2009-M-121             State of Minnesota, Respondent, vs. Justin Lamont Buckingham, Appellant.

Appellant was found guilty of one count of aiding and abetting first-degree premeditated murder, one count of aiding and abetting first-degree drive-by shooting murder, two counts of aiding and abetting attempted first-degree premeditated murder, and five counts of aiding and abetting attempted first-degree drive-by shooting murder.  He was sentenced to life imprisonment without the possibility of parole, two 180-month consecutive sentences, and three 243-month concurrent sentences. 

These convictions and sentences arose out of the shooting death of Ricardo Walker on February 11, 2007.  Buckingham appeals his conviction and argues: that his statements to the police should have been suppressed because they were taken in violation of State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994), and were taken without the consent of Buckingham’s attorney; that the evidence was insufficient to convict him of first-degree murder; that he was given a sentence that was over the statutory maximum; and that the prosecutor committed misconduct.  We affirm as modified.

First, no substantial violation of the recording requirement set out in State v. Scales occurred when appellant’s Miranda warning was recorded, appellant demanded an unrecorded statement, and appellant did not raise any factual dispute relating to the Scales violation.

Second, the district court did not err in admitting a statement taken without the consent of appellant’s attorney where appellant, after receiving a Miranda warning, gave an unrecorded statement to law enforcement, notwithstanding appellant’s earlier request for the presence of counsel at the taking of the statement. 

Third, evidence was sufficient to convict appellant of first-degree premeditated murder.

Fourth, the State concedes that the maximum sentence was incorrectly calculated.  Given the de minimis sentencing error here, we reduce the sentences for aiding and abetting attempted first-degree drive-by shooting murder to 240 months each, the maximum sentence permitted under the statute.

Fifth, Appellant’s pro se arguments are without merit.

               Barry Anderson (Magnuson, Page, Paul Anderson, Meyer, Gildea, and Dietzen)

[MURDER]