State v. Burrell, No. A08-1271.

• Decision Date: 20 August 2009
• Docket Number: No. A08-1271.
• Parties: STATE of Minnesota, Respondent, v. Myon Demarlo BURRELL, Appellant.
• Court: Minnesota Supreme Court

772 N.W.2d 459

STATE of Minnesota, Respondent, v. Myon Demarlo BURRELL, Appellant.

No. A08-1271.

Supreme Court of Minnesota.

August 20, 2009.

Rehearing Denied October 5, 2009.

Lori Swanson, Minnesota Attorney General, St. Paul, MN, and; Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for respondent.

Benjamin J. Butler, Assistant State Public Defender, St. Paul, MN, for appellant.

OPINION

MAGNUSON, Chief Justice.

Appellant Myon Demarlo Burrell was twice convicted of first-degree murder and attempted first-degree murder and sentenced to life in prison for the shooting death of Tyesha Edwards, an 11-year-old girl who was struck and killed by a stray bullet in her south Minneapolis home. On appeal from his second trial, Burrell challenges his conviction and sentence, arguing that the district court erred in (1) admitting evidence of prior bad acts, (2) admitting the testimony of a gang expert, (3) admitting the grand jury testimony of a deceased witness, and (4) imposing a harsher sentence than the sentence Burrell received after his first trial. We affirm in part, reverse in part, and remand.

On November 22, 2002, Timothy Oliver was standing in the front yard of his aunt's house in south Minneapolis. Oliver belonged to a gang known as the Gangster Disciples. At approximately 3 p.m., a maroon Chevy Malibu drove toward the house where Oliver was standing. Oliver believed the car belonged to "Hans," who belonged to a rival gang, the Bloods. Oliver observed a man he knew as "Ike" driving the car, and a man whom Oliver knew as "Little Skits" riding in the front passenger seat. Oliver testified that he and Ike "mean-mugged" each other before the car sped away.

Minutes later, Oliver was standing on the front porch of his aunt's house when he heard gunshots from across the street. Oliver testified that he heard nine to ten gunshots and then ran to the side of the house. After the shooting ceased, Oliver returned to the front of the house and looked across the street. Oliver testified that he saw Little Skits standing between two houses, pointing a gun at him and pulling the trigger. Oliver further testified that he was not harmed in the shooting but his pants had a bullet hole in them.

Shortly after 3 p.m. on November 22, police responded to a report of a shooting at the house next door to Oliver's aunt's home. When the police arrived, they found Tyesha Edwards lying on the dining room floor of her home. Edwards had been struck in the chest and killed by a .40 caliber bullet that had penetrated the wall of her home.

The police recovered seven .40 caliber shell casings on the ground across the street from Edwards' and Oliver's aunt's houses. All seven shell casings were fired from the same gun.

On November 25, 2002, the police arrested Oliver. Oliver told the police that Little Skits had shot at him, but that he did not know Little Skits' real name. Oliver correctly identified photos of Ike Tyson and Hans Williams. Oliver also identified a photo of appellant Myon Burrell as Little Skits.

Later on November 25, the police arrested Tyson and Williams. Tyson told the police that Little Skits often stayed in Bemidji. When the police contacted the authorities in Bemidji, they learned that Little Skits was 16-year-old Myon Burrell. Tyson identified photos of Burrell as Little Skits. The police arrested Burrell on November 26, 2002.

A Hennepin County grand jury indicted Burrell on eight counts: premeditated first-degree murder, Minn.Stat. § 609.185(a)(1) (2008); premeditated first-degree murder committed for the benefit of a gang, Minn.Stat. § 609.229, subd. 2 (2008); first-degree murder committed during a drive-by shooting, Minn.Stat. § 609.185(a)(3); first-degree murder committed during a drive-by shooting and committed for the benefit of a gang, Minn. Stat. § 609.229, subd. 2; attempted premeditated first-degree murder, Minn.Stat. § 609.185(a)(1); attempted premeditated first-degree murder committed for the benefit of a gang, Minn.Stat. § 609.229, subd. 2; attempted first-degree murder committed during a drive-by shooting, Minn.Stat. § 609.185(a)(3); and attempted first-degree murder committed during a drive-by shooting and committed for the benefit of a gang, Minn.Stat. § 609.229, subd. 2.

After a jury trial before Hennepin County District Court Judge Steven A. Pihlaja, Burrell was found guilty as charged and sentenced to life in prison plus 198 months. On direct appeal, we reversed Burrell's convictions and remanded for a new trial on the grounds that (1) Burrell's Miranda waiver was ineffective, (2) expert testimony vouching for a witness's credibility was error, and (3) the district court erred by refusing to compel discovery of the State's plea negotiations with Burrell's codefendants. State v. Burrell, 697 N.W.2d 579, 597, 601, 605 (Minn.2005).

On remand, Burrell's case was reassigned to Hennepin County District Court Judge Charles A. Porter. The State pursued the same eight charges handed up by the grand jury and tried at Burrell's first trial. Before the second trial, over Burrell's objection, the district court issued an order admitting prior bad act and gang-related evidence.¹

At Burrell's second trial, the State elicited the following evidence implicating Burrell in the shooting. Esque Dickerson, a friend of Burrell's, testified that she spoke with Burrell shortly after his arrest. She admitted that she told her boyfriend that Burrell told her he was present at the "shooting [where] that little girl got killed." Dickerson also told her boyfriend that Burrell said that he and Tyson were in a red car, the model of which began with an "M."

James Turner was housed in a jail cell adjacent to Burrell's while Burrell was awaiting trial. According to Turner, Burrell admitted to him that he was in jail because he had shot someone. Turner claimed that Burrell stated that he was shooting at a rival gang member but shot and killed "the little girl." Defense counsel impeached Turner with evidence that he is a paranoid-schizophrenic sex-offender who suffers from hallucinations.

Dameon Leake is a member of the Rolling 60s Crips, a rival gang to the Gangster Disciples. Leake was a friend of Oliver's. According to Leake, while in jail, Burrell told him that he was "trying to smoke Little Timmy" when the "little girl" got killed. Defense counsel impeached Leake, arguing that Leake was hoping to receive a downward departure on an unrelated drug charge in exchange for his testimony.

Terry Arrington is a member of the Black Stones, a gang which is affiliated with the Family Mob. Arrington testified that Burrell told him in jail that the bullet that hit Edwards went through "your boy" before it hit the house. Defense counsel elicited testimony on cross-examination that Arrington could reduce his own prison sentence by testifying against Burrell and others.

Kiron Williams is a member of the Family Mob. He testified that while in jail in 2005, he accused Burrell of "killing kids." According to Williams, Burrell responded that the intended target was Williams' "homeboy." Williams interpreted this to refer to Oliver. Burrell's defense counsel elicited testimony from Williams that he received a downward departure on his sentence for testifying against Burrell and others.

The State also introduced several incidents of Burrell's prior bad acts, pursuant to the district court's pre-trial ruling.

During Leake's testimony, he claimed that in 2002, Burrell shot at him and three other men as they stood on the corner of Portland and Franklin in south Minneapolis. Leake stated that Burrell yelled "Rolling 30s Bloods gang" while shooting. No one was hurt in the incident.

Arrington testified that at some point before the Edwards shooting, Burrell shot from a car at Arrington, Oliver, and two other men as the men sat in Peavey Park in south Minneapolis. Arrington testified that Burrell wore a red rag on his hand and said "What up; Blood." as he fired.

Deleon Walker, who was friends with Oliver and other members of the Family Mob and Gangster Disciples, testified that Burrell shot at him on November 25, 2002. Walker said that Burrell and another man walked past him and others in front of a Lake Street coffeehouse in south Minneapolis. According to Walker, Burrell shot at him, missed, and hit a Somali man.

Brady Bell is Burrell's ex-girlfriend. She testified that at some point in 2000, Burrell shot at a car. According to Bell, she, Burrell, and two others were walking on a sidewalk. When a suspicious car approached the group, Bell became nervous that the occupants of the car would open fire on the group. Bell stated that she did not know who was in the car, but testified that the occupants of the car fired shots at the group and that Burrell shot at the car.

During Burrell's second trial, the State called Isaac Hodge as its primary gang expert. Hodge has been a gang member since 1992, and described himself as the leader of the Family Mob beginning 1996. Hodge testified generally about the culture, colors, and territory of the Rolling 30s Bloods. Hodge stated that Bloods commit crimes, including drive-by shootings and drug sales. Hodge also described the violent rivalry between the Family Mob and the Bloods. Hodge stated that in gang culture, "[r]etaliation is a must." Hodge also testified that when someone joins a gang, that person is expected to "earn his stripes." According to Hodge, a gang member earns his stripes by becoming a rider, a person whose job is to ride around in vehicles and shoot at members of rival gangs. Hodge testified that Oliver was a rider and that Oliver had "shot the most Bloods out of everybody in our whole neighborhood." Hodge also claimed that some "older Bloods" had told him that a standing order existed among the Bloods to "blast [Oliver] on sight." Hodge gave his opinion that killing Oliver would have earned stripes for a young...