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STATE OF MINNESOTA IN SUPREME COURT A07-538 Hennepin County Anderson, G. Barry, J. Took no part, Dietzen, J.

State of Minnesota, Respondent, vs. Filed: March 6, 2008 Office of Appellate Courts

Derrick Holliday, Appellant. SYLLABUS 1. The evidence of premeditation was sufficient to support appellants

convictions for first-degree premeditated murder and attempted first-degree premeditated murder. 2. The admission of a witnesss prior out-of-court statements did not violate

appellants Confrontation Clause rights as guaranteed by the United States and Minnesota Constitutions where the witness appeared for cross-examination at trial. 3. Any error in admitting a witnesss prior out-of-court statements or the

testimony of other witnesses regarding those statements under the hearsay rules was harmless where the district court indicated that the statements did not affect the verdict. Affirmed. Heard, considered, and decided by the court en banc.
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OPINION ANDERSON, G. Barry, Justice. Appellant Derrick Holliday was convicted in a bench trial of first-degree murder, attempted first-degree murder, second-degree murder, and attempted second-degree murder for the killing of Alan Reitter in downtown Minneapolis. On direct appeal, appellant asks us (1) to vacate his first-degree murder and attempted first-degree murder convictions on the basis that there was insufficient evidence of premeditation and (2) to reverse his second-degree murder and attempted second-degree murder convictions and remand for a new trial on the basis that the admission of a witnesss prior out-of-court statements violated the Confrontation Clauses of the United States and Minnesota Constitutions and the hearsay rules. We affirm appellants convictions. On the evening of March 31, 2006, appellant went to the Crown Theater, located in the Block E complex in downtown Minneapolis, with a loaded Smith and Wesson .44 magnum revolver. A dispute erupted inside the theater, and a police officer described the situation as "a riot" in which people were fighting, screaming, and throwing chairs. After the police ordered everyone out of the building, two groups "squared off" in the middle of Sixth Street. Appellants group was facing Glueks Restaurant and Bar, and the other group was facing Jimmy Johns. Members of the two groups screamed and raised their shirts up at each other, but there was no physical contact between them. One of the members of the group facing Jimmy Johns reached behind his back but was not seen with a weapon. Appellant then pulled out his revolver and pointed it at the group facing Jimmy Johns, causing the group members to flee. He then ran diagonally across Sixth
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Street toward First Avenue and fired multiple shots, holding the revolver directly in front of him with his arm outstretched. The district court found, based on witness testimony, that appellant "was aiming at a specific person as he chased that person" and "had ,,a bead on the person he was chasing." Meanwhile, unrelated to this activity, Alan Reitter was in downtown Minneapolis with a group of friends. At approximately 11:30 p.m., the Reitter group left the Refuge Bar, located on First Avenue between Fourth Street and Fifth Street, for the Lone Tree Bar, located on Sixth Street between Hennepin Avenue and First Avenue. Upon hearing gunshots as they walked down Sixth Street, some of Reitters companions took cover near the pay booth of the parking lot bordering Sixth Street and others took cover behind the short brick barriers on the parking lots perimeter. Appellant fired toward the parking lot from in front of the pay booth, striking Reitter in the face. Appellant ran by Reitter and proceeded on First Avenue toward Fifth Street. Reitter was found lying in a pool of blood near the exit arm of the parking lot pay booth. He died the next day, and the medical examiner who performed the autopsy testified that Reitter died from a gunshot wound to the head and that the manner of Reitters death was homicide. The medical examiner concluded that Reitters injuries were consistent with the use of a .44-caliber magnum handgun. Minneapolis police officer Jomar Villamor was positioned at the corner of First Avenue and Fifth Street when he heard gunshots to the south and then saw appellant running up First Avenue and pointing a revolver at a person running in front of him. Villamor did not see appellant fire the revolver, but two other witnesses testified that they
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saw appellant shoot in the direction of the other person running up First Avenue. Appellant turned up Fifth Street, and Villamor pursued him with his own gun drawn and yelled numerous times, "Police, drop the gun." Villamor testified that once during the chase appellant pointed the revolver directly at him. Villamor followed appellant into an alley connecting Fifth Street and Fourth Street. Villamor saw appellant throw the

revolver toward a row of vehicles before appellant reached Fourth Street, and Villamor heard the sound of "metal-to-metal contact" and the security alarm of a red pickup. After leaving the alley, appellant ran down Fourth Street, turned up First Avenue, and attempted to enter "the Karma Bar." Appellant was detained by bouncers at the bar entrance and then handcuffed by Villamor. Another officer who had arrived at the scene took custody of appellant so that Villamor could retrieve the revolver. Villamor returned to the alley and found the

revolver in the bed of the red pickup. Four discharged cartridge casings and two live cartridges were inventoried with the revolver. The predominant DNA profile on the revolver matched appellants DNA profile, and multiple witnesses testified that the revolver recovered by the police looked similar to the revolver wielded by the shooter. The police interviewed appellant after taking him into custody, and a DVD recording of the interview and an accompanying transcript were admitted as evidence at trial. Appellant told the police that he brought the revolver downtown because he did not want his girlfriend to find it and because he does not "really got too many pals, or people that hang." He claimed that he pulled out the revolver as people were "coming at" him

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and that another person pulled out a gun in response.1 Appellant said that he shot into the air to scare people away and then ran, shooting at the ground. He maintained that he acted in self-defense and did not intend to shoot anyone. On April 20, 2006, appellant was charged with first-degree premeditated murder under Minn. Stat.

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