After a jury convicted Derrick Griffin of “first-degree
murder by drive-by shooting, in violation of Minnesota Statutes § 609.185(a)(3) and first-degree premeditated murder in violation of MinnesotaStatutes § 609.185(a)(1)” for his role in “the death of Kristopher Miller”, he
appealed. State v. Griffin, 2013 WL 3929143 (Supreme Court of Minnesota
2013). On appeal, he argued that the jury’s verdict should be reversed “because
of the erroneous admission of out-of-court statements made by his wife, Kim
Griffin, and cell phone
records obtained without a warrant.” State v. Griffin, supra.
According to the opinion, the case began on the night
of May 10, 2011, when
Kristopher Miller was shot to death on
the front porch of his home in Minneapolis. At the time of his death, Miller
was in a romantic relationship with Griffin's wife, Kim. Prior to the murder,
Griffin had discovered sexually explicit text messages on Kim's cell phone and
thought Kim was seeing someone who worked at the Elks Club, which is located on
Plymouth Avenue in North Minneapolis.
On the evening of May 10, 2011, Kim was
at the Elks Club with a group that included Miller; Miller's sister, L.M.; and
L.M.'s boyfriend, L.B. When the group left the Elks Club at 11:15 p.m., they
saw a white four-door Cadillac sedan parked across the street from the front
door of the club. After seeing the vehicle, Kim said to the group `[l]ook at my
husband over there, stalking me again.’ L.M. and L.B. also noticed the white
four-door Cadillac but were unable to see if the vehicle was occupied and could
not later identify the Cadillac specifically as Griffin's vehicle.
After Kim's comment, Miller walked Kim
to her car, gave her a hug, got into his truck, and drove away toward his home.
L.M. and L.B. also left and none of the witnesses saw the Cadillac move.
State v. Griffin,
supra.
The opinion then explains that Miller’s home was
`a couple blocks away’ from the Elks
Club. Three of Miller's neighbors heard gunshots at approximately 11:30 p.m.,
and two of the neighbors called 911. The same two neighbors saw a light colored
large sedan similar to a Cadillac backing down Irving Avenue, the street on
which Miller lived. Shortly thereafter, Miller was found dead on the front
porch of his duplex. Miller died from multiple gunshot wounds to the
back.
State v. Griffin,
supra.
When they arrived at the scene, police and officials from
the Minneapolis crime lab searched the
area for evidence but did
not recover any shell casings or bullets. The lack of shell casings indicated
to police that a revolver was most likely the type of gun used in the shooting.
Police also. . . . discovered Griffin was the registered owner of a 1996 white
four-door Cadillac Sedan DeVille.
When police contacted Kim, she gave
them the number for a cell phone that was associated with Griffin and indicated
Sprint was the cell phone provider for that phone. Kim also told police Griffin
was aware of her relationship with Miller and she thought she had seen Griffin
at the Elks Club that evening. [She] told police that after she left the Elks
Club, she made and received calls on her cell phone to and from Griffin at
11:30, 11:46, 11:49, and 11:55 p.m. on May 10, related to why she saw Griffin
outside the Elks Club. Kim [said] she did not need to tell Griffin she was on her
way home from the Elks Club `because he would have already known that.’
State v. Griffin, supra.
Based on their investigation, the police suspected Griffin was the
killer, but they had not found the murder weapons and did not know if anyone
else was a target. State v. Griffin, supra. They
therefore concentrated on trying to determine Griffin’s location,
and faxed an `exigent circumstances request’ to
Sprint/Nextel at 5:36 a.m. on May 11, 2011. For the phone Griffin was reported
to be using, police requested the subscriber information, call detail records
with cell-site information for the past week, and information showing the
current location of the phone and its location over the past 14 days. To
describe the exigent circumstances, police wrote `[h]omicide suspect from
5–10–11 at 2325 hours. Homicide suspect has a Sprint phone number. . . .’
The records police received from
Sprint/Nextel revealed the subscriber for the phone associated with Griffin was
Griffin's girlfriend. . . . Griffin's name was not listed on any of the cell
phone records. Additionally, the records showed the phone `was turned on, it
was being used, and that it was hitting off cell site towers that [we]re in the
proximity of where the murder happened’ at the time the shots were fired. . . .
[A] call was made from the phone approximately 25 minutes prior to the shooting
that pinged off of a tower across the street from the Elks Club and showed the
phone was 1.88 miles away from the tower.
State v. Griffin,
supra. (Police did not use a search
warrant to get the phone records, which would clearly have satisfied the 4th
Amendment. State v. Griffin, supra.)
The Sprint/Nextel records also showed the phone was “at
Griffin's girlfriend's residence in Columbia Heights”, so officers arrested
Griffin “at a gas station in Columbia Heights after observing him leave” her
residence. State v. Griffin, supra. After they arrested him, they searched his
girlfriend’s residence and found a “found a blue .38 caliber revolver fully
loaded with five rounds, a 9 millimeter handgun, one copper-jacketed live round
lying on the nightstand, a 20–count box of .38 caliber copper-jacketed rounds
with five rounds remaining in it, and a title for a white Cadillac showing the
car belonged to Griffin.” State v.
Griffin, supra. They also searched
his car and found “a box of .38 caliber copper-jacketed ammunition in the
center console with five rounds missing.”
State v. Griffin, supra. “One of the cartridges in the .38 revolver had
a fingerprint on it that matched Griffin's fingerprint and records indicated
Griffin had purchased the .38 revolver.” State
v. Griffin, supra.
Forensic testing “was inconclusive as to whether the .38
revolver found in Griffin's girlfriend's residence was the gun” used to kill
Miller. State v. Griffin, supra. The
forensic examiner said “she `could neither say it was the gun and couldn't say
it wasn't the gun.’” State v. Griffin,
supra. When Griffin was booked into jail,
police found a .38 caliber silver
tipped hollow point round with a disc down the center in the pocket of
Griffin's shorts. The bullet recovered
from Griffin's pocket had `similar class characteristics’ to the bullet the
medical examiner recovered from Miller's body. Griffin admitted owning the two
guns found in his girlfriend's residence.
State v. Griffin,
supra.
When police questioned Griffin, he “initially denied being
near the Elks Club on the night of the murder”, but later admitted he was “in
North Minneapolis that night to pick up liquor”. State v. Griffin, supra. He
then returned to “his girlfriend’s home”. State
v. Griffin, supra. Griffin said “he
initially lied about his location because, as a pastor, he did not want people
to know he was `cheating on [his] wife’ or `drinking.’” State v. Griffin, supra.
Griffin’s first argument on appeal was that his wife’s
statement about him stalking her “again” should not have been admitted because
it was hearsay. As Wikipedia explains,
and as I have noted in prior posts, hearsay is an out of court statement by
someone that is, or is sought to be, introduced into evidence at trial. The default rule in the United States is that
hearsay is not admissible because, as I have explained in prior posts, it is
generally considered to be unreliable.
The primary problem, as I have also noted in prior posts, is that if you
admit an out of court statement – like Kim’s statement about Griffin stalking
her – the defendant cannot cross-examine the person who made the statement. In the United States, cross-examination is considered an important way to test the truth of
a statement. With hearsay, the jury
either buys the statement or they don’t.
The trial judge admitted Kim’s statement under Minnesota Rule of Evidence Rule 807, and the Minnesota Supreme Court upheld that
decision. State v. Griffin, supra. The
law in the federal system and in the states includes various exceptions – like
the one Rule 807 creates -- that allow hearsay to be admitted in court. Under Rule 807, a court can admit hearsay if
it has “circumstantial guarantees of trustworthiness” equivalent to those
required under the other rules that create hearsay exceptions.
The trial judge found Kim’s statement was sufficiently
trustworthy because it “was made spontaneously among a group of [her] friends
and acquaintances” and she “affirmed the statement when L.M. asked `[i]n that
Cadillac over there?’” State v. Griffin,
supra. The judge also found that it
was “probative of a material fact”, i.e., the motive for the murder. State
v. Griffin, supra. The judge also
found it was the only evidence the prosecution had that put Griffin’s car
outside the Elk’s Club when Miller and Kim left. State v. Griffin, supra. The
Supreme Court upheld the judge’s decision. State
v. Griffin, supra.
Griffin’s other argument was that his 4th
Amendment rights and his rights under
Article I, Section 10 of the Minnesota Constitution were violated when the district court admitted into evidence
records of calls made and received as well as the location of cell towers
contacted by the cell phone Griffin was using at the time of the murder.
Griffin argues that he has an expectation of privacy in these cell phone
records and therefore his constitutional rights were violated when police
obtained the records without a warrant and when those records were admitted at
trial.
State v. Griffin,
supra.
The prosecution argued that the trial judge was correct in
finding that Griffin had no
expectation of privacy in the cell phone records because . .
.Griffin was not the subscriber and therefore a stranger to Sprint/Nextel, the
holder of the records. Further, the State contends Griffin produced no evidence
that he attempted to conceal anything about the cell phone and offered no other
evidence supporting the conclusion that he had an expectation of privacy in the
records.
State v. Griffin,
supra.
As I have noted in prior posts, state constitutions (i)
cannot provide less protection for privacy than the 4th Amendment
but (ii) can provide more protection than it does. So, when I saw Griffin was
making an argument under the state’s constitution, I assumed it provided, or he
would argue it should provide, more protection than the 4th
Amendment.
I was wrong. The
Supreme Court begins its analysis of Griffin’s second argument by explaining
that a defendant’s rights to challenge a
`search under Article I, Section
10 of the Minnesota Constitution are coextensive with [his] rights under
the 4th Amendment to the U.S. Constitution. State v. Carter, 596
N.W.2d 654 (Minnesota Supreme Court 1999). When a defendant alleges that a
search violated his constitutional rights, we determine whether the search `has
infringed an interest of the defendant which the 4th Amendment was designed to
protect. State v. McBride, 666 N.W.2d 351 (Minnesota Supreme
Court 2003). The defendant `has the burden of establishing that his own 4th
Amendment rights were violated by the challenged search or seizure.’ Rakas
v. Illinois, 439 U.S. 128 (1978).
So, in invoking the Minnesota Constitution’s version of the
4th Amendment, Griffin really did not add anything notable to his
argument. The Supreme Court went on to
explain that the test it uses to determine whether someone’s 4th
Amendment rights have been violated is the one the U.S. Supreme
Court established in Katz v. U.S.,389 U.S. 347 (1967), which I have discussed in prior posts. Here, the court noted that in
determining whether a defendant's
rights have been violated under the 4th Amendment, we apply a two-part test,
first considering whether the defendant `exhibited an actual subjective
expectation of privacy in the’ cell phone records’ and then `determin[ing]
whether that expectation is reasonable.’ State v. Gail, 713 N.W.2d 851 (Minnesota Supreme Court 2006). In the first part, we `focus [our] inquiry on
the individual's conduct and whether the individual sought to preserve
something as private. In re Welfare of B.R.K., 658 N.W.2d 565
(Minnesota Supreme Court 2003).
We have `found a defendant illustrates
a subjective expectation of privacy when he attempts to conceal activity or
items.’ State v. Gail, supra. .
. . [A]n individual's `expectation of privacy is legitimate if it is one that
society is prepared to recognize as reasonable.’ State v. Perkins, 588
N.W.2d 491 (Minnesota Supreme Court 1999).
State v. Griffin,
supra.
In the Gail case,
the Supreme Court held that the defendant did not have a subjective expectation
of privacy in his cell phone records because he used a phone that was owned
Larkins, who “sub-leased” it to Davis who “sub-sub-leased” it to Gail. State v. Griffin,
supra. It found that because “two people” stood
between him and the phone company, he could not have subjectively believed the
company would keep his records private. State v. Griffin, supra. The court also found that Gail did not do anything
to keep his cell phone usage confidential because he “repeatedly called the
victim” and police found his phone number on the victim’s cell phone. State
v. Griffin, supra.
The Supreme Court reached the
same conclusion in this case. Like the
defendant in Gail, Griffin was not the subscriber associated
with the phone. Rather, [his] girlfriend was the subscriber of record and
Griffin's name did not appear on Sprint/Nextel's records. Also, on the day of
the murder Griffin initiated 46 outgoing calls or text messages, including some
to his wife, who voluntarily gave his phone number to police. Finally, like the
defendant in Gail, Griffin offered no evidence that would support
the conclusion that he had an expectation of privacy in the cell phone records.
Under Gail, because
Griffin was a stranger to Sprint/Nextel and presented no evidence that he
expected Sprint/Nextel to keep his phone usage private, he did not meet his
burden to show that he had a subjective expectation of privacy in the cell
phone records.
State v. Griffin,
supra.
So the court held that “[b]ased on Gail, .
. . Griffin did not have a subjective expectation of privacy in the cell phone
records and therefore we hold that the admission of the cell phone records did
not violate [his] 4th Amendment rights or his rights under Article I, Section
10 of the Minnesota Constitution.” State v. Griffin, supra. It then affirmed his conviction and sentence. State
v. Griffin, supra.
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