State v. Albert
| Decision Date | 11 May 2020 |
| Docket Number | A19-1046 |
| Parties | State of Minnesota, Respondent, v. Cheryl Oby Albert, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed
Benton County District Court
Keith Ellison, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and
Philip K. Miller, Benton County Attorney, Foley, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Cochran, Presiding Judge; Segal, Chief Judge; Ross, Judge.
UNPUBLISHED OPINION
A man was found in his apartment dead from a gunshot wound, and a police investigation led the state to accuse an acquaintance, Cheryl Albert, of killing him and stealing from his home. A jury found Albert guilty of second-degree murder after hearing among other things that she was sexually involved with the man, that she was with him the night before he was found dead, that she told others that she "took somebody's breath" and feared going to prison, and that she fled the state. Albert challenges her conviction, arguing that we must reverse and remand because the district court structurally erred by addressing a jury question without her attorneys present and erred by failing to clarify a separate jury question about the victim's cause of death. We affirm because the district court's error in addressing a jury question without Albert's counsel present was harmless rather than structural and because the district court did not abuse its discretion by redirecting the jury to its original instructions.
A woman found her friend shot to death in his St. Cloud apartment in June 2015. Police investigated the killing of the man, whom we will call John Victim, and concluded that Cheryl Albert had shot and killed Victim while she committed a felony theft. The state charged Albert with two counts of second-degree murder and one count of third-degree murder. See Minn. Stat. §§ 609.19, subds. 1-2, .195 (2014). The case proceeded to a jury trial in 2019. This appeal raises questions about alleged irregularities in the trial.
The state presented testimony from Victim's friends and family, investigating officers, forensic experts, and Albert's associates. Because the issues on appeal focus primarily on alleged errors occurring during jury deliberations, we merely summarize the state's evidence as follows.
In June 2015, Victim was living in a St. Cloud apartment and working as the co-owner of a St. Cloud grocery store. He told others that he was involved in a relationship with a woman nicknamed "Nigerian Princess," "Naija Princess," or "Princess," all referring to Albert. Victim told a friend that he and the woman liked to watch the film Fifty Shades of Grey together. On the evening of June 8, 2015, Victim, his roommate, and the other grocery-store co-owner were at Victim's apartment. The roommate saw that Victim's phone was ringing, identifying "Nigerian Princess" as the caller. Victim ignored Albert's call along with two to three more, but he answered her call sometime after 10:00 p.m. The roommate overheard part of the conversation and understood it to mean that Albert was coming to Victim's apartment. The roommate and co-owner left the apartment so Victim and Albert could be alone.
Albert's cell-phone records indicated that she placed many calls to Victim between 4:30 p.m. and midnight and that, while she was making plans to meet with Victim, she was also communicating with a man named Lonnie Austin. She sent Austin a text message saying, "Rocking the coin to sleep football style." According to a police investigator, the term "coin" refers to a targeted person, or someone from whom money or valuables could be extracted, and the term "football" refers to the drug Xanax. A few minutes later Albert sent Austin a text message from a different phone number, asking Austin if he wanted "to meet my brother when I get back?" The text referred to her brother, Anene Okolie.
Victim took a phone call from a friend shortly after midnight and said that he was busy. Beginning at 12:47 a.m., Albert began making a series of 19 phone calls, some to Austin and some to Okolie.
A friend of Victim's went to Victim's apartment at 10:00 a.m. and found the ground-level sliding door open. She entered and saw that the television was on, displaying the menu screen for the film Fifty Shades of Grey. Then she found Victim naked and dead, lying on the ground in his bedroom doorway with a zip tie on one wrist. The friend telephoned the co-owner of Victim's business, who came to the apartment and called police.
Police found a bullet casing and blood near Victim's body. An autopsy and forensic examination revealed that a single gunshot in the chest killed Victim and that Xanax was in his system. Investigators found two partly full beverage glasses on Victim's bedroom nightstand, one containing a cigarette butt. Albert's fingerprints were on the glasses, as well as DNA material that excluded all but a class of 0.000008 percent of the world's population. Albert is in that class. Albert's DNA was on the cigarette butt. Albert's DNA was not on the shell casing.
Valuables were missing from Victim's apartment. These included Victim's laptop computer, cell phone, and a jewelry box that Victim used to store many wristwatches. Victim's cell-phone carrier traced his cell phone to a general area along Highway 23, where police searched and found some of Victim's belongings, including the jewelry box. The box contained DNA material that excluded all but a class of 0.000008 percent of the world's population. Albert is in that class.
Two days after the killing, Albert telephoned her close friend and told her that she "took somebody's breath." Albert told another woman that she "got daddy a bunch of watches" but "would be going to prison for life and [would] not see her child." Police officers, looking for Austin as part of an unrelated investigation, stopped a truck associated with Austin and found several of Victim's missing watches, documents referencing Albert, and the cell phone Albert used to call Austin on June 8 and that also contained Victim's contact information.
Also within days after the killing, Albert arranged to travel to Louisville, Kentucky. She contacted her friend S.J., who lived in Kentucky, to obtain her address. S.J. claimed to the jury that she could not remember the details of her involvement in the investigation of Victim's death. The prosecutor showed S.J. a transcript of her statement to Louisville police, and S.J. repeatedly claimed she could not recall her statements to police. The prosecutor asked S.J. to testify about her statement to Louisville police, prying line by line, to which S.J. answered each time acknowledging only, "[T]hat's what [the transcript] says." The jury learned the substance of S.J.'s prior statements: Albert had called her crying, said she stole a box of watches from somebody, and admitted that either "one [of] her shooters came in" or "she shot him twice." At the end of the state's direct examination of S.J., because S.J. had refused to restate at trial the substance of her prior statements, the district court gave the following cautionary instruction to the jury:
The evidence that has just been received concerning a statement that [S.J.] is alleged to have made sometime before testifying here today is admitted only for the light that it may cast on the truth of [S.J.'s] testimony at this trial. You must not consider the statement as evidence of the facts referred to in the statement.
On July 6, 2015, Kentucky police approached Albert to arrest her on an unrelated outstanding warrant. Albert spontaneously blurted that she "didn't kill anybody." She also expressed supposed shock at learning from Kentucky police that Victim had been killed, but her cell-phone records established that she had previously been conducting internet searches about the killing, including a KSTP-TV story about Victim, "Community Remembers St. Cloud Store Owner Found Fatally Shot." During police interrogation, Albert told officers that on June 8 she had been watching Fifty Shades of Grey with Victim when he received a phone call, which prompted Victim to end her visit and drop her off in "the Cities." She claimed later that Victim had dropped her off at a Greyhound bus stop.
Jury Instructions
The district court instructed the jury on the elements of second-degree murder with intent to kill, second-degree murder while committing felony theft (and corresponding instructions regarding felony theft), and, as a lesser-included offense, third-degree murder. Relevant in this appeal were the district court's instructions on causation, which as to all three crimes advised the jury that the causation element required the state to prove beyond a reasonable doubt "that the defendant caused the death of [Victim]." The district court also instructed the jury generally, "Evidence of any prior inconsistent statement should only be considered to test the believability and weight of the witness's testimony." First Jury Question and Albert's Absentee Attorneys
The jury began deliberating at 4:12 p.m. on the last day of trial, and the district court instructed Albert's attorneys, The jury soon posed a question, the district court telephoned counsel, and defense counsel failed to answer their phones. At 5:17 p.m., hearing nothing from Albert's counsel, the district court spoke with Albert and the prosecutor directly to address the jury question.
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