State v. Moore

• Decision Date: 31 March 1989
• Docket Number: No. C3-88-723,C3-88-723
• Citation: 107 WL 21545972,438 N.W.2d 101
• Parties: STATE of Minnesota, Respondent, v. Kevin James MOORE, Appellant.
• Court: Minnesota Supreme Court

Page 101

438 N.W.2d 101

STATE of Minnesota, Respondent, v. Kevin James MOORE, Appellant.

No. C3-88-723.

Supreme Court of Minnesota.

March 31, 1989.

Syllabus by the Court

1. The prosecution's failure to inform the grand jury of prior inconsistent statements made by witnesses is not grounds for dismissing the indictment where that information would not have changed the grand jury's indictment.

2. Even if the affidavit in support of the search warrant application contained a material misrepresentation, there is no ground for invalidating the search warrant where the record indicates that the misrepresentation was not intentional, but was negligently made. It was not improper for the trial court to refuse to require the state to reveal the identity of the confidential informant where that informant's tip was established as reliable during the pretrial hearing.

3. The prosecution's use of a peremptory challenge to remove the only black person from the venire is not grounds for a new trial. The prosecution articulated a racially neutral reason for its action.

4. The evidence presented at trial was sufficient to support the jury verdict.

5. Appellant is not entitled to a new trial because his convictions for both first and second degree murder are not legally inconsistent. Premeditation is a necessary element of first degree murder, but lack of premeditation is not a necessary element of second degree murder.

C. Paul Jones, Steven P. Russet, Asst. State Public Defenders, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Tom Foley, Ramsey County Atty., Darrel C. Hill, St. Paul, for respondent.

Heard, considered and decided by the court en banc.

KEITH, Justice.

Appellant Kevin James Moore appeals his jury conviction of first and second degree murder, Minn.Stat. Secs. 609.185, 609.19 (1986). He was sentenced to life imprisonment at the Minnesota Correctional Facility at Oak Park Heights on the first degree murder conviction. On appeal, he claims reversible error because: (1) the prosecutor failed to present exculpatory evidence to the grand jury; (2) the trial court did not suppress evidence seized under an invalid search warrant or alternatively should have required the state to reveal the identity of a confidential informant; (3) the prosecutor used a peremptory challenge to strike the only black person from the jury panel; (4) the evidence was insufficient to convict him; and (5) the jury verdicts finding him guilty of both first and second degree murder are legally inconsisent. We affirm.

Appellant was convicted by a jury for the murder of 18-year-old Lynn Ferguson during the early morning hours of August 26, 1987, in a car parked in an alley near University Avenue in St. Paul. The state presented the testimony of two eyewitnesses, William Johnson and John Edmondson. Both testified that appellant fired four shots from a handgun, with two shots striking Ferguson in the head and killing her instantly. Edmondson and Johnson, both minors, were passengers in the car when the murder occurred. The state's theory of appellant's motive was that he was protecting Edmondson because Ferguson was "setting him up" to be attacked or killed by the members of a street gang known as the L.A. Crypts. The night before the shooting, Ferguson was seen with two members of this street gang and the two had threatened Edmondson.

On the night of the murder, Lynn Ferguson gave a ride in her car to appellant and William Johnson. In her car, appellant said that the L.A. Crypts were going to attack Edmondson, but that appellant would get them. Later in the evening Edmondson joined the group in Ferguson's car. Appellant directed Ferguson to drive to an address on Hague Avenue in St. Paul. Johnson testified that appellant got out of the car and approached a building, then returned several minutes later. He had a gun under his belt. The inference was that he was looking for members of the L.A. Crypts.

Appellant, still sitting in the back seat directly behind Ferguson, later directed her to drive to the home of another relative, to get him and another person to go along to "jump on" some members of the L.A. Crypts. Appellant eventually gave directions to Ferguson to drive down an alley and then to stop. Johnson testified that he looked over at Ferguson and saw appellant with a black revolver in his hand pointing at Ferguson's head. He saw appellant shoot her, firing four shots. Edmondson said he was looking out the side window when he heard four shots. Appellant then leaned forward over Ferguson, and using his right hand, put the car in "Park" gear because it was rolling forward. Edmondson saw the gun in his left hand. Appellant was wearing a blue sweat shirt, and on the radio, or stereo, a song called "Lovers" was playing. Appellant then got out of the two-door sedan through the driver's door and ran down the alley. Johnson and Edmondson left the car through the other door and ran down the alley in the opposite direction. They walked back to a relative's house, where they had been earlier, and they again met appellant, who was already there talking to members of the household. He was telling those present that he wasn't going to let anyone else in his family get hurt.

Later, Edmondson, Johnson and appellant returned to an apartment on North Oxford, where they all had recently been living with Edmondson's sister, Faye Myers. She spoke with the three when they arrived. According to Myers, appellant told her later that night that he had killed Lynn Ferguson by shooting her in the head. Appellant also told William Johnson that Lynn Ferguson was setting up Edmondson and that he did not want anyone else in his family to be hurt. The next day appellant gave Edmondson a similar explanation, stating the L.A. Crypts were out to kill Edmondson. Appellant left the apartment the night of the shooting, returning later in the morning. He was singing the song "Lovers" as he left, the same song that was playing during the murder.

A neighbor along the alley where Lynn Ferguson was shot told the police the next day that she heard four gunshots at about 2:30 a.m. on August 26. Another neighbor saw Ferguson's car in the alley, with the motor running, the lights on and the doors open at 3:10 a.m. The police arrived at 6:10 a.m. and found Lynn Ferguson's body slumped in the driver's seat. She had two bullet holes in the back of her head. The medical examiner testified that two bullets entered her brain, and two shots missed her. The first shot to hit her probably rendered her unconscious, and the second hit killed her instantly. The shots came from the back seat and were fired from 18-24 inches away, although possibly as close as 12 inches. Hair strands taken from the car matched samples taken from William Johnson, Edmondson, and appellant. One of these strands, consistent with appellant's hair, was found in the back seat of the car. No fingerprints from appellant were found in the car. There was a smudge found on the bottom of the gear-shift lever. The police also found a cassette tape in the car containing the song "Lovers."

Two St. Paul police officers interviewed John Edmondson in St. Louis where he had returned to live. After initially denying any knowledge of the murder and giving false information, he implicated appellant. However, he concealed the fact his friend, William Johnson, was also present. On September 1, appellant was arrested without incident at the house on Central Avenue. Search warrants for that house and for Faye Myers' apartment were executed for the stated purpose of finding the gun, writings and documents which would implicate appellant. The gun was never recovered, but at Myers' apartment the search produced a blue sweat shirt with blood stains. At trial Myers identified the blue sweat shirt as belonging to appellant, although she had earlier denied that the sweat shirt was his. She said that she did so out of loyalty to appellant, who was her closest cousin, closer in fact than her brother, John Edmondson. An analysis of the blood on the sweat shirt indicated that it was from Lynn Ferguson. The pattern of the blood stain on the shirt was consistent with the shirt coming into contact with a bloody object, rather than from blood spattering. The jury, after deliberating for 3 days, returned guilty verdicts for first degree and second degree murder.

1. Appellant claims that his conviction should be reversed because the prosecutor failed to present exculpatory evidence to the grand jury which indicted him. See 1 ABA Standards for Criminal Justice Sec. 3-3.6(b) (1979), ("No prosecutor should knowingly fail to disclose to the grand jury evidence which will tend to substantially negate guilt." ); State v. Olkon, 299 N.W.2d 89, 105-106 (Minn.1980) cert denied 449 U.S. 1132, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981). The claimed exculpatory evidence consists of prior statements made by the state's two prime witnesses that were somewhat inconsistent with their testimony before the grand jury. Specifically, when John Edmondson was initially questioned by the police on August 29, he denied any involvement in the murder. He also stated that another individual or gang might be responsible for the murder. During the same interview with the police, Edmondson later admitted that he was present during the murder, as was appellant, and that appellant murdered Ferguson. In testimony before the grand jury he said that another person, William Johnson, had also been present at the murder. His prior statements were not mentioned to the grand jury. Likewise, William Johnson had earlier told police that he was not present during the murder and this information was not told to the grand jury when Johnson testified. The trial court denied the motion to dismiss the indictment, stating that had the prior statements been disclosed to the grand jury, it would not have changed the indictment.

A grand jury proceeding is not a trial on the...