim that his rights under the Minnesota Constitution were violated when the police obtained cell phone records from Verizon Wireless.  When we examine whether a defendant can bring a claim asserting a violation of his or her Fourth Amendment rights, the issue is whether the disputed search has infringed an interest of the defendant which the Fourth Amendment was designed to protect.  Gail has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure. 

The protections of the Minnesota Constitution are not triggered unless Gail has a legitimate expectation of privacy in the cell phone records. Legitimate expectations of privacy are those expectations of privacy that society is prepared to recognize as reasonable.”  We use a two-step analysis to determine whether those protections are triggered. The first step is to determine whether Gail exhibited an actual subjective expectation of privacy in the cell phone records. The second step is to determine whether that expectation is reasonable.

Gail had the burden of proving that he had a subjective expectation of privacy. He produced no evidence to support the notion that he was trying to keep his use of the cell phone he sub-leased from Davis private.  Based upon this record, we find that Gail has not met his burden of showing he had a subjective expectation of privacy in the cell phone records obtained from Verizon.  Accordingly, the district court did not err in refusing to suppress the cell phone records.

Gail also contends that the cell phone records should have been suppressed because this statute requiring a separate warrant for a wiretap or phone records was violated. Specifically, Gail claims that the statute was violated because the police were not able to produce a subpoena signed by the County Attorneys Office. Gail relies upon two cases for the proposition that suppression of evidence is the appropriate remedy when statutory or rule requirements for the collection of that evidence have not been satisfied. For purposes of this case, we will assume that suppression is an available remedy for violation of the statute.  In this case, Gail cannot avail himself of that remedy because, as set forth above, he is a complete stranger to Verizon with regard to the cell phone records.  Accordingly, we hold that the district court did not err in failing to suppress the cell phone records on the basis of the statutes alleged violation.

Third, Justice Gildea rejected Gail’s claim that the district court erred when it denied his motion to empanel a different jury venire because of underrepresentation of African-Americans, and his alternative motion to discover information relating to the selection process for petit jury pools. Gail did not file a written challenge to the jury panel as required by law.  Instead, Gails counsel orally objected to the jury venire after it was brought into the courtroom. Gail argued that a new venire should be brought up because only one person self-identified as African-American on the 50-person venire.  In the alternative, Gail asked the district court to order the jury office to provide information about the selection of the jury pool.  The court denied the requests, find[ing] no evidence of material departure from the requirements of law that govern the selection process here in Hennepin County.”

After five jurors had been selected and Gail had struck the only African-American venire person for cause, he renewed his request that the court order a new venire.  The trial court rejected the renewed oral request.

In order to establish a prima facie showing” under the Williams test that his Sixth Amendment right to a representative jury venire have been violated, a defendant must show that over a significant period of time,” panel after panel, month after month, the group of eligible jurors in question has been significantly underrepresented on the panels and that this results from “systematic exclusion.”

Gail has provided no evidence to satisfy the Williams standard. To the contrary, Gails attorney told the district court: I can tell you that it seems like weve had more African Americans on our panels recently. This was a shock yesterday to see only one.

Moreover, even if Gail had made a showing of underrepresentation, we have upheld the selection process for petit jury pools in Hennepin County against constitutional challenge. Gail did not show that these procedures have changed in any material respect since Willis and Roan were decided.

Because Gail did not make a prima facie showing that his constitutional rights to a representative jury venire were violated, we hold that the district court did not err in denying Gails motions for a new venire.

Turning to Gails alternative argument, Gail did not provide either the district court or this court with the legal authority under which the district court was requested to gather information relating to the selection process for Hennepin County petit jury pools. The information Gail sought appears to have been available to him under rule 3, subd. 5(b), and rule 5 of the Rules of Public Access to Records of the Judicial Branch.  We hold that the district court did not err when it denied Gails request that the court gather the information on Gails behalf.

Fourth, Justice Gildea rejected Gail’s claim that that the evidence was insufficient to convict him of murder in the first degree while committing or attempting to commit the felony crime of unlawful sale of a controlled substance.  When reviewing sufficiency of evidence, we inquire whether, given the facts in the record and any legitimate inferences that can be drawn from those facts, a jur0y could reasonably find that the defendant was guilty of the charged offense.  We view the evidence in the light most favorable to the verdict.

The evidence provides ample support for the conclusion that Gail shot Braziel intending to kill him and that the shooting happened as part of a drug deal. Hollingsworth testified that Braziel came to Minneapolis to buy $250 worth of cocaine from Gail.  While Hollingsworth and Braziel were driving around Minneapolis with Gail, and after Gail received a cell phone call, Gail told Braziel what the price was going to be $250.  Gail then directed Braziel to drive to a four-door, red Dodge Neon where two men were waiting.  Gail told Braziel to follow the Neon. Gail later told Braziel to get into the Neon, and after some reluctance, Braziel got in the Neon with Gail and the other two men to complete the deal. Hill testified that, after Gail and Braziel got into the car, they just started to make the deal. Hill testified that Braziel started arguing with Gail that he wanted his money back because the cocaine was short and Braziel and Gail started fighting.

Hollingsworth testified that he saw Gail shoot Braziel numerous times after he saw a struggle in the Neon.  Hollingsworths description of Gails clothing matched the description given by A.L., who saw someone in a bulky, dark coat fire multiple shots down toward the ground from outside of the passenger side of the Neon.  Finally, the medical examiner testified that Braziel died from multiple gunshot wounds and the manner of death was homicide.

Viewing the evidence in the light most favorable to the verdict, it is clear that there was sufficient evidence to convict Gail of murder in the first degree while committing or attempting to commit the unlawful sale of a controlled substance.

Fifth, Justice Gildea rejected Gail’s claim that that the district court committed reversible error by not providing the jury with an accomplice corroboration instruction for the testimony of both Hollingsworth and Hill.  We have held that trial courts have a duty to instruct juries on accomplice testimony in any criminal case in which it is reasonable to consider any witness against the defendant to be an accomplice.  This court evaluates the erroneous omission of [an accomplice] jury instruction under a harmless error analysis.

Under Minnesota law, a criminal conviction may not be based upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense.  In general, the test for determining whether a witness is an accomplice for purposes of section 634.04 is whether he could have been indicted and convicted for the crime with which the accused is charged.  When the evidence establishing whether a witness is an accomplice is disputed or susceptible to different interpretations, then the question whether the witness is an accomplice is one of fact for the jury. 

Gail argues that both Hollingsworth and Hill were accomplices to the underlying felony of which the jury found him guilty sale or attempted sale of a controlled substance and also accomplices to the intentional murder.

Hollingsworth, however, is clearly not an accomplice in the underlying felony.  At most, Hollingsworth aided Braziel in the purchase of cocaine, not the sale of cocaine.  Accordingly, Hollingsworth cannot be considered an accomplice even to the underlying felony.

Regarding Hill, we do not decide whether Hill was an accomplice in the murder or that it was error for the district court not to allow the jury to decide the question because we conclude that any error in not submitting the accomplice issue to the jury was harmless on this record.

All of these factors discussed in prior key cases exist in this case.  The state did not give Hill any leniency for testifying against Gail.  Hills testimony on the drug deal was against his own interest, because it tended to establish him as an accomplice in the felony sale of cocaine.  Hollingsworths testimony corroborated Hills that Gail was an essential part of the drug deal.  The states closing argument only mentioned Hills testimony to corroborate the testimony of Hollingsworth and A.L.  The states argument regarding Hill constituted approximately two pages of transcript out of more than 30 pages of final arguments.  When the state began to talk about Hill, who clearly made the most contradicted statements of all the witnesses, the state said, you dont have to believe everything someone says. Finally, the district court gave the jury a three-page instruction on the believability of witnesses.

As the state argues, the central point of having Hill testify was to counter the defenses argument that someone in the Neon shot Braziel.  Given the states cautious treatment of Hills testimony and the corroboration of his testimony by other evidence, if the failure to provide the instruction was error, beyond a reasonable doubt the omission did not have a significant impact on the verdict.  We therefore hold that any error in the district courts failure to give the accomplice corroboration instruction was harmless.

Sixth, Justice Gildea rejected Gail’s claim that a state law that allowed the prosecutor to sequester the jury after its second day of deliberations gave the prosecutor an unconstitutional veto power over a decision to allow the jurors to separate after beginning deliberations.  A state law provides:  “With the consent of the defendant and the prosecution, the court, in its discretion, may allow the jurors to separate over night during deliberation.Gail argued that giving the prosecution the right to consent to the separation of jurors gives the state the final word on sequestration. Gail then argued that, because the judiciary has exclusive authority over procedural matters, the rule violates the separation of powers doctrine.

“There is no merit to Gails argument. The district court, not the state, has the final word on the issue of sequestration.  Even where both counsel consent, the rule, through the use of the permissive may, leaves the sequestration decision vested with the district court.  In no way has a separate branch of government been given the final word in a procedural matter in this rule.  We hold that Minnesota Rule of Criminal Procedure 26.03, subd. 5(1), by permitting the district court to consider separation of a jury only if both the defendant and the state consent to such separation, does not violate the separation of powers doctrine.

Seventh, Justice Gildea rejected Gail’s second claim that a state law that allowed the prosecutor to sequester the jury after its second day of deliberations gave the prosecutor an unconstitutional veto power over a decision to allow the jurors to separate after beginning deliberations.  Here, Gail argued the district court abused its discretion in not asking the jurors for their preferences as to the timing of the start of deliberations.

Turning to the second aspect of Gails argument, he contends he is entitled to a new trial because the district court did not ask the jurors whether they would prefer to begin deliberations on Friday or on Monday and whether, if deliberations began on Friday, there were concerns with deliberating over the weekend.

We review this decision under an abuse of discretion standard.  As the district court noted, in denying Gails motion to inquire of the jurors as to their preferences, trying to have the jury make a decision about when they would like to deliberate is possibly fraught with real problems. The district court also noted that the trial was being conducted the week before the Thanksgiving holiday, and that during jury selection scheduling issues were discussed.  Finally, the district court expressed concern that further questioning of the jurors could be construed as an indication by the court as to how much time the court thought the jurors might need to reach a verdict.

We hold that the district court did not abuse its discretion in denying Gails motion to ask the jurors about their preference as to the timing for the commencement of deliberations.

Eighth, Justice Gildea rejected Gail’s claim that the state committed prosecutorial misconduct by improperly shifting the burden of proof, giving a personal opinion, and vouching for a witness.  Gails claims of misconduct are without merit.

In claiming that the prosecutor improperly shifted the burden of proof, Gail relies upon the prosecutors statement in closing argument: You have to know that the defendant, and the State has to prove beyond a reasonable doubt, that this defendant acted with the intent to kill Mr. Braziel. No rational jury would have heard that statement to indicate that the defendant had to prove anything. This statement was not misconduct.

Gail next claimed that the state gave a personal opinion when it said:“[Y]ou might decide that in looking at this that while the defendant had not completed the aggravated robbery or had not completed the drug sale, although I suggest to you that he had done both of those, you may decide he hadnt, and you may decide to look at this as to whether it was an attempt or not.”   The state was merely telling the jury that Gail could be found guilty if the jury found that Gail had attempted, rather than completed, the underlying felonies. There was no misconduct by the state in making this statement.

Finally, Gail argued that the states argument that Hollingsworth was a believable person and was frank and sincere constitutes impermissible vouching for a witness.  Vouching occurs when the government implies a guarantee of a witnesss truthfulness, refers to facts outside the record, or expresses a personal opinion as to a witnesss credibility.”  But the state may argue that particular witnesses were or were not credible.”  The state was merely arguing that Hollingsworth was credible, and therefore we hold that the state did not commit misconduct.

Gail’s conviction and sentence were affirmed.

DATE OF DECISION:  May 18, 2006
RECORD NUMBER:  2006-090
FULL OPINION:  A05-329,
DESCRIPTION:  [MURDER] [GILDEA] [DRUGS]

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