State v. Vang

• Citation: 847 N.W.2d 248
• Decision Date: 07 May 2014
• Docket Number: A13–0922.,Nos. A12–0956,s. A12–0956
• Parties: STATE of Minnesota, Respondent, v. Jerry VANG, Appellant.
• Court: Minnesota Supreme Court

847 N.W.2d 248

STATE of Minnesota, Respondent,
v.
Jerry VANG, Appellant.

Nos. A12–0956, A13–0922.

Supreme Court of Minnesota.

May 7, 2014.

[847 N.W.2d 254]

Syllabus by the Court

1. Under Minn.Stat. § 260B.193, subd. 5(d) (2012), the district court had subject matter jurisdiction to consider an indictment filed against appellant at age 23 for a crime committed at 14 years of age.

2. The evidence was sufficient to support appellant's convictions of first-degree felony murder while committing a drive-by shooting and attempted first-degree felony murder while committing a drive-by shooting.

3. Because the failure of an unobjected-to jury instruction to include all of the elements of drive-by shooting, Minn.Stat. § 609.66, subd. 1e (2012), did not affect appellant's substantial rights, appellant was not entitled to a new trial.

4. A sentence of life imprisonment for a minimum of 30 years imposed upon appellant, who was a juvenile when he committed first-degree murder, was not cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution or cruel or unusual punishment in violation of Article I, Section 5, of the Minnesota Constitution.

5. The district court did not abuse its discretion in imposing on appellant a longer sentence after trial than he received pursuant to an earlier plea agreement.

6. The district court did not err in summarily denying appellant's petition for postconviction relief.

Lori Swanson, Attorney General, Saint Paul, MN; and John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant Ramsey County Attorney, Saint Paul, MN, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Special Assistant State Public Defender, Saint Paul, MN, for appellant.

OPINION
DIETZEN, Justice.

In August 2001, the State filed a delinquency petition charging then 14–year–old appellant Jerry Vang with first-degree felony murder (drive-by shooting) and second-degree felony murder (drive-by shooting) arising out of the shooting death of David Vang; and attempted first-degree felony murder (drive-by shooting) in connection with the shooting and resulting injuries sustained by Kou Vang. Appellant was later indicted by a grand jury on those same charges. He subsequently entered guilty pleas to first-degree felony murder (drive-by shooting) and attempted first-degree felony murder (drive-by shooting), he was convicted of those charges, and sentence was imposed. In 2009, appellant

[847 N.W.2d 255]

filed a petition for postconviction relief, arguing that he was never certified to adult court and that the juvenile court lacked subject matter jurisdiction to impose adult sanctions on him. On appeal this court agreed, and vacated appellant's convictions and sentences and remanded appellant's case to the district court for further proceedings. Vang v. State, 788 N.W.2d 111, 117–18 (Minn.2010).

On remand, appellant pleaded not guilty to the original charges and, despite his objections that the district court lacked subject matter jurisdiction, the matter proceeded to trial. A jury found appellant guilty of all three counts, and judgment of conviction was entered on the offenses of first-degree felony murder (drive-by shooting) and attempted first-degree felony murder (drive-by shooting). He appealed and was granted a stay to pursue a postconviction petition. The postconviction court summarily denied the petition and the appeal of that order was consolidated with appellant's direct appeal. For the reasons that follow, we affirm.

In the afternoon of August 7, 2001, police responded to a report of a shooting near Minnehaha Avenue in Saint Paul. When they arrived, police officers determined that David Vang and his brother Kou Vang had been shot. They were both transported to a hospital. David Vang died at the hospital and Kou Vang suffered a gunshot wound to his right elbow. Several witnesses at the scene indicated that appellant was a passenger in a white Acura that was driven by Kor Vang, that the car stopped in the alley behind David and Kou's house where the brothers were standing with some friends, that an argument ensued between appellant and David Vang, and that appellant then pulled out a handgun and shot both David and Kou.

The State filed a delinquency petition in Ramsey County Juvenile Court alleging appellant had committed first-degree felony murder (drive-by shooting), in violation of Minn.Stat. § 609.185(a)(3) (2012), and second-degree felony murder (drive-by shooting), in violation of Minn.Stat. § 609.19, subd. 1(2) (2012), resulting in the death of David Vang; and attempted first-degree felony murder (drive-by shooting), in violation of Minn.Stat. §§ 609.17 (2012), 609.185(a)(3), resulting in gunshot injuries to Kou Vang. Appellant was indicted by the grand jury on the same charges.

In September 2001, the State moved to certify the proceedings to adult court. SeeMinn.Stat. § 260B.125, subd. 1 (2012). The parties subsequently informed the court that they had negotiated a resolution of appellant's case, and appellant pleaded guilty to first-degree felony murder (drive-by shooting) and attempted first-degree felony murder (drive-by shooting). The court accepted appellant's guilty pleas, convicted him of the two offenses, and sentenced him to a term of life with the possibility of release on the first-degree murder conviction, and a concurrent term of 200 months for the attempted first-degree murder conviction. The court also entered an order certifying the proceedings to adult court, but that order was captioned “Juvenile Division.” In re Welfare of J.V., No. JO–98–556100, Order at 1 (Ramsey Cty. Juv. Ct. filed Nov. 7, 2001).

In July 2009, appellant filed a petition for postconviction relief arguing that his adult certification was invalid. On appeal we reversed, concluding that the judge was sitting as the juvenile court at the time appellant was convicted and sentenced as an adult. Vang, 788 N.W.2d at 117. Because the court was sitting as the juvenile court at the time appellant was convicted and sentenced, appellant's convictions and sentences were void for lack of subject matter jurisdiction. Id. at 117–18. We remanded the case to the district court,

[847 N.W.2d 256]

not to the juvenile court, because appellant was then over 21 years old. Id. at 118 n. 6.

On remand, the State re-filed the grand jury indictment on the original charges against appellant in district court. Appellant pleaded not guilty to the charges, and filed a motion for removal of jurisdiction from district court to juvenile court, arguing that the district court lacked subject matter jurisdiction. The district court denied the motion. Appellant filed a petition for a writ of prohibition in the court of appeals to prevent the matter from proceeding in the district court, which was also denied. State v. Vang, No. A10–1862, Order at 3 (Minn.App. filed Nov. 9, 2010), rev. denied (Minn. Jan. 18, 2011).

At trial, the State presented testimony establishing that on the afternoon of August 7, 2001, brothers David Vang, Kou Vang, and Ken Vang were in the alley behind their house with two friends. One of the friends had recently purchased a car and the five youths were looking at the car and fixing a broken taillight. It was a hot day, so they moved across the alley to the shade in front of a neighbor's garage. While they were standing in the shade, a white Acura driven by Kor Vang and occupied by appellant proceeded down the alley and then stopped in front of the group. Appellant rolled down his window and yelled “what do you bang,” meaning “what gang are you in,” and David answered “we don't bang nothing.” An argument ensued, and appellant asked if the group wanted “some sh* * with him.” Kou responded that the group did not want any problems with appellant.

Appellant exited the car and said “f* *k you” to the five people present in the alley. Then appellant took out a handgun and fired six or seven times toward David, Kou, and the other three bystanders, and in the direction of the garages behind them. Appellant's shots hit David three times and hit Kou one time.¹ David tried to flee but collapsed nearby. Kou and the others fled. Appellant got back in the car and fired at least one more shot as he and Kor Vang drove off. Kou, who had run between two garages in the alley, discovered that he had been shot in his right arm. Two bullets hit the garage behind the victims. Both David and Kou were transported to Regions Hospital. David died as a result of his gunshot wounds, and Kou was treated for the gunshot wound to his arm. At the hospital, Kou identified appellant as the shooter in a police photo lineup.

Police investigators found the white Acura parked at a nearby residence and arrested appellant inside the residence. The other three youths also identified appellant as the shooter when appellant was presented to each of them individually in a show-up. The police recovered six 9mm shell casings from the alley and one 9mm shell casing from inside the white Acura, as well as a Smith and Wesson 9mm handgun from the front passenger seat of the Acura. The casings found in the alley and the Acura, as well as a bullet recovered from David's body, matched the ballistics of the handgun recovered from the Acura.

During the investigation, police discovered that appellant and the Vang brothers had a history of fighting with each other. Specifically, on July 6, 2001, the Vang brothers went to appellant's house to speak to him about punching and beating Kou at a laundromat. When appellant

[847 N.W.2d 257]

came out, an argument and fight ensued between David and appellant that was broken up by appellant's father.

At trial appellant admitted that he shot David and Kou Vang, but claimed it was in self-defense. According to appellant, the July 6 incident caused him to be fearful that David and Kou wanted to kill or seriously injure him. He testified that David and Kou came to his house on July 6,...