State v. Lewis

547 N.W.2d 360, 1996 Minn. LEXIS 326, 1996 WL 233896
CourtSupreme Court of Minnesota
DecidedMay 9, 1996
DocketC1-95-1095
StatusPublished
Cited by10 cases

This text of 547 N.W.2d 360 (State v. Lewis) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lewis, 547 N.W.2d 360, 1996 Minn. LEXIS 326, 1996 WL 233896 (Mich. 1996).

Opinions

[361]*361OPINION

COYNE, Justice.

Defendant, Kevin Vashon Lewis, was found guilty by a district court jury of first-degree felony murder and attempted first-degree felony murder, Minn.Stat. §§ 609.185(3), 609.17, subd. 1 and 609.05 (1994), and was sentenced by the trial court to concurrent terms of life in prison and 230 months in prison. On direct appeal defendant seeks a new trial on either or both of the grounds: (1) that the trial court committed prejudicial error by allowing the state to present evidence pursuant to Minn.R.Evid. 404(b) of two prior crimes, and (2) that the prosecutor committed plain error of a prejudicial nature in her closing argument to the jury. We affirm.

Defendant’s convictions are based on two connected incidents that occurred on April 1, 1994, in St. Paul. At approximately 2:45 p.m., three men in a Pontiac 6000 heading south on St. Albans drove up to Bennie Chaney as he waited at the southwest corner of St. Albans and Iglehart Avenue to cross St. Albans. The man in the front passenger seat displayed a handgun and, using street slang, ordered Chaney to give them his money. Chaney responded by running around the back of the car. As Chaney was running, a man opened the rear door on the driver’s side and shot twice at Chaney, missing him.

The car then continued south on St. Albans to Marshall, drove west a block, then turned north on Grotto, where the occupants encountered Joe McKinney, who had stopped his car to talk with some boys whom he knew. One of the occupants of the Pontiac got out, pointed a handgun at McKinney and demanded his money. When McKinney tried to flee by driving away, the man shot at him. McKinney’s car travelled northwest through a church parking lot, struck a car in the lot, then crossed Iglehart and struck a tree. The occupants of the Pontiac pursued McKinney and one of the occupants got out and shot him in the head after his car came to rest against the tree. The occupants of the Pontiac then fled north on Grotto for a block before turning west on Carroll. McKinney died early the next day.

Police obtained the license number of the Pontiac from an eyewitness and, later that day, found the car in the parking lot of a St. Paul bar. They determined that the car was registered to a bouncer at the bar, Derrick Dukes, whom they immediately arrested. Police seized a .32 caliber automatic pistol from a jacket belonging to Dukes that was found at the bar. That gun was later identified as the murder weapon. Police subsequently arrested two fellow bouncers at the bar, Steve Morrison and defendant Kevin Lewis. The three men were tried separately-

At defendant’s trial the state was able to establish reliably that at about 2:30 p.m. on the day in question Dukes, Morrison and defendant had been seen together in Minneapolis at Dukes’ residence, a 15-minute drive from the scene of the crimes committed between 2:45 and 3:00 p.m. The three men had left together in Dukes’ car, the Pontiac, and then had returned around 3:10 p.m. Dukes’ girlfriend testified at defendant’s separate trial that later that afternoon she heard defendant say, referring to McKinney, “No, dog, I shot him in the head. He’s dead.” She also testified that she heard defendant tell Dukes to “keep his mouth shut.”

There was no physical evidence in the Pontiac or at the scene of the crimes linking defendant to the two shootings. The state produced evidence describing the clothing of the three assailants but the evidence was so inconsistent that it was not helpful in connecting defendant to the crimes.

Chaney, the victim of the first crime, and four boys who witnessed the second crime selected photographs from displays of twelve pictures. Chaney positively identified Dukes as the driver of the Pontiac and defendant Lewis as the person sitting in the front seat on the passenger side. All four of the boys selected Dukes’ picture, three of them selected defendant’s picture, and one of them selected Morrison’s picture.

Chaney also identified defendant at trial, saying that he was the man in the passenger seat who had displayed a handgun and, using street slang, ordered him to give them his money. It appears, however, that at Dukes’ [362]*362separate trial Chaney had identified Dukes, not defendant, as the person who pointed the gun at him. The four boys who witnessed the attack on McKinney were not asked to identify defendant in court.

Defendant did not testify in his own behalf but presented alibi evidence through the testimony of an acquaintance, Cynthia Bom-mersbach, who claimed she was talking on the telephone with defendant between 2:45 p.m. and 3:15 p.m. on the day in question.

The other-crime evidence presented by the state consisted of evidence that on December 29, 1990, and again on January 4, 1991, defendant had participated with two other men in a violent street robbery and physical assault of a customer who was withdrawing cash from an automatic teller machine in Minneapolis.

1. Defendant’s first contention is that the trial court abused its discretion in admitting on the issue of identification, pursuant to Minn.R.Evid. 404(b), the evidence of defendant’s participation with two other men in the two violent street robberies committed within one week during the winter of 1990-1991 in Minneapolis.

Minn.R.Evid. 404(b) provides, in relevant part:

Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In a criminal prosecution, such evidence shall not be admitted unless the other crime, wrong, or act and the participation in it by a relevant person are proven by clear and convincing evidence.

Relevant recent decisions of this court setting forth in detail the settled case law controlling the admission of other-crime or so-called Spreigl1 evidence include State v. Cogshell, 538 N.W.2d 120 (Minn.1995); State v. Bolte, 530 N.W.2d 191 (Minn.1995); State v. Wennerskirchen, 497 N.W.2d 235 (Minn.1993); State v. Frisinger, 484 N.W.2d 27 (Minn.1992); State v. Axford, 417 N.W.2d 88 (Minn.1987); and State v. Filippi, 335 N.W.2d 739 (Minn.1983).

In Frisinger, we said that the trial court, in determining admissibility, should look first to the real purpose for which the other-crime evidence is offered:

Under the rule, other-crime evidence is not admissible to prove the character of a person in order to show that the person acted in conformity therewith; but the evidence may be admitted, if for a legitimate purpose, rather than for the forbidden purpose of inferring propensity from character. If the evidence is offered for a legitimate purpose, then the exclusion sanction of Rule 404(b) does not apply.

484 N.W.2d at 32 (footnote omitted). With respect to the determination of relevance, we said:

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Related

Dukes v. State
621 N.W.2d 246 (Supreme Court of Minnesota, 2001)
State v. Johnson
616 N.W.2d 720 (Supreme Court of Minnesota, 2000)
State v. Buggs
581 N.W.2d 329 (Supreme Court of Minnesota, 1998)
State v. Ives
568 N.W.2d 710 (Supreme Court of Minnesota, 1997)
State v. Lewis
547 N.W.2d 360 (Supreme Court of Minnesota, 1996)

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Bluebook (online)
547 N.W.2d 360, 1996 Minn. LEXIS 326, 1996 WL 233896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lewis-minn-1996.