(appellant) state of minnesota, respondent vs. arturo...
TRANSCRIPT
AOS-696
STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota,
Respondent, v.
Arturo Montano-Martinez,
Appellant.
APPELLANT'S BRIEF
MIKE HATCH State Attorney General 445 Minnesota Street 1800 Bremer Tower St. Paul, MN 55101
AMY KLOBUCHAR Hennepin County Attorney C2000 Government Center Minneapolis, MN 55487
ATTORNEYS FOR RESPONDENT
OFFICE OF THE MINNESOTA STATE PUBLIC DEFENDER
CHARLES F. CLIPPERT Special Assistaut State Public Defender License No. 248848
Bethel & Associates 1600 Pioneer Building 336 N. Robert St. St. Paul, MN 55101 (651) 292-9406
ATTORNEY FOR APPELLANT
\
A05-696
STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota,
Respondent, v.
Arturo Montano-Martinez,
Appellant.
APPELLANT'S BRIEF
MIKE HATCH State Attorney General 445 Minnesota Street 1800 Bremer Tower St. Paul, MN 55101
AMY KLOBUCHAR Hennepin County Attorney C2000 Government Center Minneapolis, MN 55487
ATTORNEYS FOR RESPONDENT
OFFICE OF THE MINNESOTA STATE PUBLIC DEFENDER
CHARLES F. CLIPPERT Special Assistant State Public Defender License No. 248848
Bethel & Associates 1600 Pioneer Building 336 N. Robert St. St. Paul, MN 55101 ( 651) 292-9406
ATTORNEY FOR APPELLANT
TABLE OF CONTENTS
PROCEDURAL HISTORY
LEGAL ISSUES
STATEMENT OF THE CASE
STATEMENT OF FACTS
ARGUMENTS
I. APPELLANT'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE
PAGE
1
3
5
6
16
TO IMPEACH MR. VARGAS WITH HIS PRIOR TESTIMONY. 16
IT. APPELLANT'S CONVICTION MUST BE REVERSED BECAUSE THE ADMISSION OF GANG TESTIMONY FROM AN EXPERT WITNESS WAS PLAIN ERROR. 22
III. APPELLANT'S SENTENCE FOR CRIM (FIRST-DEGREE MURDER) FOR THE BENEFIT OF A GANG MUST BE REVERSED BECAUSE IT CONSTITUTES AN UNSUPPORTED DEPARTURE FROM THE PRESUMPTNE SENTENCE PROVIDED BY THE SENTENCING GUIDELINES. 25
CONCLUSION 28
1
TABLE OF AUTHORITIES
MINNESOTA STATUTES
Minn. Stat. §609.04, subd. 1 Minn. Stat. §609.05 Minn. Stat. §609 .1 01, sub d. 2 Minn. Stat. §609 .1 06, subd. 2(2) Minn. Stat. §609 .11 Minn. Stat. §609 .185(1) Minn. Stat. §609.185(3) Minn. Stat. §609 .222, subd. 1 Minn. Stat. §609.229, subd. 2 Minn. Stat. §609.229, subd. 3(a) Minn. Stat. §609.229, subd. 4(a) Minn. Stat. §609.66, subd. 1e(b)
MINNESOTA DECISIONS
In Contempt ofEck1und, 630 N.W.2d 585 (Minn. Ct. App. 2001)
State v. Amos, 658 N.W.2d 201 (Minn. 2002)
State v. Barker, 705 N.W.2d 768 (Minn. 2005)
State v. Burg, 648 N.W.2d 673 (Minn. 2002)
State v. Byers, 570 N.W.2d 487 (Minn. 1997)
State v. Chuon, 596 N.W.2d 267 (Minn. App. 1999)
State v. DeShay, 669 N.W.2d 878 (Minn. 2003)
State v. Dexter, 269 N.W.2d 721 (Mi1m. 1978)
State v. Geller, 665 N.W.2d 514 (Minn. 2003)
State v. Lopez-Rios, 669 N.W.2d 603 (Minn. 2003)
State v. Martin, 614 N.W.2d 214 (Minn. 2000)
State v. Spencer, 248 N.W.2d 915 (Minn. 1976)
11
PAGE
25 1, 2, 5
2 1
1, 2 1, 5, 5
1, 5 2,5
1, 2, 5 1, 2, 5 4,27
1, 2, 5
18
3, 18
27
22
16
4,26
3,24
3, 19
27
3, 14,22,24,25
17
17
State v. Willis, 559 N.W.2d 693 (Minn. 1997)
FOREIGN DECISIONS
Blakely v. Washington, 642 u.s. 296 (2005)
Goings v. U.S. , 377 F.2d 753 (S'h Cir. 1967)
Murphy v. Waterfront Comm'n, 378 u.s. 52 (1964)
U.S. v. Bruton, 416 F.2d 310 (8th Cir. 1969)
U.S. v. Burch, 490 F.2d 1300 (8th Cir. 1974)
U.S. v. Puckett, 147 3d 765 (8th Cir. 1998)
CONSTITUTIONAL PROVISIONS
United States Constitution amend. V
Minnesota Constitution art. I, §7
Minnesota Rules of Criminal Procedure 31.01 31.02
Minnesota Rules of Evidence 607 80l(d)(l)(A) 80l(d)(l)(B)
Minnesota Sentencing Guidelines II. II.A.05
OTHER
111
20
4,27
19
18
17
18
187
17
17
20 3,22
19 3,16,20
16
26 4,26
A05-696
STATE OF MINNESOTA
IN SUPREME COURT
State of Minnesota,
Respondent, v.
Arturo Montana-Martinez,
December 3, 2000:
February 13,2001:
Appellant.
PROCEDURAL HISTORY
Date of offense
Indictment filed charging Appellant with: Count 1: murder in the first degree (premeditated) in violation ofMinn.Stat. § 609.185(1); § 609.11; § 609.106, Subd.2(2)1 and§ 609.05 with E A as the victim. Count 2: murder in the first degree (premeditated) committed for the benefit of a gang in violation of Minn. Stat. § 609.229, Subd.2, Subd. 3(a); § 609.185(1); § 609.05 with E A as the victim. Count 3: murder in the first degree (felony) in violation of Minn.Stat. § 609.185(3); § 609.11; § 609.106, Subd.2(2); § 609.66, Subd. 1e(b), § 609.05 with E A as the victim Count 4: murder in the first degree (felony) committed for the benefit of a gang in violation of Minn. Stat. § 609.229, Subd.2, Subd. 3(a); § 609.185(3); § 609.66, Subd. 1e(b); § 609.05 with E A as the victim. Count 5: assault in the second degree in violation of Minn.
1 It appears that Mr. Montano-Martinez was charged under the heinous crime provision for kidnapping instead of the provision for first degree murder. Since he was never charged with or convicted of kidnapping, these convictions should be vacated.
1
May 21, 2004:
September 9, 2004:
November 29, 2004:
December 10, 2004:
December 14, 2004:
January 7, 2005:
April 7, 2005:
November 30,2005:
Stat. § 609.222, Subd. 1; § 609.101, Subd. 2; § 609.11; § 609.05 with JGCA as the victim. Count 6: assault in the second degree committed for the benefit of a gang in violation of Minn. Stat. § 609.229, Subd. 2, Subd. 3(a); § 609.222; § 609.05 with JGCA as the victim. Count 7: drive by shooting in violation Minn.Stat. § 609.66, Subd. 1e, § 609.11; § 609.05 with JGCA as the victim. Count 8: drive by shooting committed for the benefit of a gang in violation of Minn. Stat. § 609.229, Subd. 2, Subd. 3(a); § 609.66, Subd. 1e, § 609.11; § 609.05 with JGCA as the victim.
Appellant arraigned.
Appellant's motion for a continuance and substitution of counsel granted.
Jury trial begins, the Honorable LaJune Lange presiding.
The tiial court dismissed counts 5, 6, 7 and 8.
Appellant found guilty of counts 1, 2, 3, and 4.
At sentencing, the Honorable LaJune Lange presiding, the court imposed a sentence of life in prison for count 1 and a consecutive term of24 months for count 2.
Appellant filed notice of appeal to the Supreme Court.
Court grants Appellant's motion for an extension of time to file their brief
2
LEGAL ISSUES
1. The trial court erred when it allowed the prosecutor to introduce the hearsay
statements of a witness after the witness attempted to invoke his Fifth Amendment
privilege not to testify and the purpose of the testimony was solely to impeach him with
his prior statements.
Without a formal ruling, the trial court allowed the testimony.
Apposite Authorities:
Minn.R.Evid 801(d)(1)(A)
State v. Amos, 658 N.W.2d 201(Minn. 2002)
State v. Dexter, 269 N.W.2d 721 (Minn. 1978)
2. The Appellant was denied a fair trial due to the admission of expert
testimony on gangs.
The trial court did not rule on the admissibility of the testimony.
Apposite Authorities:
Minn.R.Cr.P. 31.02
State v. Lopez-Rios, 660 N.W.2d 603 (Minn. 2003)
State v. DeShay. 669 N.W.2d 878 (Minn. 2003)
3. The trial court erred when it sentenced Appellant on both count 1
(premeditated murder) and count 2 (premeditated murder for the benefit of a gang). The
court also erred when it imposed an aggravated durational departure on Count 2 (first
3
degree murder for the benefit of a gang) without additional findings by the jury to support
the departure.
The trial court found aggravating factors at sentencing.
Apposite Authorities:
Minn. Stat. § 609.229, Subd. 4(a)
Blakely v. Washington, 542 U.S. 296 (2005)
State v. Chuon, 596 N.W.2d 267 (Minn. App. 1999)(rev. denied Aug. 25, 1999)
Minn.Sent Guidelines II.A.05
4
STATEMENT OF THE CASE
Appellant Arturo Montano-Martinez was indicted in Hennepin County on eight
counts: count 1: murder in the first degree (premeditated) in violation ofMinn.Stat. §
609.185(1) with E A as the victim; count 2: murder in the first degree
(premeditated) committed for the benefit of a gang in violation of Minn. Stat.§ 609.229,
Subd.2, Subd. 3(a); § 609.185(1); § 609.05 with E A as the victim; count 3:
murder in the first degree (felony) in violation ofMinn.Stat. § 609.185(3) with E
A as the victim; count 4: murder in the first degree (felony) committed for the benefit
of a gang in violationofMinn.Stat. § 609.229, Subd.2, Subd. 3(a); § 609.185(3); §
609.66, Subd. 1e(b) with E A as the victim; count 5: assault in the second
degree in violation ofMinn.Stat. § 609.222, Subd. 1 with JGCA as the victim; count 6:
assault in the second degree committed for the benefit of a gang in violation of Minn. Stat.
§ 609.229, Subd. 2, Subd. 3(a); § 609.222; § 609.05 with JGCA as the victim; count 7:
drive by shooting in violation Minn.Stat. § 609.66, Subd. 1e with JGCA as the victim;
count 8: drive by shooting committed for the benefit of a gang in violation of Minn. Stat.
§ 609.229, Subd. 2, Subd. 3(a); § 609.66, Subd. 1e, with JGCA as the victim.
Following a jury trial, the Honorable LaJune Lange presiding, Appellant was
found guilty of counts 1 through 4. At sentencing, the court imposed sentence on counts 1
(premeditated first degree murder) and 2 (premeditated first degree murder for the benefit
of a gang). The trial court also imposed an aggravated durational departure on count 2.
Appellant appeals from the judgment of conviction.
5
STATEMENT OF FACTS
Background
On December 2, 2000, there was a dance at an establishment at Lake and Portland.
(T.2 567) Outside the dance two members of the Latin King gang were shot. (T. 573)
Four members of the 18th Street gang were allegedly involved in the shooting and the
person who actually fired the shots was identified by a witness as Mr. A . (T. 571)
Appellant, a Latin King gang member, was at the scene of the shooting. (T. 1093, 1089)
Appellant took one person who was shot to the hospital. (T. 1094) After leaving the
hospital Appellant ended up at the house of Roberto Lopez-Rios along with Francisco
Vargas and two members of the Surenos 13 gang. (T. 1099) The five of them left in a
car. Appellant was seated in the middle of the back seat. (T. 1102) Mr. Lopez-Rios was
seated behind the driver and Mr. Vargas was seated behind the passenger. (T. 802)
Mr. A was shot and killed later that night outside of his apartment in
Minneapolis. (T. 644) Appellant testified that he was the person who shot Mr. A .
(T. 1109) Mr. A died from a bullet that entered his chest and went through his aorta.
(T. 1066) There was conflicting testimony at trial regarding the circumstances
surrounding the shooting.
Appellant's Testimony
Appellant testified that he had a long term problem with alcohol. On the day of
the shooting he started drinking at about 11:00 A.M. or noon and that before the dance he
2 "T" refers to the trial transcript
6
had consumed six beers and was also drinking tequila. (T. 1090, 1155) Appellant did
not remember the details surrounding the shooting at the dance and remembered only
being at the hospital and getting there by car. (T. 1 094) Appellant did not remember
how long he stayed at the hospital or leaving there, but remembers being at Mr. Lopez
Rios' house. (T. 109)
Appellant did not remember who was at the house. (T. 1096) He told family
members of one the victim's about the shooting. (T. 1096) While at Mr. Lopez-Rios' he
finished a bottle of tequila that he had left there earlier. (T. 1097) Mr. Vargas showed up
with two people that Appellant did not know and that were not Latin Kings. (T. 1099)
There was no discussion about going out and getting the 18th Street gang members
involved in the shooting at the dance. (T. 1100)
Appellant left the house with Mr. Lopez-Rios, Mr. Vargas, and the two other
people that were with Mr. Vargas. The Appellant just went with the group. There was
no talk of retaliating for against the 18th Street gang. Appellant thought they were going
out for a cruise. (T. 1101) During the ride, Appellant was still intoxicated. He had used
marijuana and crack earlier as well. He was not aware of what was going on around him.
He heard voices but could not distinguish was people were saying. (T. 1101-2)
There was no talk about a gun and the Appellant did not hear any discussion about
what they would do if they saw an 18th Street gang member. Appellant heard voices and
woke up. He felt something between his legs and picked it up to see what is was. Mr.
Lopez-Rios then pushed him toward the passenger side door with his elbow. (T. 1104)
7
Mr. Vargas opened the door and Appellant saw two people running across the street. (T.
11 06) Appellant crawled over Mr. Vargas and got out of the car. (T. 11 07)
As soon as Appellant got out of the car a shot was fired at him :from a person on
the sidewalk. Appellant heard the bullet hit behind him. The person on the sidewalk had
a gun pointed at him. (T. 1108)
Appellant thought the person was going to shoot at him again. He thought the
person was trying to kill him. Appellant fired the gun that he had picked up in the car.
(T. 11 09) The shooting happened fast. (T. 111 0) When the shooting started the car
started moving forward and the door had now closed. (T. 1109-1 0) Appellant didn't
think he could run because he would get shot in the back. Appellant was left standing
there. (T. 1110) Appellant shot to protect his life. (T. 1112) Appellant had never seen
the gun before and he did not know how many shots he fired. Appellant did not know
what happened to the second person that he saw crossing the street. He did not point the
gun or shoot at him. (T; 1111)
Appellant got back into the car which had moved away from the shooting. The
others were still in the car. Appellant did not remember where they went after. (T.
1113) Appellant did remember arriving at a house on Bloomington Ave. that night, but
Appellant did not remember how they got there because he fell asleep in the car. (T.
1114) After the shooting Appellant left for Mexico. He left Minnesota because he was
scared that the 18th Street gang members would get him. (T. 1150)
8
The State's Case
Rebecca Skinaway, Mr. A 's girlfriend, testified that she believed her
boyfriend was an 18th Street gang member and had a gang tattoo on the back of his neck.
(T. 642) She testified that during December 2, 2000, she lived with Mr. A at
in Minneapolis. (T. 640) That night she returned home to their
apartment with five friends just after midnight. She heard gun shots and told her friend
to call the police. Mr. A had been shot. (T. 644) He was at the back of their
apartment outside their bedroom window. (T. 645)
The State offered a plea bargain to Mr. Vargas who was a Latin King and in the
car at the time of the shooting. (T. 801) Mr. Vargas pleaded to a reduced charge of
second degree murder for the benefit of a gang and assault and had testified at the co
defendant's trial. (T. 753) Mr. Vargas did not want to testify at this trial and tried to
assert a Fifth Amendment right not to testify outside the presence of the jury. (T. 748)
The State argued that the witness didn't have a Fifth Amendment privilege anymore. The
State also opposed the defense attorney's suggestion that the witness should be provided
with an attorney. (T. 750) The jury was brought back into the courtroom and the
prosecutor read Vargas' prior testimony and the witness was asked to affirm the
testimony. (T. 752-793)
The jury was excused, Mr. Vargas again indicated he did not want to testify, but
the court ordered him to testify. (T. 795) Mr. Vargas again asked whether he had to
answer the questions and the court ordered him to comply. (T. 796) Mr. Vargas was
questioned again by the prosecutor out of the presence of the jury about what happened.
9
(T. 796-799). The jury was brought back into the courtroom. Before questioning Mr.
Vargas again, the court, in the presence of the jury, ordered him to testify or he would be
found in contempt. (T. 799)
Mr. Vargas testified before the jury that after the dance, he eventually met up with
the Appellant at Mr. Lopez-Rios' house. The three of them got into a car along with two
Surenos 13s and they drove to an area where they believed the 18th Street gang members
were. (T. 801) They were going to find the 18th Street gang members to get back at
them for shooting the Latin Kings earlier in the evening. Mr. Vargas testified that four to
six blocks away from where the 18th Street gang members were, he notice that Mr.
Lopez-Rios had a gun. Mr. Lopez-Rios and Mr. Vargas devised a plan. Mr. Vargas
testified that if the 18th Street gang members were on his side of the car, he would shoot.
If they were on Mr. Lopez-Rios' side, then he would shoot. (T. 802, 811) Mr. Lopez
Rios was behind the driver and Mr. Vargas was behind the passenger.
When they came to the area, the 18th Street gang members were on Mr. Vargas'
side of the car. Mr. Lopez-Rios tried to pass the gun over, but he dropped it. Mr. Vargas
testified that the Appellant picked up the gun, crawled over Mr. Vargas and shot the 18th
Street gang members. One of the 18th Streeter gang members was trying to get inside an
apartment. (T. 803) Mr. Vargas opened the door so that Appellant could get back in the
car after the shooting.
Mr. Vargas testified that at first it was quiet in the car, but then they realized they
had gotten away. (T. 784) They were happy and clasped hands like a high five. (T.
10
784) They all went to the house on Bloomington Ave. where there were a couple of girls
and some Latin Kings.
The State called both of the girls as witnesses. The first girl was Bryanna Redbird
who is a Latin Queen. (T. 562) Ms. Redbird was at the dance and knew the 18h Street
gang members who shot the Latin Kings. (T. 570) Ms. Redbird was at the house on
Bloomington where a number of Latin Kings were after the shooting at the dance. (T.
576) Mr. Lopez-Rios, Mr. Vargas and Appellant were at the house but they left and
returned about 30-40 minutes later. (T. 578) When the Latin Kings returned Ms.
Redbird talked to Appellant while they were in the bathroom together and he told her that
they had "blasted them fools". The Appellant explained that they went to an apartment
near the airport with some Surenos 13s. (T. 580)
The second girl was Heidi Roberts. She was with Mr. Redbird that night at the
dance and was at the scene during the initial shooting. (T. 620) She testified that she
took the bus to the house on Bloomington with Ms. Redbird and two other people and
that the Latin Kings would be there. (T. 621) Ms. Roberts testified that she talked to
Appellant in the dining room and that Appellant told her that he had got one of the 18th
Street gang members. (T. 625) There was some confusion in Ms. Robert's testimony
about whether she heard the statement directly from the Appellant or whether she was
repeating something that was told to Ms. Redbird. (T. 636-7)
Mr. Miguel Aguilar testified that he was in the hospital after both shootings and
that Appellant was also there. (T. 877) Mr. Aguilar could not recall Appellant talking
about the shooting and recalled that Mr. Lopez-Rios was talking about the shooting. (T.
11
881, 891) However, in his testimony to the grand jury, Mr. Aguilar said that Appellant
told him that he grabbed the gun and shot the 18th Street gang member. (T. 887) Mr.
Armando Jaramillo also testified that he spoke with Appellant after the incident and that
Appellant admitted he shot the 18th Street gang members. (T. 944)
Law enforcement officers involved in the investigation testified as well. Officer
Kari Jorgensen works for the crime lab and responded to document the crime scene. (T.
693-4) She photographed and collected spent bullet casings from the street. (T. 699,
702) She found a bullet in the apartment door but didn't find any other bullets in the
house, tree, or the house next door. (T. 714) She found Mr. A in the back of the
house and observed a silver revolver under his hip. (T. 696) The revolver had two spent
casings in it. (T. 719)
Lieutenant Michael Carlson also responded to the scene of Mr. A 's shooting.
(T. 725) Officers were canvassing the area looking for eyewitnesses to the shooting. (T.
727) Lt. Carlson went across the street to looking for J A (who is
victim identified in counts 5, 6, 7 and 8) and Jose Rodriguez who were potential
witnesses. (T. 731) Mr. A wasn't home, but he approached the officer about
twenty minutes later. (T. 732) The officer testified that Mr. A looked frightened,
scared and shocked. The trial court ruled that Mr. A statements were admissible.
(T. 734) A told the officer that Mr. A came over to his apartment and asked him
to cover over. As he and Mr. A were crossing the street a car drove by them going
north or 33rd Ave occupied by latino males who made eye contact. Seconds later the
12
vehicle approached and two males "laid out of the car" and began shooting at them. Mr.
A took off running. (T. 734, 737)
Ben Jorgenson, an FBI agent, testified that he talked to Appellant's father after
Appellant's brother was arrested as a suspect. (T. 926) The agent got on the phone and
spoke directly with Appellant. The agent speaks fluent Spanish and realized that the
Appellant spoke English well. The agent told Appellant that he needed to turn himself in.
The agent testified that Appellant then said he did it and was going to turn himself in. (T.
927) Appellant did turn himself in two days later. (T. 928)
After Appellant turned himself in, Minneapolis homicide investigator Darcy
Klund flew out to San Diego, CA with Chris Hauglid to interview the Appellant. (T.
975) The interview was tape recorded and transcribed. The tape was admitted into
evidence as exhibit 46. (T. 977, 979) The officer read Appellant a Miranda rights
advisory form. (T. 997) Appellant stated he did not want to talk to the officer. (Exhibit
46) Appellant stated he would talk to the officers in Minneapolis. The interview then
turned to the extradition process. After explaining the extradition process, the Appellant
agreed to speak to the officers. (Exhibit 46) The interview tape was played to the jury.
(T. 980) During the interview appellant indicated that he was intoxicated, but the officers
did not ask any follow up questions. (T. 1002-3)
During the investigator's testimony the prosecutor elicited that Mr. A was in
Mexico. (T. 974) Appellant made a motion for a mistrial based on the State eliciting Mr.
A 's hearsay statements through Officer Carlson and then eliciting from Officer
Klund that Mr. A was in Mexico. The Appellant argued it was error to elicit the
13
hearsay statements from the witness when the state knew they were not going to be able
to extradite the witness for trial. The motion was taken under advisement. (T. 1006) At
the close of the case, the trial court dismissed all the charges with Mr. A as the
victim3. (T. 1193)
The State offered expert testimony on gangs through Dan Bautista. Mr. Bautista
was on the gang strike task force. He was trained on gang activity in Minnesota and
around the country. (T. 845) Mr. Bautista focused his investigations on Hispanic gangs.
He works with investigators in California and teaches law enforcement. (T. 846) Mr.
Bautista was familiar with Latino gangs and the Latin Kings. He would interview Latin
Kings to keep current on what is going on in the street. (T. 848) Mr. Bautista testified
that the Latin King's color is black and gold and that their symbol is a crown and their
hand sign an LK. (T. 849)
Mr. Bautista testified in the trial of the co-defendant, Mr. Lopez-Rios4, so he was
familiar with the investigation. During December, 2000 the Latin Kings had three or
more members. The members individually or collectively, engaged in criminal activity
such as murders, drive-by shootings, and assaults with dangerous weapons. (T. 850) He
testified that gangs engaged in this pattern of violence to maintain control of their turf to
3 The trial court did not specify which counts it dismissed, but counts 5, 6, 7 and 8 all listed Mr. A as the victim. The computer record from the trial court and the warrant of commitment incorrectly indicate that there were convictions on these counts.
4 State v. Lopez-Rios, 669 N.W.2d 603 (Minn. 2003)
14
get the proceeds from drug trafficking that occurs there. (T. 852) He testified that if a
Latin King were injured there would be immediate retaliation. (T. 853)
Mr. Bautista opined that the three individuals involved in the shooting of Mr.
A were all Latin Kings. Mr. Bautista also believed that the shooting of Mr. A
was for the benefit of the Latin Kings. He believed the Latin Kings retaliated for respect.
(T. 854)
The trial court instructed the jury on the defenses of self defense and intoxication.
(T. 1294, 1293) The jury returned guilty verdicts on the four counts that were submitted.
(T. 1307-8)
15
ARGUMENT
I.
APPELLANT'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE TO IMPEACH MR. VARGAS WITH IDS PRIOR TESTIMONY
The trial court abused its discretion when it allowed the prosecutor to introduce
Mr. Vargas' testimony from a prior trial when the testimony was not offered for
impeachment or any other appropriate purpose. A witness' prior statement is admissible
and not hearsay if the witness testifies and is subject to cross examination regarding the
statement and the statement is either: "(A) inconsistent with the declarant's testimony,
and was given under oath subject to the penalty of peljury at a trial, hearing, or other
proceeding, or in a deposition or (B) consistent with the declarant's testimony and helpful
to the trier of fact in evaluating the declarant's credibility as a witness." Minn.R.Evid.
801(d)(1)(A) and (B). The trial court's ruling on the admissibility of Mr. Vargas'
statement is reviewed for an abuse of discretion. State v. Byers, 570 N.W. 2d 487, 491
(Minn. 1997).
The trial court abused its discretion when it allowed the State to read Mr. Vargas'
prior testimony to the jury affording him only the opportunity to affirm the statement
because there was insufficient foundation to admit the statement and the statement was
inadmissible hearsay.
The prior statement was admissible only if Vargas' testimony was either
consistent or inconsistent with a prior statement. While there was no ruling or finding
from the trial court, it appears the statements were offered as prior inconsistent statement.
16
In order to impeach a witness with a prior inconsistent statement there must be sufficient
foundation that the statements are actually inconsistent or that the declarant fails to recall
the prior statement. See State v. Martin, 614 N.W.2d 214, 224 (Minn. 2000). In this
case, Mr. Vargas did not testify as to the events surrounding the shooting. Mr. Vargas
did not claim a lack of memory. Mr. Vargas tried to assert his Fifth Amendment
privileges and was then asked to affirm his prior testimony. There was insufficient
foundation to allow Mr. Vargas' prior statement to be admitted as a prior inconsistent
statement.
The trial court also improperly compelled Mr. Vargas' testimony because he still
had a privilege not to testify granted by the Fifth Amendment5. The Fifth Amendment to
the U.S. Constitution provides that "[n]o person shall be ... compelled in any criminal
case to be a witness against himself ... " U.S. Const. amend. V. The Minnesota
Constitution provides the same protection. Minn. Const. art. I, § 7. This court has noted
that "[t]he trial court has a duty, however, to protect the witness' privilege against self
incrimination by preventing cross-examination in areas which could invade his
constitutional protections under the Fifth Amendment." State v. Spencer, 248 N.W.2d
915, 919 (Minn. 1976). Certainly, the trial court must have the same duty whether the
incriminating evidence is being elicited on direct or cross examination.
5 The Appellant does not have standing to challenge whether Mr. Vargas has Fifth Amendment rights. See U.S. v. Bruton, 416 F.2d 310, 312 (8th Cir. 1969). The Appellant is challenging whether the evidence was properly admitted after the trial court ruled that Mr. Vargas had no Fifth Amendment privilege.
17
Mr. Vargas had a Fifth Amendment privilege because his testimony could
implicate him in federal offenses. The Fifth Amendment privilege applies to a witness in
State prosecution who can show that her testimony could be used against her in a federal
prosecution. In re Contempt of Ecklund, 630 N.W.2d 585, 589 (Minn. Ct. App. 2001)
(citing Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 (1964)) Given Officer's
Bautista's testimony that gangs control their territory so that they can sell controlled
substances in the territory, Vargas faced potential prosecution for his involvement with
the Latin Kings gang. See U.S. v. Puckett, 147 F.3d 765, 769 (8th Cir. 1998)
Vargas did not waive his Fifth Amendment privilege by testifying at the earlier
trial of Mr. Lopez-Rios. "A witness's waiver of the privilege is limited to the particular
proceeding in which the witness offered her testimony." In re Contempt of Ecklund, 630
N.W.2d 585, 588 (Minn. Ct. App. 2001)(citing U.S. v. Burch, 490 F.2d 1300, 1303 (81h
Cir. 1974)). Mr. Vargas had Fifth Amendment privileges. The trial court violated that
privilege when it compelled him testify6. This was not a situation in which Mr. Vargas
was claiming memory loss; in fact, he attempted numerous times to assert his Fifth
Amendment privilege against self incrimination. The trial court abused its discretion
when it compelled Mr. Vargas to testify and allowed the prosecutor to simply read Mr.
Vargas' prior trial testimony to the jury.
In State v. Amos, this Court held that when a witness feigned loss of memory and
could not have their memory refreshed, the witness' prior sworn testimony from an
6 See Minn.Stat. § 609.09 (procedure for compelling testimony and granting immunity)
18
earlier trial was admissible as a prior inconsistent statement. State v. Amos, 658 N.W.2d
201, 206 (Minn. 2002). However, in this case Mr. Vargas did not feign memory loss; he
tried to assert his Fifth Amendment privilege against self incrimination. His prior
statement was admissible because he did not try to feign memory loss.
Appellate courts have found error in admitting a witness' hearsay statement in two
similar situations. First, it is error to call a witness solely for the purpose of introducing
their prior inconsistent statement. State v. Dexter, 269 N.W.2d 721 (Minn. 1978). Any
party can impeach a witness. Minn.R.Evid. 607. As this Court has noted, "[t]his
restriction, of the prior inconsistent statements that are admissible as substantive evidence
without any corresponding restriction on the right of a calling party under rule 607 to
impeach his or her own witness again raises the problem of a calling party's potential
misuse of impeachment by prior inconsistent statements." Dexter at 722. The record
demonstrates that Mr. Vargas was called by the State for the sole purpose of offering his
prior trial testimony. In fact, the State appeared prepared to read his testimony to the jury
with Mr. Vargas simply sitting in the witness stand. (T. 750)
Similarly, it is error to read to the jury a witness' prior statement to refresh their
recollection. "[I]f a party can offer a previously given statement to substitute for a
witness' testimony under the gnise of 'refreshing recollection', the whole adversary
system of trial must be revised. The evil of this practice hardly merits discussion. The
evil is no less when an attorney can read the statement in the presence of the jury and
thereby substitute his spoken word for the written document." Goings v. U.S., 377 F.2d
753, 760 (8th cir. 1967). In Goings, as in Appellant's case, a witness' prior statement was
19
read to him while he was on the witness stand before the jury and the witness was asked
to affirm the prior statement. Id. at 758. Mr. Vargas' former testimony was inadmissible
hearsay. The trial court abused its discretion when it ordered Mr. Vargas to testify and
allowed the court to read his former testimony into the record as impeachment.
While Mr. Vargas did eventually testify, it was only after his hearsay statement
had been admitted. Mr. Vargas was questioned by the prosecutor outside the jury,
affirming his prior testimony before the jury, being questioned again outside the presence
of the jury and being warned in front of the jury that he would be held in contempt if he
didn't testify. At each step of the way Mr. Vargas asked whether he had to testify. The
trial court ordered him to testify each time he asked. Essentially, the court reversed the
order of events required for a statement to be admitted pursuant to Minn.R.Evid.
801(d)(1)(A). The trial court admitted the prior statement and then the witness was made
to testify. The trial court erred when it allowed the State to read Mr. Vargas' prior trial
testimony to the jury because the statements were inadmissible hearsay.
The trial court's error was not harmless. "Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded." Minn.R.Cr.Pro.
31.0 1. "On appeal, the defendant has the burden of proving that the trial court abused its
discretion in admitting the evidence and that the defendant was thereby prejudiced.
Reversal is warranted when there is any reasonable doubt the result would have been
different had the evidence not been admitted." State v. Willis, 559 N.W.2d 693, 698
(Minn. 1997). One of the issues the jury had to decide, and perhaps the most important
issue, was the Appellant's mental state at the time of the shooting. Mr. Vargas was the •
20
only eye witness to testify about what happened in the car. Mr. Vargas was the only
witness who could establish the Appellant's mental state. This is not a situation where
other witnesses were present and testified. While other witnesses testified about
statements Appellant allegedly made, their testimony was significantly impeached. The
trial court's error was not harmless. There is a reasonable doubt about whether the
Appellant would have been acquitted of the first degree murder charges if Mr. Vargas'
hearsay statement had been excluded. Mr. Vargas' hearsay testimony was improperly
admitted to show Appellant's mental state at the time of the shooting. The error was not
harmless.
21
n.
APPELLANT'S CONVICTION MUST BE REVERSED BECAUSE THE ADMISSION OF GANG TESTIMONY FROM AN EXPERT WITNESS WAS PLAIN ERROR
Appellant's right to a fair trial was violated by the admission of expert testimony
regarding the conduct and activities of gangs. While Appellant did not object to this
testimony, the issue can still be reviewed on appeal if it was plain error. See
Minn.R.Cr.P. 31.02. Plain error is: "(1) error; (2) that is plain; (3) that affects substantial
rights." State v. Burg. 648 N.W.2d 673, 677 (Minn. 2002). "To show that the error
affected substantial rights, the defendant bears the heavy burden of showing that the error
was prejudicial-that is, the defendant must show that there is reasonable likelihood that
the error substantially affected the verdict." Id. "If the three errors are present, we can
then assess whether we should address the error to ensure fairness and the integrity of
judicial proceedings" Id.
The admission of gang testimony from a gang expert was error. In the co-
defendant's case, this Court found that the admission of expert testimony on gang
membership and gang activity was error on several grounds. State v. Lopez-Rios, 660
N.W.2d 603, 612-13 (Minn. 2003). As in Lopez-Rios, the State called Dan Bautista, the
same expert who testified about his experience with hispanic gangs and he named the
gangs he was familiar with including the Latin Kings. He interviewed Latin King gang
members to keep current on their activities. (T. 848) He testified that Latin Kings were
involved in criminal activity such as murders, drive-by shootings, and assaults with
22
dangerous weapons. (T. 850) He also testified that gangs engage in a patter of violence
to control their turf and they control their turf to get proceeds from drug trafficking. (T.
852) He opined that the shooting ofE A and J A was for the benefit of
a gang. (T. 854) The witness' testimony raises the same issues in Lopez-Rios. The
witness' opinion raised confrontation clause issues since his opinions were based on
hearsay statements of other individuals. Id. at 613. The witness' opinion that the crime
was committed for the benefit of gang was improper testimony as to the defendant's
mental state and essentially told the jury what conclusion to make. Id. The admission of
the witness' testimony was error.
The error was plain. Lopez-Rios had been decided at the time of Appellant's trial.
In addition, Appellant was prosecuted by the same agency as Mr. Lopez-Rios using the
same expert witness. The error was plain and obvious.
The error affected substantial rights of Appellant. The essential issue for the jury
to determine during the trial was Appellant's mental state at the time of the shooting.
The expert's testimony that the shooting was for the benefit of a gang impermissibly
signals the jury that the act was planned and premeditated. Appellant asserted that he
was intoxicated and acting in self defense, both of which negate the element of
premeditation. To have an expert witness tell the jury what result to reach on the central
issue of the trial substantially affected Appellant's rights.
Since the three factors of plain error have been met, the court needs to address the
issue to ensure the fairness and integrity of the judicial system. Appellant's case was
tried fourteen months after this Court decided two cases limiting the scope of expert
23
testimony on gangs. See Lopez-Rios and State v. DeShay. 669 N.W.2d 878 (Minn.
2003). However, despite the guidance this Court provided, the trial court admitted the
gang expert testimony. The trial court did not scrutinize the testimony outside the
presence of the jury and "exclude portions that were irrelevant, confusing or otherwise
unhelpful." Desha at 888. The integrity of the judicial system is at stake when precedent
is not followed. This Court needs to address the improper admission of gang expert
testimony.
24
III.
APPELLANT'S SENTENCE FOR CRIME (FIRST-DEGREE MURDER) FOR THE BENEFIT OF A GANG MUST BE REVERSED BECAUSE IT CONSTITUTES AN UNSUPPORTED DEPARTURE FROM THE PRESUMPTIVE SENTENCE PROVIDED BY THE SENTENCING GUIDELINES.
Appellant was convicted of two counts of first-degree murder and two counts of
first degree murder for the benefit of gang (CFBG). The trial court sentenced Appellant
on both premeditated first degree murder (count 1) and premeditated first degree murder
for the benefit of a gang (count 2). These were the first two counts of the indictment. (T.
1320-1). The court committed Appellant to prison for life and ordered him to serve a
minimum of 30 years on count 1. The court then imposed a consecutive 24-month
sentence for count 2. The trial court erred by imposing sentence on both counts. In
addition, this sentence is an unsupported departure from the sentencing guidelines and
must be reversed.
The trial court erred when it imposed sentence on both count 1 and 2. "Upon
prosecution for a crime, the actor may be convicted of either the crime charged or an
included offense, but not both." Minn. Stat.§ 609.04, Subd. 1. "In a crime committed for
the benefit of a gang, the underlying crime is an included crime." Lopez-Rios, at 615.
Therefore, the sentence for count 1, premeditated first degree murder must be vacated.
The appellant can be sentenced only on count 2, premeditated murder CFBG.
The next issue to determine is whether the trial court erred by imposing a life
sentence along with a consecutive 24 month term for the crime committed for the benefit
of a gang.
25
At sentencing, the court simply stated that "the court has considered all facts and
circumstances and will sentence you to an additional two years for the crime committed
for the benefit of a gang, having been found guilty by a special verdict that this crime was
established beyond a reasonable doubt in trial as committed for the benefit of a gang.
That two years will run consecutive to the time of the life imprisonment and the 30 years
as calculated for services on that case." (T. 1321)
The trial court erred when it characterized the guilty verdict on count 2 as a special
verdict warranting an upward departure. The jury verdict that the crime was for the
benefit of the gang does not act as a sentencing enhancement. As the Court of Appeals
has recognized, the CFBG statute creates a distinct substantive offense and is not merely
a sentencing enhancement provision. State v. Chuon, 596 N.W.2d 267,270 (Minn. App.
1999)(rev. denied Aug. 25, 1999). The Appellant was found guilty of a substantive
offense, not an aggravating sentencing factor.
CFBG is not ranked by the Minnesota Sentencing Guidelines. When an offense is
not ranked, the guidelines require the trial court to "specify on the record the reasons a
particular severity which they believe to be appropriate." Minn. Sent. Guidelines II.A.05.
The guidelines also list four factors for the trial court to consider in ranking the offense.
Id. Without some finding by the court as to how the CFBG offense was to be ranked, and
some determination of what the Appellant's criminal history score was, the court made
insufficient findings to determine what the guideline sentence for the CFBG offense was.
See Minn. Sent. Guidelines II.
26
The trial court abused is discretion when it imposed an aggravated durational
departure without additional findings made by a jury. "[T]he presumptive sentence
prescribed by the Minnesota Sentencing Guidelines is the maximum sentence a judge
may impose solely on the basis of facts reflected in the jury verdict or admitted by the
defendant." State v. Barker, 705 N.W.2d 768, 772 (Minn. 2005); See also Blakely v.
Washington, 542 U.S. 296, (2005). In this case, the CFBG statute provides for a
mandatory minimum sentence of one year and one day. Minn. Stat. § 609.229, Subd.
4( a). Therefore, without some finding by the jury of aggravating factors the court could
only impose a sentence of one year and one day.
Since the court did not state a basis for the departure, the sentence for the CFBG
sentence should be reduced. "[A ]bsent a statement of the reasons for the sentencing
departure placed on the record at the time of sentencing, no departure will be allowed."
State v. Geller, 665 N.W.2d 514, 517 (Minn. 2003). The appellant would respectfully
request that his sentence be reduced to the mandatory minimum allowed by statute.
27
CONCLUSION
The trial court erred when it allowed the State to introduce the hearsay statements
of a witness and committed plain error by admitting expert testimony on gangs. The
Appellant respectfully requests that the conviction be reversed. In the alternative, the
Appellant requests that his sentence be reduced because the trial court imposed a
durational departure without any findings by the jury to support the departure.
28
CHARLES F. CLIPPSpecial Assistant Public Defender Attorney No. 248848
Bethel & Associates 336 N. Robert St. St. Paul, MN 55101 (651) 292-9406
ATTORNEY FOR APPELLANT