State of Minnesota, Respondent, vs. Calvin Boswell, Jr., Appellant.

State of Minnesota, Respondent, vs. Calvin Boswell, Jr., Appellant. A05-2377, Court of Appeals Unpublished, February 20, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2377

 

State of Minnesota,

Respondent,

 

vs.

 

Calvin Boswell, Jr.,

Appellant.

 

Filed February 20, 2007

Affirmed Worke, Judge

 

Hennepin County District Court

File No. 05018292

 

 

Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Ross, Presiding Judge; Klaphake, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

On appeal from convictions of second-degree intentional murder and second-degree assault, appellant argues that the district court clearly erred in finding that he did not have standing to challenge the search of his mother's duplex because the evidence showed that he lived there and had a reasonable expectation of privacy in the common-area of the basement.  Appellant also argues that the evidence was insufficient to support the convictions without eyewitness testimony that he was the shooter.  Finally, appellant argues that his Blakely waiver was inadequate and that the district court did not find the aggravating factors proved beyond a reasonable doubt.  We affirm.

D E C I S I O N

Standing 

Appellant Calvin Boswell, Jr. argues that the district court erred in denying his motion to suppress a handgun found in the basement of the duplex where his mother lived.  When reviewing pretrial orders on motions to suppress evidence, we review the facts independently to determine, as a matter of law, whether the district court erred in admitting the evidence.  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  The district court's factual findings will not be reversed unless clearly erroneous.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Appellant argues that the district court erred in concluding that he did not have standing to assert a violation of his Fourth Amendment rights after finding that he did not live with his mother and did not have a reasonable expectation of privacy in the basement.  Standing is a matter of law, which we review de novo.  Schiff v. Griffin, 639 N.W.2d 56, 59 (Minn. App. 2002).  In determining whether a defendant can bring a claim asserting a violation of his Fourth Amendment rights, the issue is "‘whether the disputed search . . . has infringed an interest of the defendant which the Fourth Amendment was designed to protect.'"  State v. Carter, 569 N.W.2d 169, 174 (Minn. 1997) (quoting Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421, 429 (1978), rev'd on other grounds, Minn. v. Carter, 525 U.S. 83, 119 S. Ct. 469 (1998)).   

The United States and Minnesota Constitutions protect individuals from unreasonable searches and seizures by the government of "persons, houses, papers, and effects . . . ."  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Fourth Amendment protections are "not triggered unless an individual has a legitimate expectation of privacy in the invaded space."  State v. Perkins, 588 N.W.2d 491, 492 (Minn. 1999).  "An expectation of privacy is legitimate if it is one that society is prepared to recognize as reasonable."  Id. at 492-93 (quotations omitted).  An individual has a reasonable expectation of privacy in his or her own home, and a warrantless search of a person's home is generally prohibited.  See State v. Othoudt, 482 N.W.2d 218, 224 (Minn. 1992) (noting that Minnesota courts do "not look kindly upon warrantless entries of family residences").  Thus, appellant may only object to the search if he had a "justifiable or reasonable expectation of privacy in the area searched or the item seized."  State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).  

Here, officers were dispatched to a shooting and found the victim sitting in the driver's seat of a vehicle with a gunshot wound to his head, from which he later died.  Occupants of the vehicle told officers that they saw appellant approach the vehicle and start shooting.  After appellant's arrest, officers found a handgun in the basement of appellant's mother's duplex.  Appellant moved to suppress the handgun. 

The officers testified that they went to appellant's mother's home looking for appellant.  Appellant's mother lived in a duplex with a common-area basement.  Appellant's mother told the police that appellant did not live with her, did not have a key to her residence, was not permitted to be there, and had not been there that day.  The police searched the basement of the duplex with permission from the upstairs tenant, but did not find appellant.  The police were notified that appellant had been located, but were directed to conduct further surveillance around appellant's mother's home.  The police saw that the basement door was open; the door had been closed after their search.  The police entered and found a handgun wrapped in a piece of cloth in a corner in the basement. 

Appellant's mother testified that she is appellant's sole legal custodian, appellant lived with her, appellant was listed as an occupant on the rental agreement, and appellant received mail at the address.  But the lease that was admitted into evidence was not the lease agreement entered into when appellant's mother moved into the duplex, but was dated "2006"a date that had not yet occurred.  Additionally, juvenile citations listed appellant's address as his grandmother's address and indicated that he lived with his grandmother.  Further, a police sergeant testified that when the warrant to search appellant's mother's home was executed, she told the officers that appellant did not live with her, and the officers did not find anything belonging to appellant in her home that indicated that appellant lived there.  Finally, during his interview with the police, appellant stated that he lived with his grandmother and stayed with his mother. 

Appellant contends that the evidence shows that he lived with his mother and had a reasonable expectation of privacy in the basement.  But the district court did not find appellant's mother to be credible and believed the officers' testimony.  See State v. Kramer, 668 N.W.2d 32, 37-38 (Minn. App. 2003) (recognizing that the district court, as the fact-finder, "is in the best position to evaluate the credibility of witnesses" and is "the sole judge of credibility"), review denied (Minn. Nov. 18, 2003).  And the evidence that the district court found credible supports the finding that appellant did not live with his mother and did not have a reasonable expectation of privacy in the basement.  Thus, the district court did not err in not suppressing the handgun.

Sufficiency of the Evidence

Appellant also argues that the evidence was insufficient to support his convictions. Appellant contends that the evidence did not prove beyond a reasonable doubt that he was the shooter because witnesses only saw him running away after the shooting and the only other evidence is the gun, which is circumstantial.   

            When the sufficiency of the evidence is challenged, this court's review is "limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient" to support the verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  This court assumes that the fact-finder, which has the exclusive function of judging credibility, believed the state's witnesses and disbelieved contrary evidence. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995).  "We will not disturb the verdict if the [fact-finder], acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt," could have reasonably concluded that appellant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant was convicted of second-degree murder, in violation of Minn. Stat. § 609.19, subd. 1(1) (2004), which states that an individual is guilty of second-degree murder if he "causes the death of a human being with intent to effect the death of that person or another, but without premeditation."  The evidence shows that an individual fired a gun into a vehicle stopped at a stoplight, killing the driver. There were three other occupants in the vehicle during the shooting, and three of their friends were in a second vehicle that also was stopped at the stoplight.  One occupant told officers that he saw appellant approach the vehicle and start shooting.  Another occupant told officers that he heard gunshots, and saw appellant shooting and then run away.  The driver of the second vehicle told officers that appellant was wearing a brown and tan jacket with designs on it.  Five of these individuals identified appellant as the shooter from a photo line-up.   

            The witnesses testified before a grand jury.  An occupant of the victim's vehicle testified that he heard a window breaking from the gunshots, and turned and saw appellant run away with a gun.  This individual knew appellant because they had been friends, and he described the jacket appellant was wearing as a leather jacket with "black with either white or tannish sleeves."  This individual further testified that he had once gotten into a fight with appellant that had been provoked by appellant and appellant's cousins.  A second occupant of the vehicle testified that after he heard gunshots he saw appellant running across the street.  This individual also knew appellant, but did not consider him a friend.   This individual described the jacket appellant was wearing as a "tan and black leather coat with two football players on the back."  An occupant of the second vehicle testified that the shooter wore a "tan, brown and maybe white" jacket that had "square patterns" on it.  Another occupant of the second vehicle testified that she saw someone near the car wearing a beige/tan jacket with dark patches on it.   

            A bystander testified that he was sitting at the intersection when he heard three "pops."  This witness saw a young, black male with a close-cut haircut wearing a distinct black and cream colored jacket with graphics on the back running toward him.  A police sergeant testified that a black and cream colored coat with patches on the arms and an embroidered football player on the back was recovered from appellant's mother's home.      Photos were taken of the coat and shown to the bystander, who confirmed that the coat in the photos was the same coat he saw the suspect wearing immediately after the shooting.  The sergeant also testified that casings retrieved from the scene were 9-millimeter casings and that the handgun found at appellant's mother's house was a 9-millimeter.  Given all of the evidence pointing to appellant's guilt, the district court could have reasonably concluded that appellant was guilty of the charged offenses. 

Waiver

            Finally, appellant argues that the sentences imposed are unconstitutional because his waiver of his Sixth Amendment right to a jury trial on aggravating factors was invalid.  See generally Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004) (holding that the Sixth Amendment right to a jury trial extends to the determination of facts essential to the punishment to be imposed).  This argument presents a question of law, which this court reviews de novo.  See State v. Pflepsen, 590 N.W.2d 759, 763 (Minn. 1999).

            Appellant contends that his Blakely waiver was invalid.  The supreme court determined that an on-the-record waiver of a right to have a jury determine the existence of aggravating factors to support an upward sentencing departure is valid.  State v. Thompson, 720 N.W.2d 820, 827-28 & n.3 (Minn. 2006).

            Here, appellant signed a waiver that stated: "Having been advised by the Court of my right to trial by jury as to the sentencing phase departures, and having had an opportunity to consult with counsel, I, with the approval of this Court, waive my right to trial by a jury as to my sentencing departures."  Appellant's attorney also obtained an oral waiver on the record.  Appellant agreed that he would be sentenced to 360 months in prison for the second-degree murder, and 60 months stayed for the second-degree assault.  Appellant indicated that he understood that both sentences constituted upward departures because there were multiple victims, he used a gun, and there were other people in the zone of danger.  Appellant also indicated that he understood that he could have a jury hear evidence and determine the existence of aggravating factors.  Appellant's attorney explained the holding in Blakely and stated that "if there is going to be anything other than a straight guidelines sentence, you'd have the right to have a jury make that determination . . . . You understand that [you would] be waiving your right to have a jury determine your sentence and you would be allowing the Judge to make that determination . . . ."  The district court also explained to appellant that he had a right to have a jury determine if his sentence should depart from the sentencing guidelines.  The district court explained that a separate trial would be conducted after the regular trial, but that he could waive his right to have a jury determine the existence of aggravating factors.  Appellant validly waived the jury determination and agreed that the district court would determine the existence of aggravating factors. 

            Appellant also argues that his sentences should be reversed because the district court did not find that the state had proved the alleged aggravating factors beyond a reasonable doubt.  "We review the district court's decision to depart from the guidelines' presumptive sentence for an abuse of discretion."  State v. Shattuck, 704 N.W.2d 131, 140 (Minn. 2005).  "Substantial and compelling circumstances must be present in the record to justify" a departure from the presumptive sentence.  State v. McIntosh, 641 N.W.2d 3, 8 (Minn. 2002). 

            The state requested an upward departure because the crime took place in the middle of the day at a public intersection, there were many innocent bystanders put in the zone of danger, and because the crime was particularly cold-blooded because the victim never saw appellant coming.  The district court stated that it found the shooting "cold-blooded and cowardly" and that it was puzzling how appellant was "roam[ing] the streets . . . in broad daylight on an afternoon on a school day with a loaded firearm."  The district court also found that appellant "lack[ed] moral compunction," attempted to hide evidence, continued to deny his involvement, and felt no remorse or concern for the victims and the safety of others.  The district court articulated the following factors to support the departures: appellant put the public at risk; treated the victim with particular cruelty because the shooting was unprovoked and was done at such close range that the victim had no opportunity to escape; and the crime involved multiple victims.  The district court stated:

[T]here are substantial and compelling circumstances that require [a sentencing departure]. . . . [The crime] involved a gun that was fired several times . . . It was fired into a car filled with people.  It was done in broad daylight, involving possible multiple victims.  It was an extreme risk to public safety in the sense that it placed others in danger both in the car and in this residential setting in broad daylight.

 

The district court found beyond a reasonable doubt that aggravating factors existed.  Thus, because appellant provided a valid Blakely waiver and because the district court found that aggravating factors existed beyond a reasonable doubt, appellant's argument that his sentences are unconstitutional fails.  

            Affirmed.