IN SUPREME COURT
Anderson, Paul H., J.
Filed: May 26, 2005
Office of Appellate Courts
S Y L L A B U S
The district court did not clearly err when it concluded that the state’s questioning of a veniremember and the state’s use of a peremptory strike against that veniremember did not show purposeful discrimination under Batson v. Kentucky,476 U.S. 79 (1986).
Defendant’s Sixth Amendment Confrontation Clause rights under the rule articulated in Bruton v. United States, 391 U.S. 123 (1968), were not violated by admission of a codefendant’s statements because the statements were not prejudicial.
The district court did not err when it granted the state’s motion for joinder of defendant’s trial with that of a codefendant under Minn. R. Crim. P. 17.03, subd. 2(1).
District court erred in admitting expert testimony on gangs, but the error was harmless.
Prosecutor’s use of poorly chosen language injecting personal opinion into case was inadvertent and idiosyncratic and did not deny defendant a fair trial.
Postconviction court did not err in concluding that defendant failed to establish that his trial counsel’s performance fell below an objective standard of reasonableness and that, but for counsel’s errors, the outcome of the trial would have been different.
The district court did not abuse its discretion in imposing consecutive sentences through an upward departure from the sentencing guidelines.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Paul H., Justice.
In 1999, appellant Kawaskii Blanche was convicted and sentenced in Hennepin County District Court for premeditated first-degree murder in connection with the shooting death of 11-year-old Byron Phillips. Blanche was also convicted and sentenced for conspiracy to commit first-degree murder and a crime committed for the benefit of a gang. Blanche did not file a direct appeal, but more than three years after his conviction, he filed a petition for postconviction relief alleging numerous errors by the district court. He specifically alleged racial discrimination because the state used a peremptory challenge to strike a veniremember who appeared to be “Hispanic”; Confrontation Clause violations through the admission of statements by his codefendant in their joint trial; improper joinder of his trial with the trial of his codefendant; prosecutorial misconduct; ineffective assistance of counsel; and erroneous sentencing. The postconviction court denied Blanche’s petition for relief. We affirm.
The Underlying Facts
At around 6:15 p.m. on June 2, 1996,
11-year-old Byron Phillips was playing with his cousin and a friend on the
front porch of the friend’s
Phillips’ cousin and friend both stated that the passing car was driven by an African American male, who appeared to be in his teens and who wore a baseball type cap. The cousin and the friend disagreed on other details about the driver and they could not remember how many other people may have been in the car. The cousin testified that the car was a full-size blue car with rust spots, but the friend testified that he had seen a full-size red car with rust spots. Neither of the boys was ever asked to identify any individuals or cars in a photographic line-up.
police recovered ten 9-mm shell casings on a street just west of Phillips’ home
and some bullet fragments in the surrounding area. Bullets had hit nearby bushes and had gone
through the wall of a garage. Forensic
evidence showed that seven of the ten shell casings found at the scene had been
fired from the same gun and matched shell casings found at the scenes of three
recent shootings that had occurred in
On May 17 in
noon on June 2, Blanche, Montay Bernard, David Allen, and Robert Williams set
out to visit Caylon Williams in the hospital.
They were driving there in a maroon Nissan Maxima owned by Bernard’s
mother. Before going to the hospital,
Blanche wanted to drive through a part of
The police investigation of Phillips’ shooting led them to interview Blanche, but he was not charged at that time. The police had several leads, including the shell casings from the gang-related shootings, but the investigation stalled, and no one was charged with Phillips’ murder.
More than a year after the shooting, in July 1997, a woman named Vanessa Gaines came forward with information about Phillips’ shooting. Gaines had seen a billboard near her house with a picture of Phillips and a message which read: “You know who killed me. Why won’t you help?” Gaines called the police, but hung up the first two times that she called. She testified that she eventually told the police that sometime between 6:00 and 9:00 p.m. on June 2, 1996, she saw her nephew Duan Gaines at her home, talking to Blanche and Bernard. She had not known Bernard’s name on June 2, but she identified him at trial. She had recognized Blanche on June 2 because he would hang out with her nephew.
testified that she overheard the three men talking. She heard Blanche mention a shootout in
August 1997, Robert Williams told Minneapolis Police Detective David Zimmer
that he knew something about the Phillips shooting. Robert Williams, who was incarcerated when he
spoke to Zimmer, initially did not talk about Blanche’s involvement in the
shooting when he first spoke to Zimmer in June 1997. Later, Robert Williams contacted Zimmer
through his friend, Caylon Williams, and requested that Zimmer come to see
him. Robert Williams then implicated
Blanche and Bernard in Phillips’ murder, telling Zimmer that Blanche had
said that he and a friend were “rolling over north [
After receiving the information from Vanessa Gaines and Robert Williams, the police arrested Blanche and Bernard for Phillips’ murder. Both Blanche and Bernard were charged with first-degree murder under Minn. Stat. § 609.185(1) (2004), second-degree murder (drive-by shooting) under Minn. Stat. § 609.19, subd. 1(2) (2004), conspiracy to commit murder (Corey Scott) under Minn. Stat. § 609.175, subd. 2(2) (2004), and crime committed for the benefit of a gang under Minn. Stat. § 609.229, subd. 2 (2004). Allen was also arrested, but he was charged only with conspiracy to commit murder under Minn. Stat. § 609.175, subd. 2(2). On June 30, 1998, a grand jury indicted all three for the foregoing charges. The state then moved to join the trials of Blanche, Bernard, and Allen under Minn. R. Crim. P. 17.03 and Minn. Stat. § 631.035 (2004). Blanche, Bernard, and Allen each opposed a joint trial. The district court granted the state’s motion to join the trials of Blanche and Bernard, but denied the state’s request to join Allen’s trial. Blanche and Bernard were tried together in March 1999.
During jury selection, the state exercised a peremptory challenge against veniremember #4. Noting that the veniremember appeared to be Hispanic and was the first member of a racial minority questioned, Bernard’s counsel raised a Batson challenge, which Blanche’s counsel joined. Defense counsel asserted that the state’s exercise of the peremptory challenge was racially discriminatory.
The state justified its use of a peremptory challenge by arguing that veniremember #4 was “evasive or unresponsive in a way which caused [the state] concern about [the veniremember’s] attentiveness to some of the questions.” The state also argued that the veniremember did not give direct or logical explanations about how he assessed credibility, and that the veniremember was “laboring over responses,” causing the state concern about the veniremember’s capacity to make credibility assessments. Defense counsel argued that the veniremember’s service on two previous juries, including one the previous week, indicated that two other prosecutors had found that the veniremember had the capacity to make appropriate decisions.
The state countered that its concerns over the veniremember’s capacity to make credibility assessments were race neutral. The state also argued that previously sitting on a jury does not mean that the prosecutors in those cases approved of this veniremember. Moreover, the state suspected that, when the veniremember served as a juror in a case the previous week, he and the jury had not appropriately followed the law. Following a recess, the state told the court that after speaking with the prosecutor in the earlier case, it confirmed that the veniremember had served on the panel that the prosecutor in that case believed had not appropriately followed jury instructions.
The district court concluded that it would not base its decision on the Batson challenge on any information regarding the veniremember’s service on other jury panels because that information “became known to [the state] through [an outside source], not through any questioning of this juror.” The court did not conduct the three-step Batson analysis on the record, but concluded that, under the totality of the circumstances, there was not “any inference” that the peremptory challenge was brought for any racial reason—step one of Batson. The court therefore allowed the peremptory challenge.
Robert Williams’ Testimony and Letter
The state called numerous witnesses who testified that Blanche and Bernard told them about their involvement in the Phillips shooting. Among those witnesses was Robert Williams, who identified himself as a Bogus Boyz gang member at the time of the shooting. Williams testified about the information that he had previously given the police which implicated Blanche and Bernard in Phillips’ murder. On cross-examination by Bernard’s counsel, Williams admitted that while in prison in September 1997, he wrote a letter to Blanche. Bernard moved for admission of the letter without objection. In the letter, Williams told Blanche that the “feds” had been investigating the Bogus Boyz and knew “about the little boy and everything.” Williams wrote that he did not want to do any time in prison and that he “told [the police] what [he knew] so Montae [sic] will only go down for that [crime].” Later, Blanche’s counsel also cross-examined Detective Zimmer about the letter. Zimmer admitted that Williams’ letter to Blanche was written in his presence and with his help, and that the letter’s content was designed to lead anyone who read it to believe that Blanche knew what Williams was talking about, despite its vague reference to the shooting.
The state also called witnesses to testify to
incriminating statements made by Bernard.
Monta Davis, who is both Robert Williams’ cousin and related to Phillips,
testified that he had been a member of another gang, but had hung out with
members of the Bogus Boyz. Davis
testified that in February 1998, while he and Bernard were in the “workhouse,”
Bernard admitted to him he was involved in Phillips’ death—that “him and one of
his friends” had “got into a shoot out” with Scott while Bernard drove his
Charles Kelly likewise testified that in his interview with
Duan Gaines testified that in 1996 he was a
member of the Bogus Boyz gang and that, on the night before Phillips was shot,
he had been involved in a plan to shoot Scott.
But in response to the state’s questions, Gaines recanted much of his
earlier grand jury testimony. Gaines
admitted that he had testified to the grand jury and told Detective Zimmer in
1998 that on the evening Phillips was shot, Blanche and Bernard had come to his
aunt’s house and asked for a change of clothes.
But at trial, Gaines stated that no one had come to his aunt’s house on
June 2 and that his testimony to the grand jury was what his attorney had told
him to say. Gaines also denied the truth
of his previous grand jury testimony where he stated that, during a
Another witness, whose testimony has not been challenged by Blanche on appeal, testified that a “couple [of] days” after Phillips was shot, this witness overheard Blanche tell Gaines to “keep his mouth shut,” that Gaines should not “be running around here telling females that, * * * we had shot this little kid; that we supposed to have been the one that shot the little kid.” This witness was also a Bogus Boyz gang member with multiple felony convictions.
Another witness, Sid Strickland, whose direct testimony has also not been challenged in this appeal, testified that while he was in prison, Blanche told him that “they had gotten into some problems with [Scott]. And when they seen him, they shot at him, and a little boy ended up wounded, got shot.” Strickland also testified that Blanche admitted to him that, when the incident took place, he had the “9”—a 9-mm handgun. On cross examination, when Blanche’s counsel was attempting to discredit his testimony, Strickland spontaneously said, “[Blanche] sold bags to me and numerous amounts of things.” Blanche’s counsel did not object to Strickland’s comment. Strickland also admitted that he testified because of an agreement that could help him get a reduction in his sentence for a separate crime.
Lieutenant Michael Martin, a former investigator for the gang unit in the Minneapolis Police Department, testified as an expert witness on gang culture. Martin began by testifying about general gang characteristics and some specific characteristics about the Bogus Boyz and the S.T.O.’s. Martin then testified that he had investigated gang activities where rival gang members assaulted or shot at each other. Martin said that, to maintain their respect within the community, gang members have to retaliate if a gang member is involved in an incident with a rival gang. In general, according to Martin, gangs are not cooperative with the police; instead, gang members “get even” on their own.
On cross-examination by Bernard’s counsel, Martin reiterated his earlier testimony that gang members generally do not talk to the police. In response to a question by Bernard’s counsel asking him to define a gang, Martin provided the general law enforcement definition of a gang. See Minn. Stat. § 609.229, subd. 1 (2004). Also on cross-examination, Martin testified that while gang members generally do not cooperate with the police, there are exceptions. Martin agreed with Bernard’s counsel that “some gang members will falsely accuse other gang members of a crime.” On redirect, the state attempted to clarify Martin’s testimony, asking him, “Have you had experience with gang members falsely accusing people within their own gang of crimes?” Martin responded that he had never had experience with gang members falsely accusing their own gang members of crimes. On recross by Bernard’s counsel, Martin also agreed that gang members will accuse nongang members of crimes because there is no loyalty to nongang members.
Videotaped Statements of Blanche and Bernard
The state introduced as evidence a videotape containing excerpts from separate interviews investigators conducted with Blanche and Bernard. The videotape was played for the jury with instructions to the jurors that they could consider Bernard’s and Blanche’s statements only as they related to each defendant’s own case and not the other’s case. Part of the videotape contained a statement by Bernard that had been redacted shortly after the point when detectives asked him whom he picked up in his car on the morning of June 2, 1996. Bernard says “Robert Williams”; the tape then skips and the next words Bernard says are “David Allen.” During jury deliberations, the jurors sent the following note to the district court: “We noticed that a name was edited out of the Montay Bernard’s video testimony statement to the police. Would this normally be done so as not to implicate the other defendant?” The record indicates that in response to this inquiry, the court sent the jury the following note: “Any editting [sic] on the tape was done at the direction of the court according to the rules of law. And you should not concern yourself with it.”
Adjudication and Sentencing
The jury found Blanche
guilty on all four counts—first-degree murder, second-degree murder
(drive-by shooting), conspiracy to commit murder, and crime committed for the
benefit of a gang. The jury found
Bernard guilty of two counts—conspiracy to commit murder and crime committed
for the benefit of a gang. The district court sentenced Blanche to the
mandatory sentence of life imprisonment for premeditated first-degree murder,
the presumptive sentence of 180 months for the conspiracy against Scott to
commit first-degree murder, and added the mandatory minimum of 12 months and 1
day to his life sentence for a crime committed for the benefit of a gang. The court, making an upward sentencing
departure, ordered these sentences to run consecutively to each other and
consecutively to a federal sentence that Blanche was serving until April 11,
2000, for being a felon in possession of a firearm. The court stated that it chose in its
discretion to make the sentences consecutive and specifically listed several factors: the existence of multiple victims, both intended and unintended; Phillips’ vulnerability and complete innocence; the violation of Phillips’ zone of privacy; the emotional and psychological devastation to the community of repeated random shootings in residential areas in an attempt to assassinate Corey Scott; the harm to the community resulting from the senseless and brutal killing of an innocent child; and Blanche’s apparent lack of remorse and responsibility. Blanche did not file a direct appeal and his conviction became final on July 12, 1999.
In December 2002, Blanche filed a petition for postconviction relief. He alleged racial discrimination because the state used a peremptory challenge to strike a veniremember who appeared to be “Hispanic”; Confrontation Clause violations through the admission of statements by his codefendant in their joint trial; improper joinder of his trial with the trial of his codefendant; prosecutorial misconduct; ineffective assistance of counsel; and erroneous sentencing.
The same judge who presided at Blanche’s trial heard the postconviction petition. The state argued to the postconviction court that Blanche’s petition was barred because all the issues raised were available during the time frame for a direct appeal and that the state would be unduly prejudiced by the delay if a new trial were granted. The postconviction court, in an Order and Memorandum filed June 11, 2003, concluded that Blanche was entitled to have the issues he raised considered on postconviction review on the ground that a convicted defendant has the right to at least one substantive review. The court also concluded that, under the circumstances of this case, the delay between Blanche’s conviction and any decision on postconviction relief was not excessive enough to entitle the state to an automatic dismissal of the petition based on prejudice.
The postconviction court nevertheless denied and dismissed Blanche’s petition without a hearing, concluding that Blanche was not entitled to relief. Blanche appealed and on December 3, 2003, we heard oral arguments. Following the hearing, on December 18, 2003, we remanded the issue of Blanche’s ineffective assistance of counsel claim to the postconviction court to hold an evidentiary hearing. We also stayed Blanche’s appeal and retained jurisdiction over the other issues.
At a hearing held July 7, 2004, Blanche called only one witness, his trial counsel, Demetrius Clemons. The state did not call any witnesses. Clemons testified that he did not remember many of his actions or tactical decisions he had made during the trial. The state attempted to show that Clemons’ representation had not been unreasonable. After the hearing, the postconviction court determined that Blanche failed to establish that his trial representation fell below an objective standard of reasonableness and that, but for trial counsel’s errors, the outcome would have been different.
On appeal, Blanche requests a new trial based on alleged errors committed by the district court during his trial. The state requests that the postconviction court’s decision denying relief be affirmed. In the alternative, if we conclude that Blanche is entitled to a new trial based on the merits of the petition, the state requests we consider whether it would be unduly prejudiced by a new trial because of Blanche’s delay in seeking review.
We first consider the district court’s denial
of Blanche’s Batson motion.
Blanche asserts that the state’s peremptory challenge of veniremember #4
was racially discriminatory in violation of the Equal Protection Clause. See Batson v.
Batson, the United States Supreme Court established a three-step test to
determine whether a peremptory challenge discriminates on the basis of
once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful discrimination.
a district court is in a unique position to determine whether the circumstances
of a peremptory challenge give rise to an inference of discrimination, we will
reverse a district court’s decision only if there was clear error. State v. White, 684 N.W.2d 500, 506-07
Blanche argues that the state’s strike of veniremember #4 gave rise to an inference that the veniremember’s exclusion was based on race because: (1) the veniremember, who appeared to be “Hispanic,” was the first member of a racial minority to be considered, (2) the veniremember disclosed that his aunt was married to an African American male, and (3) the state’s questioning of the veniremember showed that it was concerned with the veniremember’s race. Blanche argues that the state asked the prospective juror “broad, open-ended questions that were obviously intended to * * * provide a basis for a challenge for cause, or a supposedly race-neutral reason for a peremptory strike.” Blanche claims that this veniremember’s questions were different from the types of questions that the state had asked during its examination of other veniremembers.
The postconviction court, which was the same court that presided at Blanche’s trial, elaborated on its decision regarding the Batson motion and found that there was a lack of explicit racial overtones to the case. The court noted that both defendants, the victim, the intended victim, and most of the witnesses were African American. The court further observed that at the time the state questioned veniremember #4, there were still three African American veniremembers to be evaluated. The court found that the state’s strike of veniremember #4 would make any other attempt to challenge minority veniremembers, especially the three African American veniremembers, significantly more suspect. The court then concluded that there was insufficient evidence to conclude that the state’s strike was racially motivated.
the district court decided the Batson issue on the first step of the Batson
test, the postconviction court also analyzed the second and third steps,
apparently mindful of Hernandez v. New York, in which the Supreme
Court held that if the striking party proceeds past the first step by offering
a race-neutral reason without questioning the objecting party’s prima facie
showing, the outcome of step one is moot.
The postconviction court also noted as “background” that the district court had taken “extreme measures” in Blanche and Bernard’s trial, which it had “never before or since taken * * * to assure the racial diversity of a jury panel in any case it has tried.” After reviewing the initial randomized ordering of over 100 veniremembers, the court noticed that there had been only three African Americans on the list. Of the three, one had been removed from the list after arriving late and the other two had been placed near the bottom of the list. The court ordered the previously removed veniremember to be reinstated and ordered that the randomized order be rerun. Ultimately, all three African Americans were impaneled on the jury.
We have carefully reviewed the record and we conclude that the state’s questioning of veniremember #4 and the veniremembers before him does not reveal any material differences in the way questions were framed. We see no clear basis for an inference of racial discrimination. In questioning veniremembers, parties have “considerable latitude” in the types of questions that they may ask. See Bowers, 482 N.W.2d at 777. The state had asked each of the previous veniremembers how they evaluate credibility. Blanche’s nonspecific assertions of a Batson violation are insufficient to demonstrate any impropriety in the questions asked. Moreover, we agree with the postconviction court that the state’s use of a peremptory challenge on veniremember #4 made any future peremptory challenge on a member of a racial minority more suspect. This circumstance made racial discrimination in the strike of this veniremember less likely. Accordingly, for all of the foregoing reasons, we hold that the district court did not clearly err when it overruled Blanche’s objection to the state’s peremptory challenge because the circumstances of the state’s strike of veniremember #4 did not raise an inference that the veniremember’s exclusion was based on race.
we address Blanche’s claim that the district court erred because it violated
his Sixth Amendment Confrontation Clause rights under the rule in Bruton
v. United States, 391 U.S. 123 (1968).
Blanche asserts that the court erred when it admitted statements of
codefendant Bernard through the testimony of Monta Davis, Detective Charles
Kelly, and Duan Gaines, and a redacted videotape of Bernard’s police
interview. We review de novo whether
admitted testimony violates a defendant’s Confrontation Clause rights. State v. King, 622 N.W.2d 800, 806 (
established the rule that when two defendants are tried jointly, the pretrial
confession of one, which implicates the other defendant, cannot be admitted
against the other defendant unless the confessing codefendant testifies at
Bruton, the Supreme Court has provided some parameters on how a
codefendant’s confession can be admitted into evidence in a joint trial. In Richardson v. Marsh, the Court
stated that the protective rule of Bruton is a narrow exception to the
general principle that jurors follow jury instructions. 481
Gray v. Maryland, the Supreme Court decided a question it had reserved
ruling on in Marsh—whether replacing the defendant’s name “with an
obvious indication of deletion, such as a blank space, the word ‘deleted,’ or a
similar symbol,” is prohibited under Bruton’s protective rule. 523
A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to [the defendant], sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judge’s instruction not to consider the confession as evidence against [the defendant], for that instruction will provide an obvious reason for the blank. A more sophisticated juror, wondering if the blank refers to someone else, might also wonder how, if it did, the prosecutor could argue the confession is reliable, for the prosecutor, after all, has been arguing that [the defendant], not someone else, helped [the codefendant] commit the crime.
Eighth Circuit Court of Appeals has also provided some analysis on what falls
under Bruton’s protective rule.
In United States v. Logan, a detective testifying about a
codefendant’s confession replaced the name of the defendant in the confession
with the words “another individual.” 210
F.3d 820, 821 (8th Cir. 2000). The
Eighth Circuit distinguished Gray, stating that the use of the words
“another individual” in place of the defendant’s name was not a redaction and
did not draw attention to the change.
specifically argues that the admission of
Davis’s and Kelly’s Testimony
and Kelly both testified about conversations that
Under the circumstances of the case, we conclude that the use of the word “friend” was not prejudicial to Blanche because the reference by itself did not implicate Blanche. The testimony did not contain an obvious edit and did not draw particular attention to the word chosen. More importantly, witnesses gave testimony that numerous gang members or associates were involved in targeting Scott; thus, the “friend” could have been any one of almost a dozen gang members or associates. Only when linked to other testimony does the reference suggest that Blanche is most likely the “friend.” Having reached this conclusion, we nevertheless caution the state that substituting the word “friend” or something similar will not in all cases eliminate a Bruton violation. In other instances, it may be obvious that the “friend” could refer only to the defendant. But, in this case, we conclude that the use of “friend” was not improper in the context of Davis’s and Kelly’s testimony.
Duan Gaines’s Testimony
Blanche also argues that his Sixth Amendment rights were violated when Duan Gaines testified that Bernard said to Blanche, “We should have got out. You saw whoopty fall.” We disagree with the postconviction court’s conclusion that Gaines’s statement was so nebulous that the jury could not possibly infer that the statement meant something to the effect that Bernard and Blanche should have gotten out of the car before shooting at Scott so as to have avoided hitting Phillips. Further, we do not subscribe to the notion that Bruton’s protections only cover statements that are formal confessions, such as those in which the defendant directly admits guilt in the context of a formal statement. Therefore, we conclude that the admission of Gaines’s statement over Blanche’s objection was error. At worst, however, this testimony was cumulative and therefore harmless. If the jury’s verdict was in any part based on Gaines’s testimony, his testimony included other statements, which were admissible against Blanche and in which Blanche identified himself as a shooter. See U.S. v. Payne, 923 F.2d 595 (8th Cir. 1991) (holding that admission of a redacted statement in violation of Bruton was harmless error where other evidence made the statement largely cumulative). Therefore, we conclude that the error was harmless because the guilty verdict was surely unattributable to the error.
Bernard’s Videotaped Statement
Blanche contends that admission of the edited videotape of Bernard’s statement violated
his Confrontation Clause rights. We
agree that the type of redaction used on the videotape offends the concerns
raised in Bruton. Erasing
Blanche’s name did not eliminate all reference to him. As evidenced by its question to the district
court, the jury noticed the redaction and correctly inferred that the erasure
was Blanche’s name. Nevertheless, we do
not conclude that Blanche’s Sixth Amendment Confrontation Clause rights were
violated by admission of the videotape because, while Bruton’s protections
apply more broadly than just formal confessions, they nevertheless require that
the statement be a confession that is prejudicial to the defendant. See
are also concerned that the district court did not explicitly instruct the jury
in its final instructions that Bernard’s statements, whether provided through
the testimony of other witnesses or by Bernard directly, could not be used
against Blanche. The Bruton line
of cases explicitly stresses the importance of limiting jury instructions. When the videotape was played, the court
instructed the jury as follows: “[Y]ou can consider the statements of
Mr. Bernard and Mr. Blanche only as they relate to their own case. So you should not consider, for instance, Mr.
Blanche’s statements in Mr. Bernard’s case.
And you should not consider Mr. Bernard’s statements in Mr. Blanche’s
case.” But when the court gave the jury
instructions, the court generally stated that each defendant’s case must be
tried separately and that the jury “should analyze what the evidence shows with
respect to that defendant, leaving out of consideration entirely any evidence
admitted solely against the other defendant.” The court should have provided specific
limiting instructions both at the time the evidence was introduced and when
providing final instructions to the jury.
We nevertheless conclude that here the combination of the instructions
provided by the court was sufficient to provide Blanche the protections
required by Bruton. See State v.
White, 684 N.W.2d 500, 509 (
Based on the foregoing, we hold that
Blanche’s Sixth Amendment Confrontation Clause rights were not violated by
also argues that the district court erred when it joined Blanche’s trial with
Bernard’s, claiming that the court incorrectly determined that there were no Bruton
violations or other unfairly prejudicial issues, including the letter from
Robert Williams to Blanche, requiring separate trials. In reviewing a court’s pretrial decision
regarding joinder, we make “an independent inquiry into any substantial
prejudice to defendants that may have resulted from their being joined for
trial.” State v. DeVerney, 592
N.W.2d 837, 842 (
Pretrial joinder is governed by Minn. R. Crim. P. 17.03, subd. 2(1), which requires the district court to analyze four factors when determining whether to order joint trials. See Santiago, 644 N.W.2d at 444 (concluding the procedural rules are controlled by the rules of criminal procedure rather than statute). The rule provides in relevant part:
When two or more defendants are jointly charged with a felony, they may be tried separately or jointly in the discretion of the court. In making its determination on whether to order joinder or separate trials, the court shall consider  the nature of the offense charged,  the impact on the victim,  the potential prejudice to the defendant, and  the interests of justice.
Minn. R. Crim. P. 17.03, subd. 2(1). The district court analyzed each of these factors and determined that the joinder of Blanche and Bernard was appropriate. We will analyze each of these four factors in turn.
Nature of the Offense Charged
Joinder is appropriate when codefendants act in close concert with one another. DeVerney, 592 N.W.2d at 842. We agree with the district court that, here, the nature of the offense favored joinder. Blanche and Bernard were charged with the same crimes and the great majority of the evidence presented was admissible against both Blanche and Bernard. Evidence was presented that Blanche and Bernard each played a role in the conspiracy to kill Scott, were both in the vehicle, and were both shooters.
The Impact on the Victims
our analysis of this factor, we have considered the impact on both the victim
of the crime as well as the trauma to the eyewitnesses who would be compelled
to testify at multiple trials.
The Potential Prejudice to the Defendant
The third factor is the key factor in Blanche’s argument. Blanche asserts that he was prejudiced by Bernard’s statements that were not admissible against him and the introduction of Robert Williams’ letter implicating him in Phillips’ murder.
Because we have already held that the alleged Bruton statements were either not error or were harmless error, we conclude that Blanche suffered no prejudice based on Bernard’s statements. Therefore, Blanche was not prejudiced by joinder based on the alleged Bruton statements. Moreover, we note that, at the time the district court made its decision to join the two trials, Blanche had not specified which statements might be admitted that would potentially violate Bruton. A district court does not err because of the possibility, as Blanche alleged, of offending Bruton statements. Denying joinder on this possibility alone is simply an argument against joinder generally. See Minn. R. Crim. P. 17.03, subd. 2(1) (giving the court discretion in determining whether to try two or more defendants jointly).
Blanche also contends that Bernard’s introduction of Robert Williams’ letter was unduly prejudicial because the letter was written to show that Blanche knew about and was involved in Phillips’ murder. Because Detective Zimmer directed William to write the letter, its introduction did not prejudice or create antagonistic defenses between Blanche and Bernard. Rather, Blanche used the letter and Zimmer’s involvement in its preparation to support Blanche’s theory that the state was manipulating evidence to reach the result that it wanted. We therefore conclude that Bernard’s introduction of the letter was not prejudicial to Blanche.
The Interests of Justice
The district court also found that the interests of justice weighed in favor of joining Blanche’s and Bernard’s trials. Bernard’s and Blanche’s defenses were not antagonistic. See Hathaway, 379 N.W.2d at 503 (defining antagonistic defenses). Bernard’s main defense was that he was at home at the time of the shooting. And, at more than one point in the trial, Bernard pointed the finger at other gang members as the shooters. Moreover, because both trials involved testimony by gang members, the risk existed that these witnesses would not have been available at a second trial.
on our analysis of the four factors articulated in Rule 17.03, subd. 2(1), we
hold that the district court did not err in granting the state’s motion for
joinder. Nevertheless, we caution, as we did in
Next, we consider whether Lieutenant Martin’s gang-expert testimony was properly admitted. Blanche argues that, under Minn. R. Evid. 403, Martin’s testimony was improper because it was unfairly prejudicial and largely cumulative of the other witnesses’ testimony about how the Bogus Boyz operated as a gang. Counsel for both Blanche and Bernard objected to Martin’s testimony before he testified. The district court denied defense counsels’ motions, stating that Martin’s testimony would be helpful to the jury because gang culture is outside of their normal experiences.
In DeShay and in Lopez-Rios, we cautioned courts that gang-expert testimony should be admitted only if it is helpful to the jury in making the specific factual determinations that jurors are required to make. DeShay, 669 N.W.2d at 884; Lopez-Rios, 669 N.W.2d at 613. To be admitted, gang-expert testimony must
add precision or depth to the jury’s ability to reach conclusions about matters that are not within its experience. Moreover, the [district] court must carefully monitor this testimony so that the testimony will not unduly influence the jury or dissuade it from exercising its independent judgment. Even if acceptable under Rule 702, expert testimony should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
DeShay, 669 N.W.2d at 888 (citing Minn. R. Evid. 403).
In both DeShay and Lopez-Rios, we held that the admission of expert testimony on general gang activities and gang affiliation was erroneous. DeShay, 669 N.W.2d at 888; Lopez-Rios, 669 N.W.2d at 613. In DeShay, we held that much of the gang expert’s testimony was erroneously admitted because it was largely duplicative, giving little assistance to the jury in evaluating the evidence in a “noncomplex drug conspiracy case.” 669 N.W.2d at 888. In Lopez-Rios, we held that much of the gang expert’s testimony on general gang activities and gang affiliation was erroneously admitted as it was largely duplicative of previous witness testimony, and we also found troublesome the expert’s testimony that the defendant was a member of a criminal gang. 669 N.W.2d at 612-13.
Blanche was charged with a crime committed for the benefit of a gang under Minn. Stat. § 609.229, subd. 2 (2004). To be admissible here, the gang expert’s testimony must have been helpful to the jury in making factual determinations related to this charge, and the probative value must not have been substantially outweighed by the danger of unfair prejudice.
Blanche argues that Martin’s testimony was prejudicial because Martin
testified about criminal activities in which gangs generally engage, which, by
inference, meant that these were criminal activities in which Bogus Boyz gang
members engaged. Indeed, Martin
testified that gang members shoot at each other. Martin also testified 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. Martin further testified that, in general, gang members do not cooperate with the police. Responding to defense counsel’s questions on cross-examination, Martin said that he had never had any personal experience with gang members who falsely accuse people within their own gangs of crimes.
Like DeShay and Lopez-Rios, this was a case that required the jurors, as fact finders, to decide only certain specific factual issues in order to determine whether Blanche committed a crime for the benefit of a gang under Minn. Stat. § 609.229, subd. 2. We recognize that the district court did not have the benefit of our holdings in DeShay and Lopez-Rios when it allowed Martin to testify; we nevertheless conclude that the court erred by allowing much of Martin’s testimony because the testimony was largely duplicative and unfairly prejudicial. In particular, Martin’s testimony that gang members retaliate against other gangs by shooting at each other was prejudicial because there was a risk that the jury would improperly use this evidence to conclude that Blanche was the shooter simply because he is a member of a gang.
We are especially troubled by
Martin’s testimony that gang members generally do not falsely accuse their own
gang members of crimes. Martin’s
testimony bordered on vouching for the testimony of Bogus Boyz gang member
Robert Williams, implying that Williams was necessarily telling the truth in
his testimony because Blanche belonged to the same gang as Williams. See Van Buren v. State, 556 N.W.2d
548, 551-52 (holding that district court committed plain error by allowing
testimony that witnesses believed the complainant’s story about sexual
assaults). Bolstering a witness’s
credibility exceeds the proper bounds of aiding the jury to reach conclusions
about matters not within its experience.
Witness credibility determinations are strictly the domain of the jury. State v. Olhausen, 681 N.W.2d 21, 26 (
Although we conclude that much of
Martin’s expert testimony was admitted in error, we nevertheless hold that the
admission of his testimony was not sufficiently prejudicial to justify a new
trial. “Reversal is warranted only when
the error substantially influences the jury’s decision.” DeShay, 669 N.W.2d at 888 (quoting State
v. Nunn, 561 N.W.2d 902, 907 (
we are concerned about Martin’s testimony that gang members generally do
not falsely accuse their own gang members of a crime, we conclude that in this
case, based on the testimony of other witnesses and because Martin did not specifically
name Robert Williams, this testimony did not substantially influence the
verdict. Nevertheless, we reiterate our concern
that, especially in criminal cases, district courts should exercise caution in
admitting gang-expert testimony because of the potential for such experts to
unduly influence the jury. DeShay,
669 N.W.2d at 885 (citing State v. Nystrom, 596 N.W.2d 256, 259-60 (
Next, we consider Blanche’s allegations of prosecutorial misconduct. Blanche asserts that the state committed prosecutorial misconduct based on two specific actions. First, Blanche alleges that the prosecutor improperly interjected into closing arguments the prosecutor’s personal opinion concerning evidence and witness credibility. Specifically, the prosecutor prefaced approximately 18 statements in closing argument with phrases such as “I suggest to you,” “I think,” “I ask you,” and “I submit to you.” Second, Blanche asserts that the prosecutor improperly suggested that witness Duan Gaines was committing perjury. At trial, Gaines recanted much of the testimony he gave to the grand jury. The prosecutor asked Gaines whether he was aware he was testifying under oath. Gaines responded that he was. The prosecutor then asked Gaines: “You’re aware that if you lie about a false material fact –,” to which Gaines responded, “It’s impeachment.” The prosecutor replied, “Well, actually, it would be perjury,” and followed up with, “Do you understand that?” Gaines responded that he did.
trial, Blanche did not object to either instance of alleged misconduct. When a defendant fails to object at trial, he
generally forfeits the right to have prosecutorial misconduct considered on
appeal. State v. Sanders, 598
N.W.2d 650, 656 (
prosecutor’s use of phrases such as “I suggest to you” and “I think” to
interject personal opinion into a closing argument is improper. See Ture v. State, 681 N.W.2d 9, 20 (
With regard to the prosecutor’s mention of perjury in questioning Duan Gaines, it appears to us, based on our review of the record, that the prosecutor was attempting to inform Gaines that lying under oath is perjury. After Gaines denied the truth of most of his grand jury testimony, we conclude that the prosecutor did not overstep the proper grounds of impeachment by warning Gaines that lying under oath constitutes perjury. The prosecutor did not directly accuse Gaines of perjury. We conclude that the prosecutor’s questioning was not plain error.
For the foregoing reasons, we conclude that the prosecutor’s conduct did not deny Blanche a fair trial. Accordingly, we hold that Blanche is not entitled to a new trial on the basis of prosecutorial misconduct.
We also address Blanche’s claim that his
trial counsel was ineffective and therefore he is entitled to a new trial. The state contends that no new and
important facts were presented at the postconviction hearing; therefore,
Blanche did not meet his burden of proving that his trial counsel was
ineffective. We review ineffective assistance of counsel claims de novo because
they involve mixed questions of law and fact.
State v. Blom, 682 N.W.2d 578, 623-24 (
prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate that counsel’s performance (1) fell below an objective standard of
reasonableness (performance prong), and (2) that a reasonable probability
exists that the outcome would have been different but for counsel’s errors
(prejudice prong). State v. Rhodes,
657 N.W.2d 823, 842 (
allow counsel “flexibility to
represent a client to the fullest extent possible,” our review of the
performance prong does not include reviewing attacks on counsel’s trial strategy. Opsahl v. State, 677 N.W.2d 414, 421 (
Blanche argues that Clemons was ineffective because he made objectively unreasonable errors in failing to object to several items of prejudicial evidence and failing to ask for corrective instructions. Blanche contends that his counsel could have had no legitimate strategic considerations for failing to object. We will address each of Blanche’s claims of error in turn.
Bruton Evidence and Midtrial Severance Based on Bruton Violations
Our conclusion on the Bruton issues is controlled by our earlier conclusion that the admitted statements by Bernard were either not admitted in error or were harmless error. We therefore conclude that Clemons’ failure to object to the alleged Bruton violations was not erroneous because they did not impermissibly prejudice Blanche.
Robert Williams’ letter and Bernard’s Counsel’s Cross-examination of Detective Zimmer
Blanche asserts that Clemons’ failure to object to the admission of Bernard’s letter constituted prejudicial error. But when Clemons cross-examined Zimmer, he attempted to show that Zimmer had directed Williams to write the letter in order to trap Blanche. Clemons’ efforts to show that Zimmer conspired with Williams to incriminate Blanche were consistent with Clemons’ theme throughout the trial that the state used its power to create the outcome that it wanted and that the state was not concerned about the truth. We have repeatedly said that we will not second-guess counsel’s trial tactics. See, e.g.,Opsahl, 677 N.W.2d at 421. Because Clemons used the letter as a tactic to show that Zimmer was trying to manipulate the outcome of the investigation, we reject Blanche’s claim that Clemons’ failure to object to the letter was erroneous.
Sid Strickland’s Testimony That Blanche Had Sold Him “Bags”
Blanche contends that Clemons unreasonably failed to object to Sid Strickland’s spontaneous testimony that “[Blanche] sold bags to me and numerous amounts of things.” Blanche argues that the comment was unduly prejudicial because Blanche’s bad acts of selling drugs are not relevant to the charged crimes. Clemons did not request a curative instruction or move to strike the answer as being nonresponsive to his question. Here, the focus of Clemons’ cross-examination of Strickland was to show that Strickland was testifying against Blanche in order to get a reduced sentence. Further, Strickland’s comment about “bags” was brief and perhaps ambiguous. Because of the nature and context of the remark, we conclude that Clemons’ failure to object to the testimony did not affect the outcome of the trial.
Limiting Instructions on Expert Testimony on Gangs and Three Gang-related Shootings
Finally, we must determine whether the
district court erred as a matter of law when it made Blanche’s sentence for
conspiracy to murder Scott consecutive to his sentence for first-degree murder
and when it made these sentences consecutive to Blanche’s federal sentence for
being a felon in possession of a firearm.
We will not reverse a district court’s decision to impose a consecutive
sentence unless there has been a clear abuse of discretion. Neal v. State, 658 N.W.2d 536, 548 (
The district court explicitly stated
at the sentencing hearing that it was ordering Blanche’s sentences to run
consecutively. See Minn. Stat. §
609.15, subd. 1 (2004). The
postconviction court clarified that it was the court’s intent to impose consecutive
sentences through an upward sentencing departure and to impose the maximum
amount of time possible on Blanche. See
An upward sentencing departure
requires “substantial and compelling circumstances in the record.” State v. Griller, 583 N.W.2d 736, 744
The district court stated that it “[had] chosen in its discretion” to run the sentences consecutively because of six aggravating factors, which it clearly identified and stated on the record: (1) the existence of multiple victims, both intended (Scott) and unintended (Phillips); (2) Phillips’ vulnerability and complete innocence; (3) the violation of Phillips’ zone of privacy; (4) the emotional and psychological devastation to the community from repeated random shootings in residential areas in an effort to assassinate Scott; (5) the harm to the community due to the senseless and brutal killing of a young and innocent child; and (6) Blanche’s apparent lack of remorse and responsibility. None of these factors are elements of the underlying crimes.
We are also concerned that the
sentence not exaggerate the criminality of the defendant’s conduct. State
v. Hough, 585 N.W.2d 393,
We conclude that the district court did not abuse its discretion in imposing consecutive sentences under the circumstances of this case and that the reasons provided for departure were not part of the underlying offenses. In the attempt to hunt down and assassinate a rival gang member, ten bullets were indiscriminately fired in a residential area. Phillips, an 11-year-old child who was particularly vulnerable, was shot to death while playing with his cousin and a friend on the friend’s front porch, a place where Phillips should have felt safe. We conclude that the spray of bullets that damaged neighborhood property and killed the unintended victim, Phillips, shows a degree of recklessness that justifies departure. The imposition of consecutive sentences does not exaggerate Blanche’s criminality.
For the same reasons, we conclude
that the district court did not err in making Blanche’s state sentences
consecutive to his federal sentence. See
State v. Gassler, 505 N.W.2d 62, 69 (
Based on all of the foregoing, we hold that Blanche is not entitled to a new trial. Having so concluded, we do not consider the state’s alternative argument that a new trial would be unduly prejudicial to the state.
ANDERSON, G. Barry, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
 Bernard was sentenced to consecutive
sentences of 200 months for conspiracy to commit murder and one year and one
day for crime committed for the benefit of a gang. Bernard’s conviction and
sentence were affirmed by the Minnesota Court of Appeals in 2000. State v. Bernard, 2000 WL 1015418
(Minn. App.), rev. denied (
 The three-step Batson analysis has been incorporated into our rules of criminal procedure in Minn. R. Crim. P. 26.02, subd. 6a(3).
 The rule provides that where a defendant moves for severance and the state intends to offer the statements of a codefendant that refer to the defendant but are not admissible against the defendant,
the court shall require the prosecuting attorney to elect one of the following options:
(a) a joint trial at which the statement is not received in evidence;
(b) a joint trial at which the statement is received in evidence only after all references to the defendant have been deleted, if admission of the statement with the deletions will not prejudice the defendant; or
(c) severance of the defendant.
 Here, we note that we believe that Blanche’s response—“Nathan, I’m dumping on Snyp. You saw he was dumping back”—contains greater ambiguity because the record does not provide any explanation who “Nathan” is or why Blanche would be referring to “Snyp” (Caylon Williams).
 The court instructed the jury:
It is your duty to give separate and personal consideration to the evidence as to the case of each individual defendant. That means that you must assess the evidence that has been received separately as to Mr. Bernard and as to Mr. Blanche as to each charged offense. When you do so, you should analyze what the evidence shows with respect to that defendant, leaving out of consideration entirely any evidence admitted solely against the other defendant. A separate crime is alleged against each defendant in each count of the indictment. Each alleged offense and any evidence pertaining to it should be considered separately by the jury. Each defendant is entitled to have his case determined from evidence as to his own acts, statements and conduct, and any other evidence in the case that may be applicable to him.
 Therefore, neither was Blanche prejudiced by the failure of his counsel to request severance midtrial based on the alleged Bruton violations.
 Blanche has not argued that the district court erred when it denied Blanche’s two midtrial motions for severance based on a prejudicial article reported in the Star Tribune and on Martin’s testimony on gangs.
 Minnesota Statutes § 609.229, subdivision 2 (2004), provides that a person who “commits a crime for the benefit of, at the direction of, in association with, or motivated by involvement with a criminal gang, with the intent to promote, further, or assist in criminal conduct by gang members is guilty of a crime.”
 Blanche also argues that the state committed prosecutorial misconduct by improperly eliciting vouching evidence from Lieutenant Martin by asking him whether he had ever experienced gang members falsely accusing people within their own gang of crimes. We have addressed this issue through our discussion of the admission of gang-expert testimony where we held that the verdict was surely not attributable to Martin’s testimony. Therefore, we need not address this issue again here.
 “Spreigl evidence is evidence of
a defendant’s prior crimes, wrongs, or acts, which would otherwise be
inadmissible, but which the state can seek to have admitted for the limited
purpose of showing motive, intent, absence of mistake, identity, or a common
scheme or plan.” State v. Asfeld,
662 N.W.2d 534, 542 (
does not argue that his consecutive sentences implicate the U.S. Supreme Court
decision in Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531
(2004). We nevertheless note Blanche may
not avail himself of its holding. While
we have yet to determine the parameters of Blakely, we have determined
that Apprendi v.
Except when consecutive sentences are presumptive, consecutive sentences are permissive (may be given without departure) only in the following cases: ***
2. Multiple current felony convictions for crimes against persons may be sentenced consecutively to each other ****.
 We note that a defendant’s remorse usually bears only on a decision whether or not to depart dispositionally, not on a decision to depart durationally or with respect to consecutive sentences. Back, 341 N.W.2d at 275. Because this is only one of six aggravating factors, however, our conclusion is not impacted in this case.