State v. Berry

982 N.W.2d 746

STATE of Minnesota, Respondent,

v.Cedric Lamont BERRY, Appellant.

A21-1310

Supreme Court of Minnesota.

Filed: December 21, 2022

Keith Ellison, Attorney General, Saint Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Sarah Jane Vokes, Assistant County Attorney, Minneapolis, Minnesota, for respondent.

Lisa M. Lopez, Acting Chief Public Defender Hennepin County, Paul Joseph Maravigli, Assistant Public Defender, Minneapolis, Minnesota, for appellant.

OPINION

GILDEA, Chief Justice.

Appellant Cedric Lamont Berry appeals his convictions for first-degree premeditated murder, attempted first-degree premeditated murder, and kidnapping. Berry argues that the district court improperly admitted expert testimony and evidence about cell-site location information (CSLI) without holding a hearing to determine that the evidence was generally accepted in the relevant scientific community and had foundational reliability. He also challenges the fact that he and codefendant Berry Davis's cases were tried together. Finally, he asserts that the district court erroneously denied his request for an additional peremptory challenge.

Because the CSLI evidence is not novel, we agree with the State that the district court was not required to hold a hearing to determine whether that evidence was generally accepted in the relevant scientific community. We further conclude that any error in failing to hold a hearing on the foundational reliability of the CSLI evidence was harmless because the record establishes that the evidence had foundational reliability. We also conclude that the district court did not err in trying Berry's and Davis's cases together. Finally, we conclude that Berry was not prejudiced by the denial of an additional peremptory challenge. Accordingly, we affirm.

FACTS

Berry was convicted of first-degree premeditated murder and kidnapping of Monique Baugh and attempted first-degree premeditated murder of her boyfriend Jon.¹ These crimes occurred on December 31, 2019, when Baugh was lured to a house in Maple Grove, kidnapped from that house, driven around Minneapolis in a rented U-Haul van, and later fatally shot in an alley behind a home on Russell Avenue North in Minneapolis. Baugh died of the gunshot wounds. Jon was shot at Baugh's mother's home while Baugh was being driven around in the U-Haul. Jon survived his injuries.

The State's theory was that the crimes were committed because of a falling out between Jon and Lyndon, a musician with whom Jon worked. Lyndon was also a drug dealer, and he was arrested in 2019 after his falling out with Jon. Lyndon believed that Jon was behind his arrest. According to the State's theory, to get back at Jon, Lyndon got Berry and Davis to commit the murder, attempted murder, and kidnapping. Berry did not have a direct connection to Lyndon, but Davis did, and Berry and Davis regularly worked together to sell drugs, even sharing a phone in the fall of 2019.

The evidence at trial showed that 2 days before the murder, Berry bought a cell phone with a number ending in 2101 (the set-up phone). Video evidence from the cell-phone store shows Berry purchasing the set-up phone; Berry's other cell phone also connected to towers in the area. Lyndon's girlfriend then used the set-up phone to contact Baugh, who worked as a realtor, to schedule a showing of a house that was for sale in Maple Grove. They scheduled a showing of the Maple Grove house for the next day.

Baugh arrived at the Maple Grove house at approximately 11 a.m., the scheduled time. Another real estate agent also had a showing of the same house. The two agents chatted while they waited for their clients to arrive. Baugh's client never came to the showing. But while she was waiting, a car, which looked like the car registered to Berry's wife, was captured on video circling the block where the Maple Grove house is located. In addition, cell phones that Berry and Davis are known to have used connected to towers near the Maple Grove house from about 11-11:40 a.m.

Later that evening, Berry and Davis met Keith at a business park in Fridley. Keith testified that Berry asked him to rent a U-Haul for Berry in exchange for heroin. Keith told his girlfriend that Berry was moving to Maple Grove. They agreed to meet in the same place the next day for Berry to return the U-Haul. Berry's phone connected to towers around the business park during these events.

The next morning, December 31, 2019, Berry's phone again connected to towers around the business park where the U-Haul was parked. Surveillance cameras captured Berry's tan Buick entering the parking lot and the U-Haul and the Buick driving away. Berry admitted to being at the business park to pick up the U-Haul.

Meanwhile, Baugh had made an appointment for 3 p.m. that day to show the Maple Grove house, apparently to the unknown client who had failed to show the day before. Baugh left her children with Jon at her mother's house on the 4800 block of Humboldt Avenue North in Minneapolis.

Baugh used the key lockbox to access the Maple Grove house at 3 p.m. Video footage shows two men arriving at the house in a U-Haul truck shortly after 3 p.m. They parked the U-Haul in the driveway and entered the house through the front door. Later, two men came back out, and one of the men was shown on the video walking close to a third person. The three went to the back of the U-Haul, then one got in the cab and the U-Haul drove away.

From 3:12 p.m. to 3:21 p.m., Baugh's cell phone connected to the network near the Maple Grove house. At 3:25 p.m., her phone started moving east—toward Minneapolis. There are no outgoing communications from her phone after 3:21 p.m.

At 5:16 p.m., a camera captured the U-Haul driving north on the 4800 block of Humboldt Avenue North, in Minneapolis. The U-Haul drove around the area for about 40 minutes. Just before 5:40 p.m., video shows that someone entered Baugh's mother's house. Jon testified that he thought it was Baugh coming back, but instead, an assailant walked in and shot Jon. At 5:40 p.m., police received a call about a shooting at the house. They arrived to find Jon lying on the ground with several gunshot wounds. Police also found Baugh's key to the house lying on the floor near the door.

Between 2:32 and 5:52 p.m. on December 31, cell-site location information² (CSLI) placed Berry's phone and Davis's phone together near a house in Minneapolis which was occupied by Berry's cousin. The phones were not used during this time.

At 5:45 p.m. the U-Haul was captured on a license plate reader at 45th and Lyndale, just blocks north from the cousin's house. At 5:52 p.m. the phones of Berry and Davis began to move in concert. Berry's phone made a call to his wife's number. The U-Haul and Berry's tan Buick appear minutes later on a traffic camera just a few blocks south of Berry's cousin's house, at Fremont and Lowry. CSLI places their phones in the same place. For the next half hour, traffic camera photos place the U-Haul and Berry's Buick travelling through north Minneapolis, consistent with the location of their phones.

Video footage captured the U-Haul driving near the 1300 block of Russell Avenue around 6:30 p.m. A resident of the block saw a tan Buick parked in front of her house around this time. And CSLI places both Berry's and Davis's cell phones near the 1300 block of Russell Avenue at the same time as the video footage depicts the U-Haul in this area.

Minutes after the tan Buick drove away, the same resident heard gunshots near her home. The resident's report is consistent with a 6:37 p.m. ShotSpotter³ alert for three gunshots in the alley behind homes on the 1300 block of Russell Avenue North. When officers arrived, they found Baugh lying in the alley. She died of multiple gunshot wounds.

A few days later, police arrested Cedric Berry on suspicion of committing the kidnapping and shootings. The arrest of Cedric Berry occurred at a hotel where he was staying with his wife, her brother, Berry Davis, and Davis's wife.

The State indicted Berry and Davis on charges of first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2022), attempted first-degree murder, Minn. Stat. §§ 609.17, subd. 1 (2022), 609.185(a)(1), kidnapping to commit great bodily harm or terrorize, Minn. Stat. § 609.25, subd. 1(3) (2022), and first-degree intentional murder during a kidnapping, Minn. Stat. § 609.185(a)(3) (2022), all based on a theory of aiding and abetting liability, Minn. Stat. § 609.05 (2022). Berry and Davis pleaded not guilty and demanded a jury trial.

Before trial, the State moved for joinder of the trials. Berry and Davis opposed the motion. The district court considered the State's theory of the case and concluded that although there could be only one shooter, the State charged Berry and Davis on an aiding and abetting theory of liability, and the State intended to show that both defendants engaged in different aspects of preparing for and participating in these offenses. According to the court, it did not matter who the shooter was because Berry and Davis were present and worked together to complete the crimes. Thus, the district court granted the State's motion to join the trials of Berry and Davis.

Before trial, Berry filed a written motion to sever his trial, asserting that because only Davis knew Lyndon, the sole motive the State could present for him was his relationship with Davis. Berry asserted that he planned to defend against the charges by arguing that he had no connection to Lyndon. He claimed that his only option would be to emphasize Davis's connection to Lyndon, making his defense antagonistic to Davis's. The district court denied the motion, concluding that Berry's proffered defense did not change anything about the joinder analysis.

During jury selection, the district court allotted 16 peremptory challenges to the defense side, 8 to each defendant to use independently. Berry requested that each defendant receive 15 challenges, but the court denied...