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 Gail’s
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 judge’s
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 Gail’s
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 Attorney’s 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 statute’s
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, Gail’s 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, Gail’s attorney told the district court: “I can
tell you that it seems like we’ve 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 Gail’s
motions for a new venire.
Turning to Gail’s 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
Gail’s request that the court gather the information on Gail’s
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. Hollingsworth’s
description of Gail’s 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. Hill’s 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. Hollingsworth’s
testimony corroborated Hill’s that Gail was an essential part of the drug deal. The
state’s closing argument only mentioned Hill’s
testimony to corroborate the testimony of Hollingsworth and A.L. The
state’s 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 don’t 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 defense’s argument that someone in the Neon shot Braziel. Given the state’s
cautious treatment of Hill’s 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 court’s
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 Gail’s 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 Gail’s 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 Gail’s 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 Gail’s 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. Gail’s claims of misconduct are without merit.
In claiming that the prosecutor improperly shifted the burden of
proof, Gail relies upon the prosecutor’s 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
hadn’t, 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 state’s 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 witness’s
truthfulness, refers to facts outside the record, or expresses a personal
opinion as to a witness’s 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
DESCRIPTION: [MURDER] [GILDEA] [DRUGS]
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