                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A16-1534

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                   John Joseph Plevell,
                                       Petitioner.

                                  Filed January 3, 2017
                                      Petition denied
                                   Cleary, Chief Judge

                              St. Louis County District Court
                                File No. 69VI-CR-15-1566


Lori Swanson, Attorney General, St. Paul, Minnesota; and

Mark S. Rubin, St. Louis County Attorney, Michelle M. Anderson, Assistant County
Attorney, Duluth, Minnesota (for respondent)

Daniel K. Lew, Sixth District Public Defender, Bruce R. Williams, Assistant Public
Defender, Duluth, Minnesota (for petitioner)


       Considered and decided by Cleary, Chief Judge; Ross, Judge; and Jesson, Judge.

                                     SYLLABUS

       1.     Although the Minnesota Rules of Evidence do not apply to grand jury

proceedings, the state must comply with Minn. R. Crim. P. 18.05 and demonstrate that

hearsay evidence presented to a grand jury will be admissible at trial.

       2.     For an out-of-court statement to be admitted as a prior consistent statement

in a grand jury proceeding, the witness must testify, the prior statement must be consistent
with that testimony, and the statement must be helpful in evaluating the witness’s

credibility.

                        SPECIAL TERM OPINION

CLEARY, Chief Judge

       Petitioner John Joseph Plevell was charged by indictment with the first-degree

premeditated murder of his former girlfriend.        See Minn. Stat. § 609.185 (2014).

Petitioner’s motion to dismiss the indictment was denied by the district court and petitioner

seeks discretionary review of the order, arguing that: (1) the evidence presented to the

grand jury is insufficient to sustain the offense charged, because it involves hearsay

statements of witnesses and does not comply with Minn. R. Crim. P. 18.05, subd. 1; (2) the

state failed to present material exculpatory evidence to the grand jury; and (3) the

indictment must be dismissed because of the cumulative effect of errors in the proceedings.

We conclude that the hearsay statements were improperly admitted, but we also conclude,

based on our review of the grand jury proceedings, that sufficient admissible evidence was

presented to sustain the allegation of premeditation. Because petitioner has not otherwise

established a compelling reason for discretionary review, we deny the petition.

                                          FACTS

       A woman was fatally shot while she was outside the American Legion in a town in

northern Minnesota on November 8, 2015. The woman’s current boyfriend was standing

next to her when she was shot. The primary investigator reviewed documents from other

law enforcement agencies and summarized the investigation for the grand jury. Petitioner,

who was the woman’s former boyfriend, became “a person of interest” based on


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conversations that law enforcement officers had with several witnesses who did not testify

before the grand jury. The investigator testified that, at the time of the shooting, there was

a domestic abuse no-contact order that prohibited petitioner from contacting the woman.

       A search warrant was obtained and executed at petitioner’s residence where

investigators found clothes in the washing machine that appeared to match clothes

petitioner was wearing the night of the shooting. Investigators also found a wet towel on

the bathroom floor, several deer rifles, and ammunition. One of the rifles fired the fatal

bullet. A compact disc containing body camera videos from the officers who responded to

the 911 call and attempted to resuscitate the woman was played for the grand jury.

Investigators testified and summarized their interviews with numerous lay witnesses who

did not testify before the grand jury. The grand jury also considered petitioner’s post-

Miranda statement to investigators.

                                      DECISION

       Petitioner seeks discretionary review of an order denying his motion to dismiss the

first-degree murder indictment, which is an order that is not appealable as of right. See

State v. Johnson, 441 N.W.2d 460, 467 (Minn. 1989) (“Defendants do not have an appeal

as of right from an order denying the dismissal of an indictment.”). In the interests of

justice, this court may grant discretionary review of an order that is not otherwise

appealable. Minn. R. Crim. P. 28.02, subd. 3; Minn. R. Civ. App. P. 105. But this court

will only grant discretionary review if a “compelling reason” is shown. State v. Jordan,

426 N.W.2d 495, 496 (Minn. App. 1988). In deciding whether to grant discretionary

review, this court considers a multi-factor test articulated in Gordon v. Microsoft Corp.,


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645 N.W.2d 393, 399-402 (Minn. 2002). See Doe 175 v. Columbia Heights Sch. Dist., 842

N.W.2d 38, 47 (Minn. App. 2014) (explaining that an appellate court should consider the

Gordon factors to the extent that they are appropriate when considering a petition for

discretionary review outside of the class-certification context). These factors are not

exclusive, and this court has discretion to consider additional factors and circumstances

that may apply to the particular case. Doe 175, 842 N.W.2d at 47. In this case, petitioner

did not address these factors. Nonetheless, we acknowledge that a direct appeal may not

afford an adequate remedy because the reviewing court generally rejects arguments

challenging the grand jury indictment after the defendant has been convicted on the higher

standard of proof beyond a reasonable doubt. See, e.g., State v. Smith, 876 N.W.2d 310,

322-27 (Minn. 2016) (rejecting Smith’s claims of error in the grand jury proceedings and

noting that the burden is heavier when a defendant challenges a grand jury indictment after

having been convicted beyond a reasonable doubt).

       In addition to showing a “compelling reason,” a petitioner “bears a heavy burden

when seeking to overturn an indictment.” State v. Morrow, 834 N.W.2d 715, 721 (Minn.

2013) (quoting State v. Scruggs, 421 N.W.2d 707, 717 (Minn. 1988)). “[A] presumption

of regularity attaches to a grand jury indictment, and it is a rare case where an indictment

is invalidated.” Id. (quoting State v. Penkaty, 708 N.W.2d 185, 196 (Minn. 2006)).

       Probable cause for a grand jury indictment depends on “whether the evidence

worthy of consideration * * * brings the charge against the prisoner within reasonable

probability.” State v. Steinbuch, 514 N.W.2d 793, 798 (Minn. 1994) (quoting State v.




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Florence, 306 Minn. 442, 446, 239 N.W.2d 892, 896 (1976)). “An indictment must be

based on evidence that would be admissible at trial” with the following exceptions:

                      (1) Hearsay evidence offered only to lay the foundation
              for the admissibility of otherwise admissible evidence if
              admissible foundation evidence is available and will be offered
              at the trial.

                      ....

                     (5) Written statements under oath or signed under
              penalty of perjury pursuant to Minnesota Statutes, section
              358.116, of witnesses who for reasons of ill health, or for other
              valid reasons, are unable to testify in person if the witnesses,
              or otherwise admissible evidence, will be available at the trial
              to prove the facts contained in the statements.

                     (6) Oral or written summaries made by investigating
              officers or other persons, who are called as witnesses, of the
              content of books, records, papers and other documents that
              they have examined but that are not produced at the hearing or
              were not previously submitted to defense counsel for
              examination, if the documents and summaries would otherwise
              be admissible. A police officer in charge of the investigation
              may give an oral summary.

Minn. R. Crim. P. 18.05, subd. 1.

       Petitioner argues that the statements of the lay witnesses were hearsay not subject

to any of the above exceptions. Hearsay is defined as a statement, i.e., “an oral or written

assertion or [ ] nonverbal conduct of a person, if it is intended by the person as an assertion,”

“other than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801. The rules of

evidence do not apply to grand jury proceedings. Minn. R. Evid. 1101(b)(2). But “Minn.

R. Crim. P. 18.05 contemplates that an indictment must be based on a showing indicating



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that admissible evidence will be produced at trial.” 11 Peter N. Thompson, Minnesota

Practice: Evidence, § 1101.01, at 816 (4th ed. 2012). Because the lay witnesses did not

testify before the grand jury, and because their statements were offered to support the

element of premeditation for first-degree murder, these statements are hearsay. The state

must, therefore, demonstrate that the out-of-court statements will be admissible at trial.

       The state argues that the out-of-court statements will be admissible at trial as prior

consistent statements under Minn. R. Evid. 801(d)(1)(B) (providing that a statement is not

hearsay if the declarant testifies and is subject to cross-examination, and the statement is

“consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the

declarant’s credibility as a witness”).       A statement properly admitted under rule

801(d)(1)(B) operates as substantive evidence. See Minn. R. Evid. 801(d)(1) comm. cmt.

But rule 801(d)(1)(B) has been interpreted as requiring the district court to make a

threshold determination of whether there has been a challenge to the witness’s credibility

before the prior statement will be admitted. State v. Bakken, 604 N.W.2d 106, 109 (Minn.

App. 2000) (citing State v. Nunn, 561 N.W.2d 902, 908-09 (Minn. 1997)), review denied

(Minn. Feb. 24, 2000). The district court must also determine whether the statement would

be helpful in evaluating credibility. Id. at 109. “[A] prior consistent statement might

bolster credibility by showing a fresh complaint, obviating an improper influence or

motive, providing a meaningful context, or demonstrating accuracy of memory.” Id.

Finally, the prior statement and the trial testimony must be consistent. Id.

       If the lay witnesses testify at petitioner’s trial, their out-of-court statements may be

admissible as prior consistent statements, provided there is a challenge to their credibility


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and the statements are consistent with their trial testimony. See Scruggs, 421 N.W.2d at

717 (concluding, on appeal from Scruggs’s conviction, that Scruggs did not prove that the

indictment was based on inadmissible hearsay where a witness who did not testify before

the grand jury testified at trial, making her statement admissible as a prior consistent

statement). At this point, however, the state has not established that the out-of-court

statements of the lay witnesses will be admissible at trial as prior consistent statements.

       The state also argues that statements of the woman’s current boyfriend are

admissible as excited utterances under Minn. R. Evid. 803(2). An excited utterance,

although hearsay, is admissible if it relates to a startling event and is “made while the

declarant was under the stress of excitement caused by the event or condition.” Minn. R.

Evid. 803(2). The current boyfriend was standing next to the woman when she was shot

and some of his statements relate to that startling event, but in all of the body camera

videos, the boyfriend does not appear to be under stress caused by the event. Cf. State v.

Bauer, 598 N.W.2d 352, 366 (Minn. 1999) (stating hearsay statement was admissible as

excited utterance where declarant’s condition, “extremely agitated, upset, and afraid,”

indicated she was still under stress caused by the event at the time the statement was made).

Because the boyfriend’s statements do not appear to have been made while he was under

the stress of the event, the state has not shown that the statements will be admissible at trial

under the excited utterance exception.

       Petitioner is also correct that the state did not comply with rule 18.05, subdivision

1(5), which would have permitted the state to admit written statements of lay witnesses

made under oath or signed under penalty of perjury if the witnesses were unable to testify


                                               7
in person. And while the investigator, as the main officer in charge of the investigation,

could give an oral summary of documents and records that she reviewed, rule 18.05,

subdivision 1(6), does not expressly permit oral or written summaries of the statements of

lay witnesses who have not testified before the grand jury. Petitioner has, therefore,

demonstrated that the state presented inadmissible evidence for the grand jury’s

consideration.

       Despite the presentation of inadmissible evidence, dismissal of the indictment is not

required unless the state failed to present sufficient admissible evidence to sustain probable

cause for the indictment. State v. Martin, 823 N.W.2d 913, 919 (Minn. App. 2012). The

state argues that, even if the out-of-court statements were improperly presented, “there is

sufficient admissible evidence to establish probable cause” based on testimony of other

witnesses and petitioner’s own statement. We agree.

       “‘Premeditation’ means ‘to consider, plan or prepare for, or determine to commit,

the act referred to prior to its commission.’” State v. Cox, 884 N.W.2d 400, 412 (Minn.

2016) (quoting Minn. Stat. § 609.18 (2014)). “Premeditation does not require proof of

extensive planning or preparation, nor does it demand that a specific time period elapse for

deliberation.”   Id.   “Instead, the [s]tate must simply establish that there was some

appreciable passage of time between a defendant’s formation of the intent to kill and the

act of killing, and that during this time defendant deliberated about the act.” Id.

       Because premeditation is a state of mind, it is generally proved by circumstantial

evidence. Id. The supreme court has identified the following categories of activity as

supporting an inference of premeditation: “planning activity, motive, the nature of the


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killing, and a defendant’s actions following the killing.” Id. Although much of the hearsay

testimony presented to the grand jury provided evidence of motive and planning activity,

we are satisfied, after carefully reviewing the grand jury transcript, that the grand jury was

also presented with sufficient admissible evidence to support probable cause for the

premeditation element of first-degree murder. For example, the nature of a killing can

support premeditation. See State v. Kendell, 723 N.W.2d 597, 607 (Minn. 2006) (holding

that “[a] single shot squarely in the back can support a finding of premeditation because it

indicates that the shooter took careful aim at the victim”) (citing State v. Johnson, 616

N.W.2d 720, 726 (Minn. 2000)). A defendant’s actions following a killing, such as his

“‘cool, calm demeanor’ in attempting to avoid detection and destroying evidence,” also

support premeditation. State v. Hurd, 819 N.W.2d 591, 600 (Minn. 2012) (noting Hurd’s

efforts to avoid detection, including purchasing a bus ticket in an assumed name, washing

bloody clothes, cleaning the victim’s blood from the victim’s car before abandoning it, and

lying to family and police to avoid detection) (quoting Kendell, 723 N.W.2d at 606). Here,

evidence of both the nature of the killing and petitioner’s conduct after the killing was

established through the investigation and not based on lay witness testimony. Because the

investigation evidence is sufficient for the grand jury to infer premeditation, we are not

persuaded that the introduction of inadmissible hearsay statements of lay witnesses requires

dismissal of the indictment.

       With respect to petitioner’s other claims of error in the grand jury proceedings, we

are not persuaded that the grand jury was deprived of exculpatory evidence that materially

affected the grand jury proceedings. The grand jury considered evidence of petitioner’s


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alcohol consumption, testimony from law enforcement regarding his demeanor after he

was arrested later the evening of the shooting, and an intoxication instruction. We are also

not persuaded that the cumulative effect of any errors influenced the grand jury so as to

require dismissal.

       Because petitioner has not established a compelling reason to persuade this court to

grant discretionary review, the petition is denied.

       Petition denied.




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