State v. Gray, C4-89-1566

Decision Date01 June 1990
Docket NumberNo. C4-89-1566,C4-89-1566
Citation456 N.W.2d 251
PartiesSTATE of Minnesota, Respondent, v. Daren Damont GRAY, Appellant.
CourtMinnesota Supreme Court

Syllabus by the Court

1. A warrantless arrest of defendant in his motel room was justified because of exigent circumstances.

2. When a reasonable juror could have concluded defendant was the aggressor or did not withdraw, the trial court was correct in refusing to instruct the jury on self-defense. The trial court properly instructed the jury on first degree manslaughter where the instruction was submitted by defense counsel and accurately reflected the law.

3. The evidence was sufficient for the jury to have reasonably convicted defendant of first degree premeditated murder and first degree felony-murder.

John M. Stuart, State Public Defender, Mark D. Nyvold, Asst. Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Thomas L. Johnson, Hennepin County Atty., Lisa A. Berg, Asst. County Atty., Minneapolis, for respondent.

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

POPOVICH, Chief Justice.

Defendant Daren Damont Gray was convicted of first degree premeditated murder and first degree felony-murder for the October 31, 1988 killing of Tommie Christopher Gales in south Minneapolis. On appeal, defendant argues (1) the police officers' warrantless arrest of him in a motel room was an unreasonable search and seizure; (2) the trial court erred in refusing to give a self-defense instruction and in giving the "heat of passion" first degree manslaughter instruction selected from the two instructions submitted by defense counsel; and (3) the evidence was insufficient to support his convictions. We affirm.

I.

Defendant Gray, Clyde McCaskel, and Carl Donnell were at Rosetta Davis' apartment on the afternoon of Monday, October 31, 1988, when McCaskel telephoned his cousin, Bobby Tyson (also known as Bobby Brown) for Donnell and defendant. Defendant, who had recently arrived from Los Angeles, arranged with Tyson to buy cocaine. As McCaskel was leaving after placing the call, he overheard a male voice in Davis' apartment say, "We should stick them up." McCaskel located Tyson and told him what he had overheard. Donnell, Davis, and defendant walked about one and one-half blocks to an apartment building at 2417 17th Avenue South in Minneapolis. Defendant took with him a loaded gun from a table in Davis' apartment. Donnell and Davis decided to leave the apartment building 10-15 minutes after arriving, but defendant asked them to stay because "he couldn't do what he was going to do by hisself, [Davis] would have to stay or [Donnell] would have to stay [because] * * * someone would have to frisk [the drug dealer] while [defendant] holds the gun."

Around 11:00 p.m. on October 31, 1988, Carlus Hodges and Gales were driving to a Halloween party in a gray 1981 Cadillac when Tyson flagged them down. Gales got out of the car and talked with Tyson, then both got into the car and Tyson instructed Hodges to drive to 24th Street and 17th Avenue. When they arrived, Hodges parked three or four houses down the street and remained in the car while Gales and Tyson walked to the building at 2417 17th Avenue South and were admitted by defendant. Tyson walked down a short flight of steps followed by Gales. As Tyson reached the bottom of the steps, he turned and saw defendant standing at the top of the steps pointing a gun at them, saying, "Give me the money." Tyson saw Gales reach into his inside jacket pocket, pull out a gun, and go up the steps. Tyson threw his money on the steps and jumped into the crawl space under the stairs. There was a short standoff with Gales and defendant each telling the other to "[d]rop it." Tyson heard gunfire, but did not see who fired the first shot. A struggle ensued between Gales and defendant. Gales asked Tyson for help in the struggle and in getting defendant's gun, but Tyson, unarmed, fled out the building's back door. In the Cadillac, Hodges heard several gunshots from the direction of 2417 17th Avenue South, turned towards the building, saw a flash and heard another gunshot.

Tyson ran around toward the apartment building's front and, peering around the corner, saw defendant bring out an unarmed Gales with a gun at Gales' back. When defendant and Gales reached the street, Tyson ran and neither saw nor heard anything further. From the car, Hodges also saw someone, whom he could not identify, pulling Gales out of the building into the street. Hodges saw this unidentified person search Gales, step back, and then shoot Gales, who fell to the ground. The shooter then turned and ran, and Hodges immediately drove away. Several neighbors heard a great deal of noise around 11:00 p.m., saw one or two men running from the scene, and noticed an older, dark Cadillac with its lights off driving away from the scene. Neighbors also saw Gales lying in the street, heard him gasping, and called the police.

When defendant returned to Davis' apartment, Donnell saw he had a gunshot wound in his side and was told by defendant that "one boy shot him, he had got shot." Defendant told Donnell there was a stand-off, then a struggle in which he was wounded, Gales surrendered, and then he shot and killed Gales. McCaskel returned to Davis' apartment early that morning "to see what really happened." Davis, Donnell, and defendant were present. McCaskel noticed defendant had blood stains on his shirt and defendant told McCaskel he had killed Gales.

Minneapolis police officers, responding to the reported shooting, arrived at 11:35 p.m. and found Gales dead, lying face up in the street. A search of Gales' clothing disclosed packages of cocaine in an inside jacket pocket. Police found a revolver inside the apartment building's front door, as well as a variety of bullet holes, lead and bullet fragments, and blood splatter in the entryway. Homicide detective Sgts. DeConcini and Miles interviewed several people, but found no suspects.

Under homicide department policy, the detectives who begin the day watch following a homicide assume investigative responsibility, therefore Sgts. Skala and Heise took over this case at 8:00 a.m. on November 1, 1988. At approximately 9:15 a.m. Hodges called the police and Sgt. Skala took his statement at the police station, in which he learned of Tyson's involvement. Hodges arranged for Sgt. Skala to meet Tyson, who told police Donnell knew the identity of the suspect and took them to Donnell's apartment. While returning to the police station from Donnell's apartment, Tyson and Donnell pointed out an apartment building at 2528 17th Avenue South as Davis' apartment. Between 3:00 and 4:45 p.m. at the police station, Sgt. Skala took Tyson's and Donnell's statements in which they related the above facts about the previous night. Donnell said the suspect, whom he knew as "Day-Day," was staying at Davis' apartment.

While taking these statements, Sgt. Skala had surveillance set up around Davis' apartment. Surveillance officers reported there was a lot of traffic in and out of the building. Sgt. Skala then prepared a search warrant application for Davis' apartment and the person of the suspect. It took approximately one-half hour to prepare and type the warrant application and affidavit, and at least another one-half hour to locate a judge, who signed the warrant. When police executed the search warrant for Davis' apartment at 7:25 p.m they found nobody, but did find a general assistance application in the name of "Daren D. Gray," and bloody bandages and bedding. A neighbor told police that Davis and "Day," who was bleeding, had left in a cab that afternoon, indicating they were going to a motel.

A call to the Red and White Cab Company at 9:00 p.m. disclosed that two people had been picked up at Davis' building and dropped off at the Fair Oaks Motel at 24th Street and 3rd Avenue in Minneapolis. At about 9:30 p.m., the Fair Oaks Motel's night manager recognized a photograph of Davis as the woman who had registered under an alias. The manager said Davis received the key to room 305, but, accompanied by a black male, recently had left in a Red and White cab. The cab driver who made the motel pickup told police she took two individuals matching Davis' and defendant's description to the area of 24th Street and 16th Avenue. The police stake-out of this area until 11:00 p.m. proved unsuccessful. The Red and White Cab Company dispatcher informed police at 11:25 p.m. that a cab picked up two individuals matching Davis' and defendant's description near where they had been left off earlier and drove them to the Fair Oaks Motel.

When Sgt. Skala learned of defendant's return to the Fair Oaks Motel, he directed Sgts. DeConcini and Miles at police headquarters to assemble the Emergency Response Unit (ERU) to assist in arresting defendant at the motel. Motel personnel reported to police that an outgoing telephone call had just been made from room 305. At approximately 11:30 p.m. Sgts. Skala and Heise began surveillance of room 305. At 11:30 p.m., Sgt. DeConcini received a call from a police dispatcher who reported that a woman had called police and said her son, Daren Gray, had been shot and was at the Fair Oaks Motel. Sgt. DeConcini relayed this information to Sgt. Skala. Although Sgt. Skala requested uniformed assistance in the surveillance, the officers assigned had a traffic accident and 30-45 minutes elapsed before another unit arrived.

None of the officers involved attempted to get an arrest warrant for Gray. Sgt. Skala, the officer in charge, testified he believed defendant was armed and wounded. Because defendant had no luggage and had traveled throughout the day, Sgt. Skala worried defendant could leave the motel at any time. Sgt. Skala did not know if room 305 was being used as a base by defendant or when he would return again. Because nearby motel rooms were occupied and room 305...

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