This opinion will be unpublished and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,
Donald Wallace Butler,
Affirmed; motion granted in part
Gordon W. Shumaker, Judge
Ramsey County District Court
File No. K2021932
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, Suite 315, 50 West Kellogg Blvd., St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.
GORDON W. SHUMAKER, Judge
In consolidated appeals from separate convictions of second-degree burglary and fifth-degree controlled substance crime, appellant Donald Wallace Butler argues that the trial court abused its discretion when it allowed in testimony evidence of underlying facts from a prior conviction, pre-Miranda statements, and certain physical evidence. In his pro se supplemental brief, Butler also argues ineffective assistance of counsel and prosecutorial misconduct. Although the district court abused its discretion in admitting the facts underlying appellant’s prior conviction, the error was harmless. All other evidence was properly admitted, and appellant failed to show ineffective assistance of counsel or prosecutorial misconduct. We affirm.
On April 5, 2002, plainclothes police officers Heather Weyker and Candice Jones Beaudette went to an apartment in St. Paul to investigate a report of possible illegal drug activity. As the officers stood at the door to the apartment, appellant Donald Wallace Butler came out of the laundry room down the hallway. According to the officers’ testimony, Butler had a crack pipe and what appeared to be a rock of crack in his hand and said, “Come on, come on, let’s hit it.” One of the officers then told Butler he was under arrest, but Butler ran and barricaded himself in the laundry room. After backup arrived, the officers broke into the laundry room and arrested Butler. Drug paraphernalia was found in the laundry room garbage can.
At the suppression hearing for the drug charge, the court ruled that the drug paraphernalia and Butler’s prior convictions including four burglaries could be admitted into evidence, but that two prior drug-related convictions would not be admitted because of their similarity to the current offense. But the court further ruled that if Butler testified he had never been involved in drug-related criminal behavior, evidence of the drug convictions would be admissible for the purpose of impeachment. After Butler testified at trial, the judge ruled that Butler’s testimony “opened the door” and triggered admission of the prior drug convictions for impeachment purposes only. Officer Felicia Reilly then testified regarding a prior drug conviction and was allowed to testify as to the underlying facts of that conviction. A jury convicted Butler on the fifth-degree controlled substance charge.
In the early morning of April 20, 2002, St. Paul Police officers Adam Siegfried and Kent Cleveland responded to a call from a tenant, John Cisneros, regarding a suspicious person in his apartment building. Cisneros let the officers into the secured apartment building, and Siegfried checked the storage room while Cleveland checked elsewhere in the apartment building. While checking the storage room, Siegfried discovered that each of the individual storage lockers had pry marks around the lock and handle and that the doors on the lockers were ajar. Siegfried found Butler crouched down in one of the lockers, with one hand hidden behind his back. Siegfried ordered Butler to stand up, step out, and show his hands. Before doing so, Butler dropped an object, which turned out to be a screwdriver, on the floor.
Because Cleveland was investigating elsewhere in the building and because he had safety concerns, Siegfried handcuffed Butler and, as he did so, asked, “What are you doing here?” Butler responded, “I’m trying to stay warm.” While Siegfried frisked Butler for weapons, Cleveland entered the area and asked Butler if he lived in the building. Butler said he did not. The officers also asked how Butler got in, and Butler said he used the screwdriver to pry open the front door lock. Then the officers asked Butler if he also used the screwdriver to pry open the storage lockers and Butler said he had. No Miranda warning was given during this time.
During the trial for the burglary charge, the district court allowed in evidence Butler’s pre-Miranda statements. A jury convicted Butler on the second-degree burglary charge. Both cases were consolidated for this appeal. Butler also submitted a pro se supplemental brief. On November 21, 2003, respondent filed a motion to strike facts and materials not in the record that were included in Butler’s pro se supplemental brief.
D E C I S I O N
1. Drug-Related Conviction
a. Underlying Facts of Prior Conviction
Butler argues that the district court abused its discretion when it allowed into evidence testimony regarding his prior drug-related conviction and the underlying facts of that conviction. We review evidentiary issues under an abuse-of-discretion standard. State v. Horning, 535 N.W.2d 296, 298 (Minn. 1995). Generally, inquiry into the facts underlying prior convictions admitted solely for impeachment purposes is improper. State v. Edwards, 343 N.W.2d 269, 273 (Minn. 1984).
Butler had ten prior felony convictions, two of which were for controlled-substance crimes. The district court ruled in limine that the state would be allowed to impeach Butler’s credibility with evidence of three burglary convictions and one theft conviction, but not with the prior drug offenses unless Butler testified that he had never been involved in drug-related criminal behavior.
To cast doubt on the arresting officers’ testimony that Butler walked up to them and asked them to do drugs with him, Butler testified: “I’m not that inept where I’m just gonna go up to someone and just like some street urchin and just hand out some crack cocaine to perfect—I mean to strangers or someone I don’t even know.” The court found that this testimony opened the door to impeachment with evidence of Butler’s prior drug convictions.
On cross-examination, the state focused on only one drug conviction, from 1998, and elicited from Butler his admission that he had been convicted of possession of cocaine. The state inquired as to some underlying facts, and Butler denied that he ever actually possessed cocaine in 1998.
On rebuttal, the state called one of the officers involved in the incident that led to Butler’s 1998 conviction. Over defense counsel’s objection, she testified that she was working as an undercover police officer and was posing as a prostitute on a public street corner. She testified that Butler approached her and asked if she wanted to do drugs with him and showed her what she recognized as a rock of crack cocaine in his hand.
On appeal, Butler argues that the officer’s testimony constituted inadmissible extrinsic evidence in violation of Minn. R. Evid. 608(b). The state contends that the evidence was admissible either as an exception to rule 608(b), because Butler opened the door, or as rule 404(b) evidence. Butler does not challenge the admission of the fact of his 1998 drug conviction, which arguably would be admissible under a rule 609(a)(1) balancing test.
Under rule 608(b) the district court may allow cross-examination about a specific instance of conduct “if probative of truthfulness or untruthfulness,” but the specific conduct “may not be proved by extrinsic evidence.” Minn. R. Evid. 608(b).
It is doubtful that a defendant’s effort to explain a conviction, which he has admitted, opens the door to the introduction of specific instances of prior misconduct. At the very least, such evidence should be subject to a rule 403 balancing test. And the prior misconduct here—an offer to do drugs with a stranger—is not inherently probative of truthfulness or untruthfulness. Furthermore, even if the district court decided that inquiry into the underlying facts of Butler’s conviction was permissible, rule 608(b) does not permit extrinsic evidence, that is, calling another witness, to prove the specific misconduct. Thus, rule 608(b) bars the officer’s testimony as to the 1998 episode.
However, evidence precluded if offered under a particular rule may yet be admissible if offered under a different rule. The state gave a rule 404(b) notice as to Butler’s prior drug convictions and, because those offenses resulted in convictions, evidence that Butler engaged in prior drug-possession crimes was clear and convincing. Under Minn. R. Evid. 404(b), other-crime evidence is not admissible to prove the character of a person in order to show that the person acted in conformity therewith; but the evidence may be admitted for a legitimate purpose. If the evidence is offered for a legitimate purpose, then the exclusion sanction of rule 404(b) does not apply. State v. Frisinger, 484 N.W.2d 27, 32 (Minn. 1992). The state identified a relevant non-character purpose for the evidence, namely, to contradict and rebut the inference that Butler would not simply offer drugs to strangers. Finally, although the district court did not conduct a formal Spreigl balancing test, the court did listen to arguments regarding the admissibility of the evidence and did consider the nature and possible effect of the evidence. Thus, we hold that the testimony as to facts underlying Butler’s 1998 drug conviction was properly admitted under Minn. R. Evid. 404(b).
b. Admission of Drug-Paraphernalia Evidence
Butler next argues that the district court abused its discretion when it received evidence of drug paraphernalia found in the laundry room garbage can because this evidence was inadmissible under Minn. R. Evid. 402 and 403.
Under Minn. R. Evid. 402, irrelevant evidence is inadmissible. Relevant evidence is evidence that has any tendency to make a fact of consequence more or less likely than it would be without the evidence and is generally admissible. Minn. R. Evid. 401, 402.
After the officers identified themselves, Butler ran into the laundry room and barricaded himself. After officers entered forcibly and arrested Butler, they found that he was the only person in the laundry room and that none of the washers or dryers were being used. The officers found Butler’s duffle bag and sleeping bag next to a trash can that contained drug paraphernalia. There was nothing else in the trash can. Butler originally came out of the laundry room and asked the officers to do drugs. He fled back into the room when he learned of their identities. Some of his personal belongings were in the room near the location of drug paraphernalia. No one else was in the room. To be relevant, evidence does not have to be conclusive. Butler’s proximity to drug paraphernalia, in the context of his surreptitious conduct, was sufficient to satisfy the “any tendency” test of relevancy.
But Minn. R. Evid. 403 permits the exclusion of even relevant evidence if its probative value is substantially outweighed by dangers of unfair prejudice, confusion of the issues, or misleading the jury. Butler argues that the admission of the drug paraphernalia from the laundry room was inflammatory, had little or no probative value, and was unnecessary. Butler makes no analysis of these bases for a rule 403 exclusion and thus fails to show how the district court abused its discretion in receiving this evidence.
Butler argues that the district court abused its discretion by admitting statements he made at the apartment when an officer first encountered him in the storage locker. An officer who can articulate facts that warrant further investigation may briefly detain an individual for the purpose of investigating possible criminal behavior and, if the officer has reason to believe that the individual may be armed, he may make a reasonable search for weapons and, while doing so, the individual is not “in custody” for Miranda purposes. State v. Wiernasz, 584 N.W.2d 1, 4 (Minn. 1998). Whether Butler was “in custody” at the time of the questioning is a mixed question of law and fact; and “an appellate court reviews a trial court’s findings of historical fact relating to the circumstances of the interrogation pursuant to the clearly erroneous test but makes an independent review of the trial court’s determination regarding custody and the need for a Miranda warning.” Id. at 3. An officer may conduct a limited, protective, weapons frisk of a lawfully stopped person if the officer has an objective, articulable basis for thinking that the person may be armed and dangerous. Terry v. Ohio, 392 U.S.1, 24, 88 S. Ct. 1868, 1881 (1968); State v. Payne, 406 N.W.2d 511, 513 (Minn. 1987).
A Miranda warning is not required for “on-the-scene” questioning where an officer temporarily detains an individual to get a preliminary explanation of a confusing situation. State v. Walsh, 495 N.W.2d 602, 604-05 (Minn. 1993). In such circumstances, officers may ask relatively general questions to “sort out the situation” and determine whether an arrest should be made. Id. at 605. The test for determining whether an interrogation is custodial for purposes of Miranda is whether a reasonable person in the defendant’s position would, under the circumstances, believe he was in custody of a degree associated with formal arrest. State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995). This is a fact-specific determination. Id.
Butler concedes that the facts are not in dispute; thus the only consideration here is whether, given the facts, Butler was “in custody” for Miranda purposes. The facts show that Siegfried, while investigating a report of a suspicious person in an apartment building, was alone at the time he handcuffed Butler; observed storage lockers ajar with pry marks around the handles; discovered Butler crouched down in one of the storage lockers, with something hidden behind his back; and observed Butler drop something when he was discovered. Given these facts, it was reasonable for Siegfried to Terry-frisk Butler; but at the point when both officers were in the room, it was unreasonable for Cleveland to question Butler while he was handcuffed. Thus we conclude for the purposes of Miranda, Cleveland’s questioning of Butler constitutes “in-custody” interrogation. Butler’s responses to Cleveland’s questions were inadmissible and the district court erred by allowing the responses into evidence.
Because there was error, we next consider whether the error was harmless. Error is harmless “[i]f the verdict rendered is ‘surely unattributable’ to the error.” State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997). In applying harmless-error analysis, this court examines the record as a whole. Id. Here, the jury heard testimony that Butler, a non-resident of the building, was found in a secured apartment’s storage locker, crouched down, hiding a screwdriver, with fresh pry marks on storage lockers consistent with the use of a screwdriver. Because the physical evidence provides a strong inference that Butler was breaking into the lockers with the screwdriver, the verdict rendered is ‘surely unattributable to the error,’ and the error is harmless beyond a reasonable doubt; thus his conviction stands.
3. Pro Se Argument
a. Ineffective Assistance of Trial Counsel
In his pro se supplemental brief, Butler argues ineffective assistance of counsel because his counsel failed to (1) locate a possible witness, (2) conduct lab tests on evidence, (3) challenge a juror for cause, and (4) object to the prosecutor’s closing argument. An appeal from a judgment of conviction is generally not the proper method of raising an issue concerning the effectiveness of defense counsel. State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). On direct appeal, however, when the record provides a sufficient basis to review an ineffective assistance of counsel claim and the claim requires no “additional facts to explain the attorney’s decision,” this court may review the matter as the interest of justice may require. Minn. R. Civ. App P. 103.04; Black v. State, 560 N.W.2d 83, 85 (Minn. 1997). On appeal, a claim of ineffective assistance of counsel is reviewed under a two-pronged test of performance and prejudice. Gates v. State, 398 N.W.2d 558, 561 (1987). Under the performance prong, an appellant has the burden of showing by a preponderance of the evidence that his counsel’s performance fell below an “objective standard of reasonableness.” Id. Questions of trial strategy are left to the discretion of trial counsel, which this court will not review later for competence. State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999). All the challenges raised to Butler’s counsel’s performance involve matters of trial strategy. See Dukes v. State, 660 N.W.2d 804, 811 (Minn. 2003) (holding that opening and closing arguments are part of trial strategy); Voorhees, 596 N.W.2d at 255 (holding decisions regarding evidentiary issues are a matter of trial strategy); State v. Lahue, 585 N.W.2d 785, 789-90 (Minn. 1998) (holding whether to locate and call a witness is a matter of trial strategy); Flourney v. State, 583 N.W.2d 564, 570 (Minn. 1998) (holding challenges to jurors are a matter of trial strategy). In reviewing trial strategy, the presumption is that a challenged action by counsel is considered sound trial strategy. State v. Strodtman, 399 N.W.2d 610, 616 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). In addition, Butler fails to show how any of his counsel’s actions were other than sound trial strategy. Thus, he fails to satisfy the performance prong and cannot show his counsel’s performance fell below an “objective standard of reasonableness.” Accordingly, his claim of ineffective assistance of counsel must fail.
b. Prosecutorial misconduct
Butler argues that the prosecutor committed misconduct because the prosecution’s closing argument “improperly intended to distract the jury from its main objective [and] eliciting the jury’s emotions, passions, and prejudice as to direct them in the pursuit of a guilty verdict.” The determination of whether a prosecutor acted improperly is generally left to the sound discretion of the district court. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). Because this issue was not raised at trial, Butler has arguably waived his right to raise the issue on appeal. See State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (holding defendant who fails to object generally waives the issue of prosecutorial misconduct). Furthermore, Butler does not cite any evidence of prosecutorial misconduct. Counsel may point to circumstances which cast doubt on a witness’s veracity or which corroborate testimony, but may not offer a personal opinion. State v. Ture, 353 N.W.2d 501, 517 (Minn. 1984). Here, the prosecutor’s closing argument points to circumstances that cast doubt on witness veracity or corroborate testimony, but does not give a personal opinion. Thus, we conclude that there is no merit to Butler’s claim of prosecutorial misconduct.
As to appellant’s motion to strike portions of Butler’s pro se supplemental brief, we grant the motion as to the facts and materials not in the record. We note that facts in the record were sufficient to support consideration of Butler’s pro se issues.