State v. Pendleton
| Decision Date | 08 December 2005 |
| Docket Number | No. A04-1128.,A04-1128. |
| Citation | 706 N.W.2d 500 |
| Parties | STATE of Minnesota, Respondent, v. Robin Todd PENDLETON, Jr., Appellant. |
| Court | Minnesota Supreme Court |
Barry V. Voss, Barry V. Voss, P.A., Minneapolis, MN, for Appellant.
Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, St. Paul, MN, Michelle Dietrich, Redwood County Attorney, Redwood Falls, MN, for Respondent.
Heard, considered and decided by the court en banc.
Frank Parker was shot to death on the morning of June 9, 2002, in the yard of Morris Pendleton, Jr.'s home on the Lower Sioux Reservation in Redwood County. The shots were fired from a motor vehicle that stopped in front of the home. One of the passengers in the vehicle, Dennis Pendleton, and the driver of the vehicle, Chris Sander, were subsequently charged with aiding and abetting murder in the second degree.
On the first day of his jury trial Dennis Pendleton, pursuant to plea agreement, entered an Alford guilty plea1 to the lesser offense of second-degree assault with a dangerous weapon and all remaining charges against him were dismissed. Less than a month later, following trial by jury, Chris Sander was acquitted of all charges.
Following Chris Sander's trial, the state obtained new and significant direct evidence identifying appellant Robin Todd Pendleton as the individual who actually fired the fatal shot that killed Parker. As a result, appellant was indicted for and subsequently found guilty of first-degree premeditated murder and first-degree premeditated murder for the benefit of a gang. The district court imposed a life sentence, and, because the crime was committed for the benefit of a gang, a consecutive sentence of a year and a day as required by Minn.Stat. § 609.229, subd. 4(a) (2004).2
In this direct appeal, appellant renews his pretrial claim that he was denied due process because the district court did not apply the doctrine of judicial estoppel to prevent the prosecuting attorney from asserting theories of guilt that appellant argues were inconsistent with and contrary to theories of guilt asserted by the prosecuting attorney in the earlier prosecutions of Dennis Pendleton and Chris Sander. Appellant's second claim is that the prosecuting attorney committed prejudicial misconduct by including inadmissible hearsay in a question asked of appellant, even though the district court sustained defense counsel's objection to the question and instructed the jury to disregard it. Appellant's third claim is that the district court erred in several of its evidentiary rulings. Finally, appellant claims that the evidence, which we summarize below, was not sufficient for conviction. We affirm.
On the early morning of June 9, 2002, Frank Parker was shot to death in the yard of Morris Pendleton, Jr.'s home on the Lower Sioux Reservation in Redwood County. The shooting occurred after an all night party at the residence. Many in attendance were intoxicated. During the party, Parker had brandished a handgun when an argument occurred between his girlfriend, Kim Berry, and Danielle Grey Eagle and Raquel Eller. Eller later overheard a person at the party, whom she could not identify, phone someone, telling them "to bring their straps [guns]" "because Frankie was over there."
At approximately 7 a.m., some time after Eller overheard the phone call, a maroon Denali sports utility vehicle stopped near the front of the house. At that time Parker was standing on the porch with Marcus Pendleton, Jr. and John Merrill. Jesse Sander got out of the vehicle, told a nearby group of girls to go home, and warned his cousin, Marcus, that he should go inside the house.3 Merrill saw Chris Sander in the driver's seat of the vehicle and Dennis Pendleton seated behind the driver. Someone in the vehicle said, "Let's do this." Marcus, who had gone inside the house, watched through a window as Chris Sander got out of the vehicle and walked toward Parker. As Chris Sander approached, Marcus saw Parker start down the porch steps. According to Marcus, Parker had a handgun, but he did not notice if either Chris or Jesse Sander were carrying guns.
Marcus saw the rear passenger door of the vehicle open and someone, whom he could not identify, step out and point a rifle at Parker. Marcus also saw a second gun, a shotgun, pointed at Parker from the front passenger window. According to Merrill, appellant, who was dressed in Native Gangster Disciples' blue gang colors, stepped out of the rear passenger door of the vehicle and cocked a long gun. Merrill testified that the long gun looked like a rifle, not a shotgun; the gun was not pumped like a shotgun. Merrill retreated into the house and heard eight or more gun shots. When he left the house by a side door shortly thereafter, he found Parker lying on the ground.
Robert Fairbanks, who was in the house when he heard gunshots, also ran out of the house and saw Parker lying on the ground. At trial, Fairbanks testified that he saw people jump back into the vehicle but was not able to positively identify the individuals because he was not wearing his eyeglasses. Fairbanks testified that he had not identified appellant as the driver or the passenger from newspaper photographs he had been shown during the police investigation. Fairbanks thought that the person entering the front passenger seat was carrying a rifle, and he heard someone yell, "F**k the Native Mob" from the vehicle as it sped away.4 Fairbanks fired at the fleeing vehicle with his .45 caliber handgun. When police found the vehicle approximately a month after the shooting, appellant's right thumb print was on the interior rear passenger window.
Parker was struck by four .223 caliber bullets, one of which entered his chest, striking both lungs and damaging his spinal cord. He bled to death from the chest wound. He was also shot in the right thigh and the left calf and had sustained a graze wound on his forearm.
According to Bureau of Criminal Apprehension (BCA) ballistics experts, the bullet casings found at the crime scene came from at least four weapons. Other evidence also indicates that there were at least four weapons involved in the shooting incident. Fairbanks testified that he fired a .45 caliber handgun at the fleeing vehicle; investigators found five .45 caliber spent casings at the crime scene, all fired from the same gun. Parker was carrying and fired a .380 caliber handgun, which was found by his body; there were five.380 caliber spent casings found, although it could not be determined that they were fired from a single gun. A shotgun had been fired from the vehicle and five spent shotgun shells were found. And, of course, the murder weapon, which was never found, was a rifle firing .223 caliber bullets, four of which struck Parker. There were eight .223 caliber spent casings found at the crime scene.
The ballistic experts testified that the .223 caliber bullets that struck Parker could have come from a Ruger Mini 14 Rifle like the one that Dennis Pendleton's girlfriend, Katrina Swigart, had purchased in January 2002. During a search of Dennis Pendleton's home, police found an empty Ruger Mini 14 rifle box; Dennis Pendleton's fingerprints were on the gun box and on paperwork within it. During a search of Chris Sander's home, police found gun cleaning kits and a box of .223 caliber shells.
After Chris Sander's acquittal, appellant made certain admissions regarding the shooting. On August 25, 2003, appellant admitted to Grey Eagle that he was with Dennis Pendleton and Chris Sander the night of the shooting and that he did not mean to kill Parker. Appellant told Grey Eagle, "once you start you can't stop." Appellant was also overheard boasting that he was at the party where Parker was shot and that police could not catch him. For a time, appellant evaded apprehension through the use of false names.
Appellant testified that he was not involved in the shooting and that he was with his mother in the Twin Cities when it occurred.5 Appellant's position throughout the trial, and on appeal, was that Merrill, Grey Eagle, and other state witnesses were threatened and coerced by Crowfeather into testifying falsely. According to appellant, Crowfeather, Parker's fellow gang member, threatened appellant after Parker died and the threats became worse after Dennis Pendleton's Alford plea and Chris Sander's acquittal. Appellant also testified that at the time of the shooting, he had good relationships with Parker, Merrill and Fairbanks.
Following a nine-day jury trial, appellant was convicted and sentenced for first-degree premeditated murder and first-degree premeditated murder for the benefit of a gang. This appeal followed.
Appellant claims that he was denied due process because the district court did not apply the doctrine of judicial estoppel to prevent the prosecuting attorney from asserting theories of guilt that, according to appellant, were inconsistent with and contrary to theories of guilt asserted by the prosecuting attorney in the earlier prosecutions of Dennis Pendleton and Chris Sander. Appellant claims that the prosecuting attorney selectively used evidence to establish inconsistent factual contentions in three related prosecutions for the same crime.
The doctrine of judicial estoppel has not been expressly recognized by this court.6 It is intended to prevent a party from assuming inconsistent or contradictory positions during the course of a lawsuit. State v. Larson, 605 N.W.2d 706, 713 n. 11 (Minn.2000); see also State v. Profit, 591 N.W.2d 451 (Minn.1999). The doctrine "is not reducible to a pat formula," but "is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories." Levinson v. United States, 969 F.2d 260, 264 (7th Cir.1992). Generally, the doctrine requires that three conditions be met. Id. at...
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