Execution in a Dance Club parking lot in Minneapolis.

2007-M-043       Leon M. Perry, petitioner, Appellant, vs. State of Minnesota, Respondent.

THE CRIME:  Two weeks before the murder, Perry allegedly beat Brian Thomas severely in the parking lot of the Riverside Supper Club in Minneapolis.  On July 8, 1995, Thomas left the club when he saw Perry.  Perry followed him to the lot and shot Thomas four times through the driver’s window from a distance of one foot.

This was observed by an off-duty police officer from a distance of 50 yards.  Officer Eric Lukes pursued Perry, exchanging shots.  Perry discarded his gun anddove into a car with three friends.

When the four men were placed on the ground, Perry allegedly told the three friends that he had killed a man.  Perry was placed in one police car, and the three friends were placed in a police car with a tape recorder. One friend told the others that “Leon said he did the dude.”

A handgun was found where Officer Lukes said he had seen Perry discard it.  Bullets in that gun, and bullets later tested through that gun, matched the bullets recovered from Thomas’ body and car.

Although Perry initially denied he had anything to do with the shooting, he later confessed to the killing when confronted with an incorrect claim that several witnesses had watched the murder.  The interviewing detective had misunderstood the transcript of the tape of the three friends to indicate that one or more of them had seen Perry shoot Thomas.  One friend said on the tape that “Leon said he did the dude.”

A Hennepin County jury convicted Perry of first-degree premeditated murder and he was sentenced to life in prison.

THE DIRECT FIRST APPEAL:  Writing for the Supreme Court in 1997, Justice Alan Page denied Perry’s first appeal on three points.

First, the Court rejected Perry’s claim that the trial court had prejudiced the jury by allowing the introduction of the statement by a friend in the police car who said “Leon said he did the dude” which indicated premeditation. 

The Court held:  “[w]e conclude that the trial court did not abuse its discretion in admitting the statement "Leon said he did the dude" because: (1) the statement was not hearsay, was not unduly prejudicial, and was relevant; and (2) admission of the statement did not violate Perry's right to confrontation under the Sixth Amendment.”

Second, Perry argued that if his trial counsel did open the door for admission of the statement "Leon said he did the dude," then, to the extent that the inevitable outcome of that choice was admission of harmful evidence, doing so constituted ineffective assistance of counsel. The trial court denied Perry's motion for a mistrial on that ground.

 The Court held:  “even if we were to assume that Perry's trial counsel's performance was legally deficient, Perry has not shown that the outcome of his trial would have been different but for his trial counsel's mistake. Indeed, Perry concedes that the jury had "a great deal of reliable evidence to sift through" such as Officer Lukes' testimony, the forensic reports, and testimony about the relationship between Thomas and members of Perry's family. Perry has failed to provide any basis, other than his bald assertion, for concluding that the outcome of his trial would have been different had the statement not been admitted. Perry's bald assertion is not enough to meet the second prong of the Strickland standard.”

Third, Perry argued that his conviction must be reversed because there were no minorities on the grand jury that indicted him.

The Court held:  “our review of the record does not suggest or imply that race played an impermissible role in Perry's indictment, nor are there any facts in the record from which one might infer that race played an impermissible role in his indictment.”

THE SECOND APPEAL:  Writing for the Supreme Court in 2005, Justice Barry Anderson rejected Perry’s second appeal over two grounds.

First, Perry claimed that his first appeal that the lack of persons of color on the grand jury that indicted him did not just violate the Sixth Amendment (as he had alleged in 1997), but also violated the Fourteenth Amendment.

The Court held that this claim was barred because it should have been brought in the 1997 appeal because Perry’s lawyers knew or should have known about the potential for an “equal protection” claim under the Fourteenth Amendment when they brought the same claim under the Sixth Amendment.  Under its Knafffla rule,   the Minnesota Supreme Court bars subsequent appeals on issues of which they appellant knew or should have known at the time of an earlier appeal.

Second, Perry argued that, although the jury returned a signed verdict form that convicted him of first-degree premeditated murder, it failed to return signed verdict forms ruling on five other charges, and that this failure denied him a fair trial. On this basis, Perry raised a claim that he had no effective assistance of counsel because his lawyer did not object to the jury’s failure to sign the other five verdict forms.

The Court held that this claim was barred because it should have been brought in the 1997 appeal because Perry’s lawyers knew or should have known about the potential for this “ineffective assistance of counsel” claim.  Under its Knafffla rule,   the Minnesota Supreme Court bars subsequent appeals on issues of which they appellant knew or should have known at the time of an earlier appeal.

THIS THITD APPEAL:  T

In this case, Perry raised claims that could have been raised in earlier appeals.  Claims asserted in a second or subsequent post-conviction petition are procedurally barred under this court’s Knaffla rule if they could have been raised on direct appeal or in a previous post-conviction petition.

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

DATE OF DECISION:  May 3, 2007

RECORD NUMBER:  2007-054

FULL OPINION:  A06-1562

DESCRIPTION:  [MURDER] 

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