State v. Ford

• Decision Date: 01 September 1995
• Docket Number: No. C5-93-1872,C5-93-1872
• Citation: 539 N.W.2d 214
• Parties: STATE of Minnesota, Respondent, v. A.C. FORD, Jr., Appellant.
• Court: Minnesota Supreme Court

Page 214

539 N.W.2d 214

STATE of Minnesota, Respondent, v. A.C. FORD, Jr., Appellant.

No. C5-93-1872.

Supreme Court of Minnesota.

Sept. 1, 1995.

Rehearing Denied Nov. 15, 1995.

Syllabus by the Court

1. Use of an anonymous jury did not result in the destruction of appellant's presumption of innocence, and therefore did not deny him the fundamental right to a trial by an impartial jury.

2. The trial court appropriately admitted appellant's statements.

3. The evidence presented at trial is sufficient to sustain appellant's convictions.

4. In order for the statement against penal interest hearsay exception to be applicable, the person being quoted must be unavailable. Minn.R.Evid. 804(b).

5. Even if the unavailability of the person being quoted was established, the trial court should have suppressed testimony by another witness as to those statements as hearsay pursuant to Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994).

6. The trial court properly precluded the defense from cross-examining a witness in relation to his withdrawn plea pursuant to Minn.R.Evid. 410.

7. The prosecutor did not engage in misconduct in his closing statement.

8. The trial court committed no error in its application of the doctrine of transferred intent.

9. Actual prejudice did not result from the trial court's decision to sustain a Batson challenge to an alternate juror.

10. Three of the reasons provided by the trial court justifying departure upwards in sentencing do not only support appellant's guilt of some other offense, thus they are allowable reasons for departure.

11. The trial court did not abuse its discretion by ordering consecutive sentences.

12. The trial court may not delegate its sentencing function to the Department of Corrections.

Melissa V. Sheridan, Assistant State Public Defender, St. Paul, for appellant.

Mark V. Griffin, Assistant County Attorney, Minneapolis, Hubert H. Humphrey, III, Attorney General, St. Paul, for respondent.

Heard, considered and decided by the court en banc.

OPINION

TOMLJANOVICH, Justice.

On September 25, 1992, Minneapolis police officer Jerome Haaf, while in uniform, was shot to death at the Pizza Shack Restaurant in south Minneapolis. Gerald Lubarski, who was sitting with Officer Haaf, was wounded. On May 28, 1993, an anonymous Hennepin County jury convicted appellant, A.C. Ford, Jr., of first-degree premeditated murder under Minn.Stat. § 609.185(1) (1992), first degree-murder of a peace officer under Minn.Stat. § 609.185(4) (1992), and attempted first-degree murder under Minn.Stat. § 609.17 (1992). The trial court sentenced Ford to 240 months for the attempted murder conviction. For sentencing purposes, the trial court merged Ford's first-degree premeditated murder conviction and his first-degree murder of a peace officer pursuant to Minn.Stat. § 609.035 (1992), and sentenced Ford to life imprisonment for these murder convictions. The sentence for attempted murder and the sentence for murder were to run consecutively. The trial court further indicated that the Department of Corrections had the discretion to modify Ford's sentences from consecutive to concurrent provided that Ford showed some ability to be rehabilitated or cooperate with the programs available at Oak Park Heights, including paying restitution to Officer Haaf's family.

On appeal, Ford contends that: (1) by impanelling an anonymous jury, the trial court violated Minn.R.Crim.P. 26.02, Jury Management R. 814, and denied him his constitutional right to a fair trial; (2) the court erroneously admitted statements he made to the police; (3) the evidence presented at trial was insufficient to support the convictions; (4) the court erroneously admitted the testimony of Wyvonia Williams; (5) the trial court erroneously refused to allow Ford's attorney to cross-examine Percy Melton regarding a withdrawn plea agreement; (6) the prosecutor committed reversible misconduct in closing arguments; (7) the trial court erroneously sustained a Batson challenge made by the state; and (8) the sentence imposed was contrary to law.

We affirm in part, reverse in part and remand.

At trial, evidence was presented that on September 24, 1992, Mwati "Pepi" McKenzie; Shannon Bowles; Samuel "Sharif" Willis; Monterey Willis, Sharif's nephew; Richard, a minor; Ed Harris; and Ford attended a meeting at North High School relating to the recent beating of an elderly blind black man by the Metropolitan Transit Commission (MTC) police. Testimony was given that each of these individuals was a member of the Conservative Vice Lords (Vice Lords) street gang. Testimony was given that Sharif Willis was the head of the Vice Lords, A.C. Ford was second in command, and Richard, McKenzie, and Bowles were foot soldiers, the lowest ranking Vice Lords. Testimony was also given that the chain of command in the Vice Lords is very important and that a foot soldier could not unilaterally decide to kill a police officer without an order from a higher ranking Vice Lord.

Dawn Jones, Monterey's girlfriend, testified that on September 24, 1992, she was at Sharif's house and remained there when others went to "some north side meeting." She testified that after the meeting McKenzie, Bowles, Ford, Monterey, and Sharif returned to Sharif's house and were upset about the incident. While sitting in the living room, she heard Monterey in the kitchen say "my girl is down." At that time, McKenzie, Sharif, Monterey, Bowles and Ford were in the kitchen. One minute later, Monterey called her into the kitchen and asked her if she would shoot a bus driver to which she responded yes. He then asked her if she would shoot a 5-O, a cop. She said no. She testified that next she, Monterey, and Bowles dropped Sharif off at an apartment building and then got some food. On the way back to Sharif's house, Monterey again asked her if she would shoot a bus driver and placed a gun in her hands. She again indicated she would. When she and Monterey got back to Sharif's house, Jones testified that she stayed in the car to finish her food.

Richard, ¹ a minor, testified that on the evening of September 24, 1992, Ford, Harris, Sharif, Monterey, McKenzie and he went to North High School for a community meeting regarding the recent beating of a black man by MTC police. After the meeting, Richard and McKenzie returned to Harris' house where they "rented" a car from a drug addict in exchange for some crack cocaine. Later that night, Richard and McKenzie drove to Sharif's house. Richard testified that he and McKenzie arrived at Sharif's house between 11 p.m. and midnight. Ford was already there, and about five minutes later, Bowles, Monterey, and Dawn Jones arrived together. Sharif was not present.

Richard testified that Ford said, "You all ready to do this? This is what we are going to do. We are going to walk up on the number five bus line and shoot the bus driver." Monterey replied, "No man, you must be crazy," to which Ford responded, "All right, then let's do the Pizza Shack." Monterey then pointed to Dawn Jones and said "I know her, she ain't going to snitch." Ford then went to the front porch and got a paper bag out of the freezer and gave it to McKenzie. Richard saw the outline of a revolver in the bag. McKenzie left the room and when he came back, he had a gun in his pants above his belt line.

In a statement to police, Ford said he had been at Sharif's house during the evening of September 24, 1992. He stated that sometime during the evening, Monterey said his girlfriend Dawn Jones was going to shoot a bus driver. Ford said he talked the others out of the plan, and Monterey then said "they was gonna go up on Lake Street and make some noise up by the Pizza Shack." Ford thought Monterey meant to shoot out some windows at the Pizza Shack. He stated: "Bowles was only supposed to go over to the Pizza Shack with McKenzie and shoot holes in the windows of the Pizza Shack." Ford said Monterey got a gun from the freezer on the porch, gave it to McKenzie and told him that he and Bowles were to go to the Pizza Shack "to make some noise." Ford said that when Monterey handed McKenzie the gun, Richard, Bowles, and Dawn Jones were also present. Ford thought Bowles also had a gun because he patted his front and said, "I got mine."

Dawn Jones testified that about 15 to 20 minutes after Monterey had gone into Sharif's house, people came out of the house and got into cars. Monterey came to the car she was in and opened the door, grabbed the gun, and said "there has been a change." She then got out of the car and walked into the house with Monterey. He then told McKenzie to "come on" and told her to lock the door. As McKenzie left, she heard him say, "I'm going to Chicago when all this shit is done."

Richard testified he and McKenzie got in the "rented" car, and Ford, Bowles, and Monterey got into a truck driven by Ford. McKenzie said they were going to the Pizza Shack to kill a cop. No one, including McKenzie, ever said anything about breaking windows. Richard testified that both vehicles stopped at the corner of 17th Avenue South and 31st Street and McKenzie and Bowles got out and began walking towards the Pizza Shack Restaurant. Richard testified that at that time McKenzie was wearing black Reebok tennis shoes and a cap with a gold "P" on it. Bowles was wearing white Reebok tennis shoes. Ford stated that Richard and McKenzie drove in one car and Ford drove in another car with Monterey and Bowles. Ford stated that at about 12:30 a.m., he dropped Bowles off in the area of 17th and Lake Street, and he saw Bowles meet up with McKenzie, whom Richard had dropped off.

Witnesses present at the Pizza Shack restaurant on Friday, September 25, 1992, testified that between 1:30 and 2:00 a.m, two or three black males entered the restaurant, walked directly to Officer Haaf, the only uniformed officer in the restaurant, drew revolvers from their belts, and fired at Officer Haaf's...