This opinion will be unpublished and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
Rundel Astaire Fletcher,
State of Minnesota,
Filed September 19, 2000
Hennepin County District Court
File No. 96-033129
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)
Mike Hatch, Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Ctr., Minneapolis, MN 55487 (for respondent)
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
Appellant Rundel Fletcher was convicted of conspiracy to commit first degree murder and conspiracy to commit first degree assault for arranging to have an undercover police officer, “Sam,” either assault or kill his former girlfriend, R.A., in the spring of 1996. At the time, he was serving a separate sentence at the Hennepin County Adult Correctional Facility for the burglary of R.A.’s residence. Appellant initially told another prisoner, Val Diggins, of his desire to hire a hit man. Following his conviction, appellant raised numerous issues in a postconviction appeal, which the postconviction court denied in its entirety. Appellant now claims that he was denied his constitutional right to due process and a unanimous verdict because the jury was not required to identify the victim of the conspiracy, and that the postconviction court abused its discretion in (1) denying his mistrial motion based on alleged juror misconduct; (2) finding that appellant was not denied his right to a fair trial or his Sixth Amendment right to confrontation where Val Diggins did not testify at trial; (3) finding that the evidence was sufficient to convict appellant of conspiracy to commit first degree murder; and (4) affirming appellant’s consecutive sentence where both the current offense and the prior offense involved the same victim. Appellant also filed a pro se brief asking to be released from prison to care for his ill mother and claiming ineffective assistance of counsel. Because appellant’s claims are either procedurally barred or without substantive merit, we affirm.
D E C I S I O N
We will “review a postconviction proceeding only to determine whether there is sufficient evidence to support the postconviction court’s findings, and we will not disturb a postconviction court’s decision absent an abuse of discretion.” Jihad v. State, 594 N.W.2d 522, 524 (Minn. 1999).
Due Process Claims
Appellant argues that he was denied his due process right to an appropriately specific and unanimous verdict, alleging that the state failed to specify the target of the murder conspiracy. Because appellant failed to raise this issue to the trial court, we decline to consider it for the first time on appeal. See State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995) (appellate court “will not decide issues that are raised for the first time on appeal or have not first been addressed by the trial court”); State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997) (appellate court will not consider constitutional issue raised for first time on appeal except “when the interests of justice require”); see also Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (new argument regarding trial court’s failure to give jury instruction not properly before appellate court where issue not raised to trial court). This issue does not involve one of fundamental fairness that would serve as an exception to the general rule requiring issues to be raised first to the trial court. See Minn. R. Crim. P. 31.02 (allowing appellate consideration of errors “affecting substantial rights” of defendant “although they were not brought to the attention of the trial court”). We also note that appellant failed to object at trial to either the jury instructions or the verdict forms.
Appellant claims that the postconviction court abused its discretion in determining that there was no juror misconduct that mandated a mistrial. The alleged misconduct consisted of three instances: (1) while at a beauty parlor, one juror was overheard commenting on the evidence and on her dislike of the defendant; the court dismissed that juror even though the juror denied discussing the substance of the case while at the beauty parlor; and while individually interviewing the remaining jurors, the court discovered that (2) one unnamed juror commented that the case “seems pretty cut and dried,” and (3) one juror disclosed that he avoided listening to the dismissed juror by standing apart from that juror. As required, the trial court held a hearing on the juror misconduct issue to determine “the circumstances, the impact thereof upon the juror[s], and whether or not it was prejudicial.” Remmer v. United States, 347 U.S. 227, 229-30, 74 S. Ct. 450, 451 (1954).
In reviewing the trial court’s decision [on
juror misconduct], this court considers the following factors: (1) the nature and source of the prejudicial
matter; (2) the number of jurors exposed to the misconduct; (3) the weight of
(4) the likelihood that curative measures were effective in reducing the prejudice.
State v. Landro, 504 N.W.2d 741, 745 (Minn. 1993) (citation omitted).
The postconviction court’s findings on this issue are adequately supported by the evidence in the record. The court specifically considered the Landro factors in making its findings. The nature and source of the prejudicial matter was limited; the identified number of jurors affected by the prejudicial matter was small; the weight of evidence against appellant was strong; and the trial court’s curative measures were likely effective in limiting any prejudice. The postconviction court did not abuse its discretion in denying appellant’s mistrial motion based on juror misconduct because any misconduct did not prejudice the verdict.
Failure of Diggins to Testify
Appellant claims that he was denied his Sixth Amendment right to confrontation and his right to a fair trial because the state did not call Val Diggins to testify, although the state referred to Diggins in its opening statement and at trial.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him.” U.S. Const. Amend. VI. When hearsay is admitted at trial, the Sixth Amendment may be violated if the defendant is not given the opportunity to cross-examine the person who made the statement. State v. Aubid, 591 N.W.2d 472, 478 (Minn. 1999). The right to confrontation reflects merely a preference for face-to-face confrontation, however, and “[s]ometimes the preference must give way to the practical realities and necessities of the case.” State v. Sewell, 595 N.W.2d 207, 212 (Minn. App. 1999) (citation omitted), review denied (Minn. Aug. 25, 1999).
Here, appellant argues that numerous hearsay statements, including appellant’s hand-written “hit” contract, were erroneously admitted at trial. But appellant provides no references to any of the statements. The essence of appellant’s claim appears to be that “the state managed to get in much of Diggins’ testimony through Officer Reed [a police officer with whom Diggins met and conferred] without the defense being able to cross-examine Diggins.”
The record does not support appellant’s claims. As the state points out, the “hit” contract between appellant and Diggins was admissible as an admission of a party-opponent under Minn. R. Evid. 801(d)(2)(A)(statement that is offered against a party and is the party’s own statement is not hearsay). In addition, the testimony of Officer Reed does not include hearsay attributed to Diggins. Further, the prosecutor was careful to limit Reed’s testimony to non-hearsay. Only on redirect, and only after defense counsel had “opened the door” to the topic of Diggins’ role in obtaining a written contract from appellant, did the prosecutor ask Reed whether Diggins told him why he wanted the contract. This testimony was properly admitted into evidence. See State v. Whaley, 389 N.W.2d 919, 926 (Minn. App. 1986) (“during re-examination, a witness may be fully examined as to all matters brought out in cross-examination”).
Appellant’s claim of unfairness relating to the state’s failure to call Diggins as a witness also does not mandate any action by this court on appeal. In its opening statement, the state did refer to Diggins and his role in appellant’s apprehension, as well as Diggins’ motivation for revealing appellant’s criminal plan to police. The state did not promise that Diggins would testify. During trial, the state was able to offer strong evidence of appellant’s guilt through officers Reed and “Sam,” R.A., and appellant’s incriminating hand-written “hit” contract. The state provided a foundation for admission of the contract through a handwriting expert, who concluded that appellant had drafted the contract. Diggins’ testimony was thus not necessary to prove that appellant entered into the agreement, and the state decided not to call him as a witness. Appellant immediately requested and received a continuance to determine whether to call Diggins as a witness himself to establish his entrapment defense. Based on these facts, we conclude that appellant was not prejudiced by the state’s failure to call Diggins as a witness, and the postconviction court did not abuse its discretion in finding that appellant was not denied the right to a fair trial or the right to confront witnesses because Diggins did not testify. See State v. Bland, 337 N.W.2d 378, 381 (Minn. 1983) (defendant not prejudiced by prosecutor’s failure to call witness referred to in prosecutor’s opening statement; jury “will ordinarily be able to limit its consideration to the evidence introduced during the trial”).
Sufficiency of the Evidence
Appellant next contends that the evidence was insufficient to convict him of conspiracy to commit first-degree murder. In considering a sufficiency of the evidence claim, we must view the evidence in the light most favorable to the verdict and assume that the trial court credited the state’s witnesses and discredited contrary evidence. Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995). The appellate court reviews the postconviction proceeding under an abuse of discretion standard of review “only to determine whether there is sufficient evidence to sustain the postconviction court’s findings.” Jihad, 594 N.W.2d at 524 (citations omitted).
Conspiracy to commit a crime requires “conspir[ing] with another to commit a crime” and an “overt act in furtherance of [the] conspiracy.” Minn. Stat. § 609.175 (1998). Appellant claims that he lacked intent to commit first-degree murder of R.A., that evidence of an overt act in furtherance of a conspiracy was lacking, and that he was entrapped. He also claims that he had no intent to kill an alleged, but non-existent, new boyfriend of R.A.
Appellant argues that he lacked intent to commit the crime of first-degree murder against R.A. because he merely wanted R.A. to be assaulted. Appellant ignores, however, the clear evidence contained both in the contract and in his conversation with “Sam” that establishes he intended R.A. to be either assaulted or murdered. Where a defendant expresses the intent to kill, even though the intent is expressed conditionally, it has been held to be sufficient to sustain a conviction for conspiracy to commit first-degree murder. See People v. Vandelinder, 481 N.W.2d 787, 789 (Mich. App. 1992), review denied (Mich. July 31, 1992). Although no Minnesota case discusses this issue, the Michigan Court of Appeals upheld a conspiracy conviction where the defendant offered to pay an undercover police officer to kidnap and rape his wife and possibly murder her, depending on whether she agreed to reconcile with the defendant. Id. In regard to the conditional aspect of the crime, the Michigan court stated, “A contingency in the plan affects whether the victim will be murdered, but does not change the solicitor’s intent that the victim be murdered.” Id. (citation omitted). The postconviction court here also concluded that intent to commit murder could be inferred from the serious nature of the assault that appellant desired R.A. to be subjected to, which included at least three gun shots and a deep knife wound. We agree. Because we conclude there is sufficient evidence on appellant’s intent to murder R.A., we decline to address his intent to murder the non-existent boyfriend.
Appellant also claims that there is no evidence of an overt act in furtherance of the conspiracy as required under Minn. Stat. § 609.175. The overt acts in this case included appellant’s writing the contract, meeting with “Sam,” and providing “Sam” with very precise details about the crime to be committed, the means of obtaining access to R.A., and the method of payment. See State v. Willman, 296 Minn. 322, 322-23, 208 N.W.2d 300, 302 (1973) (evidence sufficient to show act in furtherance of conspiracy where defendant arranged for contract to murder wife and provided details to prospective killer to facilitate murder).
Finally, the evidence does not support that appellant was entrapped. Entrapment requires “that the defendant show that the government induced the crime.” State v. Johnson, 511 N.W.2d 753, 754 (Minn. App. 1994) (citation omitted), review denied (Minn. Apr. 19, 1994). Once the defendant makes a prima facie showing, the burden of persuasion then shifts to the state “to prove beyond a reasonable doubt the lack of the defense.” State v. Hage, 595 N.W.2d 200, 206 (Minn. 1999) (citation omitted). The postconviction court’s conclusion that appellant failed to establish a prima facie case of entrapment is supported by the record. Appellant initiated contact with Diggins to commit the crime. He also wrote a contract precisely detailing the proposed crime two days before he had any contact with the undercover detective, “Sam.” When he met with “Sam”, he initiated the discussion about the crime and precisely described what offense he wanted committed, how he wanted it committed, and when he wanted it committed. “Sam” only led the conversation when it concerned the pre-arranged price of the contract. Thus, the evidence shows that appellant actively solicited the crime and the evidence does not indicate that he was entrapped. See State v. Grilli, 304 Minn. 80, 96, 230 N.W.2d 445, 455 (1975) (for purposes of entrapment, predisposition may be shown by evidence that defendant actively solicited crime).
Appellant also claims that the trial court erred in imposing a sentence that was consecutive to his previous sentence for burglary because the crimes involved the same victim, R.A. Under the sentencing guidelines, however, imposition of a consecutive sentence was permissive and did not involve a sentencing departure. See Minn. Sent. Guidelines II.F.2. (“[m]ultiple current felony convictions for crimes against persons may be sentenced consecutively to each other”); see State v. Hanson, 572 N.W.2d 307, 310 (Minn. 1997) (concluding that Sentencing Guidelines Commission did not intend to “insulate an offender from being held accountable for separate crimes * * * simply because the victim of both crimes was the same person”). The postconviction court did not abuse its discretion in affirming appellant’s sentence.
Pro se Issues
Appellant filed a pro se brief seeking relief due to family hardship. Appellant claims that his mother is ill and requests a sentencing disposition that would allow him to care for her. Appended to the brief is an attachment enumerating alleged instances of ineffective assistance of appellant’s counsel. Neither of these issues establishes a proper basis for legal relief. Appellant raised an ineffective assistance of counsel claim that was fully addressed by the postconviction court and finds no support in the record. His current allegations simply reiterate those previously denied claims, which are unsupported by the facts and which have been previously determined to be groundless.