State’s Proof Insufficient To Prove Drive By Shooting

State v. Brown, Minn.Ct.App., 4/19/2011.  The state charged Mr. Brown with a drive by shooting but apparently all that they could muster as evidence was that Mr. Brown drove to the shooting.  There’s a difference.

Mr. Brown had a thing going with three other guys:  Randell, Curtis, and Anthony; their rambunctious arguments and fisticuffs were renowned up in Alexandria.  This escapade began when Randell, Curtis and Anthony were sitting around one night drinking, during which Anthony noticed a car drive past the house two times.  Nothing else.  Sometime later, none of the guys could exactly say how much later, Anthony heard gunshots that he believed were being fired at the house. 

Before all this happened, Mr. Brown and his buddy, Russel, had asked this girl, Kujawa, to give them a ride to Brown’s girlfriend’s house.  When Kujawa stopped the car, at Mr. Brown’s directive, Russel and Mr. Brown got out and commenced to argue; Kujawa turned up the volume on the radio and began rummaging through the glove box (apparently to make a kind of white noise to mask the argument).  Russel got back into the car and the two of them had this heart to talk about relationships:  theirs, Russel’s new relationship, Kujawa’s marriage.  While all that was happening Kujawa couldn’t help hearing these load noises that she later understood were gunshots but at the time she thought was Mr. Brown thumping on a wall.  Mr. Brown got back in the car.  Even later still, Kujawa came to realize that she had stopped her car within blocks of where Anthony was hearing gunshots.

The drive by shooting statute says that if you don’t shoot from your car then you have to have “just exited” that car when you pull the trigger.  The existential question is how far can one be from one’s car and still commit a “drive by” shooting.  A decade ago, one Mr. Lewis drove to a city park, jumped out of car, ran across to the other side of the city park, waited (only a few seconds) for his victim to dribble a basketball down the court, shot him, walked back to his car, got in, and left.  State v. Lewis, 638 N.W.2d 788 (Minn.Ct.App. 2002).  In Lewis, the court said that the act of shooting must “immediately follow” the exit from the car. 

Here, both sides agreed that Anthony’s account was worthless; both sides argued whether Kujawa’s account was enough to convict.  The court of appeals says, no:

The state proved beyond a reasonable doubt at most that Brown engaged in a drive-near-the-area-get-out-of-the-car-argue-for-awhile-walk-“a few”-blocks-fire-the-gun-walk-back-to-the-car-and-drive-away shooting.

Mr. Brown walks.  Back to his car one supposes.