This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jason Michael Lowry,
File No. K5005078
Mike Hatch, Attorney General, Capitol Office Building, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and
Robert M. A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.*
GORDON W. SHUMAKER, Judge
In this appeal from convictions of two counts of possession of firearms by a felon, appellant contends the district court erred by receiving without objection evidence of appellant’s gun dealing and of his status as a felon. Because appellant has not shown plain error or substantial prejudice, we affirm.
A jury found appellant Jason Michael Lowry guilty of two counts of possession of a handgun by a felon. One count alleged possession of a .22-caliber semiautomatic handgun on December 2, 1999, and the other a .44-caliber revolver on December 5, 1999. Lowry had been convicted of felony drug offenses in 1998 and 1999.
The evidence at trial showed that Lowry delivered the .22-caliber handgun to Daniel Livingston on December 2, 1999, and that Lowry possessed the .44 when he visited Steven Vincent’s house on December 5, 1999.
The police recovered the .22 on December 5, 1999, after a homicide. A bureau of criminal apprehension agent interviewed Lowry on December 6 about the gun and the homicide. The agent asked Lowry if he owned or possessed any guns. He replied that he did not own guns but that he would receive guns and hold them until they could be distributed to others. During the interview, Lowry referred to a .44 magnum and various .22-caliber pistols that had come into his possession. The state introduced these admissions at trial without objection.
During rebuttal testimony, the BCA agent testified without objection about a conversation with Lowry’s aunt in which the agent said:
[I]t was my understanding that Jason Lowry was a felon, and that he had been in possession of that gun, and that was a violation of law * * * .”
On appeal, Lowry alleges that it was error for the district court to allow evidence of his admission of possession of guns and of his prior felony record.
Lowry argues that the admission of evidence of his gun-brokering activities and of his status as a convicted felon denied him due process and a fair trial, even though he did not object to that evidence.
Failure to object to evidence generally waives error predicated on that evidence, unless the admission was plain error that affected the defendant’s substantial rights. State v. Vick, 632 N.W.2d 676, 685 (Minn. 2001). It must be shown that the error was so prejudicial that it affected the outcome of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).
Lowry contends that his statements to the BCA agent about gun brokering were irrelevant and did not relate to the charges in the case. He argues that he was not charged with possessing guns in general but rather the two specific handguns identified in the complaint.
The BCA agent did not ask Lowry about gun brokering but rather inquired about gun ownership and possession. Lowry himself volunteered the description of his brokering activities, and he described a .44-magnum pistol and various .22-caliber pistols that had been in his possession.
Relevant evidence is any evidence having a tendency to make a consequential fact more or less probable. Minn. R. Evid. 401. A defendant’s admission that he deals in guns and possesses them from time to time is a circumstantial fact that, together with other evidence linking specific guns to the defendant, helps support a reasonable inference that the defendant did possess the guns described in the complaint. Thus, Lowry’s admissions were relevant, and their introduction into evidence was not plain error.
Lowry next contends that the court erred by failing to give a curative instruction concerning the BCA agent’s testimony that he believed Lowry was a felon. Generally, in a prosecution for felony possession of a weapon, the defendant is allowed to stipulate that he is ineligible to possess a weapon, thus removing the issue of whether he is a convicted felon. State v. Davidson, 351 N.W.2d 8, 11 (Minn. 1984). Such stipulations are allowed to avoid the potential of unfair prejudice to defendants caused by evidence proving defendants’ felony records. Id. When evidence of defendants’ past admissions or convictions is admitted in error, a curative instruction is often enough to neutralize the prejudicial effect. See, e.g., State v. Berkelman, 355 N.W.2d 394, 395 (Minn. 1984) (court gave cautionary instruction); State v. Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001) (court instructed jurors not to speculate). Lowry stipulated that he was ineligible to possess a firearm.
Despite the stipulation, the BCA agent referred to his understanding that Lowry was a felon. Lowry did not object or ask for a curative instruction. Because of his failure to object or to request corrective action by the court, Lowry must show prejudice that affected his substantial rights before the appellate court can overturn the conviction. State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999).
Lowry speculates that the jury likely assumed the worst about him when they heard he was a felon. But he neglects to acknowledge that several witnesses testified to seeing him in possession of the guns described in the complaint. Although one witness had been impeached, the others had not. There was sufficient evidence without the reference to Lowry’s felony to result in a conviction. He has not shown prejudice that affected his substantial rights.
In his pro se brief, Lowry challenges the district court’s refusal to suppress evidence of his admissions. Lowry argues that during the police interview he was denied his Fifth Amendment right to counsel and, alternatively, that his statements were involuntary because he was under the influence of chemicals at the time.
On appeal, the district court’s determination regarding whether a defendant invoked the right to counsel is accepted unless clearly erroneous. State v. Miller, 573 N.W.2d 661, 671 (Minn. 1998). Under the Fifth Amendment, a suspect must be informed of his right to counsel before a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, 1626 (1966). When a suspect either equivocally or ambiguously expresses his wish to have an attorney present, all further questioning must cease, except for narrow questions designed to clarify the suspect’s true wishes regarding his right to counsel. State v. Robinson, 427 N.W.2d 217, 223 (Minn. 1988). After invoking his right to counsel, a suspect may later waive that right by continuing conversations with police. Edwards v. Arizona, 451 U.S 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981).
Lowry claims he told the BCA agent, “If he’s put me right in the middle of it then I want a f-----g lawyer * * *,” and that his rights were violated because the questioning did not cease immediately. Although some of Lowry’s comments are unclear, the record reveals that he failed to unequivocally assert his right to an attorney and instead expressly agreed to continue answering questions when the agent tried to clarify Lowry’s true wishes. The relevant portion of the official transcript reads:
A If he’s put me right in the middle of it then I’m a f***ing liar because you got somebody who shot somebody in the head saying that I’m involved then apparently I need a lawyer. Because I’m not involved and I don’t believe that Dan did it.
[Q] Is there any reason why Dan would tell us he did it?
A Do that to cover for somebody.
[Q] Well when Curtis and Dan were arrested, they were in possession of Ross’ van.
A Lorraine told me that they’re turning themselves in. Curtis was caught. That should tell you right there who did it. Curtis did it. Dan’s INAUDIBLE but he’s not thinking that he’s gonna go to prison for the rest of his life.
[Q] Why would Curtis kill Ross?
A I don’t know. I don’t think he would either, but I know Dan didn’t do it.
[Q] Let’s go back and clarify – while Brett was out of the room you made a statement about a lawyer. Do you want a lawyer or you don’t want a lawyer?
A INAUDIBLE implicated in a murder by somebody who supposedly shot the person. Yeah, I definitely would want a lawyer, but . . .
[Q] Well, I – I can’t . . .
A ‘cause I’m gonna be obviously charged for – I’m gonna be charged for something now.
[Q] I’m asking you if you want a lawyer or not.
[Q] You want a lawyer. INAUDIBLE
A But I can still talk about other – I mean I can still answer your questions.
[Q] Well, no you can’t. Either – if you want a lawyer then we have to stop questioning. If you want to answer some questions and not others, we can continue and if you get to a point of something you don’t wanna answer you can not answer that question.
A Well it’s just some stuff I’m not comfortable answering.
[Q] O.K. So then you don’t want a lawyer at this point. We can continue talking about things and if there’s things . . .
A Yeah, INAUDIBLE sure.
[Q] Does that work out for you?
Lowry expressly consented to continue answering questions without an attorney present, agreeing that if he was uncomfortable with any question, he would stop answering until he was able to have an attorney present. Therefore, he waived his right to counsel by voluntarily continuing conversations with police.
Alternatively, Lowry argues that the BCA agent’s testimony was inadmissible because Lowry was under the influence of chemicals at the interview, which made his admissions involuntary. When determining whether a confession was voluntary, the appellant court will reverse the district court’s findings of fact only if they are clearly erroneous, but the appellate court will make an independent determination of voluntariness on the facts as found. State v. Hardimon, 310 N.W.2d 564, 567 (Minn. 1981).
The district court in this instance found that an officer spent approximately 15 minutes booking Lowry the night before the interview and 15 hours later walked Lowry from his jail cell to the interview. The interview, conducted by both the officer and the BCA agent, lasted nearly two hours. Both interviewers testified that they observed no signs of intoxication in Lowry. The record supports the district court’s finding that Lowry’s admissions were unaffected by intoxication. Therefore, we hold that Lowry’s admissions were voluntary. The district court’s decision to allow testimony regarding Lowry’s admissions was not a violation of Lowry’s rights.
Finally, Lowry contends that he was denied effective assistance of counsel because defense counsel failed to object, to investigate and call witnesses, and to present evidence. To succeed on this claim, Lowry bears the heavy burden of showing that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s unprofessional errors, the result of the proceeding probably would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987).
Lowry first complains that counsel failed to object to the complaint, which charged Lowry with possession of a .44-caliber revolver. Lowry claims the charge was brought based solely on the erroneous testimony of the BCA agent, explaining that Lowry was asked to identify a .44. The record reflects testimony of two witnesses who saw Lowry possessing a .44 revolver. Therefore, even if the BCA agent’s testimony was erroneous, there was a sufficient basis for the charges and no meritorious reason for counsel to object to the complaint.
The remaining decisions made by counsel that Lowry complains of are decisions involving trial strategy and are left to counsel’s discretion. See State v. Schneider, 597 N.W.2d 889, 894 (Minn. 1999) (whether to present or object to evidence is trial strategy); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (whether to investigate witness is trial strategy). Lowry’s claim fails with regard to these decisions because Lowry fails to show how any of counsel’s decisions was unreasonable.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.