This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Devin Rayshawn Jones,
Filed August 9, 2005
Ramsey County District Court
File No. K0-03-1809
Mike Hatch, Minnesota Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
John Stuart, State Public
Defender, Sara L. Martin, Assistant State Public Defender,
Devin Rayshawn Jones, OID
#195814, MCF –
Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Appellant, Devin Jones, challenges his conviction and sentence for second-degree murder, attempted second-degree murder, second-degree assault, and possession of a firearm by an ineligible person. Appellant argues that (1) the trial court violated his right to confrontation by admitting a murder victim’s identification of him as the shooter when the victim was unable to testify at trial; (2) the murder victim’s statement was not admissible as a dying declaration; (3) the prosecutor committed prejudicial misconduct by eliciting improper character evidence, denigrating the defense, and misstating evidence; (4) the trial court committed plain error in failing to instruct the jury on accomplice testimony because the state’s main witness, who was promised immunity, could have been charged as an accomplice; (5) the other evidence was insufficient to corroborate the accomplice testimony; (6) he was denied the effective assistance of counsel by his attorney’s failure to object to character evidence, his elicitation of inadmissible evidence and his failure to request an accomplice-testimony instruction or object to the prosecutor’s improper closing argument; and (7) his consecutive sentences, based on a judicial finding that appellant’s crimes were “crimes against persons,” violated his right to a jury trial under Blakely v. Washington, 124 S. Ct. 2531 (2004).
Before appellant’s trial, the district court conducted a Rasmussen hearing on a number of issues, including whether Anthony Washington’s statement that “Eastwood” (appellant’s nickname) shot him could be admitted under the dying declaration exception to the rule against hearsay.
state argued that
counsel directed the district court’s attention to
after hearing arguments on this issue, the district court determined
I am going to allow the statements of [the victim] pursuant to Rule 804(b)(2) as a dying declaration. Based on what I’ve heard here it’s not clear that at the time that was made that any assessments had been made by health professionals as to [the victim’s] medical condition at that time, but it would certainly be reasonable that [the victim] believed that he was in imminent – or that death was imminent or impending. So I am going to allow that as a dying declaration.
The district court then set the date for appellant’s trial.
jury trial began on February 4, 2004, and ended on February 17, 2004. The Hennepin County Medical Examiner (M.E.)
testified first and confirmed that
Longbehn of the St. Paul Police Department testified next. Longbehn testified that, at approximately
7:00 a.m. on May 14, 2003, he received a call reporting shots fired at
also spotted “a tiny little gold shell casing that was laying on the carpet.” And Longbehn testified that the shell casing
“appeared to be a very small caliber casing similar in shape and size to that
of a .22 caliber.” Finally, Longbehn
stated that, based on his experience and findings, he believed that the gun
used to shoot
Michael McGonigal, chief trauma surgeon at
Before the start of the second day of trial, appellant’s counsel informed the district court of his belief that the state’s next witness, Gina Cerman, could incriminate herself by virtue of her potential answers during cross-examination. In response to this concern, the state offered her immunity, and the district court explained to Cerman (on the record, but outside the presence of the jury) her constitutional right against self-incrimination and the effect of the state’s grant of immunity.
The state then called Gina Cerman to the stand. Cerman identified appellant as “Eastwood” and testified that she met appellant when she bought crack from him. Cerman stated that, before the sun came up on the morning of May 14, she was “[r]unning the streets” looking for appellant, and she went to the home of “[a] lady called ‘Ma.’” She also testified that, when she arrived at “Ma’s” house, “Juicy” was there sleeping on the floor. Cerman did not know “Juicy’s” real name, but identified her from a picture provided by the state.
she did not find appellant at “Ma’s” house, Cerman went “to the other place”
looking for him. Cerman identified “the
other place” from a pair of photographs as
Some time after appellant left, Cerman stated that “one of the girls” she was getting high with told her appellant was “going to be on his way, be ready to go, or something like that.” Cerman then “heard a lot of commotion,” and the same girl screamed “[l]et’s go.” At that point, Cerman “headed for the door,” but she saw Lurks locking the door. Lurks let her out of the house though, and, as soon as she stepped outside, she saw appellant “running up to the house.” Cerman testified that appellant “had his hood up” and his hands were in his “sweat jacket.” After telling a man in the driver’s seat of her car to “get out,” Cerman got in. While she was trying to put on her seatbelt Cerman stated that she heard “[f]irecrackers” or “some popping noise,” which could have been gunshots. After she heard the sounds, appellant “came out of the house . . . and jumped into [her] car.”
At this point, Cerman testified, she “was wondering why [appellant] didn’t get in his own car because it was right in front of [hers].” Appellant told her to “drive” and Cerman stated that she then “assumed someone was shot.” She testified that “[i]f what I thought happened happened, then it was in my best interest to drive.” Cerman also stated that while she was driving she looked back at appellant and “thought that he had a gun, but it wasn’t very visible.” When she asked appellant if it was a gun, “[h]e said no, it was not,” but Cerman noted that “[a]fter all the sort of things that happened,” it was her impression that it was a gun. Finally, Cerman testified that she remembered telling the police that, when she asked appellant if he had killed “those guys,” appellant said “I didn’t kill them. I just didn’t want them to think they could ‘punk’ me.”
During cross-examination, appellant’s counsel questioned Cerman in great detail about her statements to police on May 15, 2003, the day after the shooting. In an apparent attempt to highlight the fact that Cerman was a crack-user and her memory may have been impaired, appellant’s counsel elicited a number of damaging statements from Cerman regarding appellant’s drug dealing.
The state also called Shanaya Walker. Walker, appellant’s former girlfriend, lived at 1637 Bush (where appellant was arrested), and testified that the .22 caliber handgun and the rifle that were found there by police did not belong to her or her family. Walker stated that when she picked appellant up to bring him to her house he was carrying a black duffel bag that belonged to her, and it appeared that “there was probably something in” the duffel.
Officer Whitman of the St. Paul P.D. Crime Laboratory testified next. Whitman testified that he analyzed the four shell casings found at the crime scene; they were all .22 caliber long-rifle rim-fire shell casings; “[o]ne of them was a Super X or a Western;” “one of them was a Remington;” and the “other two had stamped triangles on the bottom.” Whitman stated that he found no identifiable prints on the guns or ammunition recovered in the search of 1637 Bush. Whitman also testified that he recovered four rounds from the .22 caliber handgun, one in the chamber and three in the magazine, all of which were “Western/Super X brand.”
Eckerman, an employee at the Minnesota BCA Forensic Science Laboratory,
testified next. Eckerman was asked “to
examine four cartridge cases and one bullet [recovered from
The final piece of relevant testimony was that of Sergeant Wynkoop of the St. Paul Police Department. Wynkoop testified, in relevant part, that Gina Cerman made the following statement:
She said that she had been talking to Eastwood and he had mentioned that Juicy had been taken care of. She wasn’t sure what he meant by that, but she said that she had been with Juicy earlier in the evening – or, you know, just hours before. . . . Eastwood then asked her if Juicy looked to have been beaten up recently, and she told Eastwood that Juicy looked just fine and did not look beaten up. She said Eastwood then got angry about that and said that she should have been beaten up. . . . she said that Eastwood told her he had paid two people – in fact, the two victims – or the two people at the party with him – to beat Juicy up and paid $150 to have it done.
After the state rested, appellant’s counsel called thirteen police officers to the stand, all of whom were somehow involved in the investigation of appellant. Appellant’s counsel also called a number of other witnesses, all of whom were seemingly intended to buttress the theory that the police failed to follow any other leads and focused their investigation solely on appellant. In closing, appellant’s counsel offered his theory of the case:
The police are cagey enough to know when they can use facts to their favor when they want to get rid of somebody. Let’s look at some of the circumstances in that regard. . . . They get these two men to the hospital. That’s when the Gang Strike Task Force starts working, and they are the police that don’t wear uniforms, that aren’t out there operating under the surveillance of dispatchers, that don’t write reports.
. . .
Another problem the State has, they don’t want to look at any of this stuff that doesn’t get the Gang Strike Task Force its guy. Something stinks in this case, something stinks.
. . .
There’s problems here, and we’re never going to find out because the Gang Strike Task Force is not accountable. The police can do whatever they want in a case like this, with witnesses like this. . . . None of it makes sense, except that police officers that weren’t here know what’s going on.
Appellant was subsequently convicted on all counts and sentenced to consecutive terms of 306 months (second-degree murder), 153 months (attempted second-degree murder), and 39 months (second-degree assault). Appellant was also sentenced to a concurrent term of 60 months for possession of a firearm by an ineligible person. This appeal followed.
D E C I S I O N
A. Did the admission of the victim’s statement under the dying declaration exception to the rule against hearsay violate appellant’s Sixth Amendment right to confrontation, as defined in Crawford v. Washington?
first argues that his Sixth Amendment right to confrontation, as defined by the
U.S. Supreme Court’s recent decision in Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), was violated by the
admission of Anthony Washington’s statement to police that “Eastwood did it,”
under the dying declaration exception to the rule against hearsay. The Minnesota Supreme Court addressed this
issue in State v. Martin, 695 N.W.2d
578, 585-86 (
B. Did the district court err in determining that the victim’s statement was admissible as a dying declaration?
also argues that the district court abused its discretion in admitting
Rule 804(b)(2) of the Minnesota Rules of Evidence, “a statement made by a
declarant while believing that the declarant’s death was imminent, concerning
the cause or circumstances of what the declarant believed to be impending
death” is admissible in a homicide prosecution as an exception to the rule
against hearsay. Martin, 695 N.W.2d at 583.
In applying this exception, the Minnesota Supreme Court has stated that
“to be admissible, the profferor must show something more than simply that the
declarant is aware of the seriousness of his or her injuries and the
possibility of death.”
The district court, at the January 26, 2004 Rasmussen hearing, decided to admit Washington’s statement to police, which incriminated appellant (“Eastwood”), immediately after hearing oral arguments from both sides. As noted above, the district court explained its reasoning as follows:
Based on what I’ve heard here it’s not clear that at the time [the statement] was made that any assessments had been made by health professionals as to [the victim’s] medical condition at that time, but it would certainly be reasonable that [the victim] believed that he was in imminent – or that death was imminent or impending.
Minnesota Supreme Court has stated that for a dying declaration to be admitted,
“[the state] must show something more
than simply that the declarant is aware of the seriousness of his or her
injuries and the possibility of death.” Martin, 695 N.W.2d at 583 (emphasis
added). Competent evidence, not
conjecture, is needed to make this showing.
Buggs, 581 N.W.2d at 335. Balancing caselaw with trial court
discretion, we conclude the district court properly admitted
next argues that the prosecutor’s behavior rose to the level of misconduct on
numerous occasions during his trial and, as a result, his right to a fair trial
was impaired. The record indicates that
appellant’s counsel failed to object to any of the claimed prosecutorial
misconduct at trial. It is only in the
extreme case of “unduly prejudicial” prosecutorial misconduct that relief will
be granted in the absence of an objection at trial. State v. Whittaker, 568 N.W.2d 440, 450 (
Appellant argues first
that the state improperly asked “questions designed to elicit inadmissible and
prejudicial answers.” In support of this
argument, appellant cites the fact that the state elicited testimony regarding
his dealing crack and “running prostitutes.”
But, at trial, appellant’s theory of the case revolved around the very
fact that appellant was a crack dealer and the police were out to get him. In fact, his own counsel elicited a number of
statements from witnesses regarding his nefarious dealings. Accordingly, it would be hard to describe the
state’s eliciting of similar testimony as misconduct. Further, as the state points out, evidence of
appellant’s dealings with drugs and prostitutes was relevant to show motive in
the assault of Kimberly Edwards and the subsequent shootings of
Appellant also argues
that the state’s closing argument and rebuttal constituted prosecutorial
misconduct. See State v. Holscher,
417 N.W.2d 698, 702 (Minn. App. 1988) (a prosecutor’s closing argument should
be considered as a whole, and no single phrase should be taken out of context),
review denied (Minn. Mar. 18, 1988). Appellant points to the state’s soliloquy
about Anthony Washington’s inability to have his day in court, because he was
murdered, as evidence of prosecutorial misconduct. The supreme court has held that “the state
may discuss the victim’s life if it does not attempt to influence the jury’s
prejudice or passion.” State v.
Bradford, 618 N.W.2d 782, 799 (
Appellant also claims that the state “improperly belittled the defense” when it characterized the defense theory as a “vast right-wing conspiracy” aimed at appellant. And appellant argues that the state’s “most egregious misconduct occurred when he argued that the defense ‘knows how to subpoena cops’ and suggested that the defense should have called different police officers” as witnesses. When looked at in the context of this trial, where appellant’s theory of the case was that he had been set up and many of the state’s witnesses were lying, it appears that appellant’s allegations of prosecutorial misconduct, based on a few isolated incidents, are speculative.
also argues, for the first time on appeal, that the district court erred by not
submitting to the jury the questions of whether Gina Cerman was appellant’s
accomplice and, if so, whether her testimony was sufficiently
corroborated. Trial courts have
“‘considerable latitude’ in the selection of language in the jury charge.” State
v. Gray, 456 N.W.2d 251, 258 (
concedes that he never requested an accomplice instruction and did not object
to the district court’s failure to include such an instruction. He asserts on appeal that, even absent an objection,
failing to provide the instruction was plain error. See
State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (failure to object will
not cause an appeal to fail if the jury instructions contained plain error
affecting substantial rights or an error of fundamental law). Appellant relies on State v. Shoop, 441
N.W.2d 475 (
the theory that Cerman was appellant’s accomplice was completely contrary to
appellant’s theory of the case at trial (i.e., that the state’s entire case was
false and was an attempt to frame appellant), this was not an obvious
“appropriate case” that required the trial court to sua sponte give an accomplice instruction. There is no evidence in the record that would
support a theory that Cerman aided and abetted appellant in the shooting.
also argues that his trial counsel was ineffective and, therefore, he should be
granted a new trial. “Generally, an
ineffective assistance of counsel claim should be raised in a postconviction
petition for relief, rather than on direct appeal.” State
v. Gustafson, 610 N.W.2d 314, 321 (
appellant argues that his trial counsel (1) elicited evidence that was both inadmissible
and prejudicial to his defense, (2) failed to object to the state’s elicitation
of inadmissible evidence, (3) failed to request an accomplice-testimony
instruction, and (4) failed to object during the state’s prejudicial closing
argument. Thus, appellant argues, his
trial counsel was ineffective. But, as
made plain by the closing argument of appellant’s trial counsel, the first
three instances in which appellant claims his counsel was deficient are simply
related to his overall trial strategy. Appellant’s
counsel chose to allow and even elicit testimony that appellant was a crack
dealer and employer of prostitutes. This
was meant to provide a motive as to why the police would go to such trouble to
frame him. Not requesting an
accomplice-testimony instruction fits within this tactical strategy. It would have been even more ineffective for
appellant’s counsel to spend the entire trial claiming appellant was framed,
only to later request an instruction telling the jury they cannot rely solely
on the testimony of a witness that appellant claims lied throughout the trial
because she could be deemed his accomplice in the commission of the crime. As stated in Quick, tactical decisions
will not later be reviewed for competence.
As such, appellant’s ineffective assistance of counsel claim relies solely on his assertion that failure to object to an improper closing argument by the state constituted ineffective assistance. Even if he were able to show that the failure to object to the state’s improper comments fell below an “objective standard of reasonableness” (something he has not done), substantial prejudice, on this record, cannot be shown. See Gates, 398 N.W.2d at 561 (defendant must show deficient performance and resulting prejudice).
appellant argues that the district court violated his Sixth Amendment rights,
as defined by the U.S. Supreme Court’s recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), by sentencing him
consecutively. In State v. Senske, this court declined to extend Blakely to consecutive sentencing.
692 N.W.2d 743, 748–49 (
Here, appellant was sentenced consecutively for the murder of Anthony Washington, the attempted murder of Albert Lurks, and the assault of Kimberly Edwards. His sentence reflects separate punishments for three discrete crimes against three separate victims. Blakely is not involved.
 Appellant’s counsel noted his continued objection to the admission of this testimony at the end of the day’s proceedings.
The location where
At most, Cerman may have been considered an accessory after the fact under Minn. Stat. §609.495, subds. 1 and 3 (2002) (providing that a person who harbors, conceals, aids or assists by word or acts another whom the person knows or has reason to know has committed a crime, or aids by destroying or concealing evidence of the crime is subject to criminal penalties). But an accessory after the fact is not an accomplice to the concealed crime. See State v. Ray, 659 N.W.2d 736, 748 (Minn. 2003) (holding accomplice instruction not required when witness was eventually charged with crime of accessory after the fact, because witness could not have been tried for the crime itself).