This opinion will be unpublished and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

C7-00-842

 

 

Erihk Enrique Garrido, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed December 26, 2000

Affirmed

Schumacher, Judge

 

Hennepin County District Court

File No. 97074254

 

 

John M. Stuart, State Public Defender, Lawrence W. Pry, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Halbrooks, Judge.


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

SCHUMACHER, Judge

This appeal is from an order denying appellant Erihk Enrique Garrido's postconviction petition challenging his conviction for conspiracy to commit a controlled substance crime, alleging (1) evidence acquired from a wiretap should have been suppressed; (2) substantial prejudice resulted from joining his trial with that of a codefendant; (3) he was denied effective assistance of counsel; and (4) the evidence presented at trial was insufficient to support the conviction. We affirm.

FACTS

In the summer of 1997, the Minneapolis Police Department applied for a warrant to place a wiretap on Derek Lee's telephone in connection with their investigation of a conspiracy to sell cocaine. The application stated:

Undercover agents have been unable to infiltrate the inner workings of this conspiracy due to the close and secretive nature of this organization. Your affiant believes that there are no undercover agents who could infiltrate the conspiracy at a level high enough to identify all members of the conspiracy or otherwise satisfy all the goals of this investigation. Confidential informants are either unwilling or unable to introduce an undercover officer to this group. Attempting to infiltrate this group with a stranger would likely be unsuccessful and dangerous.

 

The court issued the warrant allowing the police to place the wiretap on Lee's phone. From June 12, 1997, to August 21, 1997, the police intercepted and recorded conversations made on Lee's cellular phone. During the course of the investigation, the police also obtained a warrant to place a wiretap on Garrido's telephone. In large part as a result of the information discovered from the wiretaps, Lee and Garrido were arrested and charged with conspiracy to commit a controlled substance crime.

At a Rasmussen hearing, two police officers involved in the investigation testified that the police did not attempt to infiltrate the conspiracy with undercover agents. Lee and Garrido argued that this testimony was inconsistent with the language in the warrant application. The district court held that suppression of the wiretap evidence was not warranted. The court noted that "a reading of the entire passage relating to infiltration may not even convey the message that infiltration was actually attempted." At any rate, the court noted that "the entire passage provided * * * the essential information necessary to an understanding of the circumstances respecting the availability of infiltration as an alternative investigative procedure." Finally, even if the passage at issue could be construed as a misstatement, the court "[could not] conclude that there was a deliberate or reckless falsification as to this issue." Moreover, had the sentence at issue been omitted from the application, there would have been "ample basis for the statutory finding" required to authorize a wiretap as well as probable cause to authorize a wiretap.

Before trial, the district court held that the defendants would be joined for a single trial. The court found that a joint trial would be appropriate because the defendants had been allegedly involved in a conspiracy to distribute illegal narcotics involving complex facts and coded messages. The court also found it unlikely that the defendants would be prejudiced by a joint trial, stating that "[t]here is no indication that the [d]efendants will present inconsistent theories nor [are they likely to shift blame to one another]."

At trial, the prosecutor presented to the jury recordings of telephone conversations, including several conversations to which Garrido was a party. The district court instructed the jury that each defendant was entitled to have his case decided solely on the evidence that applied to him and not based on the evidence that applied to a codefendant. The record does not reflect, however, that the district court instructed the jury during or at the end of trial as to which specific evidence was applicable against which defendant.

The jury found Garrido guilty of conspiracy to commit a controlled substance crime. Garrido petitioned for postconviction relief, claiming that the wiretap evidence was unlawfully obtained and should have been suppressed, that the district court improperly joined the defendants, and that he was denied the effective assistance of counsel due to a conflict of interest. The district court denied the petition on all counts.

D E C I S I O N

On appeal, an appellate court "reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion." Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

1. A judge may authorize the police to use a wiretap upon a finding based on facts submitted by the police-applicants that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." Minn. Stat.  626A.06, subd. 3(c) (1998); see also id.  626A.06, subd. 1(c) (1998) (mandating that police submit "full and complete statement" as to these factors in submitting application for wiretap to judge). The statute is worded in the disjunctive, and it is sufficient if the application shows that normal investigative techniques (1) have been tried and failed; or (2) reasonably appear unlikely to succeed if tried; or (3) would be too dangerous. State v. Monsrud, 337 N.W.2d 652, 657 (Minn. 1983). The government's burden of establishing compliance with these requirements is light; it is not necessary to exhaust all possible techniques before resorting to wiretaps. Id. Not every technical violation of the statute justifies suppression of the contents of intercepted communications or derivative evidence; rather, the deterrent of suppression is reserved for instances where a defect in the warrant impedes upon statutory requirements that directly and substantially implement the legislative intent that use of wiretaps be limited to those situations calling for rare and intrusive procedures. State v. Quinn, 436 N.W.2d 758, 767 (Minn. 1989).

Here, at the Rasmussen hearing, the district court made reasonable inferences that the police did not necessarily make a misrepresentation in this case; that if there was a misrepresentation, it may have been unintentional; and at any rate, the balance of the application met the statutory requirements and established probable cause. Accordingly, the postconviction court did not abuse its discretion in declining to grant relief on this ground.


2. Minn. R. Crim. P. 17.03, subd. 2(1) states as follows:

When two or more defendants are jointly charged with a felony, they may be tried separately or jointly in the discretion of the court. In making its determination on whether to order joinder or separate trials, the court shall consider the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interest of justice.

 

In reviewing a trial court's decision as to whether joinder of defendants was appropriate, an appellate court makes "an independent inquiry into any substantial prejudice to defendants that may have resulted from their being joined for trial." State v. DeVerney, 592 N.W.2d 837, 842 (Minn.) (quotation and citation omitted), cert. denied, 120 S. Ct. 420 (1999).

Here, the codefendants were involved in an intricate conspiracy to distribute illegal narcotics. Under these circumstances, the district court was justified in determining that both the nature of the crime and the interest of justice favored a joint trial. See State v. Strimling, 265 N.W.2d 423, 432 (Minn. 1978); see also United States v. Willis, 940 F.2d 1136, 1139 (8thCir. 1991) (holding that district court did not abuse its discretion in declining to sever criminal trials for conspiracy to distribute illegal narcotics). Nevertheless, Garrido claims statements made by coconspirators admissible only against Lee "unfairly harmed Garrido's defense," thereby resulting in substantial prejudice.

Minnesota courts have "recognized the ability of juries in joint trials to separate evidence that inculpates only one defendant from evidence that inculpates both." State v. Hathaway, 379 N.W.2d 498, 502 (Minn. 1985). Although the caselaw indicates that it is better practice for a trial court to instruct the jury that the evidence is admissible against only one codefendant at the time the evidence is offered and again at the close of the case, e.g., DeVerney, 592 N.W.2d at 842, we conclude that, under these facts, the district court's final instruction was sufficient to avoid prejudice. Moreover, given the abundance of evidence implicating Garrido, failure to give specific cautionary instructions would not have changed the result. See State v. Shamp, 427 N.W.2d 228, 230-31 (Minn. 1988) (declining to grant new trial based on failure of trial court to give cautionary jury instruction not to consider unlawful acts occurring prior to statute of limitations period where there was no reasonable likelihood that instruction would have resulted in different verdict).

3. In his pro se supplemental brief, Garrido claims that he was denied effective assistance of counsel, contending that his attorney was saddled with a conflict of interest that adversely affected the attorney's performance. Garrido has failed to present sufficient facts to substantiate this claim. Accordingly, Garrido has failed to make the requisite showing justifying postconviction relief on this ground. See Hodgson v. State, 540 N.W.2d 515, 518 (Minn. 1995).

4. Garrido also claims in his pro se supplemental brief that there existed insufficient evidence to convict him of the crime charged. He claims that one witness provided inconsistent testimony against him. He further claims that the police and the jury misinterpreted the nature of the recorded conversations stemming from the wiretap. Inconsistencies in testimony and conflicts in evidence do not necessarily render the testimony and evidence false. State v. Stufflebean, 329 N.W.2d 314, 319 (Minn. 1983). The jury had a reasonable basis to convict based on this and other evidence presented at trial.

Affirmed.