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]

School Shooting at Roccori High School near St. Cloud

2007-M-34               State of Minnesota, Respondent, vs. John Jason McLaughlin, Appellant.

DESCRIPTION OF CRIME:  On September 24, 2003, fifteen-year-old McLaughlin brought a handgun to Rocori High School south of St. Cloud and shot to death fellow students Seth Bartell and Aaron Rollins.  Gym teacher Mark Johnson took the gun from McLaughlin and walked him to the office.

When the police took McLaughlin to the station, McLaughlin said that he started thinking about bringing a gun to school approximately one week earlier.  He also said that two days before the shootings he checked the school for metal detectors and security cameras.  Toward the end of the interview, the BCA agent asked McLaughlin, “Do you think you did something wrong today?”  McLaughlin replied, “Yeah.” 

THE TRIAL: Approximately six months after the shootings, the Stearns County Juvenile Court certified McLaughlin to stand trial as an adult.  McLaughlin appealed the certification to the Minnesota Court of Appeals, which affirmed the certification order.  

The parties then agreed to a bifurcated bench trial in which McLaughlin would stipulate to guilt in the second-degree murder of Rollins during the trial’s first phase and would attempt to prove a mental illness defense during the second phase.  There was no stipulation as to Bartell. 

At the close of the first phase, the district court found McLaughlin guilty of first-degree murder in Bartell’s death, second-degree murder in Rollins’ death, and possession of a dangerous weapon on school property.  

In the second phase, the court heard testimony from six mental health experts—three retained by McLaughlin, one by the state, and two by the court. 

After six days of testimony in the mental illness phase of McLaughlin’s trial, the district court concluded that McLaughlin could not be excused from responsibility for the crimes he committed because he “had cognitive awareness that shooting the victims was morally wrong.”  

At the end of a sentencing hearing that included expert testimony on bullying, the district court imposed a life sentence for the death of Bartell, to be served consecutively with a 144-month sentence for the death of Rollins.

THIS APPEAL:  On direct appeal, the Minnesota Supreme Court upheld McLaughlin’s convictions and sentences.

Justice Gildea joined the unanimous decision by Justice Paul Anderson.

First, the Minnesota Supreme Court declined to use the interests of justice as a basis to consider defendant’s constitutional challenge to the M’Naghten rule given the absence of a well-developed record that is relevant to the particular issue the defendant raises for the first time on appeal. 

Second, the Minnesota Supreme Court held that the district court did not err when it denied a mid-trial continuance when the defendant failed to prove that the court’s denial of the continuance materially affected the outcome of his trial. 

Third, the Minnesota Supreme Court held that the district court did not abuse its discretion by imposing permissive consecutive sentences when the court reasonably found that the aggravating and mitigating factors balanced one another, and therefore imposed a sentence commensurate with other sentences imposed for comparable homicides involving multiple victims.

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

DATE OF DECISION:  January 11, 2007

RECORD NUMBER:  2007-009

FULL OPINION:  A05-2327,

DESCRIPTION:  [MURDER]  [INSANITY DEFENSE]

Flower Store Robbery of Senior in Minneapolis

2007-M-33             State of Minnesota, Respondent, vs. Marvin Haynes, Jr., Appellant.

DESCRIPTION OF CRIME:  On May 16, 2004, Haynes attempted to rob Jerry’s Flower Shop in Minneapolis.  He pointed a gun at employee C.M. and demanded money.  C.M.’s brother, S.H., distracted Haynes and C.M. fled out the back door.  She heard two shots and her brother died.

At a neighbor’s house, C.M. called 9-1-1 and looked out to see Haynes walking away.

First, on May 17, C.M. said she was 75- to 80-percent sure she had identified the shooter in a photo line-up, but that person had an alibi.  At a subsequent photo line-up, C.M. identified Haynes as the gunman.  Later, C.M. “got right off the chair” and identified Haynes from a live lineup.  She also identified Haynes in court as the person she saw in the flower shop on May 16 with the gun.   

Second, at trial, Haynes’s cousin, I.H., testified that he had given a statement to the police on May 28, 2004.  In the statement, which was tape-recorded and played for the jury at trial, I.H. said that Haynes told him on May 16 that Haynes was going to “hit a lick.”   I.H. understood this to mean that Haynes was going to commit a robbery.  I.H. also told police that Haynes’s friend, D.B., had a gun.  Finally, I.H. told the police that Haynes later called I.H. and told him that Haynes had used D.B.’s gun to shoot a white man on the corner “because he wouldn’t give up the money.”   I.H. made a similar statement to the grand jury.

Although I.H. denied those earlier statements at trial, I.H. contradicted himself later during his testimony when he said that he remembered what happened on May 16, 2004, and that what he told police in his May 28 statement was the truth.   

Third, A.T. also testified that he was with Haynes the morning of the murder and that Haynes said he was going to “hit a lick.” 

Fourth, another witness, J.C., testified that she had seen Haynes and a few of his friends the morning after the murder and that Haynes said “he had shot some old white man.”  J.C. also testified that she saw Haynes at his house and that Haynes said he could not come out because the police were looking for him.  Finally,

Fifth, J.W. testified that she had a conversation with Haynes in which Haynes bragged about shooting a man at the flower shop.

THE TRIAL:  During deliberations, the jury asked the district court to replay the tape of the 911 call to police and I.H.’s taped statement to the police.  The court complied with the requests by bringing the jury back into the courtroom and playing each tape once. 

A few hours after hearing the tapes, the jury came back with its verdict, finding Haynes guilty of first-degree murder and second-degree assault.  The court convicted Haynes and sentenced him to life in prison on the murder count plus 36 months on the assault count.

THIS APPEAL:  On this direct appeal, Haynes claimed (1) he was denied a fair trial when the district court granted the jury’s request during deliberations to replay a tape-recorded statement; (2) the prosecutor committed misconduct; and (3) he was denied a fair trial because the district court allowed the state to ask him about his prior contact with the police. 

Justice Gildea wrote the opinion for the unanimous Minnesota Supreme Court.

First, the Minnesota Supreme Court held that the district court did not abuse its discretion by replaying a tape-recorded statement once in open court during jury deliberations.

The district court in this case followed the analysis we offered in Kraushaar.  We said in Kraushaar that “it would have been preferable” for the court to have had the jury review the videotape in the courtroom, rather than allowing the jury to replay the videotape in the jury room.  The court in this case did precisely what we termed the “preferable” practice in Kraushaar.

Second, the Minnesota Supreme Court held that the state did not commit prosecutorial misconduct because the prosecutor did not intentionally violate the district court’s order not to ask about a witness’s fear of appellant and because the prosecutor did not improperly imply that the defense had a duty to produce witnesses.

At trial, the district court indicated that its ruling may have been unclear, and found that the prosecutor did not deliberately violate the court’s order.  The court also ruled that the question was not so prejudicial as to require a mistrial. 

Haynes also alleges that the prosecutor committed misconduct by improperly implying that the defense had a duty to produce witnesses.  We have said that prosecutors commit misconduct if they attempt to shift the burden of proof to the defendant.

But the prosecutor did not comment directly on Haynes’s failure to call a witness.  The cross-examination at issue was isolated, accounting for only three of forty-five pages of the cross-examination, and the prosecutor made no reference during his closing argument to this portion of the cross-examination or to the absence of testimony from the people Haynes testified saw him sleeping at the time of the murder. 

Third, the Minnesota Supreme Court held that the district court did not abuse its discretion by allowing the state to attempt to impeach Haynes with questions regarding his prior contact with the police. Haynes did not claim during trial that the questioning at issue improperly shifted the burden of proof.

Haynes’s final argument is that he was denied a fair trial because the district court allowed the state to ask him about his prior contact with the police. 

Haynes admitted that he gave false identifying information to the police on two occasions.  The state gave the appropriate notice in this case that if Haynes testified it would seek to impeach him with evidence of these lies and with evidence of his contacts with police “in proximity of the flower shop.”   (“The proper approach [is] for the prosecutor to give pretrial notice, which [gives] the defendant an opportunity to request a hearing on the issue before making a decision as to whether or not to testify.”). 

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

DATE OF DECISION:  January 4, 2007

RECORD NUMBER:  2007-005

FULL OPINION:  A05-2444

DESCRIPTION: [MURDER] [GILDEA] [ROBBERY]

Home Invasion in Domestic Bludgeoning in Burnsville

2007-M-32               Cletus Eugene Schneider, petitioner, Appellant, vs. State of Minnesota, Respondent.

DESCRIPTION OF CRIME:  On June 12, 1997, Dorothy Sandburg went from her home on Judicial Road in Burnsville to work in St. Cloud. Sandburg left work shortly after 4:00 p.m. The next day, June 13, Sandburg's sister, Colette Johnson, became concerned when she was unable to contact Sandburg and was informed by Sandburg's employer that Sandburg had not been at work on June 13. At about 7:00 p.m., Johnson went to Sandburg's home along with her other sister and her brother-in-law. The group attempted to open the front door, but Sandburg's body was blocking it.

On appeal, Schneider asserts only that the evidence was insufficient to support the jury verdict, and concedes that the only element of first-degree murder at issue is identity.

When police arrived, Johnson told them that she believed Cletus Schneider killed Sandburg. Sandburg and Schneider, who had been married nearly 25 years, were separated and on the eve of a marital dissolution trial, scheduled to commence on June 19, 1997. The marriage was both Sandburg's and Schneider's second.

The police collected extensive evidence and information and interviewed Schneider twice.  When DNA testing matched Schneider’s blood with a drop of blood on Sandburg’s corpse, police arrested Schneider.

THE TRIAL:  The state introduced evidence, Schneider’s previous “death comments about Sandburg, Schneider’s effort to hide Sandberg’s life insurance policy which would yield half the couple’s expiring holdings ($200,000), Schneider’s 49-minute delay in asking how his wife had been murdered.

The jury found Schneider guilty of each charged offense, and the trial court sentenced him to life on the first-degree premeditated murder verdict.

 DIRECT APPEAL:  Justice James Gilbert wrote a majority decision on July 15, 1999.  On appeal, Schneider asserted only that the evidence was insufficient to support the jury verdict, and concedes that the only element of first-degree murder at issue is identity.

“As the finder of fact, it is the jury's role to consider all evidence presented and afford it proper weight in arriving at the verdict. Viewed in the light most favorable to the verdict, and assuming that the jury believed the state's witnesses and disbelieved all contrary evidence, the evidence is consistent with the conclusion that Schneider killed Sandburg and is inconsistent with any other rational conclusion. Thus, we hold that the evidence was sufficient to permit the jury to have found Schneider guilty of first-degree murder.

THIS APPEAL:  In 2007, the Minnesota Supreme Court rejected Schneider’s first petition for post-conviction relief claiming that (1) he was denied effective assistance of counsel because neither his trial counsel nor his appellate counsel raised a Frye-Mack challenge or otherwise contested the admissibility of DNA evidence;   (2) he was denied effective assistance of counsel when his trial counsel failed to request that the trial judge be removed because the judge had also presided over Schneider’s marital dissolution proceedings; and (3) newly discovered evidence entitles him to a new trial.

Justice Gildea joined Chief Justice Russell Anderson’s unanimous opinion

The Minnesota Supreme Court ruled that the district court properly denied post-conviction relief because (1) appellant’s claims of ineffective assistance of counsel either fail on the merits or are procedurally barred, and (2) appellant has failed to establish a claim of newly discovered evidence. 

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

DATE OF DECISION:  January 4, 2007

RECORD NUMBER:  2007-004

FULL OPINION:  A06-625,

DESCRIPTION:  [MURDER]  [DOMESTIC]

The Vampires of St. Cloud

2007-M-31                  Timothy Michael Erickson, petitioner, Appellant, vs. State of Minnesota, Respondent.

DESCRIPTION OF CRIME:  On March 21, 1988, Erickson and his brother shared a St. Cloud apartment where they sheltered several younger homeless teens.  The group had discussed forming a “teenage vampire cult.”   Donald Gall arrived at the Erickson apartment "sloppy drunk.” There and at Riverside Park, the group continued to drink and smoke marijuana through the night.

When Gall passed out, Erickson recruited some of the group for the following actions.    Erickson clubbed Gall with a log while two others kicked him in the ribs.  Erickson slit Gall’s throat.  Erickson and his accomplices drank blood from the wound, licked blood from their hands, and robbed Gall’s body of a leather jacket, a watch, a wallet, and other items.  They dumped the body in some open water in the frozen Mississippi River.  They burned the club, they stopped to buy cigarettes with Gall’s money and returned to the apartment. 

Erickson told the two girls staying with the Erickson brothers that he had killed Gall by beating him with a log and stabbing him with a knife and that he had thrown Gall's body into the river. Erickson bragged that he had drunk Gall's blood and licked the blood from his hands.  Gall's blood-soaked jacket and the other items taken from Gall were exhibited as proof of the crime.

That morning Erickson’s brother described the killing to Benedict and that evening defendant told Bill Benedict about the murder, saying that Gall's death was "not really that big of a deal." At about 4:00 a.m. on March 24, 1988, a drunken Benedict wandered into the St. Cloud Law Enforcement Center and reported the murder. Gall's body was soon discovered floating in the river a short distance downstream from the campsite, and shortly thereafter defendant was arrested at the St. Cloud bus terminal. Erickson was taken to the interrogation room at the law enforcement center where he was advised of his Miranda rights. Defendant initially denied any involvement in the murder, but after tests showed the presence of blood on his jacket and boots, defendant began to cry and confessed to the murder. The initial confession was not recorded, but defendant immediately repeated his confession to a police stenographer.

THE TRIAL:  The trial was bifurcated. Erickson's defense in the “guilt” phase of the trial was that voluntary intoxication had rendered him incapable of forming an intention to murder. The jury found defendant guilty of murder in the first degree.

In the second ”insanity defense” phase of the trial, Erickson claimed that mental illness rendered him incapable of knowing the nature of his act or that it was wrong. The jury reaffirmed the guilty verdict.  Erickson was sentenced to life in prison.

THE DIRECT APPEAL:  On December 22, 1989, the Minnesota Supreme Court rejected Erickson’s claims that:  1) he was so intoxicated that he could not form the requisite statutory intent or premeditation; 2) he had proved by a preponderance of the evidence that mental illness had rendered him incapable of knowing the nature of his act or its wrongfulness; and 3) the trial court erroneously admitted his confession, which was coerced and taken in violation of his right to counsel.  Justice Coyne wrote the unanimous opinion for the Court.

THIS APPEAL:  On Erickson’s first post-conviction appeal, Erickson’s chaotic brief was reorganized under five general grounds for relief: (1) denial of a fair trial; (2) prosecutorial misconduct; (3) judicial misconduct; (4) ineffective assistance of trial counsel; and (5) ineffective assistance of appellate counsel.

Justice Gildea joined the unanimous decision by Justice Sam Hanson to uphold Erickson’s conviction and sentence.

In his reply brief Erickson concedes that many of the issues he raised in his brief to this court “should have been raised during trial and or during the appeal process.”  We agree and conclude that Erickson’s claims of denial of a fair trial, prosecutorial misconduct, and judicial misconduct are procedurally barred under our post-conviction case law.  We have said that “where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for post-conviction relief.”  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).   There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review.

First, the Minnesota Supreme Court rejected Erickson’s claims regarding his alleged denial of a fair trial.

Erickson’s claims of denial of a fair trial were known and could have been raised on direct appeal.  The post-conviction petition demonstrates that the evidentiary source for these claims is the transcript of the pretrial and trial proceedings.  Further, Erickson does not argue for, and these claims do not fit, either Knaffla exception—they are not novel because the legal basis to bring them was available on direct appeal.

Second, the Minnesota Supreme Court rejected Erickson’s claims regarding alleged prosecutorial misconduct.

Erickson’s claims of prosecutorial misconduct were known and could have been raised on direct appeal.  The post-conviction petition demonstrates that the evidentiary source for these claims is the transcript of the pretrial and trial proceedings.  Further, Erickson does not argue for, and these claims do not fit, either Knaffla exception—they are not novel because the legal basis to bring them was available on direct appeal.

Third, the Minnesota Supreme Court rejected Erickson’s claims regarding alleged judicial misconduct.

Erickson’s claims of judicial misconduct were known and could have been raised on direct appeal.  The post-conviction petition demonstrates that the evidentiary source for these claims is the transcript of the pretrial and trial proceedings.  Further, Erickson does not argue for, and these claims do not fit, either Knaffla exception—they are not novel because the legal basis to bring them was available on direct appeal.

Fourth, the Minnesota Supreme Court rejected Erickson’s claims regarding alleged ineffective assistance of trial counsel.

Erickson’s ineffective assistance of trial counsel claims, including the right to be present at pretrial conferences, attorney conflicts of interest, and counsel’s failure to follow Erickson’s instructions, are based on the trial record and are Knaffla- barred.  Erickson’s claims are not novel because they were available to Erickson during his direct appeal.  And Erickson has not provided any reasons justifying application of the fairness exception

Fifth, the Minnesota Supreme Court rejected Erickson’s claims regarding alleged ineffective assistance of appellate counsel.

Erickson also argues that he received ineffective assistance of appellate counsel.  He suggests two grounds: (1) that his counsel “did not introduce material” that he should have introduced during the direct appeal; and (2) that his counsel refused to continue to represent him after completion of his direct appeal.  This claim is not procedurally barred under Knaffla because it could not have been raised on direct appeal.  But Erickson has not alleged sufficient facts in support of the claim to warrant an evidentiary hearing.

DATE OF DECISION:  January 4, 2007

RECORD NUMBER:  2007-003

FULL OPINION:  A06-1113

DESCRIPTION:  [MURDER] 

Drug Revenge Ambush in Columbia Heights

2006-M-30          State of Minnesota, Respondent, vs. Demetrius Devell Dobbins, Appellant.

DESCRIPTION OF CRIME:  On December 5, 2003, drug dealer Dobbins lured drug dealer Quintin Roderick Lavender to Dobbin’s home in Columbia Heights.  The two men argued about $60 that Lavender had owed to Dobbins for over six months.  Dobbins shot Lavender to death, moved the body to a shed behind the house, and left with an accomplice to get accelerants to burn down the house and the shed.

A tip brought police to the house with a claim of murder and a description of two men who might soon return to the crime scene.  Police confronted Dobbins and Mysohn King coming up the driveway of the house while bearing accelerants.

THE TRIAL:  On November 5, 2004, the jury found Dobbins guilty of first-degree premeditated murder.  The district court then convicted Dobbins of this offense and sentenced him to life in prison. 

Evidence included:  Lavender’s body; Lavender’s blood in the shed, in the bedroom, in the bathtub, on the den’s carpet, 0n the mop, on the cleaning rags in garbage bags, and on Dobbins’ clothes; the bags of accelerants; the gunshot residue on Dobbins’ hands and clothing; King’s testimony that he was willing to cooperate with Dobbins was because Dobbins killed Lavender “over nothin’” and “what happened was wrong;” the testimony of Dobbins girlfriend that she heard Dobbins tell his cousin to “bring it” and the cousin brought a gun to Dobbins’ house;  the testimony of one of Dobbins’ girlfriend’s sisters that Dobbins had told her that “he shot [Lavender]” because Lavender owed him money;” and the testimony of one of Dobbins’ girlfriend’s sisters that Dobbins

THIS APPEAL:  Justice Gildea joined the 4-3 opinion by Justice Paul Anderson which upheld the conviction and sentence of Dobbins.

On this direct appeal, Dobbins raised four issues: 

(1) whether the district court erred in allowing the only African-American venire-person to be struck from serving on the jury;

(2) whether the court violated Dobbins’ Sixth Amendment right to effectively cross-examine a key state’s witness;

 (3) whether the court erred in not instructing the jury that Dobbins’ girlfriend could have been considered an accomplice; and

(4) whether the state’s misconduct denied Dobbins a fair trial, or in the alternative, whether defense counsel’s failure to object to the misconduct constituted ineffective assistance of counsel.

First, The Minnesota Supreme Court rejected Dobbins’ claim that the district court erred in allowing the only African-American venire-person to be struck from serving on the jury.  The Supreme Court engaged in extensive review and analysis of the trial court’s review and analysis of both the prosecution’s intent and the potential juror’s answers to questions.

“Here, the court not only clearly articulated the steps in its Batson analysis, but also based its lack-of-purposeful-discrimination determination on its observation that there was nothing “in the demeanor or the questioning” of the state that would indicate that the state was attempting to single out prospective jurors based on their race.  Examining the court’s reasoning for allowing the strike in light of the required deference to that court, we hold that the court’s conclusion that Dobbins failed to prove purposeful discrimination by the state was not clearly erroneous.”

Second, The Minnesota Supreme Court rejected Dobbins’ claim that the court violated Dobbins’ Sixth Amendment right to effectively cross-examine a key state’s witness.

“Here, King pleaded guilty to aiding an offender as an accomplice-after-the-fact to Dobbins.  The state made a motion in limine to prohibit Dobbins from referring to the exact number of months King’s potential prison term was being reduced in exchange for his truthful testimony.  The district court considered our court’s holding in Greenleaf and ruled that Dobbins could not inquire about the exact number of months King’s potential sentence was reduced, but could cross-examine about other aspects of the plea agreement, including the extent to which King was “getting a significant reduction in his potential sentence.”  Additionally, King admitted that he could potentially receive a 75 percent lesser sentence as a result of the plea bargain.  Based on this record, we conclude that our holding and reasoning in Greenleaf applies to the instant case.  Therefore, we hold that the district court did not err when it prohibited Dobbins from cross-examining King regarding the exact number of months that King’s sentence would be reduced as a result of King’s plea agreement with the state.”

Third, The Minnesota Supreme Court rejected Dobbins’ claim that the court erred in not instructing the jury that Dobbins’ girlfriend could have been considered an accomplice.

Dobbins’ argued that the district court committed reversible error by failing to instruct the jury that Dobbins’ girlfriend may be considered an accomplice.  The decision to give a jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of that discretion. 

We conclude that the evidence indisputably indicates that Dobbins’ girlfriend was not an accomplice to the murder.  The record does not support Dobbins’ argument on appeal that his girlfriend was involved in bringing Lavender to Dobbins’ house, and there is no evidence that she talked to Lavender at City Center or even knew him.  She played no role in Coleman bringing the gun to the house and she was not in the house when the shooting occurred.  Because there was no testimony that Dobbins’ girlfriend participated in the murder, we conclude that Dobbins was not entitled to a jury instruction that his girlfriend could be considered an accomplice to the murder.  Therefore, we hold that the court did not err by withholding a jury instruction that Dobbins’ girlfriend may be considered an accomplice to the murder.”

Fourth, The Minnesota Supreme Court rejected Dobbins’ claim that the state’s misconduct denied Dobbins a fair trial.

“Because Dobbins’ murder conviction was surely unattributable to the objected-to prosecutorial misconduct regarding Dobbins’ constitutional right of confrontation and that the unobjected-to prosecutorial misconduct did not affect Dobbins’ substantial rights, the cumulative effect of the state’s misconduct did not deprive Dobbins of a fair trial.  We therefore decline to grant Dobbins a new trial on the basis of the cumulative effect of all the prosecutorial misconduct.  We note that the Constitution guarantees a fair trial—not a perfect or error-free trial.”

Fifth, The Minnesota Supreme Court rejected Dobbins’ claim that defense counsel’s failure to object to the misconduct constituted ineffective assistance of counsel.

“Dobbins’ last argument is that his trial counsel’s failure to object to the prosecutorial misconduct identified above constituted ineffective assistance of counsel.  To succeed in an ineffective assistance of counsel claim, a convicted defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced the defense.  Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Jackson, 714 N.W.2d 681, 697 (Minn. 2006).  In the instant case, because the prosecutorial misconduct at issue did not affect the outcome of Dobbins’ trial, Dobbins was not prejudiced by his trial counsel’s failure to object.  As such, Dobbins’ ineffective assistance of counsel claim also fails.”

DATE OF DECISION:  December 28, 2006

RECORD NUMBER:  2006-209

FULL OPINION:  A05-320

DESCRIPTION:  [MURDER]