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STATE OF MINNESOTA IN SUPREME COURT A08-1420

Hennepin County

Meyer, J.

State of Minnesota, Respondent, vs. Everado NMN Cruz-Ramirez, Appellant. ________________________ Sharon E. Jacks, Assistant Public Defender, St. Paul, Minnesota, for appellant. Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota, for respondent. ________________________ SYLLABUS 1. The district court did not clearly err in allowing gang expert testimony on Filed: August 27, 2009 Office of Appellate Courts

the criminal activity of two rival gangs, and any error in allowing gang expert testimony that was duplicative of lay witnesses testimony was not reversible error. 2. The district court did not err in instructing the jury on transferred intent or

attempted murder.

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3.

The evidence, viewed in the light most favorable to the verdict, was

sufficient to support that appellant acted with premeditation and the intent to kill. 4. Appellants unsentenced convictions may be vacated when the State does

not object to such vacation. 5. In his pro se claims, appellant failed to demonstrate that the district court

erred in admitting photographic and photo lineup evidence, instructing the jury on media coverage, and giving appellant multiple sentences; appellant also failed to demonstrate prosecutorial misconduct. Affirmed as modified. OPINION MEYER, Justice. A Hennepin County jury found appellant Everado NMN Cruz-Ramirez (Cruz) guilty of four counts of first-degree murder and two counts of second-degree murder for the shooting death of Heli Hernandez Leon, and six counts of attempted first-degree murder and six counts of attempted second-degree murder for the shooting injuries of three other men. The district court entered convictions on each guilty verdict. The court sentenced Cruz to life in prison for first-degree premeditated murder, plus three consecutive 186-month sentences for attempted first-degree murder of the other victims. On direct appeal, Cruz argues: (1) the court erred by admitting expert testimony on gang activity; (2) the court plainly erred in its jury instructions; (3) there was insufficient evidence to convict Cruz of first-degree murder; and (4) Cruzs unsentenced convictions should be vacated. In his pro se supplemental brief, Cruz makes five additional 2

arguments. We affirm the district court, but modify Cruzs convictions by vacating his unsentenced convictions. On August 25, 2007, shortly before 7:45 p.m., a red Ford Probe and a silver Toyota parked at the intersection of E.M. Stately Street and Ogema Place in south Minneapolis. The Ford was parked in front, and its five passengers got out. Three female passengers stayed next to the Ford; two male passengers, Carlos Ocampo and Omar Morales, went to speak to their friends in the Toyota. The Toyota had parked a few yards behind the Ford. Heli Hernandez Leon sat in the drivers seat, and Miguel Carranza sat in the back seat behind Hernandez Leon. Israel Jimenez left the back seat of the Toyota, and joined Ocampo and Morales at the drivers side open window. The three men stood talking to Hernandez Leon. A black car pulled up across the street from the Toyota and stopped; a woman was driving, with another person in the back seat. A man left the right front passenger door and asked, "Que barrio?"1 Before anyone spoke, the man pointed a gun at the three men standing next to the Toyota and started firing. The man walked toward the Toyota as he fired the gun about five times. One witness testified the man was shooting "at everyone"; another witness said that the man aimed "[a]t the people who were there, firing the gun first at Jimenez," then at Hernandez Leon, then Carranza.
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Witnesses defined the term "que barrio," which was the phrase used right before the shootings happened. Morales said "its like when that person is part of a gang," or, "[w]hat gang are you from?" A female passenger from the Ford testified that it meant "What gang are you from?" Ocampo testified that it meant "Where are you from?" He said the term is used to find out what gang the other person is representing.

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At the time, several women were standing in a parking lot near the shooting. One woman, F.M., had known Cruz for a few months. Upon hearing gunshots, F.M. turned around and recognized Cruz as the shooter. To another woman F.M. said, "Oh my god, that was [Cruz]." When police arrived at the intersection a few minutes later, the black car and its passengers were gone. Police found four shooting victims: two men inside the Toyota, Hernandez Leon and Carranza, and two of the men who had been standing near the drivers side window, Jimenez and Morales. Hernandez Leon had died from a gunshot wound in his chest by the time officers arrived on the scene. Carranza had been shot twice. The first bullet went through his arm and hit his chest. Carranza testified that the shooter, seeing "that nothing happened the first time," shot Carranza again. Carranza was then shot in his left flank--the bullet traveled across his abdomen, spleen, stomach, and into the liver. Jimenez had been shot in the back of both thighs and fell to the ground immediately after being shot. Morales was grazed by a bullet on his left hip as he ran away. Witnesses saw two men run from the scene of the shootings into a house about a block away. Two women who lived at the house testified at trial that around the time of the shooting, Cruz and another man walked quickly into the house. Cruz told them the police were outside; both men then removed their shirts, put them on a couch, and left. Police recovered the two shirts; both had blue and white horizontal stripes. With the knowledge of Cruzs name, investigators were able to find Cruzs picture and prepare two photo lineups on the night of the shootings. Shooting victims Morales 4

and Jimenez each identified Cruz. Morales also said that the shooter had been wearing a blue shirt with white stripes. One of the females who had been riding in the Ford, who had run and hid when she heard gun shots, also identified Cruz from a photo lineup. Ocampo, who had been standing next to the shooting victims but was uninjured, said the shooter had a white shirt with blue horizontal stripes. Ocampo also said that Cruzs photo "looked closest" to that of the man Ocampo witnessed shooting. Shooting victim Carranza and another female passenger were not able to identify anyone. No weapon was ever recovered, but the police found five discharged casings and one fired bullet at the scene. The police investigation of the shooting revealed that the recovered casings and bullet were from the same gun and consistent with bullets from a .38 caliber gun. On October 4, 2007, Cruz was indicted by a grand jury on 18 counts. Cruzs charges relating to the death of Hernandez Leon were: first-degree premeditated murder, Minn. Stat.

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