An eyewitness at the murder trial of Anthony London Foresta
Personal statement by William McGaughey:
Anthony L. (“Tony”) Foresta is the oldest son of my former wife, Sheila Gorman. We were married on January 2, 1995 and divorced a year and a half later. (Note: Sheila and I have since remarried.) Tony was living elsewhere at the time of our marriage. In July 1995, Tony shot and killed a young woman named Annette Wilson during an altercation with a group of men who may have been rival gang members. A bullet which he fired at their car ricochetted off the car and struck Ms. Wilson who was standing nearby. Tony was the first juvenile in Minnesota tried for murder as an adult. He was convicted and sentenced to 15 years in prison. This was a record year for murders in Minneapolis, earning this city the nickname “Murderapolis”. (The man who had given Tony the gun was himself murdered later in the day, becoming the fatality that broke the record.)
After serving his sentence, Tony was released. On probation, he earned a living painting houses. Tony rented an apartment in St. Paul from a fellow landlord and friend and he then rented from me. He soon had two children by a woman he had met after being released from prison, Brittany Calais. Another baby was on the way when he was again arrested and jailed. The mother this time was a native American woman named Cheyenne. Tony was then hanging out in the Indian community near the Little Earth housing project in south Minneapolis. I understood that Tony had a heroin addiction as a result of having first used prescription drugs to kill pain from an injury.
First signs of trouble
On March 15, 2013, the police came looking for Tony who was then living in unit 9 of my apartment building at 1708 Glenwood Avenue in Minneapolis. The police report stated: “Officers rec’d information that A1 was inside of above and was a suspect in a 3rd Pct. assault with a gun. Add’l remarks said he was a convicted felon with a 2nd Deg. Murder charge. Officers ran A1 and it showed he had 2 active misdemeanor warrants for his arrest. Officers responded to residence and knocked on door and a male voice answered from inside and we announced POLICE. A female voice then said A1 was not inside and called the landlord, A1’s mother OT1 came over and coaxed A1 out of the apartment and he was taken into custody without incident. A1 was booked on the warrants after confirmation. Officers then were advised by dispatch and Off/Duty 6314 that they were unable to locate the victim in the case. REC: CASE CLOSED BY ARREST/CITATION.”
On July 16, 2013, around 3 p.m. a SWAT team raided my apartment building at 1708 Glenwood Avenue and knocked in the door to unit 9. Tony was not home at the time. A large black SUV was parked on Glenwood Avenue near the building. An ambulance was parked nearby. Tony’s mother, Sheila, walked up to the SUV and spoke with an officer inside. She said: “I talked to a friend and told him to tell Tony to turn himself in.” The officer became agitated. He said: “We asked you not to tell him (Tony) we were looking for him because that puts Tony’s life in danger.” He added: “We have a way of doing things.” Observing the parked ambulance nearby, Tony’s mother interpreted the remark to mean that the police might shoot her son.
Evidently, the police were looking for a gun because another tenant in my building with whom Tony had been feuding (over a quarrel between their children) had said so. Despite two raids, the police never found a gun. A search warrant dated July 29, 2013, stated that the police were looking for (1) drug proceeds, (2) controlled substances, (3) written documents, (4) firearms, (5) computers, (6) cell phones, (7) digital cameras, (8) a light colored sweat shirt with dark stripes, and (9) a multi-colored jacket, black Carhartt ‘style’ jacket”, etc.
a killing in south Minneapolis in March 2013
Evidently a murder had taken place in south Minneapolis involving a drug dealer. Tony was a suspect in that murder.
The following article, headlined “Cottage Grove man, convicted of murder in the 1990s, arrested in Minneapolis homicide”, appeared in the Star Tribune newspaper on August 5, 2013. It read:
“A convicted murderer has been arrested on suspicion of being involved in the fatal shooting of a man five months ago at an apartment in south Minneapolis, authorities said Monday. The arrest of the 34-year-old man from Cottage Grove occurred shortly after 5 p.m.,Sunday in the 4100 block of Hiawatha Avenue S., according to police.
The man is accused of killing Frank K. Patterson IV, 48, about 4:30 a.m. on March 4 during what authorities described as an invasion of the victim’s apartment in the 2800 block of Cedar Avenue S., police said. Patterson was shot in the abdomen and died about 40 minutes later at Hennepin County Medical Center.
In mid April, police said they were looking for two suspects in the killing. There is no immediate word on whether anyone else is being sought. The Star Tribune generally does not name suspects until they have been charged.
In 1996, the suspect in Patterson’s death was sentenced to more than 15 years in prison for fatally shooting a 22-year-old woman who had moved from Tennessee to Minneapolis less than 24 hours earlier. The gunfire came during an argument and was meant for two men, but it hit the woman instead. The man was released from prison in 2011. He was 16 and already had an extensive criminal record when he killed the woman.”
[This information might have come from the police. To the best of my knowledge, Tony was not living in Cottage Grove although his mother and siblings had lived there. The address given was 8146 Jeffery Lane, which might have been the address of his girl friend, Brittany Calais. However, Tony actually lived in Minneapolis. I am also unaware that he had an extensive criminal record when the shooting occurred in July 1995. At least, the court record system fails to show charges other than the murder.]
Tony is charged
Two counts were made against Tony on August 8, 2013.
COUNT 1: AID/ABET MURDER IN THE SECOND DEGREE (FELONY) PENALTY: 3-40 YEARS
That on or about March 4, 2013, in Hennepin County, Minnesota, ANTHONY LONDON FORESTA, acting alone or intentionally aiding, advising, hiring, counseling or conspiring with another, and while armed with a firearm, did without intent to effect the death of any person, cause the death of F.P., a human being, while committing or attempting to commit the felony offense of First Degree Aggravated Robbery.
COUNT 2: ATTEMPTED AID/ABET AGGRAVATED ROBBERY FIRST DEGREE (FELONY) PENALTY: 3-10 YEARS AND/OR $17,500
That on or about March 4, 2013, in Hennepin County, Minnesota, ANTHONY LONDON FORESTA, acting alone or intentionally aiding, advising, hiring, counseling or conspiring with another, and while armed with a firearm, attempted to take personal property away from the person or in the presence of F.P., knowing that he was not entitled to the property and used and/or threatened the imminent use of force against F.P. to overcome his resistance or powers of resistance or to compel acquiescence in the attempted taking or carrying away of the property.
The complaint was signed by Christopher Gaiters.
The complaint against Tony
The complaint reads:
“Complainant, Christopher Gaithers, of the Minneapolis Police Department, has investigated the facts and circumstances of this offense and believes the following establishes probable cause.
On March 4, 2013, at approximately 4:28 a.m., officers were dispatched to 2813 Cedar Avenue South, in Minneapolis, Hennepin County, Minnesota. Information in the call indicated that there had been a shooting at that address in apartment #16. Officers arrived at the scene and were trying to gain entry into the building when a female party came running down the hall and let them in. The female was frantic, stating that someone had been shot. Officers followed her to apartment #16. As they entered they observed a young male, K.F., holding the victim, F.P., who was lying on his back on the living room floor. Officers approached F.P., and observed that he did not appear to be breathing. Officers also indicated that they could not locate a pulse when checking F.P.
Shortly after police arrived, EMS arrived on the scene and took F.P. to Hennepin County Medical Center by ambulance. Medical personnel worked on F.P. for approximately a half an hour before pronouncing him dead at 5:09 a.m.
Officers spoke to K.F. as well as two witnesses who were present in the apartment when the shooting took place. According to the witnesses, everyone in the apartment was sleeping or getting ready to go to sleep when two of them heard someone knocking on the door. The knocking continued for three to four minutes. At that point one of the witnesses went to get F.P. from his bedroom to let him know somebody was knocking on the apartment door. The second witness indicated that she looked out the peephole and saw a skinny, black male in a black jacket and black stocking cap in the hallway outside. This black male was holding a black, semi-automatic handgun. F.P. got up and came out to the apartment door and the two men on the other side told him that they were from the apartment downstairs and that there was water leaking into their apartment from above. F.P. then opened the door and the two black males pushed their way into the apartment, Once inside, one of the black males yells to F.P. “get on the ground mother fucker. Get on the ground.” According to witnesses, the black male with the gun is pointing it directly at F.P.’s face. While this is happening, the second black male is walking towards the back of the apartment where the bedrooms are, but comes running back out and runs directly out of the apartment. At that point the witnesses say that F.P.’s stepson, K.F., came out of this bedroom and the two witnesses ran into the bedroom and were trying to jump out of the window when they heard a gunshot. The witnesses went back into the living room and saw K.F., holding F.P. and saw that he had been shot. One of the witnesses then called 911.
Officers also spoke to K.F. who told them that he was in his room sleeping when he heard his Dad yelling. K.F. got up and grabbed his air rifle and went out into the hallway and saw a male with a gun wrestling with his Dad. K.F. fired his air rifle once and missed. K.F. then ran out and started choking the male party who was fighting with his Dad. K.F. got him in a headlock and both K.F. and the male fell back onto an air mattress in the living room. K.F. then saw the male cock his gun and fire it one time. K.F. heard F.P. scream and the male party jumped up and ran out the door.
On July 15, 2013, officers interviewed an additional witness. According to that witness, they were a friend of F.P.’s and went to his apartment on occasion to purchase heroine. The witnesses told officers that about two weeks before F.P. was shot and killed, another of her friends, ANTHONY LONDON FORESTA, Defendant Foresta herein, had been asking her questions about F.P. and whether he kept a lot of money in his apartment, On March 2013, the witness indicated that she was at her residence with her husband, Defendant Foresta, his girlfriend and Defendant Foresta’s friend, Cinque L’AMONT DEVILLE TURNER, Defendant Turner herein. The witness told officers that at about 1:30 a.m., that day, Defendant Turner drove her to F.P.’s apartment building so she could buy heroine for the group. When they got back to her residence, the witness indicated that Defendant Foresta and his girlfriend were arguing and that at some point after, that both defendants left together. This witness also told officers that later that same day, Defendant Foresta told her that he had shot F.P.
On August 6, 2013, officers spoke to Defendant Foresta’s girlfriend about this case. According to this witness, she and Defendant Foresta were at a friend’s residence the night of March 4, 2013. Also present were the friend’s husband and Defendant Turner. At some point in the early morning hours, the witness said that both defendants went together to get her some cigarettes. According to the witness, she fell asleep and woke up to Defendant Foresta telling her that Defendant Turner had gotten into some ‘shit’ and that he couldn’t find him. The witness said that they looked for Defendant Turner and were not able to find him. Sometime after this, the witness told police that Defendant Turner, who she has known since grad school, called her and wanted to talk to her about something he said was serious. The witness said she and Defendant Turner sat outside in his car and he told her that he and Defendant Foresta went to F.P’s apartment on the night he was shot to do a drug deal. Defendant Turner told the witness that when they got inside things went back and someone in the apartment shot at them. Defendant Turner told the witness that he shot back and thinks he shot F.P.
According to witnesses, F.P. sold heroine from his apartment, however he only sold to Native American females and did not let anyone else into his apartment.”
Tony was taken to the Hennepin County downtown jail. Bail was set at $500,000. I visited him in the evening of September 10, 2013. My written recollection of our conversation is as follows:
“Last night I visited Tony Foresta at the Hennepin Co. jail. He is being held in solitary confinement because he got into a fight with a jailhouse bully who was stealing his food. This bully had done the same to other inmates but Tony fought back. Now Tony has an extra assault charge.
Tony is implicated in a murder case because of Brittany Calais and Rachel (Smith) Rasmussen. Rachel is an American Indian of mixed blood. She is physically attractive and is able to weep to achieve a desired effect. Tony thinks she masterminded this event to frame Tony. Rachel cannot be found.
Brittany implicated Tony when police interrogated her in apartment #9. She was heavily drugged and confused. The police kept asking her pointed questions until Brittany gave the answer they wanted. Her testimony was saying ‘yes’ to a question the police asked. Brittany has since recanted her testimony. Brittany was also sleeping with the other defendant so she had a conflict of interest....
Tony said Brittany hated Scrappy (the dog) because Tony showed affection for this large dog instead of for her.”
[Note: I found Scrappy cold and hungry in a cage in apartment #9. Brittany had put a collar on him which allowed her to give the dog an electric shock by remote control. She also poured water on him from a window when he was outside. I rescued the dog. Eventually we found a suburban home for him.]
I was later told that, after Tony had been arrested, Brittany Calais was high on heroine in apartment #9 when the police did one of their raids. They conducted their interrogation while she was in that state of mind. Among other things, my source said, the police threatened to take Brittany’s children away if she did not cooperate with them.
What police records indicate Brittany Calais told the police
A summary of statements by Brittany Calais to police detectives Gaiter and Dale in an interview on August 5, 2013 at around 1 p.m. included the following:
This interview took place on September 17, 2013, with Michael Grostyan:
Brittany Calais gave this additional statement to Michael Grostyan on October 8, 2013:
1. Brittany corrects her statement in the 9/17/13 interview to say that (on the night of the incident, when they were at Ryan and Rachel’s) Tony wasn’t actually lying in bed with her but he was in the room, talking on the phone.
Tony in jail
The police took Tony into custody in the first week of August, 2013. He and Cinque Turner would stand trial for the murder of Frank Patterson, a heroine dealer who lived in an apartment near the Little Earth project in south Minneapolis. Tony’s mother engaged the services of attorney Kevin DeVor.
On September 5, 2013, at 1:30 p.m. Tony made an appearance before Judge William H. Cook. On the agenda was to have someone from Probation interview Tony in a “pre-trial evaluation interview”. No one was able to testify about having seen Tony at the murder scene. The prosecutor wanted to try Cinque Turner and Tony together but the attorney managed to thwart this.
Article I, Section 6 of the Minnesota Constitution guarantees criminal defendants “the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed.” A common standard for a “speedy” trial is ninety days. This condition was not met in Tony’s case; it took nearly a year for the trial to be held. Also, the right to a “public” trial was threatened when someone complained of a note-taking observer (me) making telephone conversations in the hall outside the court chambers.
Originally, Judge Koch set a trial date in December, 2013, but the public prosecutor, the Hennepin County Attorney, was granted successive postponements. As I understood it, the reason for the postponements was that the prosecutor could not locate its prime witness, Rachel Smith, who might have fled to a reservation in northern Minnesota. In any event, Tony was kept in the Hennepin County jail in downtown Minneapolis during this time so that the prosecution could get its act together.
From time to time, I or someone in his family visited Tony in jail. Sometimes he was at another jail receiving medical treatment. Sometimes the visit was made to put money in Tony’s jail account so he could buy snacks to supplement the meager food offering. At first, the Hennepin County sheriff’s deputy would take the money in a basement office, charging a ten percent commission for each transaction. Later, the transactions were handled by an ATM-like machine in the lobby of the Justice Center. This privately owned machine charged an extra $8 to give inmates money in addition to the ten percent handling fee.
Tony is released and then jailed again
In April 2014, it must have dawned on Judge Koch that Tony’s rights were being violated because of excessive delays in bringing him to trial. He was put under house arrest. When he was released at a facility in Plymouth, I drove there to pick him up. Tony was wearing pants too small for him. By then, his old apartment, unit #9 at 1708 Glenwood Avenue, had been rented to someone else. Tony’s sister, who rented the upstairs unit of a duplex I owned across the street, agreed to let Tony stay at her place. The conditions of release required him to keep in daily contact with Probation. He also had to remain on the premises at all times.
This arrangement worked well for about a month - until May 15th. That evening, I attended an event at the IDS Center in downtown Minneapolis to commemorate the 130th anniversary of the founding of the Yale Alumni Association of the Northwest. The main speaker was a Yale professor, Charles Hill, who advised the State department. Whitney MacMillan, former CEO of Cargill, also made a presentation. Another Yale alumnus, Minnesota Governor Mark Dayton, was supposed to attend but had a conflict. My former wife, Tony’s mother, was supposed to meet me at the Yale function after I parked the car, but did not. She instead returned home by bus.
The reason was that, at this very time, a SWAT team of the Minneapolis police was conducting a raid on my duplex at 1715 Glenwood Avenue. Eyewitnesses said that two loud explosions took place as police kicked in the front door and raced up the steps to seize Tony. Why? Tony had failed to contact the probation officer, as required, earlier in the day. Tony claimed that the communication equipment malfunctioned. In any event, Tony was back in jail awaiting trial.
First day - Monday, July 28, 2014
Tony’s trial began on Monday, July 28, 2014, in room 1453 (a court room) at the Hennepin County Government Center in downtown Minneapolis. I attended the entire trial with the exception of less than on hour on the day of closing arguments because of a planned bus trip to California. I sat in the visitor’s section in the back of the court room scribbling notes on a yellow pad as the trial took place. Since my writing is sometimes illegible and much was not written down, there may occasionally be inaccuracies in what I am reporting.
The first day was devoted to picking jurors. There were thirteen jurors and one alternate. There was one African American male, an African American female, an Asian male. The remaining jurors were white, five males and six females. One may have been a transgendered person. The judge first asked if any of the jurors had police relatives? Did any have particular attitudes about guns? Had any of the jurors, or their family members, been involved with drugs? Fifteen people had. Would the defendant’s race color their judgment? No. Could they separate the facts of this case from their personal experiences? Yes, they could. The judge told the prospective jurors that an air gun and autopsy photos might be introduced as evidence during the trial. He instructed them to follow the law and don’t try to do an independent investigation. Jury members were also instructed not to talk with anyone about the trial during the trial.
Of particular interest to me on that day is that Judge Koch discharged one jury member because there was an outstanding warrant for his arrest in Washington County. The judge said he could have this man arrested, but instead was discharging him from the jury with the promise that he promptly satisfy the warrant. It seemed to me that a man who had brushes with the law might be sympathetic to Tony so that removing him from the jury because of relatively minor charges was tampering with the jury’s composition. Since Tony’s prime years of life were at stake, this seemed like a questionable practice on the judge’s part. I expressed that opinion to Sheila in a cellphone conversation while seated on a bench outside the court room. Evidently a juror overheard my remark. This was brought to the judge’s attention and he rebuked me once I had returned to the court room.
Second day - Tuesday, July 29, 2014
Mr. Webber of the Hennepin County Attorney’s office made the opening statement for the prosecution. He said that in the early morning of March 4, 2013, Frank Patterson, a small-time drug dealer, was shot in the back. Frank sold drugs to support his family. He trusted Rachel Rasmussen, who was a heroin addict. The prosecutor said that Tony was a dangerous influence upon Rachel; he knew how to manipulate people to get drugs and money. Tony got Rachel to set up a robbery of Frank Patterson, he said.
Cinque Turner and Rachel Rasmussen went to Frank Patterson’s apartment building. Rachel bought heroin from him while Cinque waited outside. On her way out of the building, Rachel rigged the back door so it wouldn’t lock. Several hours later, Cinque Turner and Tony Foresta returned to the building and walked upstairs to Frank Patterson’s apartment. They knocked on the door saying that they were from the apartment below and water was leaking down. A woman who was sleeping on an air mattress in the living room opened the door. One of the men yelled and pointed a gun. Someone came out a bedroom with an air gun. Cinque Turner and Frank Patterson wrestled on the floor. Cinque shot Frank in the back. Then he hastily left the apartment.
Police arrived 17 minutes later. DeAndre Franklin, Frank’s step son, was cradling Frank on the floor. DeAndre told police, Amber Wick, that he did not recognize the shooter. Rachel Rasmussen later told police that it was her in the video. She also identified Cinque Turner and Tony Foresta. All were charged with intentional second-degree murder in support of a robbery. Rachel Rasmussen and Cinque Turner were co-defendants who would testify against Tony during the trial presumably for reduced sentences.
The first witness would be Shannon Patterson, the victim’s sister. Others would include Amber Wick of MPD, Jimmy Bostick who lived in an apartment above Frank Patterson’s, Avi Mukda who also lived in the apartment, Rachel’s husband Ryan Rasmussen, Rachel herself, Tony’s girlfriend Brittany Calais, Dr. Backting of the Medical Examiner’s office, Ms. White the coroner, and Cinque Turner the confessed gunman.
The theory behind prosecuting Tony is that Tony came to Cinque Turner with a plan to rob Frank Patterson and Cinque went along with it. Tony ran from the scene leaving Cinque holding the bag. Cinque agreed to a plea bargain. The jury was asked not to question Cinque’s motives. Just determine whether the facts support the idea that Tony abetted the murder of Frank Patterson. Those facts would include testimony from the girl friend, Brittany Calais, what Tony was wearing on the night of the murder and her recollection that Tony had admitted to being at the crime scene.
Kevin DeVor, Tony’s attorney, began his opening statement by observing that Cinque Turner took a plea bargain because he was guilty of Patterson’s murder. Rachel and Cinque together put something in the back door to prevent it from locking. DeVor asked the jury to consider their credibility. Cinque had first professed innocence and then admitted to being the gun man after the prosecutor offered him a deal. Rachel, who also took a deal, had also professed her innocence until a video showed her propping open the door. She had first said she didn’t know how they got into the apartment. How credible were Rachel and Cinque?
Keep in mind that most of the witnesses were heroin addicts. Rachel had previously been convicted of lying. Despite extensive testing, there were no finger prints or photographs of Tony linking him to the crime. There also was no DNA evidence to that effect. Other than testimony from persons who had received lighter sentences in exchange for the testimony, there was no evidence that Tony was the “second man” at Patterson’s apartment or was in any way involved in what had happened there.
The prosecution’s first witness was Frank Patterson’s sister Shannon who lived in Brooklyn Center. She said she was close to her brother but was unaware he had been dealing drugs. Frank would help with the children, help her move, and host barbecue grills. She introduced photos of their happy family into evidence. The defense objected but the judge overruled.
The next witness was Frank Patterson’s step-son, Franklin Patterson, who was living with Frank in the apartment at 28th and Cedar. He, Frank, Clarissa, and Vicky were all present in the evening of March 3rd. Vicky and Clarissa were native American women, friends of Frank’s, who slept on an air mattress in the living room. He himself slept in Frank’s bed room. In the early morning of March 4, 2013, he woke up to screams in the living room. He grabbed an air rifle and stepped out to see what was happening. He fired the rifle toward a man standing near the door and then dropped the gun. Frank and another man were fighting on the floor. Franklin Patterson could not identify either intruder. The room was dark. After Frank screamed and fell back onto the air mattress, the last intruder left the room.
Under cross-examination, Franklin admitted that his step-father regularly sold heroin. Rachel Rasmussen was a steady customer; she bought drugs from Frank twice a week. It was common for people to come to Frank for drugs any time of the day or night. He knew Cinque Turner from court appearances but did not know Tony. He himself did not use drugs.
Next came Amber Cegiowick, a police officer at the 3rd precinct overnight shift. A female screamed to call the police followed by shooting. The man on the floor was not conscious; he had no pulse. A shell casing was found in the bathroom or living room. One light was on. Officers tried to identify witnesses in adjoining apartments.
The next witness was Randy Hanson, who worked in the MPD crime laboratory. Evidence was stored in plastic bags. He did a walk through of Frank’s apartment. There was no forced entry. Discharged cartridge casings from the air rifle and two television remotes were found in the apartment. A fired bullet was found in the wall above the radiator. He took finger prints from the unit door but found no usable evidence. Neither were DNA samples recovered. Clarissa Fairbank’s finger prints were found on a television remote. Frank’s blood was found in a bed.
In the late morning I made a cell phone call to a Star Tribune reporter who covered the courts. I had previously asked him about covering this case. He told me to call back to see if he had time to attend. I placed the call at the far end of the hallway away from the court room. Unfortunately, it was also near a bathroom which some jurors frequented. In any event, as I returned to the court room, the judge was talking about me. He said I had been “yakking” again. I explained that I was well away from the court room when I placed the call. The judge told me that I should have gone across the bridge to the administrative wing of the Government Center. However, I had observed jurors over there so I stayed away. In any event, I was given another warning not to talk in front of jurors.
Tony’s mother, Sheila, who attended part of the trial, thought that it was someone in the prosecutor’s entourage who made the complaint against me rather than a juror. I simply don’t know. The prosecution had reason to become nervous about a spectator assiduously taking notes during the trial. Who knows what might happen with this information. Maybe it might even be published on the internet. What the prosecution was doing was not entirely legitimate, in my opinion.
Third day - Wednesday, July 30, 2014
The crime lab manager’s testimony continued from the previous day. Mr. Hanson explained the layout of the apartment. The bullet recovered from the wall showed a downward angle.
The cross-examination also revealed little of significance. The laboratory manager did not know if the bullet was swabbed for DNA. Evidently the victim’s son had struck the suspect with a television remote but the lab didn’t test the remote for fingerprints because DNA testing destroys that evidence. A small amount of marijuana was found. Clarissa Fairbank’s finger prints were on a telephone. There is less than one percent success in getting finger prints from DCC cartridges.
Jimmy Bostrick Bostio, who occupied the apartment above Frank Patterson’s, was the next witness. He heard the door bell ring on the fateful evening. A buzzer lets tenants admit visitors through the front door. There was a knock on the door to apartment #16. Then Bostio heard a voice say: “Get your ass on the ground.” This was followed by a fight. He knew it wasn’t the police but probably some illegal activity. He did not hear gun shots but heard a loud thump and then someone say: “Oh, my God.” Someone went up the steps to the third floor and walked around. Then there were footsteps slowly walking down again. He heard the back door opening and could see a man dressed in black slowly running away toward the 28th street parking lot. The police arrived within five minutes and knocked on every door. Outdoor pictures of the front and back entrances at that time were introduced into evidence.
Ms. Zemko, an African, overheard a conversation. Abi Maktor Abdifatah Mukhtar heard fighting but did not hear gunshots or see anyone in the hallway.
Joseph Huspert was a police officer on the “dog watch” at the 3rd precinct who went to the apartment. He saw the victim lying on the floor. Four to six officers were there and three residents plus the victim. The victim’s son had punched a hole in the wall. A white female buzzed when he was there. Known to be a frequent drug user, she soon disappeared. The victim’s son and two females were greatly upset. The females were crying. He put them in a squad car.
Christopher Z. Lemm, also on the night shift at 3rd precinct, held the door for paramedics to take Frank Patterson’s body to the emergency room at Hennepin County Medical Center. Patterson was pronounced dead on arrival. This was at 5:09 a.m. Lt. Zimmerman of the Homicide unit showed up. They put Patterson’s clothing in four bags and wrote a police report.
Witness Chris Karpesh was employed by Integrated Fire and Security, the firm which provided the security cameras for the apartment building. Aeon was the management company. They asked for tapes from the surveillance cameras. He retread the videos. The clock was off by one hour. He met with Minneapolis police who took the tape on a portable device. They later looked at the disks with prosecutors. His firm keeps digital tapes for two months.
Officer Anabelle Murie testified that Frank Patterson was shot in the back during a possible home invasion. Quandry Franklin was cradling the victim. Clarissa Franklin, a native American woman, gave the name Briana. She didn’t explain why she gave a false name and false dates
In the afternoon of the second day, Cinque Turner appeared in the court room in an orange (jail) jump suit. Witness Alison Murray, with the police crime lab, was a certified video analyst. She isolated still photographs for police investigators Dale and another man. The images included shots of two men entering the building. One had a grey hood ; the other, a white hat and black jacket. There was an image of someone running and an image of the vehicle. Two people were both entering and leaving the building.
[My notes say here that Tony could get 20 years in prison but this could be reduced to 12 years with a plea bargain.]
Witness Gail Molokon worked in the MPD property and evidence room. She inventories the property put into evidence. She found $2,250 in cash. Thirteen baggies in Frank Patterson’s pocket included narcotics.
Amber Folsom does forensic work for the DNA section of the state Bureau of Criminal Apprehension. Blood and saliva are good DNA evidence; skin cells, not so good. Samples included blood from Patterson’s step-son, the cartridge casings, and two remote controls. These were matched against known DNA from Cinque Turner, Anthony Foresta, Frank Patterson, and Quandry Franklin. You couldn’t expect DNA on the bullet from the person who fired the gun if the bullet passed through someone’s body. Neither Tony’s nor Cinque’s DNA was found on any of the items taken from the apartment by police. No blood was found. Clarissa Fairbank’s DNA was found on a remote. DNA evidence found on a jacket excluded 60 percent of the population, but not Tony. But there were also 4 billion other people in this world who were not excluded.
The next witness was the self-confessed gunman, Cinque Turner. Born in Chicago, he now lived in St. Paul. Cinque turned himself in and pled guilty to 2nd degree murder. He was represented by attorney Greg Caterono. In exchange for agreeing to tell everything about what happened on March 4, 2013, Cinque negotiated an agreement by which he could have received up to 150 months (12 to 13 years) in prison and possibly as little as 100 months (8 years).
Cinque said he had known Tony’s girl friend, Brittany Calais, since 6th grade. He knew Rachel Rasmussen through Brittany and Tony. He met Tony in east St. Paul. Brittany picked him up at a friend’s house. He hung out with Brittany and saw Tony. Cinque testified that he never took drugs although Tony did. He wasn’t sure if he ever took Tony to buy drugs. He had seen Tony come down from heroin use. His mother also uses heroin.
In any event, Cinque testified that he went to Rachel’s house and played pool. Tony was there. He spent most of the day at Rachel’s except for a time when he went shopping. In a bathroom conversation, Tony started bugging Rachel about Frank Patterson, Cinque said. How much money did he have? Tony asked if Frank kept drugs in his apartment. Rachel, coming off a narcotics high, was quite jumpy. She was arguing with her husband, Ryan, who was also coming off a narcotics high.
Around 1:20 a.m. Cinque asked Rachel to ride with him to a place near Cedar where she could buy drugs. At the time, he did not know whose place that was, but later learned it was Frank Patterson’s apartment. Cinque stayed in the car while Rachel went inside the building for 12 to 30 minutes. Then they went back to Rachel’s house with the drugs. Rachel and Ryan, her husband, went into the bathroom for 7 minutes, talking about something. Brittany Calais was also there. Then Tony asked him, Cinque, to drive him somewhere. He gave directions. They went to Frank Patterson’s apartment building. Tony told him that Rachel had left the door open. Cinque followed Tony into the building. They placed a rock in the back door. Who went into the building first? Maybe he did.
In the hallway, Tony handed Cinque a semi-automatic pistol. He had never seen that gun before. They went to the second floor. After they got to Patterson’s door, Tony explained to Cinque what was happening. Tony seemed to know where to go. Tony wanted to go straight into Frank Patterson’s apartment to get the money. Tony then put a black mask over his face; Cinque remained unmasked. He wore all black. At the door, they said something about a leak from upstairs. A female greeted them. Frank opened the door and they pushed their way in. With a weapon in hand, Tony shouted “Everyone on his knees”. Cinque saw two females in the living room and another female in the bathroom. Anthony walked past them and then went down the hallway. Things then sped up.
Cinque saw a young man holding an air rifle. He rushed by Frank. Tony had gone back into the hallway. The son jumped on him. Cinque was trying to keep his weapon. It was two against one. Father and son stood in front of him. Frank grabbed him by the neck. Cinque said ”Let me go.” Cinque counted to five and then everything went blank. He fired one round at Frank. Frank released him. Then Cinque bolted from the room, carrying the gun under his left arm. This was intentionally done although he did not mean for Frank to die. He was just trying to get away. Frank Patterson, in pain, made a loud scream.
Cinque then went out the back door and headed straight for the car. He felt like throwing up. What he had done went against his values. Cinque said he is not a violent person. He’s sincerely sorry.
The prosecutor now showed a video. Cinque testified he was the man on the left, not on the right. He had told the prosecutor he was the guy on the right, the one with the white hat. He was still trying to remember which one he was. Was he near the two bushes? It was a leading question but the judge allowed it. Cinque didn’t know which one of the men he was. Tony, however, was the other.
A still shot taken at 5:34 a.m. or 4:28 a.m. real time shows Cinque running down the alley behind the building. Cinque said it was Tony’s idea to rob Frank Patterson. He couldn’t remember Tony saying “rob” Patterson but simply get the money. Tony needed money to go to the Casino. Whose money did he have? He used Brittany’s money from her student loan. Cinque admits that he shot Frank Patterson. He got the gun from Tony. He later tossed the gun into the Mississippi river. Cinque did not go back to Rachel’s that night.
In cross-examination, attorney DeVor asked Cinque Turner about his statement that he did not know why he was at the apartment until the last moment. Remember what he said when he pled guilty. He had told Ms. White, the prosecutor, that he knew the whole plan when he went to Patterson’s apartment. He was eager to say something at the time. This, then, was one lie. The statement to the prosecutor was made on May 16, 2014.
How long had he been in custody? Cinque said he didn’t know. Maybe nine or ten months. He had met with Ms. White perhaps twenty times. Also, he had driven to Frank Patterson’s apartment with Rachel Rasmussen knowing that she would buy drugs. Cinque didn’t remember Rachel saying something about propping open the door. She was “Jonesing” - coming off a narcotics high and was upset about being ripped off by Frank Patterson after she got back into the car.
Rachel had bought heroin. How long had he known her? They first met on March 3, 2013, the day before Frank’s killing. He knew Ryan. No, Cinque did not know the names of Rachel’s children. The prosecution objected when the defense attorney asked if any of those children did drugs. The jury went out of the room when Rachel’s children were being discussed, especially in regard to their mother’s drug use. The jury was later instructed to disregard Cinque’s statement.
In summary, Cinque Turner stated that the plan to rob Patterson was hatched in the hallway. Cinque had yelled at people in the apartment to get on the ground to avoid getting hurt. No lights were on in the living room. How did they know Cinque had a pistol if it was dark? No answer was given. Cinque said he was aiming the gun at Frank below the legs. He waited a minute before going into the apartment.
Cinque was arrested in August 2013 and was charged with 2nd degree murder. He did a plea deal with the prosecution. He would serve 150 months in prison and have all other charges dismissed. If he cooperates with the state and testifies against Tony, four and a half years will be removed from his sentence
Reduct by the prosecution tried to establish that Cinque didn’t know if Frank or Franklin had guns. Why didn’t he leave when Tony gave him the gun? Cinque said he was afraid Tony would shoot him if he gave the gun back. Remember that Cinque turned himself in. He pled guilty to the more serious charge of 2nd degree murder with the understanding that the robbery charge would be dismissed. That being the case, he would receive a sentence of 100 months rather than 150 months.
At the end of the day, Judge Koch wanted to make it clear that the jury had not watched the hour-long video but only a few clips. Trial would resume at 9 a.m. the following day.
Fourth day - Thursday, July 31, 2014
I arrived at court at 9:05 a.m., five minutes late. However, it was not until 9:40 a.m. that the trial resumed. The delay was caused by the prosecution. My notes say that “the defendant was prejudiced against the opposing party. Also, they can’t send someone to talk with “Griffin” who is represented by an attorney. Ms. White, the prosecutor, talked with a female on the witness stand.
The next witness was Rachel (Smith) Rasmussen. She was not dressed in an orange jump suit as Cinque Turner had been but in a grey blouse. She was a petite woman who wore glasses. Rachel testified that she lived in Coon Rapids, was 38 years old, and was married to Ryan. In 1999, she had made a false statement to police. She was currently in jail facing a 2nd degree murder charge. Represented by attorney Gretchen Hoffman, who had negotiated a reduction in sentence from 150 months to 100 months in prison if she gave truthful testimony to use against Anthony Foresta.
Rachel testified that she knew Tony. She pointed him out in the court room. Two years before, she had met Tony at a friend’s house. Ryan was also friends with Tony. They also knew Brittany and “Shay” (Cheyenne, Tony’s new native American girl friend). Tony had introduced her to Cinque Turner. They met once, on March 3, 2013. Frank Patterson regularly sold drugs to her. But their relationship was also based on friendship. They sometimes talked all night long about personal things. A son was living with Frank. She didn’t remember the friend’s name. Frank didn’t want the son to use drugs.
She herself used heroin on a regular basis. Ryan did, too. However, he hadn’t used drugs lately. Ryan, her husband, went into treatment on March 21, 2013. He had already planned to do this. She, Rachel, didn’t want him gone. She had sold a house earlier and was renting a place on 3/3/13.
Did Tony talk about taking things from drug dealers? Rachel gave no details. No methods were discussed. Did he tell her how he took things from drug dealers? “He robbed them” was the answer. Her husband and children were at home with her. Both parents used heroin.
Rachel hadn’t gone to Frank’s earlier in the day on March 3rd. Brittany and Tony arrived at her house. Cinque Turner arrived later. “Q” was the nickname that Tony gave to him. Anyhow, she was in the kitchen and Ryan was watching television. Tony often dropped by. Ryan was in the bedroom.
Around 1:40 a.m., she went to Frank’s apartment with Q to buy heroin. She rang the buzzer and Frank let her in. They talked for ten to fifteen minutes. Vicky, Clarissa, and one other woman were there. After leaving Frank, she left the building from the front door after leaving the back door unlocked. She stuck a penny in the door to keep it unlocked.
Back at home, she talked with Tony about Frank - things he kept in the apartment. Tony asked about heroin and money. She told what she knew. Frank wasn’t open about where he kept the drugs and money. She used the heroin and then went into the kitchen to talk with Tony about going back to Frank’s to rob him. Q asked about the back door being open. She had told Tony that the door was open. Q and Tony then talked about going back to Frank’s to rob him. Tony and Q then left after the kitchen conversation. She went into the living room and bedroom. Rachel testified that she had seen Tony with a gun several times. It was a 9 millimeter gun. Tony had it when he left her house. She never saw that gun again.
Some time later Rachel took a phone call from her friend, Michelle, who asked if she knew what had happened to Frank. She was shocked by Frank’s death. Ryan was lying next to her in bed. She then woke up “Sixpack” (a street name for Tony). She called him “Six”. Tony asked Rachel if she was sure that Frank was dead. News about Frank’s death was appearing on television. She never saw Q again.
Tony said things had gone bad when they were at Frank’s apartment. Tony said they went in and Frank fought them. The son appeared with an air rifle. Frank fought with Q and Q shot him. Was that what she told Lt. Gaithers? No, she didn’t tell everything to the police because she did not want to get Tony in trouble and she also did not want to become involved herself.
The prosecution then showed Rachel several photographs to identify. She was asked to identify Clarissa, Vicky, Tony (with a red hat), and Q. The man in black she identified as Sixpack (Tony). Rachel was asked to look at the surveillance videos. She identified herself in one. There was also Q’s car. A video shows her putting a penny in the back door. Another shows her leaving the apartment by the front door.
During cross-examination, the defense attorney, Mr. DeVor, noted that Rachel was now talking with the police when she had not been truthful before. She did mention Tony and Q in a police interview. She seemed to have a hard time remembering anything then, but today she had perfect recall.
She went to Frank’s every other day to buy heroin but had a hard time remembering these events. In the first interview with police, she did not remembering propping open the back door. On June 20, 2013, she also told police that she did not buy drugs. Rachel said that she and Frank just talked. She did not remember telling police that she did not buy drugs from Frank because Frank did not have them. Yesterday, however, she met with police investigators and did a plea bargain. Suddenly her memory was restored. Mr. De Vor asked if she had ever discussed with Frank why he sold drugs. The prosecution objected to the question on the basis of hearsay.
The judge also talked with Tony’s attorney about him testifying. Ms. White, the prosecutor, said they would not get to “Watley” today. He was the “plea bargain guy” sitting in jail. Ms. White herself had a sprained ankle.
Back with the cross-examination, attorney DeVor asked Rachel if she blamed her husband for going to treatment? He was throwing her out on the street. Rachel said it was a planned deal. Although she had not previously admitted propping open the back door, she now admitted it. She had planning to get back in around 8 a.m. Now she didn’t remember. She was going to deliver crack cocaine to Frank. Now she had no idea that Frank would be robbed. She would routinely call Frank, buzz, and be let in.
Where did she get crack? It was from a friend. She had made a phone call at Frank’s saying she would be back with crack. The crack arrived later in the day on March 4th but after Michelle’s phone call she didn’t need it. On June 20, 2013, she had said she did not know how the two men got into the building. She didn’t recall. De Vor showed her the transcript of the interview. She said she was high on drugs during the police interview. But the door was unlocked. She didn’t reveal that fact until she did the plea bargain.
Tony and Brittany arrived at Rachel’s home in the afternoon. Rachel and Ryan had been taking heroin at their home that day. Drug use may affect the ability to remember. Rachel said Tony had told her she was involved in the crime. Brittany wasn’t there. It was just a conversation between the two of them although Rachel said she later told Ryan. She didn’t tell the police about the conversation she had with Tony alone. She didn’t recall a conversation between herself, Ryan, Brittany, and Tony. His mother took Ryan to treatment.
Ms. White said Rachel was high on drugs during the police interview on June 20, 2013. Did Tony tell Rachel he shot Frank and did Rachel tell the police? Yes, she did. She told them about the struggle, the fight with Frank, and the gun being fired. Even if her memory was faulty on other occasions, she did remember this because the events on March 4th changed her life. She called Frank on her cell phone when Michelle called to tell of Frank’s death.
The robbery had been planned for a week. Rachel had previously propped open the back door so she could bring drugs to Frank. Rachel gave a dishonest account to the police because she was afraid of jail. In the second interview with police, she told them of propping open the door only after the police showed her a video of it. Several months later she told police that Tony had never said he never did the murder. Rachel doesn’t recall making that statement but it is in the transcript. Now she says Tony confessed to her.
The next witness was Rachel’s husband, Ryan Rasmussen. He was a 36-year-old white man who works as a short-order cook. Life was different then when he was a heroin and crack addict. He has now been sober for 14 months. After doing drugs every day, he decided to quit. He was always chasing dope but is now too old for that. He took in-patient treatment at Unity hospital. At first the test didn’t show what he claimed. The medical people thought he was just homeless and hungry. But a new doctor told him to try again. When he told Rachel about this, she thought he was abandoning her. That was not his intent. Rachel wasn’t willing to go to treatment. They were then living at a friend’s house on Park Avenue. Ryan checked into detox on March 4, 2013.
Ryan knew Frank Patterson because he and Rachel had bought heroin from him. Rachel would buy the drugs while he sat in the car. He also knew Tony - “Six”. He had known Tony for about a year. Living on Park Avenue, he became depressed. He and Rachel weren’t getting along. He was mostly in bed. Ryan saw Tony on March 4th at the home on Park. Rachel was shocked by the television report of Frank’s death. Ryan called Rachel when he was in treatment. Rachel was then homeless. She was frantic, believing that Ryan had abandoned her. He had had two police interviews, recognizing a photograph of Tony but not of other people.
Tony was a friend. Tony owned a gun and once showed it to him - perhaps in February, 2013. However, depression and drugs have affected his memory. He believes it was a silver gun and wasn’t a revolver. Disregard the statement that it was a semi-automatic hand gun. He told the police it was a 9 millimeter hand gun. Tony wanted something smaller and more concealable. Did Tony talk of robbery? Yes, once. He robbed a drug dealer. This was a different incident, not Frank’s.
Ryan’s cross-examination revealed that he had been interrogated three times by the police. He didn’t remember talking with Tony and Rachel about the murder but only learned about this five days later. Tony and Brittany came over. There was no conversation about Tony being involved in Frank’s murder. Tony supported his treatment. Ryan did not recall Rachel going over to Frank’s house. He had never met Cinque Turner - “not that I recall”. Rachel often went to Frank’s house. Both used drugs daily. Rachel never went through treatment. They are still legally married.
Re-cross established that the police had tracked Ryan down. “Griffin” will be a defense witness. His attorney is here. Kevin DeVor cites court cases allowing such testimony. The trial reconvenes at 1:30 p.m.
In the afternoon session, attorney DeVor mentions that Griffin has a prior felony. He was with Cinque Turner in jail. The state can’t bring up his conviction. However, Griffin’s attorney advises him not to testify. He won’t allow the state to question his client. DeVor pleads with the court to allow Griffin to testify since he can refute Rachel’s testimony. Griffin said Q said that Tony had nothing to do with the murder. Ms. White objects on the grounds that this testimony would be hearsay and the judge agrees.
Tony and Griffin shared a cell for five days in May 2014. Griffin had earlier been housed with Cinque Turner. Based on conversations with Cinque, Griffin said that Rachel had set this up. She and Cinque would share the proceeds. They also had sex. Tony had spread the word around about Q’s testimony. Judge Koch could order Griffin to come to court. But attorney Nolan would then advise them to assert his 5th amendment rights. The judge said he would not order Griffin to testify because they already had Rachel’s testimony. No immunity from prosecution would be offered Griffin.
The next witness was Tony’s girlfriend, Brittany Calais. She testified that she was the mother of Tony’s two children. She also knew Cinque Turner - went to school with him in the 6th grade. Q knows Tony through her. They met in the spring of 2012. She met Tony at his house in St. Paul. They later moved to Glenwood Avenue in Minneapolis. Brittany moved out of this apartment to her mother’s house in November 2012 after Tony didn’t show up for her birthday. She started seeing Tony again in January 2013 and moved back to 1708 Glenwood Avenue in March 2013. Did she stay at 1708 Glenwood Avenue between January and March 2013? No, she did not because Tony’s new girl friend was living there. She saw Tony at other places such as Rachel’s. Brittany identified photographs of Tony, Cinque, Ryan, and Rachel.
Brittany saw Tony on March 3, 2013, at Rachel’s house. Tony and Cinque were there when she arrived around 10 p.m. The adults were doing heroin. She was in the basement. She, too, did drugs but not in front of them. She did heroin with Tony in the bedroom. After the drugs, they had sex and then went to bed.
She had to get up early in the morning of March 4th to go to Century College and get the children ready. Tony went to a gas station to buy cigarettes. She saw Tony at 4 p.m. Tony was sitting in bed, using a phone. He was trying to call Cinque. Tony said that Cinque had gotten into trouble and he couldn’t find him. Was Cinque in the house when she went to bed? Yes. Tony seemed worried while in bed.
Brittany saw Cinque Turner a week later. They met outside Tony’s sister’s house. He couldn’t talk on the phone. Cinque had done something bad and was scared. Tony said he had shot somebody. (There was a discussion of Rules of Evidence 801.d(6) in court. The judge will allow this questioning.) Brittany was talking with Cinque outside Tony’s sister’s house. He wasn’t specific. But he had done a drug deal, gone in, and had shot someone. He said Tony was with him but didn’t tell her that Tony had anything to do with the murder. She doesn’t recall what Tony said in reaction.
What did she tell the police officers? She said that Tony had nothing to do with it but he ran. Tony didn’t say he was with Q. Brittany told the officer that both Tony and Q ran. She doesn’t recall Tony telling her that. What were Tony and Q wearing? Q was wearing tan boots - tan Bakan boots. She doesn’t remember the color of Q’s jacket. Tony was wearing a jogging seat suit and zipped sweat shirt. She doesn’t remember what color it was. Tony didn’t have a car; she did. Tony went with Cinque.
During cross-examination, attorney DeVor mentioned that when the police raided the apartment at 1708 Glenwood Avenue, she was sitting at a table using heroin. She was very high on heroin during the interview. Did the police make a statement on August 5, 2013, with respect to taking her kids? (I think so.)
On March 3, 2013, Brittany had gone to bed. She woke up at 4 a.m., smoked, and got the kids at 6 a.m. She didn’t return to the Rasmussen’s house until late that day. She said Rachel was not a friend but someone she knew. She arrived at Rachel’s house at 10 pm. Rachel, Ryan, a daughter, Tony, and Cinque were there. Tony never said anything about his involvement in this case. He never said he was involved.
In re-cross, the prosecution said to Brittany: You told the police what Tony had told her, whether he was with Q. Brittany said she was confused. Cinque had told her that they had gotten into an altercation and had run. Tony told her that he had nothing to do with it. She told police he ran before anything happened. She was high on heroin when she made the statements to police when they raided apartment #9 at 1708 Glenwood Avenue. They were searching for a gun.
Brittany looked sad on the witness stand. She was there when the police did a second search warrant. It was during this raid that they talked about the kids. She had previously made an appointment to talk with the police but they said they had everything they wanted from her. The police denied her request to give additional testimony.
The next witness was a black man with glasses named Rolley Watkins who was wearing an orange prison jump suit. He had been convicted of something on March 10, 2013. Watkins aid he had known Tony since 2009. Did he see Tony in August 2013? (Yes)
Around October 2013, he asked to talk with the Minneapolis police, saying that he had information about Tony which might be useful for this case. No, the officers did not make any offers. When the police talked with him in May 2014, he asked for a sentence reduction of 48 months. The prosecution said he couldn’t offer any sentence reduction but had tried. He got an attorney to talk with the prosecution. The prosecutor offered to knock 12 months off the sentence if Watkins would testify against Tony. Despite many convictions, he had some useful information.
February 25th was his birthday. About a week later in 2013 he was staying in Tony’s apartment on Glenwood Avenue, both he and a girl friend. Late in the evening, he was sitting in the living room and called back to the bedroom. He woke James, Shay, Shay’s mother, and Angel, a relative of Shay’s.
Tony called back to the bedroom saying he had a “lick”, which means a robbery opportunity. He would steal 100 perkasets. This lick was easy. Tony proposed to give Watkins a gun, offering him 20 perkasets for the job. Watkins wanted Tony to do this himself. He told Tony: “I’m not into this.” He was looking for a polite way out. Tony, however, became angry, saying that he was always doing things for other people but others did not help him. That was an unfair deal.
Watkins left the bedroom, went back to the living room, and talked with his girl friend. Anthony was dressed in black and had a gun. He asked for a ride so he could do the job himself. It was a 9 millimeter gun, dull grey. His girl friend had a car but wouldn’t give Tony a ride. Tony became angry, saying that she could not come over to his apartment again. They both left. He and the girl friend talked near the car for about an hour. Angel and Tony then walked away and drove off in Angel’s car. He went to the girl friend’s mom’s house. The girl friend then dropped him off at Tony’s apartment. Tony told him - you missed out. He had hit the lick. He had to whack buddy. Watkins didn’t respond. He told Tony he wasn’t into robberies but was soon afterwards. Watkins said he was close to Tony and used to drive him around. He also knew Brittany and Rachel.
During cross-examination, it was established that Watkins was convicted of theft in 1998. He escaped from justice and gave false information to police. In 2010, he fled police. He received a sentence of 48 months in 2013 for robberies. However, the jury was instructed to disregard testimony about Watkins’ criminal record. The attorney asked no questions about the offer made in my apartment (1708 Glenwood).
The final witness for the day was Sgt. Robert Dale of the Minneapolis police. Lt. Richard Zimmerman had called him around 5 a.m. He went over to the apartment at 2813 Cedar and saw Frank Patterson’s dead body. He gathered Frank’s belongings and made some observations of the apartment. The police interviewed Vicky Littlethunder who later gave a false name at city hall.
Fifth day - Friday, August 1, 2014
As the last day of the trial began, I had to deal with yet another personal complaint. Three jurors complained that I had stared at them in the hall as they were about to take the elevator down to the ground floor after Thursday’s session. They admitted that I had not spoken any words but my presence in the lobby made them feel “uncomfortable”.
I did recall the incident. Yes, I might have looked angry or troubled as I stood waiting for the elevator, but it had nothing to do with jurors. I was upset about the last witness’s testimony and the fact that the prosecution had found a jailhouse witness looking for a reduced sentence who would say something damaging about Tony. Tony’s own jailhouse witness the judge would not give protected testimony. Evidently some jurors took my body language personally. A female sheriff’s deputy escorted them on the elevator to the ground floor as I stood back waiting for the next elevator to arrive.
Judge Koch again criticized me, saying that he could bar me from the courtroom if this kind of behavior continued. However, I worked out my own “plea bargain” with the judge. I would stay in the court room when jurors might be walking in the hallway during breaks. I would not use the elevators on the court side of the government center but instead walk across the bridge to the administrative side and use the bank of elevators there. I also made every effort to avoid being in the same space with jurors whether it be hallways or bathrooms. Believe me, I had no desire to have any contact with them whatsoever.
The trial resumed with testimony from Sgt. Dale that Ryan Rasmussen could not identify Cinque Turner in a lineup. Ryan said he had never met Cinque. Frank Patterson’s cell phone had a list of contacts, but it yielded nothing of significance for this case. There was no DNA evidence that would help prove or disprove Tony’s involvement in the murder. However, the police found a black coat in a closet in Tony’s apartment at 1708 Glenwood Avenue which the prosecution later used to try to prove that Tony was the second intruder. There was discussion that placing a pillow around a gun might muffle its sound. Tony had been the object of a “PC pickup” which means that the police arrested him with probable cause that he had been involved in a crime. Brittany was with him at that time. Cinque had turned himself in voluntarily.
Brittany and Tony had lived together for a time in Tony’s apartment at 1708 Glenwood Avenue. Brittany was interviewed by police on August 5, 2013. A warrant was issued to search the apartment again on that date but it had nothing to do with this case. Brittany’s demeanor showed that she was upset by the search warrant. Brittany had talked with Q inside a car, but their conversation was considered hearsay. Q had said he was with Tony. While they were in Frank’s apartment, someone shot at them, they fought and then ran. Brittany said Q had a gun when he ran. He ran to a Dodge Stratus vehicle which was never found.
Sgt. Dale drafted the search warrant to raid Tony’s apartment. He described the process of getting a judge to sign the warrant. The police found mail, confirming that Tony lived there, and some articles of clothing that he might have worn on March 4th, including a black jacket taken from the hallway closet. Several of these articles were now shown in court and were introduced into evidence.
Rachel and Ryan came to the homicide department at police headquarters on August 21, 2013, Ryan said he had observed Tony with a Luger 9 millimeter hand gun. They looked at surveillance video taken at Frank’s apartment building, asking who the various people were. The person in the video with long hair was herself, Rachel. She also appeared at the front door. The person with her was Q. A video clip showed the two suspects at the rear door. Rachel identified them as Cinque and Tony. Ms. White said that Watkins was another potential witness against Tony.
The surveillance video also showed two suspects arriving at the back door of the apartment at 5:17 a.m. camera time but 4:11 a.m. actual time. One has a grey coat and the other a black coat with a white hat. At 5:33 a.m. camera time but 4:27 a.m. actual time the man with the black coat runs out the front door and crosses the street. Then, at 5:37 a.m. camera time but 4:41 a.m. actual time the second suspect runs out of the building. He is wearing a black coat but no white hat.
It may have been at this point in the trial that the prosecution showed the jury (and me) videos taken with the surveillance cameras at Frank’s apartment building. The pictures were a bit fuzzy. Two men dressed in dark hooded clothing are seen entering and leaving the building. It is hard to distinguish their faces. The jackets are similar. The prosecution then exhibited the black jacket taken from Tony’s apartment suggesting that it is the same one as that shown in the video. I was not convinced. The jackets were both dark but they did not seem the same to me. But that was the argument that the prosecution made to tie Tony to the murder scene. In fact, it was the only evidence other than testimony from other defendants.
During cross-examination, the defense attorney asked Sgt. Dale if he had interviewed any of the women who were present at the shooting. Did Vicky Littlethunder identify Tony about whether he had been in Frank’s apartment. The answer was “no”. Sgt. Dale didn’t believe that Brittany was under the influence of drugs. Brittany wasn’t arrested.(But why wasn’t eyewitness Vicky Littlethunder questioned? And what about Clarissa, another eye-witness to the shooting?)
Rachel didn’t mention propping the back door open until she was shown the video. Sgt. Dale thought Rachel was informed of Frank Patterson’s death at noon. He was not aware of voice recognition software with Frank’s son. He and Sgt. Gaithers also interviewed Rolley Watkins. An attorney did not need to be present at this interview because the testimony was given voluntarily.
The next witness was Dr. Enid Boecing, an assistant examiner at the Medical Examiner’s office. He performs autopsies to determine the cause of violent deaths. There are several types of homicide: injury, toxins, disease, etc. Frank Patterson was 48 years old. He died from a gunshot wound in the abdomen. Homicide photos were introduced as exhibits 85-91.
Frank had an entrance wound in the lower back. The muzzle of a gun had been pressed against Frank’s skin so it was quite close range. He also located the exit wound which was more lacerated or torn. The bullet might have passed through Frank’s aorta or hit the spinal column. Its trajectory was downward and slightly to the right. Injury to Frank’s aorta might have caused his swift death; four liters of blood were found in his abdomen. A toxicology report showed the presence of cocaine and morphine but no trace of alcohol. Chemicals did not cause Frank’s death.
Although there was cross-examination of the assistant medical examiner, nothing significant emerged. There was a question about the concentric circle indicating an entrance wound and abrasion that might have been caused by the muzzle. But it was clear that Frank had died from a gunshot wound.
The court was adjourned at 12:08 p.m. The jury was to return at 2 p.m. After lunch it was announced that Tony would not testify in his own defense. Why not? I later was told that if Tony testified, that might allow the prosecution to show that Tony had previously been convicted of second-degree murder, the same charge as being considered here. Attorney DeVor did not want to prejudice the jury. I could not argue with that.
Actually, the jury returned at 2:50 p.m. The state rested its case. The defense also rested. Now it was time for the jury to receive its instructions from the judge.
Instructions from the judge
Defendant Foresta was charged with aiding and abetting a murder. Although he had not pulled the trigger, he was as guilty as the gunman for having materially contributed to the murder, either by planning it or actively assisting the gunman. The jury was charged with determining facts after considering all the evidence presented at trial. There was a presumption of innocence until proven guilty beyond a reasonable doubt, either by direct or circumstantial evidence.
Juries are asked to decide if a witness is credible based on the witness’s interest in the case, relationship to the parties, manner, age and experience, reasonableness, and weight of evidence. The jury may consider the fact that a witness has been convicted of a crime. It may consider Foresta’s involvement in a robbery to show consistency with this case but it may not use this to judge his character. Tony had a right not to testify. No inferences should be drawn from that decision.
Rachel’s and Cinque’s testimony needs to be corroborated by other evidence; it cannot stand on its own. Testimony of one accomplice doesn’t support the testimony of another. Tony is being charged with several offenses. Consider each separately. The jury can use notes as an aide to memory, but they should not be a substitute for memory. Foresta’s presence at the crime scene would be aiding and abetting if he aided in the commission of a crime. He would be guilty of second-degree murder if he killed someone without intent to kill or if he acted with the purpose of causing death. There needs to be the intent to commit a crime and a substantial step taken toward committing the act. If Tony took money and drugs and used force in accomplishing this, he might be guilty of first degree aggravated robbery. Cinque was armed with a dangerous weapon.
Ms. White, the prosecutor, first remarked that Frank Patterson was not on trial. His character should not be judged. Pointing to Tony, she said, in effect, “this man is responsible for Frank Patterson’s death.” The evidence presented at trial corroborates Rachel Rasmussen’s and Cinque Turner’s stories.
Rachel and Ryan Rasmussen were at home. A new guy, Cinque Turner, was introduced to Rachel. Ryan checked himself in for treatment for heroin but Rachel was not ready to do this. She felt scared and abandoned. Her sense of desperation led to betraying Frank. Four people were at Rachel’s house. Cinque led Rachel to Frank’s apartment where she bought drugs. She then put a penny in the back door lock and returned to Cinque’s car. Rachel and Ryan used the drugs. Cinque and Rachel talked about propping the door open. A plan was then developed to let another person enter the building through this door. Tony asked what Frank kept in his apartment. Rachel, Cinque, and Tony were all present at this conversation.
Tony and Cinque walked into Frank’s apartment building. Tony put a mask on. He pulled out his 9 millimeter gun and gave it to Cinque. They gained entrance to Frank’s unit by telling a story about a water leak and then pushed in the door. Cinque Turner was met by Frank’s step-son who had an air rifle. Tony ran, leaving Cinque by himself in the apartment. Frank wrestled Cinque. Tony should have pulled Cinque away from the scene at this point. On the other hand, Cinque was afraid that Tony would shoot him if he returned the gun. Cinque stuck the gun in Frank’s back and fired. Cinque admits to being the shooter. You don’t shoot someone to injure but to kill.
Frank Patterson screamed. Cinque ran out the back door and thought he would throw up. The police arrived. At 5:09 Frank was dead. Rachel was shocked when she got a phone call about Frank’s death. Rachel talks with Tony. There are two stories. In the second one, Cinque runs saying he shot Frank. He later talks with Brittany and said Tony ran and he shot. Tony was involved in planning the robbery. His black jacket is crucial evidence. Look at the video of the first suspect going into the building and the collar of his jacket. Experts have explained why Tony’s DNA was not on the bullet.
Two persons are in the video. Rachel said Tony was in the video. Witnesses saw Tony dressed in black. Cinque is wearing boots; Tony, black tennis shoes. Cinque drove Rachel to get drugs. She left contact information on her phone. Tony had sex with Brittany before leaving. At 4:27 a.m. the first suspect ran out the front door and told Brittany about it. At 4:28 a.m. the second suspect ran out the back door.
Juries can judge witness credibility. Rolley Watkins volunteered his information without a plea bargain. His testimony was consistent with that of others. Rolley did not know the other people. However, he had watched Tony dressed in black go off on a robbery where he had to shoot the guy. Brittany has an interest in this case, being the mother of Tony’s two children. She couldn’t remember telling investigators of Tony’s confession.
Rachel Rasmussen is remorseful and sincere. She cried when she learned of Frank’s death. Why would she throw a close friend, Tony, under the bus if he hadn’t done it. She had seen Tony with a gun but never saw the gun again. Cinque threw it into the Mississippi river. Ryan doesn’t know Cinque. Cinque himself is remoseful He can’t sleep. If he admitted to being the shooter, why would he lie about a second person? [Reporter’s comment: Plea bargain perhaps?] Ryan wasn’t involved in this at all. He saw Tony with a gun a short time before the murder.
Tony Foresta is charged with three crimes. He is aiding and abetting a murder. Tony provided the gun, made up the story, and did not try to prevent the murder. He is guilty of another crime if it was committed in the course of committing a crime and the consequences are reasonably foreseeable.
There are two kinds of second degree murder: (1) intentional murder and (2) felony murder - if you kill someone in the course of committing another crime. Did Cinque intend to kill Frank? The murder does not have to be premeditated. During the five seconds, Cinque was thinking about killing someone. He had to intend to kill. So it is second-degree felony murder. We have: (1) Frank’s death, (2) Tony or someone he aided and abetted caused the death, (3) Tony or Cinque was intending to commit second-degree robbery (but not intending to commit murder).
Cinque and Rachel admitted that they intended to commit first-degree robbery in robbing Frank. You need to take a substantial step toward committing a crime. That element is met if force is used or the threat of force. Cinque was armed with a dangerous weapon, a gun He made a substantial step in going to Frank’s apartment, knocking on the door, etc.
Now, attorney DeVor will try to pick apart Rachel’s and Cinque’s testimony, saying that the witnesses conspired. But Rachel and Cinque didn’t know each other. Independent testimony corroborates the same story. So the state has proved its case in all three charges.
Ms. White’s statement was done. It was 4:25 p.m. on Friday. Attorney DeVor requested that his closing statement be delayed until Monday. He said: “I’ve never done this before.” The judge granted his request.
Monday morning, Kevin DeVor began the defense’s closing statement. He questioned the credibility of the witnesses against Tony. Most of them got deals from the prosecution. Cinque Turner admitted lying to the police. He said: “I’ll do anything to get a deal.” He said he knew nothing about the plan to rob Frank until standing at Frank’s apartment door. This doesn’t make sense. You can’t trust Cinque.
Rachel Rasmussen said nothing to the police about propping open the door until confronted with a video. She slept through 8 a.m. when she was She going to deliver drugs. You can’t trust Rachel. She claimed to be “high”. But Michelle’s phone call came in at noon and Sgt. Dale testified that she did not seem to be high. Witness Rollie Watkins waited seven months to tell his story. Brittany Calais testified that Tony had never admitted guilt to her. You can’t trust the state’s witnesses.
Where was Tony that morning? There was no mention of his leaving. Rachel said Tony was there all day. Brittany and Tony went to bed at midnight. Rollie Watkins was talking about another incident. Rachel told Tony about Frank’s death.
Who planned the robbery? Cinque said he didn’t know anything about it but Rachel said all three knew. The black jacket evidence is a red herring. The jacket taken from Tony’s apartment was loose fitting. There was no DNA from Tony on the bullet. They couldn’t find the gun. Was there even a gun or was it connected to Tony?
There was a white car with its lights on in the first surveillance video when Rachel went to Frank’s. Who was in that car? The burden of proof is on the prosecution. Witnesses say they saw Tony with a 9 millimeter gun. Together they would be credible; separately, maybe not. Why are they lying? Brittany said Tony was on the phone trying to reach Cinque. Robert Jones, Ryan’s roommate, actually called the police.
I arrived at 9:15 a.m.,and DeVor was finished by 9:35 a.m. Now it was time for the jury to deliberate. The judge told them that they needed first to select a foreperson who would take notes and a deputy foreperson. They should look at all the exhibits except for the videotapes. The verdict needs to be unanimous. When they reach a verdict on all three charges, they should come back to courtroom to announce it. Only 12 of the 13 jurors deliberate. The alternate, the bald man, won’t be deliberating. It was 10 a.m. when the judge sent the jurors into the room for deliberation.
The Verdict and Sentencing
The jury found Tony innocent of 2nd degree murder with intent, not premeditated, but found him guilty of the lesser charges: 2nd degree murder without intent, while committing a felony, and 1st degree aggravated robbery.
On September 22, 2014, Judge William H. Koch sentenced Tony to 225 months (19 years) in prison. The prosecution had asked for an upward departure to 270 months. Tony’s attorney asked for a sentence of 190 months. But the judge stuck to the standard sentence. Tony will have to serve at least two thirds of the sentence before he becomes eligible for parole. He also has to pay $7,500 to a victim’s restitution fund and pay for Frank Patterson’s burial expenses.
The sentencing took place around 9:30 a.m. Four people wanted to make victim’s statements. The judge allowed two: Frank Patterson’s daughter and another woman. Attorney DeVor asked if Tony should be given 5 points for prior felonies because the time limits on some had expired. If given 3 points, he might receive a lighter sentence. Also a trespassing charged had not been dismissed. The less serious charge was also dismissed but Tony could raise the issue again if he appeals.
Tony then made a statement expressing sympathy for the victim and his family. He continued to profess innocence and said he would appeal. Probably the appeal would be handled by a public defender. There would be instructions on how to do this with the judge’s order.
Judge Koch instructed spectators not to try to communicate with Tony. Even winking was not allowed. I did not try to talk with Kevin DeVor. Tony’s nephews, Jermaine and Jemoun, were siting next to me in court.
Quite frankly, justice was not served in this case. As a legal amateur, I make the following observations.
Judge William H. Koch was at fault on several counts:
1. This judge did not grant Tony a “speedy trial” as guaranteed by both the U.S. and Minnesota constitutions. Tony was arrested in July 2013 and the case did not come to trial until a year later A speedy trial normally means within three months. Judge Koch kept granting postponements to the prosecutor so they could perfect their case.
2. Second, the judge kicked a young man off the jury who had an arrest warrant for a relatively minor offense, altering the composition of the jury to Tony’s disadvantage.To see that justice was served in Tony’s murder trial was much more important than satisfying a warrant.
3. The judge showed evident disregard of the accused’s rights when he would not grant immunity from prosecution to a jailhouse witness, named Griffin whose attorney would not let him otherwise testify. Mr. DeVor had said this witness could refute Rachel Rasmussen’s testimony. The judge thereby allowed that testimony to stand unchallenged. However, the judge did allow another jailhouse witness for the prosecution to testify. Was this justice?
4. There was also the brouhaha about me “yakking” to jurors. I talked on the cellphone in the hallway outside the court room, trying to stay away from jurors. The judge publicly identified me as Tony’s step-father. I think his statements might have been made in the presence of jurors. If they disliked me (which they probably did), that identification with Tony might have reflected adversely on him and his case in the jurors’ deliberations.
I also fault the prosecution, even more severely:
1. The main reason that this case stinks is that Tony’s conviction was gained mainly by offering plea bargains for reduced sentences to individuals known to have been involved in the murder, especially the shooter Cinque Turner. This is nothing less than witness tampering. If private parties did this, they would go to jail. But it is legal for public prosecutors to do the same to gain convictions. There is no disincentive for plea-bargained witnesses to commit perjury on a grand scale because the same office that prosecutes perjury is the one that has offered a deal for testimony to support their case. Such witnesses can effectively say anything without being prosecuted. Here Tony (who several key witnesses say had nothing to do with the crime) got 19 years in prison as opposed to the shooter’s eight years. And they call this “justice”!
2. Here as in other cases, prosecutors throw several charges at defendants for basically the same offense in hopes that one or more of them will stick. Not only is this practice objectionable in itself, it caters to a mentality which some jurors may have of exonerating the defendant on the most serious charge but finding the defendant guilty of lesser charges if they have doubts about the case. Jurors can ease their own conscience in having given something to both sides. But in this case convicting Tony of “lesser charges” brought a 19-year prison sentence.
3. Prosecutors follow the doctrine that aiding and abetting a crime is as serious as committing the crime itself. This is counterintuitive. It makes little moral sense. In this case, Tony had no control over what Cinque Turner did with the gun once he had it. Even if Tony had planned the robbery (which I doubt), he did not make a decision to pull the trigger and cause Frank Patterson’s death. So why was he charged with second degree murder if he did not murder anyone? If the legislature was responsible for this horrible doctrine, it needs to repeal whatever law incorporates it. If the doctrine is simply a result of prosecutorial or judicial tradition, it reflects upon the legitimacy of the whole operation.
There seems to be no check on unconscionable prosecutions. Prosecutors have a scorecard, win-lose mentality. They try to win at all costs to bolster their prosecutorial credentials. In Minnesota and perhaps elsewhere, it pays to be tough on crime. Many use this office as a stepping stone to higher political office. The current Hennepin County Attorney, Michael Freeman, having been in the office (and prosecuted Tony) once before, was the DFL convention nominee for Governor of Minnesota in 1998 but he lost to Hubert H. Humphrey III in the primary, who, in turn, lost the general election to Jesse Ventura. The previous Hennepin County Attorney, Amy Klobuchar, parlayed her prosecutorial record to a seat in the U.S. Senate. This whole “justice” system seems to be a political game.
As for the Minneapolis police telling Brittany Calais that she had to choose between protecting Tony and keeping her kids - what more can I say?
Tony’s third child was born when he was awaiting trial in jail. Shay (Cheyenne) was the mother. Shay was on drugs when my former wife, Sheila, who is Tony’s mother, visited Shay near the Little Earth project and saw that her grandson was being neglected. Therefore, she took the child away to raise as her (and my) own. We took this little boy, Del, whom we call “Dale”, when he was several weeks old. We have seen him go from being a helpless infant to being a toddler approaching “the terrible twos”. Dale will probably be with us for the entire time that Tony, his father, spends in prison. He will grow up without a father but with two devoted grandparents. This write-up is for Dale.
I visited Anthony Foresta at the Oak Park Heights prison on Sunday, November 8, 2015. He seemed to be in reasonably good spirits, expecting to have a hearing in two weeks that might ultimately lead to his release. (His appeal would probably be denied the first time but then granted the second time. Tony expected to be released within a year. )
Tony’ appeal lawyer thought he had a strong case for being released. For one thing, a black-male potential juror who had nothing negative in his record had been excluded from the jury. A claim of racial bias could be made. Also, the judge had postponed the trial four times, denying Tony his right to a speedy trial. Tony wanted me to talk with Jermaine Stansberry who was housed at the neighboring Stillwater prison to see if Cinque Turner, the actual gun man in this case, would make a written statement to the effect that Tony had nothing to do with the murder. There would be no risk to Turner because his sentence could not be changed. I promised to bring this up with Stansberry.
Tony thought that attorney Kevin DeVor had done a reasonably good job at the trial but he faulted DeVor in failing to hire an investigator to bring certain witnesses to trial. There were the two Indian women who had actually witnessed the murder. There was Rachel’s daughter who could testify that Tony had been at Rachel’s house at the time when the murder was committed. Lots of people could have exonerated Tony but they were not called to be witnesses at the trial. Tony himself did not testify because the prosecution could then bring up his prior conviction for murder.
Tony thought the police and prosecutor had it in for him because he had previously been convicted of murder. They never found a gun. They had convicted him on the false testimony of witnesses who had been offered plea bargains. The actual "second man" present at the murder was an acquaintance of Turner's from St. Paul.
Tony had originally been at the Rush City prison but he was transferred because he had gotten into a fight with young inmates and because Cinque Turner was also there. The authorities thought Tony was a gang leader.
to: legal challenges