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STATE OF MINNESOTA IN SUPREME COURT A07-2313

Redwood County

Magnuson, C.J.

State of Minnesota, Respondent, vs. Jeffrey C. Pendleton, Appellant. ________________________ Lori Swanson, Attorney General, Peter R. Marker, Assistant Attorney General, St. Paul, Minnesota; and Michelle A. Dietrich, Redwood County Attorney, Redwood Falls, Minnesota for respondent. Cynthia J. Vermeulen, Vermeulen Law Office, St. Cloud, Minnesota, for appellant. ________________________ SYLLABUS 1. The district court did not err when it declined to instruct the jury that a Filed: January 29, 2009 Office of Appellate Courts

witness was an accomplice as a matter of law because the facts did not establish conclusively that the witness could have been indicted for and convicted of the same crime as appellant. 1

2.

The district court's decision to allow a witness whose credibility was

questioned at the witness's own trial to testify was not error, because at the witness' own trial, the State did not question the witness's credibility on the parts of the testimony elicited at this trial. 3. 4. There was sufficient evidence to support the jury's guilty verdict. The State did not commit prosecutorial misconduct.

Affirmed.

OPINION MAGNUSON, Chief Justice. Appellant Jeffrey C. Pendleton was convicted of premeditated first-degree murder and first-degree murder in the course of a kidnapping in connection with the stabbing death of Robert Berry, Jr. near Morton, Minnesota on September 24, 2004. Appellant argues that (1) the district court erred in not giving a specific accomplice instruction, (2) the State knowingly presented false evidence when it called a witness whose credibility the prosecutor had questioned at a different trial, (3) there was insufficient evidence to support appellant's convictions, and (4) the prosecutor engaged in prejudicial misconduct. We affirm.

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On the evening of September 23, 2004, appellant attended a party at S.W.'s house in Morton. A number of other people were present, including Vernon Jones, Keith Crow, Morris Pendleton, Jr., W.S., A.C., G.D., and L.B.1 People at the party were drinking alcohol and smoking marijuana. The victim, Robert Berry, Jr., arrived later. Berry was in a relationship with appellant's aunt, and appellant had briefly lived with Berry and his aunt. Appellant's aunt testified that Berry and appellant did not get along because Berry did not approve of the way appellant was "running around." Immediately after arriving at the party, Berry began yelling at appellant. Berry ultimately threw a soda bottle at appellant, who then jumped over a table and began fighting Berry. Berry began to get the upper hand in the fight, and appellant called for help. Crow restrained Berry while Morris Pendleton restrained appellant. At some point during the fight, Berry elbowed Crow, knocking off his glasses. Crow then punched Berry and knocked him unconscious. Appellant was released by Morris Pendleton and began to hit and kick the unconscious Berry. While hitting and kicking Berry, appellant screamed "I hate you" multiple times. During the fight, most of the people at the party left. After the fight ended, everyone remaining at the party, except for Berry, left in Berry's green Chevy Tahoe truck and drove around with no clear destination. Morris Pendleton drove, with Crow in the front seat with him, appellant, Jones, W.S. and A.C. in

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Witnesses and minors are referred to by their initials. Adult co-conspirators are referred to by name.

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the middle seat, and S.W. and L.B. in the back. During the trip, some of the people in the car discussed what to do with Berry. Appellant suggested that Berry be placed in the back of the truck and driven home. Morris Pendleton expressed concern that Berry might call the police, and suggested that appellant kill Berry. A.C. testified that appellant agreed to kill Berry and was acting "cocky" and "arrogant." The group returned to S.W.'s house to pick up Berry, who was still unconscious. Crow asked S.W. for a blanket and a knife. Berry was wrapped in the blanket and appellant, Crow, Morris Pendleton, Jones, and W.S. carried Berry out to the truck and put Berry in the back of the truck. L.B. testified that A.C. opened the house door for the group. Morris Pendleton told Crow to tell A.C. to get in the truck so that A.C. would not call the police. S.W. and L.B. stayed behind and were told by Morris Pendleton to clean up Berry's blood or Morris Pendleton would hurt S.W.'s child. Appellant, Crow, Jones, W.S., and A.C. left in the truck, with Morris Pendleton driving. There was no conversation during the drive about what was going to happen. Morris Pendleton drove the truck down a road to the edge of the Minnesota River. Everyone got out of the truck, and appellant, Crow, Jones, W.S., and Morris Pendleton took Berry out of the back of the truck and carried Berry down to the river. A.C. remained by the truck and talked to a friend on her cell phone. She could not hear or see what was happening at the river. The state's medical expert testified that Berry was probably still unconscious when he was carried to the river. At the riverbank, Berry was stabbed fifteen times, 4

resulting in his death. The only witness to testify about what happened by the river was Morris Pendleton. Morris Pendleton testified that appellant stabbed Berry more than once, and that while Crow egged appellant on, nobody forced appellant to stab Berry. The group returned from the river after about ten minutes. Morris Pendleton was the first to return from the river, laughing while recounting that appellant had fallen in the river. Crow came up next, followed by W.S. and Jones. Appellant came up last, and, according to A.C., was soaking wet. When the group began to get back into the truck, Morris Pendleton said, "[W.S.] got him good" to which W.S. responded, "Hell, yeah, dog." The group got in the truck and left the area. Morris Pendleton decided that the group should set the truck on fire. Everyone, including appellant, agreed. The group split up, with only Morris Pendleton, appellant, Crow, and A.C. remaining in the truck. At that point, Morris Pendleton drove to a house to get a can of gasoline. When he got back in the car, he handed the can to appellant. Then, Morris Pendleton drove back near the same area by the river where Berry had been taken. A.C. and Crow got out of the truck, and Morris Pendleton drove 15 or 20 more feet and set the truck on fire. A.C. testified she did not notice if anyone was in the truck when it was set on fire. While the group drove to the river in the truck, a police officer on patrol in a squad car noticed the truck and decided to follow it. A.C., not knowing it was the police, and thinking it was a ride for the group that had been previously arranged, flagged down the squad car. After the squad car stopped, a police officer and A.C. noticed appellant 5

fleeing wearing a white t-shirt. During the investigation, a white shirt was recovered from the area in which appellant was seen running. The shirt had blood on it from Berry, as well as DNA that could not be ruled out as being from appellant. The police questioned Crow, who told the police that the group picked up three "white guys from Marshall" at the casino before the car got stuck in the mud and started on fire. A.C. agreed with Crow's fabricated story. An officer drove A.C. and Crow back to the reservation and released them. Once A.C. and Crow were back on the reservation, appellant walked up to them, not wearing a shirt. Appellant, A.C., and Crow got a ride from the reservation to Glencoe, and then from Glencoe to the Twin Cities. After spending a few hours in the Twin Cities area, appellant, A.C., Crow, and another friend headed north to Bemidji. Appellant and A.C. sat in the back seat during the ride. A.C. asked appellant "if they really killed that dude" and appellant responded that he had stabbed Berry "a grip of times." A.C. interpreted "a grip of times" to mean "a lot of times." A.C. also testified that appellant was in possession of two necklaces, which he said had been Berry's. Other witnesses testified that Berry always wore necklaces. Appellant kept one of the necklaces but threw the other out the window. Appellant also had money, which A.C. testified was unusual for appellant, but A.C. could not be sure whether appellant had the money before the events of September 23-24. After spending a few days in Bemidji, appellant, A.C., and Crow went to Red Lake. There, the group parted; A.C. and Crow headed to Seattle and appellant eventually returned to the Twin Cities. 6

On October 7, 2004, while appellant was still on the run, he called his father in prison. In that conversation, which was recorded by prison officials, appellant admitted that he was involved "a lot" in Berry's killing. Appellant did, however, deny that he actually stabbed Berry. He said that he "didn't wanna go" with the others to the crime scene and that he "didn't want to stab" Berry. Appellant also denied ever having stabbed Berry, telling his father that Morris Pendleton "put it [the knife] in my hand, told me to do it [stab Berry]. I told em . . . I ain't doin it. And then I wiped . . . it and I gave it back to em." Appellant also told his father that he was passed out in the back of the truck at the time Morris Pendleton set the truck on fire, and that Morris Pendleton intended to kill him. Appellant said he jumped out of the truck with his leg on fire and put it out. The driver of the car to Bemidji, however, testified that, during the ride and time in Bemidji, appellant seemed healthy, did not limp, and did not say anything about being hurt. A.C. also did not see any injuries or burns. Appellant was eventually indicted on three counts of first-degree murder: premeditated murder, Minn. Stat.

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