State v. Gail
| Decision Date | 18 May 2006 |
| Docket Number | No. A05-329.,A05-329. |
| Citation | 713 N.W.2d 851 |
| Parties | STATE of Minnesota, Respondent, v. Reginald Lee GAIL, Appellant. |
| Court | Minnesota Supreme Court |
John Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, Minneapolis, MN, for Appellant.
Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
Heard, considered, and decided by the court en banc.
Reginald Lee Gail appeals from his conviction for the first-degree murder of Yvain Braziel while committing or attempting to commit the felony crime of unlawful sale of powder cocaine. We affirm.
On February 2, 2004, Braziel contacted Gail to arrange for the purchase of marijuana and powder cocaine. Braziel and his friend Andre Hollingsworth left Bemidji in a red, two-door Chevrolet Cavalier to meet Gail in the Twin Cities. Braziel and Gail spoke via cell phone during the trip, and the parties met at approximately 5:15 p.m. in north Minneapolis. Gail, wearing a black, down jacket, got into Braziel's car, told him what the price would be for the cocaine, and directed Braziel where to drive. The Cavalier pulled up behind a red, four-door Dodge Neon driven by De-Andre Hill. A passenger identified as Low was also in the Neon. After the two cars met, Gail got out of the Cavalier and talked with Hill and Low. Gail then went back to the Cavalier, got in, and told Braziel to follow the Neon.
The Neon stopped at a yellow house, and Gail went to talk to one of the men in the Neon. Braziel and Hollingsworth circled the block and when they came back, the man Gail had spoken to was coming back from the house. Gail told Braziel to follow the Neon to another "stash" because they could not get into the yellow house. Gail got into the Neon and the two cars drove to an apartment building. Gail and one of the men from the Neon went into the apartment for about 10 minutes and after coming out, Gail told Braziel to follow the Neon to a side street "to make the transaction." Both cars drove near a park; Gail got out of the Neon and told Braziel to get into the Neon. Braziel resisted initially, but after both cars drove to a convenience store parking lot, Braziel got into the back seat of the Neon. The Neon then left the parking lot and Hollingsworth followed the Neon in the Cavalier.
The Neon stopped in the middle of the street a short distance from the corner of 39th and Emerson, with Hollingsworth stopping the Cavalier about "a car length and a half" behind the Neon. Gail got out of the Neon, left the front passenger door open, and stood between four and six feet from the passenger side of the car. Braziel then climbed from the back seat to the front, and began to exit the Neon while facing the rear of the vehicle. Hollingsworth saw a struggle and believed that someone in the car was pulling on Braziel's leg as he tried to exit the car. Hollingsworth saw Gail shoot at Braziel once while Braziel's leg was still in the car, and then Gail shot Braziel five or six more times. Braziel fell face down in the snow. Hollingsworth then saw the Neon "take off" and Gail leaving on foot.
A.L. also witnessed the shooting. She was shoveling snow one or two houses southeast of where the shooting occurred. A.L. saw the two vehicles in the street with an individual standing outside of each vehicle. A.L. saw the person near the Neon, who was wearing a dark, bulky coat, fire one shot, take a brief pause, and fire "four or five" additional shots. A.L. saw the shooter's "arm go rigid in a downward motion in front of him" and then saw "flashes from the gun." The shooter, standing on the passenger side of the car and partially blocked from A.L.'s vision by the hood of the car, was shooting downward "at something close by him." A.L. saw the shooter start to run and the Neon start to move southbound before she ran into her house to call 911 at 6:19 p.m.
When police arrived a few minutes later, Braziel had no pulse. The cause of Braziel's death was determined to be multiple gunshot wounds and the manner of death was homicide.
Police found Braziel's cell phone at the scene. The last call Braziel received was from a Verizon Wireless cell phone number. Police contacted Verizon on February 3 to request information about this phone number.1 On February 3, Verizon provided the requested information, indicating that the phone number was listed to Erick Larkins, at an address in Minneapolis. Police went to this address and spoke to Byron Davis, who explained that he paid Larkins to use Larkins's name to lease cell phones. Davis told the police that he had "sublet" the Verizon phone that was used to call Braziel to a man he knew only as "Red or Reggie" and that Davis paid the bills attributed to that phone. On February 10, Davis identified Gail as the "Reggie" to whom he had sublet the cell phone. Because of the "Caller ID" function on his phone, Davis knew that Gail had used the Verizon cell phone to call Davis several times on the day of the shooting.
Hollingsworth positively identified Gail as the shooter. Specifically, Hollingsworth made a photo identification of Gail on February 11, 2004, writing, "This is the shooter," on the back of the picture of Gail shown to him by an officer.
On February 12, 2004, Minneapolis Police Sergeant Gerhard Wehr was completing an application for a search warrant for Gail's apartment in Minneapolis when he learned that Gail had been apprehended at a Plymouth apartment. Wehr then completed an application for a warrant to search the Plymouth apartment. In the warrant application for the Plymouth apartment, in addition to providing information tying Gail to the murder and indicating that the Minneapolis apartment was Gail's residence, the application set forth the following information:
On 2/12/2004 Sgt. King advised your affiant that Reginald Gail had been in contact with his probation officer on this day, and that Gail had called from phone number 763-[deleted]. Your affiant learned that this number list[s] to the [Plymouth Apartment]. Officers from the Minneapolis police went to this address. Officers knocked on the door and Reginald Gail came outside and was placed under arrest. Officers have since entered this apartment and have it secured.
A district court judge issued the warrant.
During the subsequent search of the Plymouth apartment, the police found a 9 mm Ruger semi-automatic handgun on top of a kitchen cabinet located above the refrigerator and a few feet from the entrance to the apartment. An expert testified that a bullet retrieved from Braziel's body was, "to a reasonable degree of scientific certainty," fired from the Ruger handgun.
Gail was indicted on three counts of felony murder: count 1 — intentional murder while committing or attempting to commit the crime of aggravated robbery; count 2 — intentional murder while committing or attempting to commit the crime of unlawful sale of a controlled substance; and count 3 — intentional murder while committing or attempting to commit the crime of kidnapping. The trial began on Monday, November 15, 2004, and the case was submitted to the jury at 2:30 p.m. on Friday, November 19, 2004. On Saturday, November 20, 2004, the jury found Gail guilty on the second count of the charged crimes (intentional murder while committing or attempting to commit the crime of unlawful sale of a controlled substance).2 The district court sentenced Gail to life in prison.
Gail raises the following seven issues in this direct appeal:
1. Was the search warrant issued for the search of the Plymouth apartment supported by probable cause?
2. Should the cell phone records provided by Verizon have been suppressed?
3. Did the district court err in denying Gail's motions to empanel a different jury venire because of underrepresentation of African-Americans or in denying Gail's motion for additional discovery relating to the selection process for petit jury pools?
4. Was the evidence sufficient to support Gail's conviction of first-degree felony murder?
5. Did the district court commit reversible error by failing, sua sponte, to allow the jury to decide whether a witness was an accomplice for purposes of giving an accomplice corroboration instruction?
6. Did the district court err in ordering that the jury be sequestered or in ordering that the jury begin deliberations on a Friday afternoon?
7. Did the State commit prosecutorial misconduct in closing argument?
Gail argues that the search warrant issued for the Plymouth apartment violated the United States and Minnesota Constitutions because it was not supported by probable cause.3 See U.S. Const. amend. IV; Minn. Const. art. I, § 10. "When examining whether a search was supported by probable cause, the ultimate question is whether there is a `fair probability that contraband or evidence of a crime will be found in a particular place.'" State v. Carter, 697 N.W.2d 199, 204 (Minn.2005) (Carter III) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). We "look only to information presented in the affidavit" in making this determination. Carter III, 697 N.W.2d at 205. The application for the search warrant, "interpreted in a common-sense and realistic manner," must be found to "contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched." Rosillo v. State, 278 N.W.2d 747, 748-49 (Minn. 1979); see also State v. Rochefort, 631 N.W.2d 802, 804 (Minn.2001) ().
In addition; "[w]e afford great deference to the issuing judge's determination on probable cause."...
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