STATE OF MINNESOTA
IN COURT OF
State of Minnesota,
Filed March 27,
Affirmed in part,
reversed in part, and remanded
File No. 04003134
Lori Swanson, Attorney General, 1800 Bremer Tower,
445 Minnesota Street,
St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney,
Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300
South Sixth Street, Minneapolis, MN 55487 (for respondent)
John Stuart, State Public Defender, Roy G.
Spurbeck, Assistant Public Defender, Suite
University Avenue Southeast, Minneapolis,
MN 55414 (for appellant)
Considered and decided by Lansing,
Presiding Judge; Peterson, Judge; and Worke, Judge.
Y L L A B U S
I. The district court has discretion to empanel
an anonymous jury only if the state shows a strong reason to believe that the jury needs protection
from external threats to its members’ safety or impartiality. In evaluating the existence of a strong
reason, we consider whether (1) the defendant has previously used violence to
interfere with judicial and law-enforcement processes, (2) the crime being
prosecuted was itself retaliatory in nature, and (3) any significant publicity
surrounded the crime and the trial.
testimony that a gang member must retaliate
after being disrespected is improper because it has too great a tendency to
dissuade jurors from exercising their independent judgment.
rigorous, five-factor test for harmless error set forth in State v. Caulfield, 722 N.W.2d 304 (Minn.
2006), defines the standard for analyzing the impact of constitutional
error. Evidentiary errors that do not
implicate constitutional protections are harmless unless the error
substantially influences the jury’s decision.
P I N I O N
A jury found Alonzo Ferguson guilty
of second-degree intentional murder and second-degree intentional murder for
the benefit of a gang. On appeal, Ferguson challenges the use of an anonymous jury, the
district court’s Batson ruling, the
finding that no jury misconduct occurred, the admission of gang-expert
testimony, the prosecutor’s conduct during closing arguments, the sufficiency
of the evidence, and the calculation of Ferguson’s
sentence. We agree that in sentencing Ferguson the district
court incorrectly assigned a felony point for juvenile convictions and failed
to merge two convictions. Although the
gang-expert’s testimony was improper, we conclude that the error was harmless,
and we reject Ferguson’s
other arguments. Accordingly, we affirm
in part, reverse in part, and remand.
A C T S
Allen Wheatley Jr. drove with his father and his cousin
from Chicago to Minneapolis to visit relatives in September
1994. They arrived in the early morning
hours, and, a short time later, Wheatly and five relatives decided to walk to
an unlicensed alcohol seller in the relatives’ south Minneapolis neighborhood.
Alonzo Ferguson, the appellant, approached the group as
they were walking and made a comment about Wheatley’s blue University of Kentucky
sweatshirt. Ferguson told Wheatley that he was in Rolling
30s Bloods territory and that he should not wear blue in the neighborhood. The state presented evidence at trial that Ferguson was a member of
the Rolling 30s Bloods.
Wheatley was offended by Ferguson’s
warning, and Wheatley and Ferguson
began to argue. The dispute continued
outside the house of one of Wheatley’s relatives. Ferguson
left and told Wheatley that he would return.
Wheatley entered the house and removed his sweatshirt. Within a half-hour, seven shots were fired
through the dining-room window. Wheatley
was hit and he died from gunshot wounds.
Before the shooting, Ferguson
was seen standing outside the window with another man.
was first indicted for the murder of Wheatley in June 1996. Following a jury trial, Ferguson was convicted of first-degree murder
in December 1996. In a divided decision,
the supreme court affirmed the conviction.
State v. Ferguson,
581 N.W.2d 824 (Minn. 1998).
After an informant recanted in April 2000, Ferguson filed for
postconviction relief and his petition was denied. On appeal, the supreme court remanded for an
evidentiary hearing. State v. Ferguson,
645 N.W.2d 437 (Minn. 2002). Following the evidentiary hearing, the
district court granted Ferguson
a new trial.
second trial, in September 2004, ended in a mistrial because of a hung
jury. Before that trial, the district
court granted the state’s request for an anonymous jury and denied the
defense’s motion to exclude expert testimony about gangs.
third trial was held in April and May 2005.
The district court adhered to the anonymous-jury and gang-expert rulings
from the second trial and denied the defense’s request for
reconsideration. During voir dire for
the third trial, the defense made a Batson
challenge to the state’s preemptory strike of a juror. The district court concluded that the defense
failed to make a prima facie case of discriminatory purpose. At the end of the trial, the jury found Ferguson guilty of the
lesser-included offenses of second-degree murder and second-degree murder for
the benefit of a gang. Ferguson was sentenced to 326 months for the
first charge and 24 months for the second charge.
The district court denied Ferguson’s motion for a new trial and he
appealed to this court. Pending review,
a juror contacted the defense about racial comments made during jury
deliberations. This court stayed the
appeal and remanded for a Schwartz
hearing. State v. Ferguson,
No. A05-1729 (Minn.
App. Sept. 6, 2005) (order). On remand,
the district court held a Schwartz hearing
and found that the claims of jury misconduct were not credible. Ferguson
now appeals his conviction and sentence.
S S U E S
district court abuse its discretion when it empaneled an anonymous jury?
district court clearly err by finding that the defense failed to make a prima
facie case under Batson?
district court abuse its discretion by denying Ferguson’s motion for a new trial?
district court abuse its discretion by admitting expert testimony about
retaliation by gang members?
prosecutor engage in misconduct that denied Ferguson his right to a fair trial?
jury reasonably conclude that Ferguson
was guilty of second-degree intentional murder and second-degree intentional
murder for the benefit of a gang?
district court improperly calculate Ferguson’s
criminal-history score and sentence?
N A L Y S I S
The use of anonymous juries is limited by two sources of
constitutional protection. First,
criminal defendants have a right to a trial “by an impartial jury.” U.S. Const. amends. VI, XIV; Minn. Const. art. I, § 6. Second, the due process clause guarantees the
right to a fair and impartial trial. U.S. Const. amend. XIV; Minn.
Const. art. I, § 7; State v. Varner,
643 N.W.2d 298, 304 (Minn. 2002).
Minnesota appellate courts review the
use of an anonymous jury for “actual prejudice to the defendant.” State
v. Bowles, 530 N.W.2d 521, 530 (Minn.
1995). An anonymous jury may be empaneled
when two conditions are met. Id.at 530-31. First, the district court must find a “strong
reason to believe that the jury needs protection from external threats to its members’
safety or impartiality.” Id. Second, the district court must take
“reasonable precautions to minimize any possible prejudicial effect the jurors’
anonymity might have on the defendant.” Id.at 531.
If these conditions are satisfied, a presumption arises that the
defendant was not prejudiced. State v. Ford, 539 N.W.2d 214, 222 (Minn. 1995).
All previously reported Minnesota anonymous-jury
cases arose out of a single incident:
the execution-style murder of Minneapolis Police Officer Jerry Haaf in
1992. Kambon v. State, 583 N.W.2d 748, 750-51 (Minn.
1998); Flournoy v. State, 583 N.W.2d
564, 566 (Minn. 1998) (Flournoy II); State v. Ford,
539 N.W.2d 214, 217 (Minn. 1995); State v. Flournoy, 535 N.W.2d 354, 357 (Minn. 1995) (Flournoy
I); State v. McKenzie, 532 N.W.2d
210, 213 (Minn. 1995); Bowles, 530 N.W.2d at 525.
The supreme court relied on three factors in concluding that strong
reasons supported the belief that the jury needed protection in these cases. First, the existence of allegations that the
defendant or his associates had previously used violence to interfere with
judicial and law-enforcement processes. Flournoy I, 535 N.W.2d at 362; McKenzie, 532 N.W.2d at 219-20; Bowles, 530 N.W.2d at 531. Second, the crime being prosecuted was itself
retaliatory in nature. Flournoy I, 535 N.W.2d at 362; Bowles, 530 N.W.2d at 531. Third, significant publicity surrounded the
crime and the trial. McKenzie, 532 N.W.2d at 219; Bowles, 530 N.W.2d at 531.
The district court gave
reasons relating to all three of these factors when it granted the state’s
motion for an anonymous jury in this case.
First, the district court made note of the state’s allegation that Ferguson had harassed a
witness in a different case. Second, the
defendant was charged with retaliating against the victim for wearing a blue
sweatshirt. Third, the district court
found that the pretrial publicity was extensive.
We conclude that these
factors provide strong reason to believe the jury needed protection. Although there were merely allegations that
the defendant had harassed a witness, evidence to support the allegation was
introduced at trial and there is no basis for concluding the allegation was
made in bad faith. The district court
could therefore use the allegation to conclude that the jury needed
protection. In addition, the district
court provided a number of other reasons, most of which involved the
defendant’s gang-related activities. A
defendant’s gang membership may not be, by itself, a legitimate reason to use
an anonymous jury. See United States v. Vario, 943 F.2d 236, 240-41 (2d Cir. 1991)
(noting that links to organized crime, without something more, would be
insufficient to warrant anonymous jury).
Because the district court’s other reasons were sufficient, we need not
determine whether gang membership alone would suffice. The record supports the district court’s
finding that strong reason existed to believe the jury needed protection from
external threats to its members’ safety or impartiality.
Furthermore, the district court took reasonable
precautions to minimize any possible prejudicial effect. To minimize any possible prejudicial effect,
courts should (1) permit extensive voir dire of the jurors to expose bias
and (2) provide instructions designed to eliminate any implication of the
defendant’s guilt. McKenzie, 532 N.W.2d at 220.
The district court permitted extensive voir dire. The transcript contains almost 1000 pages of
voir dire. The district court used a
jury questionnaire and placed no significant limits on juror questioning. More importantly, Ferguson made an on-the-record waiver of his
right to a jury instruction about the anonymous jury. We therefore conclude that the district court
took sufficient precautions to minimize prejudicial effect. As a result, the anonymous jury was properly
empaneled and the anonymity did not result in any actual prejudice.
We recognize that the
district court’s ruling on juror anonymity essentially reapplied the
anonymous-jury decision that preceded Ferguson’s
second trial. Pretrial evidentiary
decisions made before a mistrial are generally viewed as the law of the case
and may be reapplied absent clear error or a change in circumstances. United States v. Tham, 960 F.2d 1391, 1397 n.3 (9th
Cir. 1991). Evidentiary decisions and
anonymous-jury decisions are similar in requiring a case-by-case determination.
Thus, absent clear error or a change in
circumstances, the district court’s reliance on the previous determination did
not constitute prejudicial error. Before
the third trial, Ferguson
argued that an anonymous jury was no longer appropriate because no jurors had
been harassed during or after the second trial.
But, as the district court noted, the jurors in the second trial could
not have been contacted because an anonymous jury had been used. Consequently, the district court’s reliance
on the previous determination of the juror-anonymity factors did not constitute
prejudicial error. Even if the
law-of-the-case doctrine does not, in its strict sense, apply to the
anonymous-jury ruling, the district court’s reliance is an incorporation and
ratification of the earlier finding that stands as a separate determination of
the anonymous-jury issue.
The state cannot exercise a peremptory challenge for a
racially discriminatory purpose. Batson v. Kentucky,
476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986).
The existence of racial discrimination is a fact question, and we give
great deference to the district court’s determination. State
v. Dobbins, 725 N.W.2d 492, 501 (Minn.
2006). We reverse only if the conclusion
was clearly erroneous. State v. Gomez, 721 N.W.2d 871, 884 (Minn. 2006).
In this case, the district court did not hold a full Batson hearing. Instead, the district court concluded that Ferguson had failed to
make a prima facie case of discriminatory purpose. A prima facie case exists when (1) a member
of a protected racial group has been peremptorily excluded and (2) the totality
of the relevant facts gives rise to an inference of discriminatory purpose. Johnson
v. California, 125 S. Ct. 2410, 2416-17
(2005); State v. Taylor,
650 N.W.2d 190, 201 (Minn. 2002).
In 2005, after Ferguson
was convicted, the U.S. Supreme Court provided relevant guidance on the first
step in a Batson analysis. Johnson,
125 S. Ct. at 2417. To determine whether a prima facie case has
been made, the defendant does not
need to show that it is more likely than not that the peremptory challenge was
the product of purposeful discrimination.
“Instead, a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference
that discrimination has occurred.” Id.
(emphasis added). To implement the Johnson standard fully, it may be
necessary for appellate courts to review de novo the sufficiency of the
evidence to establish a prima facie case.
See State v. White, 684 N.W.2d
500, 510 n.2 (Minn. 2004) (Hanson, J.,
concurring) (advocating de novo standard in advance of Johnson decision).
Nonetheless, even if we applied a de novo standard of
review, we would be unable to conclude that the district court erred. Although the prosecutor asked no questions
before exercising peremptory challenges against two nonwhite jurors, he had the
benefit of the defense’s questioning of the two jurors, and the jurors had also
completed questionnaires, which were available to the prosecution and defense
in advance of the voir dire. It is
therefore less significant that the prosecutor failed to ask questions. And the prosecutor had questioned a black
juror who had been accepted before the prosecutor exercised the disputed
peremptory challenges. Under the
circumstances, the sufficiency of the evidence to establish an inference of
discrimination is not evident, and the district court therefore did not clearly
err when it declined to hold a Batson hearing.
We review a district court’s decision to deny a new
trial on the basis of jury misconduct for an abuse of discretion. State v.
Kyles, 257 N.W.2d 378, 381 (Minn.
1977). Factual findings on allegations
of misconduct are reviewed for clear error.
Chafoulias v. Peterson, 668
N.W.2d 642, 662-63 (Minn. 2003). And credibility determinations on conflicting
testimony are the exclusive province of the fact-finder. State
v. Reiners, 664 N.W.2d 826, 837 (Minn.
The district court held a Schwartz hearing and considered testimony alleging discriminatory
racial statements during jury deliberations.
After hearing the testimony, the district court found that the testimony
alleging jury misconduct was not credible.
Based on this finding, the district court denied the motion for a new
trial. The testimony alleging misconduct
was vague and contradicted by other jurors.
Because the testimony conflicted, the district court was required to
make credibility determinations, which receive special deference. Id. We discern no error in the district court’s
findings incorporating the credibility determinations, and we, therefore,
conclude that the district court did not abuse its discretion when it denied Ferguson’s motion for a
In general, expert testimony is admissible if (1) the
witness is qualified as an expert and (2) the witness’s knowledge will assist
the trier of fact. Minn.
R. Evid. 702. Expert testimony should
nonetheless be excluded if the probative value of the testimony is
substantially outweighed by the danger of unfair prejudice. Minn. R.
On expert testimony relating to gangs the Minnesota
Supreme Court has provided more specific guidance. State
v. Martinez, 725 N.W.2d 733, 738-39 (Minn. 2007); State
v. Jackson, 714 N.W.2d 681, 691 (Minn. 2006); State
v. Blanche, 696 N.W.2d 351, 372-73 (Minn.
2005); State v. DeShay, 669 N.W.2d
878, 886 (Minn. 2003); State v. Lopez-Rios, 669 N.W.2d 603, 611-13 (Minn.
2003). Gang-expert testimony should only
be admitted if it is helpful to the jury in making the specific factual
determinations that jurors are required to make. Blanche,
696 N.W.2d at 373. The potential problem
with gang-expert testimony is that although it “logically adds nothing to
witness credibility, it does strongly suggest to the jury that a law
enforcement specialist believes the state’s witnesses and therefore the jury
should find the defendant guilty.” DeShay, 669 N.W.2d at 886.
Ferguson raises a narrow challenge to the
expert’s testimony about mandatory retaliation.
The expert testified that “when someone who is a member of a gang is
disrespected . . . retaliation must occur.” In order to save face, the gang member must
personally retaliate or “they will lose face or respect of the other gang
members.” The prosecutor later asked
what would happen if a person—as Wheatley apparently did in this case—said to a
gang member, “F--k you, f--k your colors, f--k your ’hood.” The expert testified that the statement would
ensure “that you’re going to be assaulted.”
The expert also testified that Ferguson
was a member of the Rolling 30s Bloods and that the expert had received no
report about Ferguson
losing face in the gang after the encounter with Wheatley.
In Blanche, the supreme court held that it was improper for an expert
to testify that “if a gang member is involved in an incident with a rival gang,
members of his gang have to retaliate in order to maintain their respect within
the community and the gang subculture.”
696 N.W.2d at 373. The Blanche holding applies to this case
because the expert testified that retaliation was mandatory. The expert’s
opinion testimony was improper because the jury could infer that Ferguson was the
perpetrator “simply because he is a member of a gang.” Id. at
374. Testimony about mandatory retaliation tends to “dissuade
[the jury] from exercising its independent judgment.” DeShay,
669 N.W.2d at 888. Because the
objectionable expert testimony in this case closely parallels the expert
testimony determined to be error in Blanche,
we similarly conclude that the testimony about mandatory retaliation was
improper and its admission was an abuse of discretion.
The difficult question in this case
is whether the admission of the expert’s testimony is harmless error. When gang-expert testimony is erroneously
admitted, we will affirm the conviction if the error was harmless. See
Lopez-Rios, 669 N.W.2d at 613 (applying harmless-error analysis). Ferguson argues that we should apply the
rigorous, five-factor standard for harmless error set forth in State v. Caulfield, 722 N.W.2d 304,
314-16 (Minn. 2006). Under Caulfield, we determine whether error is
harmless beyond a reasonable doubt by considering five factors: (1) the manner in which the evidence was
presented, (2) whether the evidence was highly persuasive, (3) whether it was
used in the closing argument, (4) whether it was effectively countered by the
defense, and (5) the strength of the other evidence against the defendant. 722 N.W.2d at 314-316.
a harmless-error standard for evidentiary error in criminal cases is
complicated by divergent application in appellate cases. See
Townsend v. State, 646 N.W.2d 218, 222-23 (Minn.
2000) (using harmless-error-beyond-a-reasonable-doubt standard in case that did
not involve constitutional error); State
v. Shoen, 598 N.W.2d 370, 377-78 n.2 (Minn.
1999) (acknowledging discord in cases). In Caulfield
the supreme court clarified that the Townsend
harmless-beyond-a-reasonable-doubt standard applies only to constitutional error. See
Caulfield, 722 N.W.2d at 314-15 (discussing standard for constitutional error); see also State v. Valtierra, 718 N.W.2d
425, 435 n.4 (2006) (noting that standard for harmless evidentiary error is
lower). Because the jury can bring its
common sense to evidentiary issues, the jury may be “well-positioned to judge”
the value of the evidence. Valtierra, 718 N.W.2d at 435. As a result, we reverse only when the error
substantially influences the jury’s decision.
also DeShay, 669 N.W.2d at 888 (applying
“error-substantially-influencing-jury-decision-to-convict” standard to issue of
whether gang-expert testimony was harmless error.)
therefore conclude that the Caulfield analysis
does not apply to erroneously admitted gang-expert testimony. Gang-expert testimony may have due process
implications, but the primary concern is that the testimony violates the rules
of evidence. See Lopez-Rios, 669 N.W.2d at 613 (discussing rules 702 and 403). When gang-expert testimony is erroneously
admitted, reversal “is warranted only when the error substantially influences
the jury’s decision.” DeShay, 669 N.W.2d at 888; see also Martinez, 725 N.W.2d at 739 (noting that
in every recent gang-expert case the supreme court “concluded that reversal was
not warranted because the error did not affect substantial rights”).
the circumstances, we cannot conclude that the gang-expert’s testimony
substantially influenced the jury’s decision.
First, the evidence against Ferguson
was generally strong. The state had
eyewitness testimony that Ferguson
was standing outside the window when the shots were fired. Second, there was other evidence that Ferguson intended to
retaliate. Witnesses testified that, shortly
before the shooting, Ferguson
yelled, “I’ll be back.” Third, although
the expert’s testimony may have been emphasized, it was not compelling. For example, in the prosecutor’s closing
argument, he told the jury that the expert’s testimony alone “would be
sufficient to warrant a guilty verdict because he told you exactly how it is
laid out with the gangs out on the street.”
But it is unlikely that the jury would take the expert’s testimony about
mandatory retaliation literally. Any
reasonable juror would recognize exceptions to the retaliation rule.
addition, we note that the expert’s testimony also supported Ferguson’s theory of the case. The evidence suggested that the victim, Allen
Wheatley Jr., argued with two people that night—Alonzo Ferguson and Prentice
Wheatley. The defense’s theory of the
case apparently was that Prentice Wheatley was the killer. The evidence of a fight between Prentice Wheatley
and Allen Wheatley Jr. is not well-established and, even if considered in its
strongest light, it provides only a highly speculative basis for the jury to
believe that Prentice Wheatley, rather than Ferguson, shot Allen Wheatley Jr. Nonetheless, the defense elicited testimony
to show that Prentice Wheatley was also a gang member. Therefore, the expert’s testimony about
retaliation supported not only the prosecution’s theory of the case, but also
the defense’s theory.
light of the record as a whole, we conclude that admission of the expert
testimony did not substantially affect the jury’s verdict. Admitting the gang-expert testimony was
therefore harmless error.
The overarching problem presented by prosecutorial
misconduct is that it may deny the defendant’s right to a fair trial. State
v. Ramey, 721 N.W.2d 294, 300 (Minn.
2006). We will reverse a conviction if
prosecutorial error, considered in light of the whole trial, impaired the
defendant’s right to a fair trial. State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006). Ferguson
argues that the prosecutor engaged in misconduct in five different ways, but we
conclude that the record does not support the allegations of misconduct.
First, we agree that it is misconduct for a prosecutor to
mischaracterize evidence or make arguments unsupported by the record. State
v. Salitros, 499 N.W.2d 815, 817 (Minn.
1993). But we cannot conclude that the
prosecutor improperly mischaracterized the evidence when he discussed the
location of a car. Although the
prosecutor’s momentary reference to the car suggested that this evidence was
only valuable for impeachment, the prosecutor apparently realized as he was
making the comment that the defense had admitted the testimony as substantive
evidence through a hearsay exception for prior testimony. The prosecutor immediately substituted a
different example of impeachment evidence.
Under the circumstances, we cannot conclude that the prosecutor’s
reference was misconduct.
Second, we do not agree that the prosecutor impermissibly
bolstered the testimony of Prentice Wheatley by stating that the witness exposed
himself to criminal liability by testifying.
had claimed that he had been at a party with Prentice Wheatley that night. Instead of verifying Ferguson’s story, Prentice Wheatley testified
that he had been selling cocaine during that time period. Contrary to the prosecutor’s suggestion,
Prentice Wheatley could not have been prosecuted for selling drugs because the
relevant statutes of limitations had passed.
But the message actually conveyed by the prosecutor’s statements was
that Prentice Wheatley would be unlikely to admit to illegal acts if he had
actually been doing something legal.
Because Prentice Wheatley was testifying for the state, it is very
unlikely that the jury would conclude that Prentice Wheatley might be
prosecuted either for perjury or for his statement that he was selling drugs. The prosecutor therefore did not improperly
bolster a witness’s testimony or misstate facts.
Third, we reject Ferguson’s
argument that the prosecutor told the jury to protect society or to send a
message with its verdict. During closing
arguments, the prosecutor said, “I’m bringing them in here because those people
deserve to be safe in their own neighborhoods.”
When viewed in context, however, this statement did not tell the jury to
protect society or to send a message.
The prosecutor was explaining why a number of the state’s own witnesses
appeared hostile or reluctant to testify.
The prosecutor’s statement came in the context of an extended, general
explanation of the practice of forcing people to testify.
Fourth, we disagree that the prosecutor impermissibly
argued that Ferguson
tailored his 1996 trial testimony to fit the testimony of other witnesses. A prosecutor cannot, without evidence of
tailoring, argue that the defendant tailored his testimony to fit the state’s
case. Swanson, 707 N.W.2d at 657-58.
In this case, Ferguson’s
account of the events changed significantly as the investigation
progressed. Initially, Ferguson denied seeing the victim on the day
of the shooting. After obtaining
discovery and learning about the state’s evidence, Ferguson’s story changed significantly. The prosecutor thus had evidence of tailoring
and could legitimately point out changes in Ferguson’s story.
Fifth, the record does not support a claim that the prosecutor
attempted to lessen the burden of proof.
The prosecutor said, “Many people have exited these doors after having
been found guilty by proof beyond a reasonable doubt.” The prosecutor said this while explaining that
reasonable doubt is not an impossible standard to meet. In context, the prosecutor’s statement does
not suggest that the state’s burden is light or that the defendant was guilty
by association. Instead, the prosecutor
gave a legitimate explanation of the state’s burden of proof and did not commit
Evidence is sufficient to support a conviction if,
given the facts in the record and the legitimate inferences drawn from those
facts, a jury could reasonably conclude the defendant committed the crime
charged. State v. Laine, 715 N.W.2d 425, 430 (Minn.
2006). We view the evidence in the light
most favorable to the verdict and assume the jury disbelieved any evidence in
conflict with the verdict. State v. Bolstad, 686 N.W.2d 531, 538-39
Convictions based on circumstantial evidence warrant a higher standard
of review. Bernhardt v. State, 684 N.W.2d 465, 477 (Minn.
2004). A conviction based on circumstantial
evidence will be upheld if the reasonable inferences drawn from the evidence
are “consistent with the hypothesis that the accused is guilty and inconsistent
with any rational hypothesis other than guilt.”
State v. Leake, 699 N.W.2d 312,
319 (Minn. 2005).
was found guilty of second-degree murder and second-degree murder for the
benefit of a gang. To support a
conviction of second-degree murder, the evidence must show that the defendant
(1) causes the death of a human being (2) with intent to effect the death of
that person or another, (3) without premeditation. Minn. Stat.
§ 609.19, (1) (1994). A conviction
of second-degree murder for the benefit of a gang requires evidence that the
defendant (1) committed second-degree murder and (2) did so “for the benefit
of, at the direction of, or in association with a criminal gang, with the
intent to promote, further, or assist in criminal conduct by gang members.” Minn. Stat.
§ 609.229, subd. 2 (1994).
The evidence was sufficient to show that Ferguson shot Wheatley or
assisted the person who did shoot him.
Shortly before the shooting, Ferguson
was seen standing outside the dining room window. Because Wheatley had just arrived in Minneapolis earlier that morning and had taken his
sweatshirt off, Ferguson
was one of the four people in the area, not in the house, who could identify
him. The other three people described
where they were at the time of the shooting.
The seven shots were fired in rapid succession and only Wheatley was hit. The single target and multiple shots validate
the intentional nature of the shooting.
Because Wheatley had just arrived in Minneapolis,
the jury could infer that Ferguson
was the only person who had a reason and opportunity to intentionally shoot
In addition to the pattern of the shots, further evidence
sustains the jury’s finding that Ferguson
intentionally killed Wheatley. Multiple
witnesses testified that Ferguson
and Wheatley had a heated argument about Wheatley’s sweatshirt. The witnesses testified that they saw the
fight and identified Ferguson. According to the witnesses, Ferguson walked away and yelled, “I’ll be
Admissible evidence established that Ferguson was a gang member who might feel
obligated to retaliate against Wheatley for wearing blue in the
neighborhood. This evidence also
supports the element of intent. In
addition, this evidence establishes that the crime was committed for the
benefit of a gang. The parties
stipulated that the Rolling 30s Bloods was a criminal gang.
Although a significant amount of evidence linked Ferguson directly to the shooting, the record contains no
direct evidence that Ferguson
actually fired the shots. Because Ferguson was charged on an aiding-and-abetting theory, the
state was not required to prove that Ferguson
actually fired the gun. Nonetheless, the
evidence of aiding and abetting is circumstantial. We therefore address whether “the reasonable
inferences drawn from the evidence are inconsistent with any rational
hypothesis except that of the defendant’s guilt.” Gates,
615 N.W.2d at 337. The record contains
direct evidence that Ferguson
was standing outside the dining-room window immediately before the
shooting. If the jury believed that
testimony, and the verdict demonstrates that it did, then the rest of the
evidence is inconsistent with any rational hypothesis except that of Ferguson’s guilt.
We therefore conclude that the evidence was sufficient to
of second-degree intentional murder and second-degree intentional murder for
the benefit of a gang.
Finally, we address Ferguson’s claim for modification of his sentence. Ferguson
argues that the district court improperly assigned a criminal-history point and
improperly imposed a second sentence for a lesser-included offense. Both issues involve questions of law, which
we review de novo. State v. Kebaso, 713 N.W.2d 317, 322 (Minn.
2006). We conclude that both of Ferguson’s sentencing
arguments are correct.
should not have been assigned a criminal-history point. A defendant should be sentenced according to
the sentencing guidelines in effect at the time the crime was committed. Minn.
Sent. Guidelines III.F. Under the 1994
sentencing guidelines, a defendant can be assigned a criminal-history point if
the defendant, after his sixteenth birthday, committed two juvenile offenses that
would have been felonies if committed by an adult. Minn. Sent.
Guidelines II.B.4 (1994). Currently, the
age limit is fourteen. Minn. Sent. Guidelines II.B.4 (2007). Ferguson
had two juvenile offenses, but one of them was committed before he turned
sixteen. No partial points are
allowed. Minn. Sent. Guidelines II.B.405 (1994). Therefore, Ferguson should have been assigned a criminal-history
score of zero. Under the 1994 sentencing
guidelines, his mid-range presumptive sentence for second-degree intentional
murder would have been 306 months. Minn. Sent. Guidelines
convictions should have merged into a single conviction, because murder is a
lesser-included offense of murder committed for the benefit of gang. Lopez-Rios,
669 N.W.2d at 609, 615-16. A person
cannot be convicted of both the crime charged and a lesser-included offense. Minn. Stat. § 609.04, subd. 1
(1994). Ferguson therefore should have only been
convicted of second-degree intentional murder for the benefit of a gang, and we
vacate his second-degree murder conviction.
When a crime is committed for the benefit of a gang, the
1994 sentencing guidelines permit 12 months to be added to sentence that would
be assigned for the underlying crime. Minn. Sent. Guidelines
II.G (1994). With that addition, Ferguson’s mid-range presumptive
sentence is 318 months. Minn. Sent. Guidelines
IV (1994). The 1994 guidelines provided
for a presumptive range between 299 and 313 months for the underlying offense. Id. The district court could impose any sentence
within the range of 311 to 325 months without departing from the
guidelines. Minn. Sent. Guidelines II.C (1994). We therefore remand to give the district
court an opportunity to impose an appropriate sentence within that range.
E C I S I O N
The district court did not err by
empaneling an anonymous jury because the record provides strong reasons to believe the jury needed protection
and the district court took reasonable precautions to minimize any possible
prejudicial effect. Although some of the
gang-expert’s testimony was erroneously admitted, we conclude on this record that
the error was harmless. We also conclude
that Ferguson failed to state a prima faciecase under Batson, that the district court did not err by finding that no jury
misconduct occurred, that the record does not support a claim of prosecutorial
misconduct, and that the evidence was sufficient to convict Ferguson.
sentence was incorrectly calculated, however, we remand for sentencing within
the presumptive range as modified by the crime-for-the-benefit-of-a-gang
Affirmed in part, reversed in
part, and remanded.