This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-1237

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jerry Joseph Duwenhoegger,

Appellant.

 

Filed June 27, 2000

Affirmed

Schumacher, Judge

 

Nicollet County District Court

File No. K498498

 

 

Mike Hatch, Attorney General, Margaret H. Chutich, John B. Galus, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

Michael K. Riley, Sr., Nicollet County Attorney, Post Office Box 360, St. Peter, MN 56082 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Special Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.


U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant Jerry Joseph Duwenhoegger was convicted of two counts of conspiracy to commit first-degree murder and sentenced to consecutive terms of 190 and 180 months. Duwenhoegger claims (1) the trial court erred by failing to redact portions of surveillance tapes admitted into evidence, (2) there was only one conspiracy, therefore convicting him on two counts violated his right to protection from double jeopardy or, in the alternative, there was insufficient evidence of an act in furtherance of the second count, (3) consecutive sentencing unfairly exaggerates the criminality of his conduct, (4) ineffective assistance of counsel, and (5) additional issues in his pro se brief. We affirm.

FACTS

Duwenhoegger was charged with two counts of conspiracy to commit murder. The charges were based primarily on recorded conversations between Duwenhoegger and an acquaintance, John Sullivan, who became a co-conspirator and confidential informant to law enforcement officers. The intended victims of the conspiracies were Jeff Shanks and Esther Meschke, the son and mother of Duwenhoegger's girlfriend, Noreen Shanks. Duwenhoegger believed that Jeff Shanks and Meschke were interfering in his relationship with Noreen Shanks.

Evidence at trial included surveillance tapes of Duwenhoegger's conversations with Sullivan. The tapes show that on September 17, 1998, Duwenhoegger suggested (1) using an ether-soaked rag to subdue Jeff Shanks at night on his walk home from work and then killing him via an injection of drugs, alcohol, or both, and (2) opening a basement window in Meschke's house by drilling through the wood and then pushing the latch down with a wire, entering the house, grabbing Meschke while she slept, and killing her by throwing her down the stairs. Duwenhoegger said that no one would suspect him if it appeared Meschke, who was 83 at the time, fell down the stairs. He said that, because it was common knowledge Jeff Shanks used drugs and alcohol, his death would look like a suicide motivated by the loss of his grandmother.

The tapes recorded a September 18, 1998 meeting between Duwenhoegger and Sullivan during which Duwenhoegger again alluded to the plan to kill Jeff Shanks by injection and reiterated in detail the plan to kill Meschke, noting that the only way he would ever have a relationship with Noreen Shanks was with Jeff Shanks and Meschke gone. Duwenhoegger described for Sullivan what he knew of the layout of Meschke's house. Then they drove by her house, as Duwenhoegger talked about her neighbors, the darkness of her yard, and where Sullivan should park when they followed through with the plan. Duwenhoegger said he planned to break in and inspect the inside of the house when Meschke was away, and he drew Sullivan a map of her house, yard, and the surrounding area. He said he knew Meschke was going on vacation soon and that he hoped to "get to the backside of the house at night," before going through with the plan.

A tape from September 20, 1998, recorded Duwenhoegger telling Sullivan that Meschke had left for vacation and that it was clear for them to break into and scout out her house. They agreed to meet the following evening.

The tapes from September 21, 1998, recorded Duwenhoegger telling Sullivan he brought a drill, wire, screwdriver, flashlight, paper (for mapping out the house), and gloves in preparation for the break-in. They drove over to Meschke's house, and Duwenhoegger, dressed in black, got out of the car and went behind the house with his drill and wire. Investigators had set up thermal-imaging surveillance equipment behind Meschke's house, and it recorded Duwenhoegger getting down on his knees in front of the basement window. After approximately ten minutes, Duwenhoegger returned to the car and explained to Sullivan that because of the metal drip edge on the window, he would not be able to open the latches as planned; he later said that he might have to return and remove the entire window.

The surveillance tapes from September 18, 1998, also contained Duwenhoegger's detailed description of an incident during which he had shot a man in Germany. Prior to trial, Duwenhoegger's defense counsel moved to exclude the portions of the tapes referring to the German incident, but the trial court denied the motion.

Duwenhoegger's counsel also made three motions to dismiss the second count, arguing there was no act in furtherance of a conspiracy to kill Jeff Shanks. The court denied the motions, noting that the question of whether Duwenhoegger had committed an act in furtherance of the second count was for the jury to decide.

D E C I S I O N

1. We will not overturn an evidentiary ruling absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). Duwenhoegger claims the trial court's failure to redact the portions of the surveillance tapes referring to the shooting in Germany constitutes reversible error because the discussion of the shooting was unfairly prejudicial "propensity" evidence. See State v. Diamond, 308 Minn. 444, 448, 241 N.W.2d 95, 99 (1976) (prohibiting state from using evidence of prior misconduct to establish defendant's assaultive propensity); Minn. R. Evid. 401 (defining relevance); Minn. R. Evid. 402 (stating irrelevant evidence is inadmissible); Minn. R. Evid. 403 (stating relevant evidence may be excluded where its probative value is substantially outweighed by risk of unfair prejudice).

If the trial court has erred in admitting evidence, we determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). While we acknowledge the potential for prejudice contained in the portions of the tapes concerning the shooting in Germany, in light of the overwhelming evidence against Duwenhoegger, we are satisfied that any error by the trial court in admitting the tapes in their entirety was harmless. There is no reasonable possibility that evidence of the shooting in Germany significantly affected the verdict.

2. Conspiracy to commit murder requires an agreement to murder someone and an overt act in furtherance of the conspiracy by one of the conspirators. State v. St. Christopher, 305 Minn. 226, 235, 232 N.W.2d 798, 804 (1975); Minn. Stat.  609.175, subd. 2 (1998). Duwenhoegger claims he was erroneously convicted of two counts of conspiracy to commit murder because there was really just one conspiracy with two targets. In the alternative, if there were two conspiracies, he claims the state failed to prove an overt act in furtherance of the second conspiracy.

Under his first theory, Duwenhoegger argues the two counts amount to multiple prosecutions for the same offense in violation of the Double Jeopardy Clauses. U.S. Const. amend. V, XIV; Minn. Const. art. 1, 7; see also Braverman v. United States, 317 U.S. 49, 52-53, 63 S. Ct. 99, 101-02 (1942) (holding that double jeopardy clause prohibits subdivision of single agreement into multiple conspiracy violations).

Duwenhoegger raises the double-jeopardy argument for the first time on appeal. Because this issue was not considered by the trial court, before we review it, there must be (1) error, (2) that is plain, and (3) affects substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997). We find no plain error here.

While we are mindful of Duwenhoegger's argument that this was a single conspiracy with two targets, we are convinced the question of the number of conspiracies was adequately left to the jury, which was instructed on the individual elements of the two separate conspiracy charges, given a withdrawal instruction for the second count, and returned guilty verdicts for each individual count. See United States v. Pullman, 187 F.3d 816, 821 (8th Cir. 1999) (stating number of conspiracies is fact question for jury), cert. denied, 120 S. Ct. 802 (1999); see also United States v. Crosby, 294 F.2d 928, 945 (2d Cir. 1961)(noting number of conspiracies "is a question of fact as to the nature of the agreement").

Moreover, our review of the record supports the jury's conclusion, implicit in the verdicts, that there were two agreements and thus two conspiracies--one to kill Meschke and one to kill Jeff Shanks. The plans called for these separate murders to be carried out at different locations, at different times, and by different means. On these facts, we are not convinced the trial court committed any error here, plain or otherwise, affecting Duwenhoegger's right to protection from double jeopardy.

Duwenhoegger's alternative argument challenges the sufficiency of the evidence for an act in furtherance of the second count. Our review of sufficiency of evidence is limited to determining whether, based on the record and any legitimate inferences that can be drawn from it, a jury could reasonably find the defendant guilty. State v. Pierson, 530 N.W.2d 784, 787 (Minn. 1995). We review the evidence in the light most favorable to the verdict and assume the jury believed the state's witnesses and disbelieved contrary evidence. Id.

The record includes recorded conversations during which Duwenhoegger outlined detailed plans for killing Jeff Shanks. After securing on September 15, 1998 Sullivan's agreement to help kill Jeff Shanks, on September 17 Duwenhoegger attended a prearranged meeting with Sullivan. At the meeting, they discussed the planned murder of Jeff Shanks. Duwenhoegger had found out which days Jeff Shanks would be working during the coming weekend, and the plan was to snatch him as he walked home from work, subdue him with an ether-soaked rag, and inject him with drugs, alcohol, or both, to make his death look like a suicide. Duwenhoegger then acknowledged that he would "owe [Sullivan] big" for helping with Jeff Shanks's murder and suggested killing him as soon as that weekend.

At the same meeting, Duwenhoegger broached his intention to kill Meschke as well. Thereafter, the plan to kill Meschke took immediate precedence as they agreed to murder Meschke first and then Jeff Shanks. Under these circumstances, there was sufficient evidence for the jury to conclude that the conspiracy to kill Jeff Shanks was complete as of September 17, before killing Meschke took priority.

These facts would permit a jury to conclude that Duwenhoegger committed an overt act in furtherance of the conspiracy to kill Jeff Shanks. See St. Christopher, 305 Minn. at 235, 232 N.W.2d at 804 (noting that courts generally find overt act in conspirator's slightest action); State v. Willman, 296 Minn. 322, 323, 208 N.W.2d 300, 302 (1973) (finding formulation of detailed plan and providing co-conspirator with photograph of intended victim and map constituted overt acts in furtherance of a conspiracy to commit murder).

3. Duwenhoegger contends that the consecutive nature of his sentences unfairly exaggerates the criminality of his conduct and must be vacated. When multiple victims are involved, the sentencing court may impose one sentence per victim as long as the multiple sentences do no unfairly exaggerate the criminality of defendant's conduct. State v. Sanders, 598 N.W.2d 650, 656-57 (Minn. 1999). In such cases, the decision to impose consecutive, rather than concurrent, sentences is permissive and does not constitute a departure. Minn. Sent. Guidelines II.F.2. Provided the sentence is not disproportionate to the offense, we will not disturb the sentencing court's discretion. State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998).

In support of his argument, Duwenhoegger claims that no one was hurt and no violent crime attempted here, suggesting that consecutive sentences are appropriate only in cases where there are injuries to multiple victims or attempted violent crimes. But the seriousness and culpable mental state of the crimes underlying the conspiracy convictions, the fact that his sentence was not a departure, and the presence of grounds that would have supported an upward departure (e.g., Duwenhoegger's willingness to exploit Meschke's vulnerabilities) satisfy us that the trial court did not abuse its discretion in imposing consecutive sentences. See State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996) (finding victim's advanced age and physical vulnerability justified upward departure).

4. Duwenhoegger also raises, for the first time, a claim of ineffective assistance of counsel. To establish this claim, Duwenhoegger must affirmatively show that his counsel's representation "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different." Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotation and citation omitted). In determining whether counsel's representation fell below the objective standard, we must first decide if the representation was "reasonable in the light of all the circumstances." Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989). There is a strong presumption that a counsel's performance falls within the range of reasonableness. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

Duwenhoegger claims in his pro se brief that he is entitled to reversal and a new trial, or at least an evidentiary hearing, because his trial attorney did not provide effective assistance in several respects. These allegations include failure to raise entrapment as a defense, failure to call witnesses, failure to investigate statements and evidence, and failure to impeach the state's witnesses. In addition, by way of his brief prepared by counsel, Duwenhoegger claims ineffective assistance of counsel based on trial counsel's failure to object to the second count on double jeopardy grounds.

"Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal." State v. Gustafson, 610 N.W.2d 314, ___, 2000 WL 637016, at *7, (Minn. 2000) (citing Robinson v. State, 567 N.W.2d 491, 494 & n.3 (Minn. 1997); Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997)). "A postconviction hearing provides the court with 'additional facts to explain the attorney's decisions,' so as to properly consider whether a defense counsel's performance was deficient." Gustafson, 610 N.W.2d at ___, 2000 WL 637016, at *7 (quoting Black, 560 N.W.2d at 85 n.1). The record before us does not explain the decisions of Duwenhoegger's trial counsel. Therefore, we decline to reach the merits of this issue. Duwenhoegger's right to pursue a claim of ineffective assistance of counsel in a petition for postconviction relief is preserved.

5. Finally, Duwenhoegger claims in his pro se brief that he was "severely prejudiced" by the prosecutor's opening remarks, closing remarks, and cross-examination, and that he was denied his right to a fair trial when various witnesses for the state presented false testimony to the jury. Based on our careful review of the allegations in the pro se brief and the record before us,[1] we are convinced these claims have no merit.

Affirmed.



[1] We also note that several of the allegations in Duwenhoegger's pro se brief rely on extra-record material and are thus not properly before us for review. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (stating matters not produced and received into evidence by district court may not be considered on appeal).