This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-713

 

Marco Anton Flores-Rodriguez,
petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed January 27, 2004

Affirmed

Peterson, Judge

 

Olmsted County District Court

File No. K098959

 

 

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

 

Raymond F. Schmitz, Olmsted County Attorney, Eric M. Woodford, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN  55904 (for respondent)

 

 

            Considered and decided by Harten, Presiding Judge; Peterson, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from an order denying in part and granting in part a postconviction petition challenging appellant’s convictions of and sentences for five counts of first- or second-degree controlled substance crimes, appellant argues that (1) a police officer should not have been permitted to sit at the prosecutor’s counsel table through much of the trial before testifying; and (2) the postconviction court erred when, after vacating appellant’s sentence and two of his convictions, it ordered a re-sentencing hearing, rather than imposing the presumptive sentences for the remaining convictions.  We affirm.

FACTS

            Jeffrey Hansen, an undercover narcotics investigator, purchased drugs from Greta Odell, and without revealing that he was a narcotics investigator, Hansen arranged to have Odell buy additional drugs for him.  Hansen gave Odell buy money with the understanding that she would buy cocaine and deliver it to him.  Instead of buying cocaine, Odell drove out of town with the buy money.  Odell was arrested for the previous drug sales and for stealing the buy money. 

Odell told Hansen and another officer that appellant Marcos Antonia Flores-Rodriguez and his brother were the source of the drugs she sold.  Odell agreed to wear a wire while making a controlled buy from appellant’s brother, and a sale was arranged.  After Odell concluded the transaction, Hansen and several other police officers entered the apartment where the transaction occurred and arrested appellant and his brother.  Officers later executed a search warrant at the apartment where appellant lived and found guns, cocaine, and items commonly used for making illegal drug sales.  Appellant was charged with eight counts of first- or second-degree controlled substance crime.

            As lead investigator, Hansen was the state’s main witness.  Pursuant to a sequestration order, Hansen was sequestered for Odell’s testimony and the testimony of Hansen’s co-investigator, but, over defense counsel’s objection, Hansen was permitted to sit at the prosecutor’s table during the rest of the trial.  As a result, eleven of the state’s witnesses testified in Hansen’s presence before he testified. 

            Appellant was convicted of all eight counts.  Applying State v. Hernandez, 311 N.W.2d 478 (Minn. 1981), the district court sentenced appellant on five of the convictions to presumptive concurrent prison terms of 48, 98, 146, 158, and 78 months. The remaining three counts were either for lesser-included offenses or alternative counts, and appellant was not sentenced on those convictions.

Appellant did not appeal his convictions.  More than four years after he was sentenced, appellant filed a petition for postconviction relief seeking a new trial because the trial court erred by allowing Hansen to sit at the prosecutor’s counsel table during trial or, in the alternative, a reduced sentence.  The postconviction court (1) denied appellant’s request for a new trial; (2) vacated two of appellant’s convictions because the convictions arose from the same behavioral incidents that resulted in other convictions; and (3) vacated appellant’s sentence and ordered a re-sentencing hearing for the three remaining convictions.  The state moved for an upward durational departure, but before the re-sentencing hearing occurred, appellant filed this appeal from the postconviction court’s order.  

D E C I S I O N

“A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.” Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  A petitioner seeking postconviction relief has the burden of establishing by a fair preponderance of the evidence, facts that warrant re-opening the case.  Minn. Stat. § 590.04, subd. 3 (2002). Appellate courts “review a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  Appellate courts “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Id.

Exception to the Sequestration Order

            Appellant argues that he is entitled to a new trial because the district court abused its discretion when it made an exception to its sequestration order and permitted Hansen to sit at the prosecutor’s counsel table during trial.  Appellant contends that Hansen’s credibility was enhanced when he sat next to the prosecutor. In denying appellant’s request for a new trial, the postconviction court found that Hansen’s presence at the prosecutor’s table “[was not] enough to warrant a new trial because its effect on the jury is purely speculative,” especially where “[t]here was more than sufficient evidence presented at trial to support the verdicts.”

            “At the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses.”  Minn. R. Evid. 615.

The basic reason for sequestration of witnesses . . . is to remove any possibility that a witness waiting to testify may be influenced consciously or subconsciously by the testimony of other witnesses testifying in his presence and to afford opposing counsel the opportunity of bringing out in cross-examination any discrepancies in the testimony of the various witnesses.

 

State v. Ellis, 271 Minn. 345, 364, 136 N.W.2d 384, 396 (1965). 

Sequestration of witnesses is within the district court’s discretion.  State v. Jones, 347 N.W.2d 796, 802 (Minn. 1984).  However, a request for sequestration in criminal cases should rarely be denied.  Id.

The state argues that the trial court’s decision to exempt Hansen from the sequestration order was justified in light of the advisory committee comment to Minn. R. Evid. 615, which states:  “The committee agrees . . . that investigating officers . . . who were involved in the transaction being litigated . . . can be essential to the trial process and should not be excluded.”  Minn. R. Evid. 615 1989 comm. cmt. 

The committee comment does not establish an exception to Minn. R. Evid. 615 for investigating officers.  See State v. Johnson, 514 N.W.2d 551, 555 n. 8 (Minn. 1994) (stating advisory committee comments to rules of criminal procedure exist to guide court; they are not binding law); State v. Notch, 446 N.W.2d 383, 386 (Minn. 1989) (stating that even if comments to sentencing guidelines did not support legal conclusion, actual guidelines did).  More importantly, the comment does not reflect the supreme court’s concern that

the opportunity for prejudice to the defendant is present where the investigating officer sits at prosecuting counsel’s trial table throughout the trial—if for no other reason than the potential for confusion with the jury in the perception of a close alignment between the neutral fact-finding function of the police investigator with the adversary role of the prosecution.

 

State v. Koskela, 536 N.W.2d 625, 631 (Minn. 1995).  The supreme court has consistently expressed its disapproval of permitting an investigating officer to sit at the prosecutor’s table during trial.  Id.; State v. Schallock, 281 N.W.2d 186, 187-88 (Minn. 1979); State v. Schwartz, 266 Minn. 104, 111, 122 N.W.2d 769, 774 (1963).

Nevertheless, in Koskela, the supreme court concluded that the district court did not commit prejudicial error when it permitted a police lieutenant to sit at the prosecutor’s counsel table throughout the trial where the lieutenant was the first witness to testify, was not in uniform, and there was no indication of inappropriate intimidation.  536 N.W.2d at 631.  Similarly, in Schallock, the supreme court concluded that although permitting the highway patrol officer who signed the complaint against the defendant to sit at the prosecutor’s table was error, because the patrol officer’s role as a witness was minimal and any effect his presence had on the jury was too speculative, a new trial was not warranted.  281 N.W.2d at 187-88.

However, in Schwartz, the supreme court granted a new trial, in part because the sheriff was allowed to sit at the prosecutor’s counsel table and converse with jurors, and because a bailiff who investigated the case was permitted to take charge of the jury during the trial.  266 Minn. at 113-114, 122 N.W.2d at 774.  Significantly, in Schwartz, there were additional prejudicial incidents:  a doctor who treated the victim and testified at trial also attended to one of the jurors who became ill; the prosecutor’s closing arguments were “somewhat objectionable;” and the supreme court determined that it was error to admit certain objectionable and prejudicial testimony by a crime-laboratory analyst.  Id. at 112-113, 122 N.W.2d at 775.  The supreme court concluded that “with the exception of the admission of the testimony by [the crime-laboratory analyst], we would not consider any assignment of error hereinbefore referred to as sufficient in itself to justify a new trial.”  Id. at 113, 122 N.W.2d at 775.  But because of the combination of errors, the court determined that there was sufficient prejudice to affect the fairness of the trial.  Id.  However, the presence of the sheriff at the prosecutor’s counsel table was not, by itself, reversible error.

Here, the record indicates that the prosecutor moved to exclude Hansen from the sequestration order so that Hansen could provide logistical assistance and help with the exhibits.  Defense counsel’s main objection was that he did not want Hansen in the courtroom during Odell’s testimony because her credibility as a witness was going to be questioned.  To accommodate defense counsel, Hansen was excluded during Odell’s testimony and during the testimony of Hansen’s co-investigator but allowed to sit at the counsel table during the rest of the trial.

Appellant argues that Hansen was not essential to the trial process, and the trial court could have called a brief recess if the prosecutor needed to consult with Hansen during trial, as the court offered to do when it excluded Hansen from the courtroom while Odell and the co-investigator testified.  But even if this alternative would have been feasible, absent some showing of prejudice or undue influence, permitting Hansen to be present at the counsel table is not reversible error.  See Schwartz, 266 Minn. at 113-114, 122 N.W.2d at 775. 

There is no evidence in the record to support appellant’s argument that Hansen’s testimony was influenced by the testimony he heard from other witnesses, and as the postconviction court found, the effect on the jury of allowing Hansen to sit at the counsel table is purely speculative.  The evidence against appellant was substantial.  Odell testified that she bought methamphetamine and cocaine from appellant on two separate occasions.  There was testimony that more than 13 grams of cocaine and a large amount of cash, including all but $50 of the marked buy money given to Odell, were found during a search of the apartment where appellant was arrested.  Also, $50 of the buy money were found in appellant’s wallet, and more than six grams of cocaine were found in appellant’s shirt pocket when he was arrested.  Finally, officers found more than 13 grams of cocaine and other items commonly used for making illegal drug sales in the apartment where appellant lived.  Given the strength of the state’s case and the absence of any evidence of prejudice or undue influence resulting from Hansen sitting at the counsel table, we conclude that the postconviction court did not abuse its discretion by denying appellant’s request for a new trial.

Re-Sentencing Hearing

 

            Appellant argues that because the district court does not have discretion to impose “anything but the presumptive sentences of 48 months, 98 months, and 122 months,” the postconviction court erred by ordering that he be re-sentenced on his three remaining convictions rather than imposing the presumptive sentences for those convictions.  Alternatively, and in the interests of judicial economy, appellant asks this court to modify his sentence to reflect the presumptive sentences as calculated under the Hernandez method because the postconviction court lacks authority to modify the sentences. 

            Respondent argues that the postconviction court’s order for a re-sentencing hearing is not ripe for appellate review because it is not known what sentence the district court will impose for the remaining convictions.  We agree.

            “Issues which have no existence other than in the realm of future possibility are purely hypothetical and are not justiciable.”  Lee v.  Delmont, 228 Minn. 101, 110, 36 N.W.2d 530, 537 (1949).  This court has modified an appellant’s sentence instead of remanding only where the district court has first imposed an erroneous sentence.  See State v. Hopkins, 486 N.W.2d 809, 813 (modifying sentence where trial court exceeded authority in imposing upward departure upon re-sentencing); State v. Dixon, 415 N.W.2d 414, 417 (Minn. App. 1987) (modifying sentence instead of remanding where court erroneously imposed sentence exceeding statutory maximum).  Here, the district court has yet to re-sentence appellant, and, therefore, there is no justiciable controversy.  Accordingly, we decline to address appellant’s challenge to the postconviction court’s order for a re-sentencing hearing.

               In a pro se supplemental brief, appellant argues that the trial court erred in admitting evidence that appellant possessed multiple handguns, and that trial counsel’s conflict of interest prohibited him from providing appellant with effective legal assistance.  A petitioner waives an issue on appeal if the issue is not raised in a postconviction petition.  Hirt v. State, 309 Minn. 574, 575, 244 N.W.2d 162, 162 (1976).  Because neither of these issues was raised in appellant’s postconviction petition, they may not be raised for the first time on appeal.

            Affirmed.