Admission of Prior Bad Acts, Offered to Prove Motive, Was Proper.

State v. Burrell, Minn.S.Ct., 8/20/2009.  Mr. Burrell has been twice convicted for the shooting death of Tyesha Edwards, age eleven;  Mr. Burrell was shooting at someone else, Timothy Oliver.  One of the bullets went through Mr. Oliver’s pants before it struck Edwards.  Mr. Oliver and Mr. Burrell were members of rival gangs at the time; (Mr. Oliver died in between the two trials.)  The Minnesota Supreme Court reversed Mr. Burrell’s first conviction, a judge convicted him again, and he again appealed.

The trial court permitted the state to elicit evidence of four “prior bad acts.”  First, that some years back Mr. Burrell had shot at one of the state’s witnesses, Dameon Leake; Mr. Leake testified that Mr. Burrell told him that he’d been trying to “smoke Little Timmy” when Edwards got killed.  The state was also allowed to elicit evidence from another of its witnesses, Terry Arrington, that Mr. Burrell had shot at Mr. Arrington and Mr. Oliver some time before the Edwards shooting, all the while saying “What up, Blood.” as he fired.  Mr. Arrington testified that Mr. Burrell had told him that the bullet that hit Edwards had first gone through Oliver.  Next, Deleon Walker testified that Mr. Burrell had shot at him some years back; as with the Edwards shooting, Mr. Burrell missed Mr. Walker but struck another person instead.  Finally, Mr. Burrell’s ex-girlfriend testified that Mr. Burrell had shot at the occupants of a passing car as those occupants shot back.

On appeal Mr. Burrell challenged the introduction of all this prior bad acts evidence.  The trial court had allowed in this evidence to prove motive.  Mr. Burrell contended that the prior act, when offered to prove motive, must be of a “but for” character:  if not for the bad acts, the defendant would have had no reason to commit the charged offense.  The appellate court rejected this contention.  The question is whether the evidence is material and relevant; if so, then the next question is whether the probative value weighed against the potential for unfair prejudice.  The appellate court answered both questions, yes.  It’s important to emphasize that the prejudice question may have received a different answer had this been a jury trial.

Mr. Burrell also challenged the introduction of certain gang testimony from a “gang expert.”  The appellate court assumed without deciding that some of the testimony was erroneously admitted but said it was harmless.  The issue at trial had been whether Mr. Burrell was the shooter; because none of the gang testimony alleged that Mr. Burrell was the shooter its admission was harmless.

Finally, the state conceded that the trial court could not impose a sentence that was longer than the original sentence.  See Hankerson v.State, 723 N.W.2d 232 (Minn.2006).