This opinion will be unpublished and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
State of Minnesota,
Denis Lamar Morrison,
a/k/a Jermaine Alexander,
Ramsey County District Court
File No. K3012111
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of second-degree possession of cocaine, arguing that (1) the district court made prejudicially erroneous evidentiary rulings at trial; (2) the evidence is insufficient to prove that he possessed the cocaine; (3) the prosecutor committed prejudicial misconduct; and (4) he received ineffective assistance from his trial counsel. We affirm.
D E C I S I O N
In general, “evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). If the district court erred in admitting evidence, this court must determine whether there is a reasonable probability that the evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).
First, appellant argues that the district court erred in allowing, over objection, the tow-truck driver to testify as to the construction of light poles and whether a person could have placed the drugs inside the light pole before it was felled by appellant’s vehicle. Appellant argues that the driver was not qualified to testify as an expert on light poles.
While it may be true that the tow-truck driver could not qualify as an expert on light poles, his testimony was admissible under Minn. R. Evid. 701, which addresses the opinion testimony of lay witnesses. The driver testified as to his own observations of the pole after the accident, and his observations of other poles as a local resident. Further, a photo of the replacement light pole after the accident was admitted as evidence, allowing the jury to judge for itself whether or not the base of the pole was accessible when the pole was intact. Therefore, the district court did not abuse its discretion by allowing the tow-truck driver’s testimony.
Appellant next argues that the district court should not have admitted the testimony of a narcotics officer regarding the habits of street-level drug dealers and whether such a dealer would likely have stored the drugs in the light pole at some earlier time. We disagree.
After defense counsel’s objection to this testimony, the district court ruled that the testimony was relevant evidence because it tended to show that the defense theory that a third-party drug dealer put the drugs in the pole at an earlier time was more or less probable, and the court admitted it under Minn. R. Evid. 401. And we agree with the district court that the defense opened the door to this line of testimony by questioning other police witnesses as to whether they were aware that sometimes, street drug dealers store drugs in public places for later retrieval. We conclude that because the evidence was relevant and tended to make the defense theory less probable, the testimony was properly admitted.
Appellant argues that the evidence presented at trial is insufficient to support his conviction of second-degree possession of cocaine. When reviewing a claim of insufficiency of the evidence, this court must conduct a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the verdict, is sufficient to allow the jurors to find the way they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). A conviction based on circumstantial evidence merits stricter scrutiny than a conviction based on direct evidence. State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994). But, “circumstantial evidence is entitled to the same weight as direct evidence.” State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).
Appellant’s conviction is based on circumstantial evidence, since no eyewitnesses could place the drugs in his hands. But testimony showed that (1) appellant was near the front of the car immediately after the accident; (2) the position of the car would permit a person to access the base of the light pole; (3) there was cocaine residue on appellant’s hands; and (4) fingerprints found on the bag holding the cocaine belonged to appellant. The jury also heard testimony that appellant twice urged a witness to the accident to lie or not to testify and that appellant was nervous and agitated after the accident, calling for a lawyer and a bail bondsman even before he had been arrested. We conclude the evidence is sufficient to allow the jury to find that appellant possessed the drugs prior to the accident and subsequently attempted to hide them in the base of the light pole.
Appellant argues that the prosecutor made statements during closing arguments that amounted to prejudicial misconduct and warrant a new trial. Appellant did not object to the prosecutor’s closing argument at trial. Where a defendant fails to object to a prosecutor’s closing argument, he has generally waived the right to have the issue considered on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). Only if the statements are unduly prejudicial will they be reviewed where no objection was made. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).
Appellant argues that the prosecutor improperly told the jurors that they should not speculate as to what might have happened, but should focus on the evidence presented at trial. Appellant claims this statement diluted the burden of proof and could have influenced the jury to discount the defense theory that some other person stored the drugs in the light pole prior to the accident. Appellant cites State v. Smith, 655 N.W.2d 347, 353 (Minn. App. 2003), review granted (Minn. Mar. 18, 2003), for the proposition that the jury should not be instructed that it may not engage in any form of speculation, because some degree of speculation is involved in finding reasonable doubt. But Smith involved a jury instruction given by the court, not a statement made by a prosecutor during arguments. Id. at 352. Here, the district court properly instructed the jury on the standard of reasonable doubt and the prosecution’s burden of proof. The district court also instructed the jury that closing arguments are not evidence and should not be treated as such. We conclude that the prosecutor’s statements were not improper, and that even if the jury might have been improperly influenced by the remarks, the district court’s instructions remedied any possible prejudice to appellant.
In his pro se brief appellant argues that he received ineffective assistance from his trial counsel, who he discharged before sentencing. To show ineffective assistance of counsel, a defendant must affirmatively prove both 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 result of the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).
First, appellant claims that his trial attorney in effect admitted appellant’s guilt by referring to the fingerprints on the bag as being appellant’s prints. See State v. Wiplinger, 343 N.W.2d 858, 860-61 (Minn. 1984) (holding where defense attorney referred to defendant by name when examining victim, asking—“did Mr. Wiplinger seem threatening?”—attorney effectively admitted defendant’s guilt, warranting a new trial). But here, appellant’s counsel did not admit appellant’s guilt. Rather, consistent with strong expert testimony introduced by the state, counsel’s line of questioning impliedly acknowledged that appellant’s fingerprints were on the bag of cocaine. But such an implied admission does not constitute an admission that appellant was guilty of possessing the bag of cocaine prior to the accident.
Appellant also argues that his trial counsel prejudiced his trial by asking the fingerprint expert questions that prompted her to testify that she found upwards of 15 points of similarity between the prints found on the bag holding the cocaine and a set of appellant’s known prints. Defense counsel attempted to undermine the foundation of the expert’s testimony, and in doing so, inadvertently strengthened it. While the expert’s response was probably unexpected, we cannot say that the defense counsel’s questioning fell below a reasonable standard of advocacy. Although unsuccessful, counsel’s line of cross-examination was competent trial strategy that this court will not review. See State v. Vick, 632 N.W.2d 676, 688 (Minn. 2001). Moreover, in light of the expert’s testimony on direct examination, we cannot conclude that any additional evidence that came out on cross-examination affected the jury’s verdict.
Finally, appellant raises several additional pro se issues regarding evidentiary rulings, jury questions, a denied continuance, and the composition of the jury. After careful review of the record and appellant’s arguments, we find them to be without merit.