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STATE OF MINNESOTA IN SUPREME COURT A08-1271 Hennepin County Magnuson, C.J. Took no part, Gildea, J.

State of Minnesota, Respondent, vs. Myon Demarlo Burrell, Appellant. ________________________ Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota, and; Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota, for respondent. Benjamin J. Butler, Assistant State Public Defender, St. Paul, Minnesota, for appellant. ________________________ Filed: August 20, 2009 Office of Appellate Courts

SYLLABUS 1. Admitting evidence of defendants prior shootings to show motive was not

an abuse of discretion. 2. 3. Admitting certain gang expert testimony, if error, was harmless. Admitting grand jury testimony of a deceased witness was harmless.

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Imposing a harsher sentence after defendants second trial was error under

State v. Holmes, 281 Minn. 294, 296, 161 N.W.2d 650 (1968). Affirmed in part, reversed in part, and remanded. OPINION MAGNUSON, Chief Justice. Appellant Myon Demarlo Burrell was twice convicted of first-degree murder and attempted first-degree murder and sentenced to life in prison for the shooting death of Tyesha Edwards, an 11-year-old girl who was struck and killed by a stray bullet in her south Minneapolis home. On appeal from his second trial, Burrell challenges his

conviction and sentence, arguing that the district court erred in (1) admitting evidence of prior bad acts, (2) admitting the testimony of a gang expert, (3) admitting the grand jury testimony of a deceased witness, and (4) imposing a harsher sentence than the sentence Burrell received after his first trial. We affirm in part, reverse in part, and remand. On November 22, 2002, Timothy Oliver was standing in the front yard of his aunts house in south Minneapolis. Oliver belonged to a gang known as the Gangster Disciples. At approximately 3 p.m., a maroon Chevy Malibu drove toward the house where Oliver was standing. Oliver believed the car belonged to "Hans," who belonged to a rival gang, the Bloods. Oliver observed a man he knew as "Ike" driving the car, and a man whom Oliver knew as "Little Skits" riding in the front passenger seat. Oliver testified that he and Ike "mean-mugged" each other before the car sped away. Minutes later, Oliver was standing on the front porch of his aunts house when he heard gunshots from across the street. Oliver testified that he heard nine to ten gunshots 2

and then ran to the side of the house. After the shooting ceased, Oliver returned to the front of the house and looked across the street. Oliver testified that he saw Little Skits standing between two houses, pointing a gun at him and pulling the trigger. Oliver further testified that he was not harmed in the shooting but his pants had a bullet hole in them. Shortly after 3 p.m. on November 22, police responded to a report of a shooting at the house next door to Olivers aunts home. When the police arrived, they found Tyesha Edwards lying on the dining room floor of her home. Edwards had been struck in the chest and killed by a .40 caliber bullet that had penetrated the wall of her home. The police recovered seven .40 caliber shell casings on the ground across the street from Edwards and Olivers aunts houses. All seven shel l casings were fired from the same gun. On November 25, 2002, the police arrested Oliver. Oliver told the police that Little Skits had shot at him, but that he did not know Little Skits real name. Oliver correctly identified photos of Ike Tyson and Hans Williams. Oliver also identified a photo of appellant Myon Burrell as Little Skits. Later on November 25, the police arrested Tyson and Williams. Tyson told the police that Little Skits often stayed in Bemidji. When the police contacted the authorities in Bemidji, they learned that Little Skits was 16-year-old Myon Burrell. Tyson identified photos of Burrell as Little Skits. The police arrested Burrell on November 26, 2002. A Hennepin County grand jury indicted Burrell on eight counts: premeditated first-degree murder, Minn. Stat.

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