State v. Evans, No. A06-821.

• Decision Date: 23 October 2008
• Docket Number: No. A06-821.
• Citation: 756 N.W.2d 854
• Parties: STATE of Minnesota, Respondent, v. Harry J. EVANS, Appellant.
• Court: Minnesota Supreme Court

756 N.W.2d 854

STATE of Minnesota, Respondent, v. Harry J. EVANS, Appellant.

No. A06-821.

Supreme Court of Minnesota.

October 23, 2008.

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Lawrence Hammerling, Chief State Appellate Public Defender, Lydia Villalva Lijó, St. Paul, MN, for appellant.

Lori Swanson, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, St. Paul, MN, for respondent.

Heard, considered, and decided by the court en banc.

OPINION

G. BARRY ANDERSON, Justice.

After a jury trial in Ramsey County District Court, appellant Harry J. Evans was found guilty and convicted of first-degree murder in violation of Minn.Stat. § 609.185(a)(4) (2006). Evans appealed to this court, making a number of arguments, including a claim that his right to a fair trial by an impartial jury was violated because the district court failed to investigate a telephone caller's tip that a juror was racially biased. Because the record did not include adequate information about the telephone caller's tip and because of our concern about the potential for juror bias, we retained jurisdiction and remanded to the district court with instructions to release the information about the telephone caller to the parties so that they could conduct an investigation and, if warranted, move for additional proceedings on the issue of juror bias. After remand, the defendant conducted an investigation and moved for a Schwartz¹ hearing. The district court granted the motion, conducted the hearing, and denied Evans's motion for a new trial. The case has now returned to us with a complete record related to the telephone caller's tip and the proceedings that took place after remand. After a careful review of the record related to this issue, as well as all of the other issues that Evans has raised on appeal, we affirm.

This case arises from the death of St. Paul Police Sergeant Gerald Vick. The evidence produced at trial reveals the following. St. Paul Police Sergeants Joseph Strong and Gerald Vick were partners in the vice unit. At approximately 10:30 p.m. on May 5, 2005, Strong and Vick went to Louie's Bar on Payne Avenue to investigate individuals who were suspected of engaging in prostitution. Strong and Vick were casually dressed, and while they were at the bar they consumed alcohol so that they would fit in with the other patrons.² Strong and Vick engaged two suspected prostitutes in conversation, and the women suggested playing pool at Erick's Bar. Strong and Vick welcomed the opportunity to go to Erick's with the women because the officers otherwise could not easily enter Erick's without attracting attention to themselves. Strong and Vick each drove separately to Erick's Bar in assigned unmarked police cars. They arrived at Erick's about midnight or 12:30 a.m., ordered some alcoholic drinks, and began playing pool.

Although Strong and Vick concluded that their prostitution investigation would not yield any arrests that night, they did not leave Erick's. Instead, Strong and Vick stayed at the bar to socialize with patrons so that they could less conspicuously enter the bar in the future and to look for any other signs of illegal activity. They stayed until closing time, about 1:45 or 2 a.m., when the employees started asking patrons to leave.

After they left Erick's, Strong and Vick stood by Strong's car for a few minutes talking about their work the next day. While they were talking, Strong observed a tall black male who appeared to be extremely intoxicated; Strong later identified the man as Antonio Kelly.³

Kelly stopped outside of Erick's and began to urinate near the building. While Vick was talking with Strong, the officers observed Kelly urinating in public, and Vick shouted at Kelly "to move on, to keep walking." Strong said that Vick reacted to Kelly because Vick was concerned about public intoxication and public urination in that area of St. Paul, where there had been numerous complaints about quality-of-life crimes. But Kelly did not move along in response to Vick's directive. Instead, Kelly approached Strong and Vick.

When Kelly was approximately 15 feet from Strong and Vick, the officers noticed another black male who was "smaller in stature, rounder, with shorter hair"; Strong later identified this individual as Evans. Evans was saying something to Kelly, so Strong and Vick identified Evans as a friend of Kelly's. Strong and Vick told Evans to "get your friend and get him out of here." Evans and Kelly did not respond, so Strong and Vick used stronger language and told Evans and Kelly to leave the area. Evans tried to convince Kelly to leave, and it appeared to Strong that Evans was trying "to drag Kelly along." Eventually, Evans and Kelly began to move away from the area. Before Evans and Kelly began to move away, however, Evans made a gesture by reaching for his waist and raising his shirt. Based on his experience as a police officer, Strong understood Evans's gesture to be a threat, indicating either that Evans had a gun or that he could get a gun. Vick then raised his shirt, in what Strong described as a "mocking gesture," and said "so what." But Vick did not show Evans and Kelly his gun.

Strong and Vick then finished their conversation about what they were going to do the next day, and Strong got into his car and began to drive away. As he was driving away, Strong stopped at a stoplight. Kelly then reappeared and stepped in front of Strong's vehicle. Kelly stood in front of Strong's left headlight, looking at Strong. Strong rolled down his window and told Kelly to get away from the vehicle. Strong then used a walkie talkie to call Vick for backup. Strong testified that he did this because in his opinion Kelly "was going to be in the area harassing other people" and it was Strong and Vick's job "to make sure he was on his way." Shortly thereafter, Vick drove up "on the sidewalk." At that time, Strong noticed Evans was there as well.⁴ Vick shouted at Kelly and Evans, telling them to leave the area, and Strong testified that Vick began "pushing" Kelly and Evans—in other words, Vick was running toward them making noise and stomping his feet to let them know that he was behind them and that he wanted them to leave the area. Strong was also pushing Kelly and Evans. He was approximately 5 to 7 yards behind Vick.

Strong testified that he and Vick kept pushing Evans and Kelly until Strong "heard three to four shots." Strong then "saw Sergeant Vick turn slightly clockwise and continue going down onto the alley, onto the ground," and Strong knew that Vick had been shot. Strong saw that Evans was the person closest to Vick, and Strong testified that Evans was "the person that was capable of shooting Sergeant Vick." Strong did not see Kelly after the shots were fired. Strong fired his weapon at Evans eight to ten times, but Evans ran through a yard and out of Strong's view.

After Evans ran away from Strong, Strong returned to Vick and called for backup. When the other officers arrived, Strong gave the officers descriptions of the suspects and told them the direction that Evans had fled.

Vick was then taken to the hospital, where he died later that morning. At trial, the Ramsey County medical examiner testified that Vick had died due to loss of blood from three gunshot wounds. The examiner testified that the third shot was fired at close range, and that the shooter was a matter of inches from Vick.

Kelly testified at trial for the State. Kelly said that after he heard the shots, which he "assumed" came from Evans, he "took off." Kelly ran "not even a half block" and hid in bushes by a garage. When Kelly saw Evans, he called out to him, and they hid together in the bushes. Evans told Kelly, "I got him, I think I got one." Evans and Kelly hid on a porch for about 10 or 15 minutes, and Kelly saw Evans throw the gun over the side of the porch.

Kelly then got up and started walking toward home. Kelly walked past some police officers that were in the vicinity. Because Kelly matched the description given by Strong and corroborated by a 3M security videotape that had recorded a portion of the confrontation between Vick and Strong and Kelly and Evans, the officers handcuffed Kelly, arrested him, put him in a squad car, and took him downtown to police headquarters.

At approximately 6 a.m. on May 6, the police arrested Evans about 3 to 4 blocks from the location of the shooting. Evans matched the description given by Strong and corroborated by the 3M security videotape.

In addition to Strong and Kelly, J.M. also testified as a witness to the shooting. Along with his parents,⁵ J.M. was traveling home from a visit to Regions Hospital about 2 a.m. on May 6. J.M., who was in the passenger seat of the car, testified that while their car was stopped at a stoplight, he observed, across the intersection, a tall black man standing in front of another car stopped at the stoplight. J.M. testified that when the tall black man moved away from the sidewalk toward an open lot, the "car jumped the curb."⁶ The driver of the car then got out and started chasing both the man who had been standing in front of the car and his shorter companion. J.M. testified that he saw the shorter man trip and fall, and when the shorter man got up J.M. saw him pull a gun from his pants. J.M. testified that he saw the shorter man shoot the man who was chasing him, and that the shorter man was only "a matter of feet" from the man whom he shot. J.M. also testified that the taller man was approximately 20 yards away from where the shooting took place.

Several other pieces of evidence also tied Evans to the shooting. For instance, the police found a .38-caliber revolver outside a residence near the scene of the crime. The bullet recovered from Vick's body was a .38-caliber bullet. Four .38-caliber shell casings were also recovered near the scene of the crime....