2007-0M-045              Reginald Gail, petitioner, Appellant, vs. State of Minnesota, Respondent.

Petitioner was convicted in Hennepin County for first-degree murder.  The Court upheld his conviction on direct appeal in 2006. Here,  the Court held that his 13 claims in this post-conviction appeal were barred by the Knaffla rule against claims that had been or could have been raised in an earlier appeal.

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

DATE OF DECISION:  June 7, 2007

RECORD NUMBER:  2007-069

FULL OPINION: 

DESCRIPTION:  [MURDER] 

##

2007-M-044                Vernon Neal Powers, Petitioner, Appellant, vs. State of Minnesota, Respondent.

A jury found Powers guilty of two counts of first-degree murder and one count of first-degree assault.  The Court affirmed the conviction on his direct appeal in 2003.  The Court affirmed his sentence during his first post-conviction appeal in 2004.  Here, Powers appeals the district court’s denial of a hearing for his motion that Blakely bars his sentence to consecutive sentences.  Here the Court held that this “motion for correction of sentence” was actually a third post-conviction appeal in which a new Blakely claim is barred by the Knaffla rule against claims that were or could have been raised in earlier appeals.

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

DATE OF DECISION:  May 17, 2007

RECORD NUMBER:  2007-059

FULL OPINION: 

DESCRIPTION:  [MURDER] 

##

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] 

##

Man kicked into unconsciousness, stabbed 15 times in the chest, and then dumped in a river near Morton for showing up at the wrong party.

2007-M-042          State of Minnesota, Respondent, vs. Keith Hapana Crow, Appellant.

THE CRIME:  On September 23, 2004, Crow hosted a party at the casino near Morton and at a home nearby on the reservation.  Young adults and teens consumed alcohol and marijuana.  Robert Berry, aged 50, arrived at the party and a fight ensued.  Testimony indicated that Crow kicked Berry into unconsciousness.  Berry was robbed of his wallet, the keys to his vehicle, and some jewelry.

Crow and others loaded the unconscious Berry into Berry's vehicle and drove around the reservation, debating whether to drop Berry and his car or to kill him and burn the vehicle.  They chose the latter option.

After Crow stabbed Berry 15 times in the chest and dumped his body in the Minnesota River and burned his Tahoe, he turned around and met two police squad cars that had just arrived.

THE VERDICT:  A Redwood County jury orally announced that it had found Crow guilty of lesser offenses of aiding and abetting first-degree felony murder while committing a kidnapping and aiding and abetting second-degree intentional murder.

When the jury responded to the judge’s inquiry that they had not signed verdict forms on all the charges, he instructed them to return to the jury room and to sign the forms.

When they returned, they provided signed forms that found Crow guilty of first-degree felony murder in the course of a kidnapping and not guilty of the aiding and abetting charges and a lesser included offense.  The trial judge sentenced to the mandatory life sentence.

THIS DIRECT APPEAL:  The Supreme Court rejected this direct appeal on several grounds and upheld both the conviction and sentence of Crow.

DOUBLE JEOPARDY:  Crow first argued that because the jury had orally declared him innocent on the murder charge and then later convicted him when they signed the verdict forms, his conviction and sentence were unconstitutional under the “double jeopardy” protections of the U.S. Constitution.

The Supreme Court held that the jury’s oral verdict was not completed until all the jurors had returned to the jury room and signed the mandated verdict form to prove that they had reached a unanimous verdict on the first-degree murder charge.

“The record here establishes that the district court sent the jury back to the jury room before polling ever took place.  The verdicts were not final until the jury completed and returned all verdict forms, the verdicts were read in open court, and the jury polled.  There was no implied acquittal, and Crow’s conviction was not barred by double jeopardy.”

EXPERT TESTIMONY:  Second, Crow appealed the trial court’s admission of the testimony of a forensic pathologist who testified that the evidence could not show whether Crow was the only person who had stabbed Berry.

The Supreme Court held that Crow’s attorney had effectively cross=examined the pathologist and had presented his own expert witness to claim that there could have been additional stabbers, but the jury had nevertheless convicted Crow with the weight of the evidence.

SUFFICIENT EVIDENCE:  Third, Crow appealed that the evidence was insufficient to sustain a guilty verdict.  The Supreme Court disagreed.

Berry’s blood was found on Crow’s clothing and boots which he had abandoned in the darkness near the burning Tahoe before being apprehended at the scene.  Berry’s blood was found at the home where Crow had kicked Berry into unconsciousness. Witnesses testified that Crow had kicked Berry into unconsciousness, had instructed men to wrap him in blankets and carry him to the car, had led the discussion about whether to release Berry or kill him and dump him in the river, had instructed men to carry Berry to the river’s edge, had set the Tahoe ablaze, had instructed others to clean up evidence at the house, and had tried to tamper with the testimony of a witness.  While police were investigating the crime before charging Crow, he dyed his hair blond and fled to Minneapolis, Bemidji. And Seattle, Washington before being arrested in Billings, Montana.  The Supreme Court held that the evidence was sufficient to justify the guilty verdict.

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

DATE OF DECISION:  April 19, 2007

RECORD NUMBER:  2007-052

FULL OPINION:  A06-229

DESCRIPTION: [MURDER]  [KIDNAPPING] 

Execution at the Little White Earth housing complex in Minneapolis

2007-M-041    State of Minnesota, Respondent, vs. Wambli S. McArthur, Appellant.

THE CRIME:  After midnight on June 23, 2005, a crowd was partying in a courtyard at the Little White Earth housing complex in Minneapolis.  MacArthur and another man came out of an alley and stood behind Vincent LaRoque.  MacArthur shot LaRoque in the back of the head.  The two men walked out of the courtyard while laughing.

Twelve eyewitnesses testified either that they had seen MacArthur shoot LaRoque or that they had seen that MacArthur and another man approaching or leaving the murder site.

A Hennepin County jury convicted MacArthur of first-degree, premeditated murder, and McArthur was sentenced to life imprisonment.  McArthur brought this direct appeal to the Supreme Court.

SUMMARY:  First, the Supreme Court held that the evidence was sufficient to sustain the guilty verdict of premeditated murder where, although no motive was shown, the defendant was armed, walked purposefully to where the victim was standing, shot the victim in the head at close range, and immediately fled the scene. 

Second, the Supreme Court held that the district court did not abuse its discretion by permitting testimony regarding witnesses’ fears of the defendant

Third, the Supreme Court held that the prosecutor did not misrepresent the evidence, vouch for witnesses’ testimony, or otherwise commit misconduct in closing argument. 

Fourth, the Supreme Court declined to rule on a separate appeal which was added later and would be decided appropriately by a lower post-conviction court.

The Supreme Court affirmed MacArthur’s conviction and life sentence.

SUFFICIENT EVIDENCE:  MacArthur argued that his conviction and sentence should be reversed because the prosecution provided no evidence of a motive for the killing was provided to demonstrate that he had premeditated the execution.

The Supreme Court rejected this argument on the basis that the overwhelming evidence that MacArthur had armed himself, walked up and stood behind LaRoque, shot him in the head from twelve inches, and fled the scene while laughing.

WITNESS FEARS:  MacArthur complained that he was harmed when witnesses testified that they had been less than forthcoming in initial conversations with police or even had to be arrested for evading a subpoena before they testified.  They testified that they were afraid of MacArthur and his family and friends because of his reputation for violence and his affiliations.  One witness testified that police had given her $600 to keep her off the streets after word circulated that MacArthur’s brother (the father of her children) would kill her if she testified.  Another witness cried about her fear on the witness stand.

The Supreme Court noted that the trial judge had prohibited the prosecutor from introducing MacArthur’s gang affiliations, past crimes, and criminal record in either the direct case, cross examination, or statements to the jury.

The Supreme Court noted that “bias, which may be induced by self-interest or by fear of testifying for any reason, is almost always relevant because it is probative of witness credibility.”

CLOSING ARGUMENT:  MacArthur argued that during closing arguments, the prosecutor had misrepresented the evidence, vouched for witnesses’ testimony, or otherwise committed misconduct in closing arguments.

First, the Supreme Court held that the prosecutor did not misrepresent the evidence when he mentioned one witness’ repeated tears or another witness’ need to be arrested and hauled to court because her child’s father had threatened to kill her or harm her child if she testified.

Second, the Supreme Court held that the prosecutor spoke factually about the witnesses’ testimony about their fears and did not improperly vouch for the credibility of their testimony or improperly enflame the passions of the jury.

LATE ARGUMENT:  After he filed the above three arguments in this direct appeal, MacArthur filed a claim that an order prohibiting his attorney from discussing witnesses’ identities with him until seven days before the trial was improper and prejudicial. 

The Supreme Court noted that the trial record had no information about how this could have harmed MacArthur’s defense.  It held that the issued would require fact-finding and a record by a lower court before an appeal could be considered by the Supreme Court.

CONCLUSION:  The Supreme Court upheld MacArthur’s conviction and sentence and remanded the fourth claim to a lower post-conviction court for a hearing and judgment.

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

DATE OF DECISION:  April 12, 2007

RECORD NUMBER:  2007-0

FULL OPINION:  A06-853,

DESCRIPTION: [MURDER] [GANG]

Shooting a Minneapolis woman whose Fruend had Ridiculed a Drug Dealer's Fancy Tire Rims

2007-M-040                                    Michael C. Francis, petitioner, Appellant, vs. State of Minnesota, Respondent

 :

THE CRIME:  When Marvin Pate ridiculed the specialized tire rims on drug-dealer Michael Francis’ truck, Francis took offense.  Later, Pate was assisting his girlfriend Pamela to exit his car in Minneapolis when he noticed the large blue truck pulling up.

Francis was convicted of shooting Pate in the abdomen, back and hip, and killing Richardson with a single shot to the head.  He was sentenced to a mandatory life sentence for the murder and a 15-year sentence for the attempted murder.

THIS DIRECT APPEAL:  Francis represented himself in this direct appeal. 

He contended that:1) there was insufficient evidence to sustain his conviction; 2) that he was deprived of a fair trial by prosecutorial misconduct, evidentiary errors, incomplete jury instructions, lack of effective assistance of counsel, and other improprieties at trial; and 3) that he should have been granted a post-trial hearing of his claims against the sufficiency of the evidence and the trial’s procedures. 

SUFFICIENCY OF THE EVIDENCE:  The Supreme Court held the evidence was extensive and sufficient. 

In the ambulance on the way to the hospital, Pate identified the shooter as “Mike” and later gave police at both the full name and physical description of ”Mike Francis.”  An observation camera caught Francis’ truck turning into the intersection of the shooting at the time of the shooting.   Francis’ cell phone was triangulated to be at the scene of the shooting ate time of the shooting.  Francis testified that he did not know where he was at the time of the shooting.

DIRECT EXAMINATION:  When the prosecutor asked the lead detective to describe how he had investigated the case, the detective said he had consulted aging-unit officer and retrieved Francis’ photo from a crime-unit data base. The Supreme Court said that the prosecutor had advised the detective to avoid such prejudicial testimony, and that the trial court had properly issued mandatory jury instructions to ignore such testimony.

CROSS EXAMINATION:  When Francis offered a character witness to say that he was non-violent, the prosecutor then asked the witness about specific events in Francis’ past.  The Supreme Court ruled that the trial judge had properly limited these questions to the witness’ direct testimony, the trial court properly limited the prosecutor to inquiries about specific acts that directly contradicted the witness’ original testimony, and that the trial court gave the jury the required instructions on how to construe the cross-examination.

CLOSING ARGUMENT:  In her closing argument, the prosecutor made references to Francis as a drug dealer.  The Supreme Court noted that Francis had described himself as a drug dealer in his own testimony to the jury.

ADMISSION OF CELL RECORDS AND TRAFFIC VIDEO:  The Supreme Court held that the trial court had properly approved both the foundation and the relevance of the cell records and traffic video to show the presence of Francis and his vehicle at the scene and time of the shooting.   It was for the jury to determine both the weight and the credibility of this evidence. 

ADMISSION OF TESTIMONY OF AN ILL WITNESS:  Francis challenged the admission of testimony of a witness who had been diagnosed with “bipolar schizophrenia.  The Supreme Court ruled that here, the witness’s illness and response to medication were thoroughly explored by defense counsel on cross-examination and the record reflects that the witness was plainly competent to testify.

EXCLUDE EVIDENCE OF AN ALTERNATIVE PERPETRATOR:  Francis asserted error in the exclusion of his proffered evidence of an alternative perpetrator.  Alternative perpetrator evidence is inadmissible absent some evidence having an inherent tendency to connect the alternative perpetrator with the crime.  Francis put Ragland’s former boyfriend forward as an alternative perpetrator, but Francis did not have sufficient evidence to connect the former boyfriend to the crime so as to satisfy the alternative perpetrator standard. 

FRANCIS’ FIREARMS CONVICTION AND PATE’S PRIOR ARREST:  Francis asserted error in the district court’s rulings in allowing the prosecutor to impeach him with a conviction for misdemeanor possession of a firearm and in limiting his inquiry into Pate’s pretrial confinement.  “We need not determine whether these rulings were an abuse of discretion where, even cumulatively in light of the entire record, error, if any, was not prejudicial.”

LESSER OFFENSE:  Francis asserted error in the denial of his request for jury instructions on lesser-included second-degree unintentional murder offenses.  An instruction on a lesser-included offense should be given “‘if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.’”

“Here, where the jury was given a lesser-included-offense instruction as to second- degree intentional, unpremeditated murder and attempt of the same, yet found Francis guilty of first-degree premeditated murder and attempt of the same, we conclude that Francis was not prejudiced by the court’s refusal to give instructions as to unintentional murder.”

INEFFECTIVE ASSISTANCE OF COUNSEL:  Francis claimed he was deprived of effective assistance of counsel, asserting that counsel failed to investigate his case, failed to call alibi witnesses, failed to prepare his character witness, failed to question him carefully on direct examination and otherwise failed to defend him adequately at trial.  The Supreme Court held that “as the post-conviction court noted, Francis’s allegations of inadequate legal representation are refuted by the record and otherwise fail to show that had trial counsel presented additional evidence and otherwise addressed Francis’s concerns, the result would have been different. “

NINE OTHER TRIAL CHALLENGES:  Francis challenged the seizure of his Tahoe, the jury selection process, the admission of the photographic lineup and the admission of “blurry” photographs; he asserted discovery violations, juror misconduct, and the denial of a speedy trial; and he also stated that his convictions rest on invalid laws and that consecutive sentencing is in error.  The Supreme Court held that “after a careful examination of these claims, we find them meritless.”

DENIAL OF A POST-TRIAL HEARING:  Francis contended that the post-conviction court abused its discretion in denying him an evidentiary hearing.  An evidentiary hearing is not required unless facts are alleged that, if proved, would entitle the petitioner to relief.

“A petitioner’s allegations must be more than argumentative assertions without factual support.  Francis contends that an evidentiary hearing was needed to evaluate the claims he raised in his post-conviction petition and now on appeal to this court.  We agree with the post-conviction court’s denial of a hearing in that the facts as alleged would not entitle Francis to relief.”

CONCLUSION: “In conclusion, we are satisfied from our meticulous review of the trial record that Francis was properly convicted and received a fair trial.  We further conclude that the denial of post-conviction relief without an evidentiary hearing was not an abuse of discretion.”

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

DATE OF DECISION:  April 5, 2007

RECORD NUMBER:  2007-050

FULL OPINION:  A05-190, A06-940

DESCRIPTION: [MURDER] [DRUGS]

Kidnapping and Execution over $100 Rent Dispute in St. Paul

2007-M-039              State of Minnesota, Respondent, vs. Quanartis DaLee Turnage, Appellant.

THE CRIME:  On March 2, 2004, Turnage and Wa Vang argued about $100 that Vang may have owed Turnage on a rent refund.  Police were called and settled the disruption.

On March 24, 2004, Turnage, his brother Quantez, and their friend Damien Robinson took a heavily-inebriated Vang away in a car.  Vang had served his kidnappers as a translator in their drug operations.

Quantez and Robinson later testified that Turnage stabbed Vang 38 times with two or three knives and many times with a screwdriver, and bashed Vang’s skull repeatedly his head repeatedly with a bat. 

Quantez and Robinson both pleaded guilty to intentional second-degree murder and received sentences of 339 and 299 months respectively.

Turnage was convicted in 2005 of two counts of first-degree murder (intentional murder during a kidnapping and premeditated murder) and one count of intentional second-degree murder in connection with the death of Wa Vang.

FIRST APPEAL:  On January 28, 2007, The Minnesota Supreme Court rejected Turnage’s direct appeal.  Turnage had argued that Vang’s confinement and transportation were too brief to constitute a murder during a kidnapping.  Turnage also contested the prosecution’s use of tapes of Turnage’s phone calls to accomplices from the county jail.

The unanimous en banc decision was delivered by Justice Sam Hanson.

THIS APPEAL:  While Turnage’s direct appeal was pending, Quantez recanted the testimony he gave at Turnage’s trial.  Turnage filed a petition for post-conviction relief, which the post-conviction court denied without holding an evidentiary hearing.

The question presented in this appeal is whether Turnage is entitled to a new trial, or at a minimum to an evidentiary post-conviction hearing, based on Quantez’s recantation.  Turnage has the burden of proving that he is entitled to the relief requested.  The majority applied a three-prong test known as the Larrison test to determine whether a petition for post-conviction relief warrants a new trial based on recantation of trial testimony.    

THE MAJORITY  A petitioner is entitled to a new trial due to witness recantation of trial testimony if (1) the court is reasonably well-satisfied that the testimony given by a material witness was false; (2) without the testimony, the jury might have reached a different conclusion; and (3) the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial. 

“Based on this record, we hold that while the post-conviction court did not articulate the correct legal formulation of the second Larrison prong, the post-conviction court’s denial of the petition was not an abuse of discretion.   Because Turnage did not meet the second prong of the Larrison test, the post-conviction court did not err in denying Turnage’s petition and his request for an evidentiary hearing.”

DISSENT:  Justices Hanson and Paul Anderson opined: “I agree that Turnage had not yet satisfied his burden of proof to establish the right to a new trial because the presentation of the handwritten recantation statement by Quantez was not sufficient to do so.  But they concluded that the recantation statement is sufficient to entitle Turnage to an evidentiary hearing.”

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

Dissent:  Hanson and Paul Anderson

DATE OF DECISION:  April 5, 2007

RECORD NUMBER:  2007-0

FULL OPINION: A06-1124,

DESCRIPTION: [MURDER] [GILDEA]