This opinion will be unpublished and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,
Filed July 27, 2004
Pine County District Court
File No. K6-02-1355
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John Carlson, Pine County Attorney, Pine County Courthouse, 315 Main Street South, Pine City, MN 55063 (for respondent)
John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge; Anderson, Judge; and Forsberg, Judge.
U N P U B L I S H E D O P I N I O N
Appellant alleges that the prosecutor committed misconduct that entitles him to a new trial, that there was insufficient evidence at trial to corroborate the testimony of his accomplices, and that the district court erred in allowing him to be found guilty of selling drugs to his accomplice. We affirm.
While investigating methamphetamine labs, Pine County Deputy Sheriff Daniel Vosika received information regarding a possible methamphetamine lab from Jennifer Marie Reitan, whom he arrested for possession of methamphetamine. Reitan stated in a post-Miranda statement that appellant Chad DeRocker and others were manufacturing methamphetamine in the Hinckley area. Vosika questioned another individual he had arrested for involvement in methamphetamine manufacturing, who also reported that appellant was involved in the manufacture of methamphetamine. Reitan reported that she knew of several ingredients used to make methamphetamine that were stored on appellant’s property. She also stated that she had manufactured methamphetamine with appellant approximately one month earlier.
Vosika began to watch appellant’s house and testified that he observed vehicles at the house that had been seen in locations of known drug activity and that were registered to known drug users.
Deputy Vosika obtained a search warrant for the vehicle, person, and residence of Chad DeRocker. When Pine County officers executed the search warrant, they located appellant’s brother, Dean Richard DeRocker, inside the home and on his person discovered tin foil with burnt residue on it, which appeared to be methamphetamine. The residence smelled strongly of chemicals, and the officers located a backpack containing ingredients commonly used in the manufacture of methamphetamine in the kitchen. Chisago County Deputy Sheriff William Juneau, who was trained to investigate methamphetamine labs, examined the backpack’s contents while wearing a protective suit. He testified at trial about the methamphetamine manufacturing process and stated that the items in the backpack constituted a mobile, self-contained, methamphetamine lab. Police also found a food grinder in the kitchen, often used to grind cold medicines, which are used in the manufacturing process. When searching appellant’s vehicle, officers found an empty can of Toluene, a solvent used to manufacture methamphetamine.
While the officers were inside the home, appellant entered the home through the back door, and an officer took him into custody. Deputy Juneau searched appellant and found in his pants pocket a glass vial that contained 2.8 grams of methamphetamine.
A day after the search of appellant’s residence, Dean DeRocker told Deputy Vosika that numerous people had used methamphetamine at appellant’s residence, that appellant was involved in the sale of methamphetamine, and that appellant had given methamphetamine to Dean DeRocker, who had smoked it in appellant’s house. Dean DeRocker testified at trial that he pleaded guilty to possession of methamphetamine and that part of his plea bargain included testifying truthfully at his brother’s trial. In his testimony, he attempted to recant or minimize many of the statements he made to Deputy Vosika. He acknowledged telling Deputy Vosika that he was 80% sure that appellant had placed the backpack containing the drug manufacturing equipment and the methamphetamine solution in the location where the police found it. Dean DeRocker also acknowledged telling the officer that Reitan had brought materials for manufacturing methamphetamine to the house and given them to appellant and that he cleaned up equipment that had been used in the manufacture of methamphetamine because he did not want evidence around. He further testified that appellant had given him methamphetamine on November 14, 2002.
Reitan also testified at trial and stated that she was arrested by Deputy Vosika on November 14, and gave a statement describing her manufacturing methamphetamine with appellant. She agreed that she told Vosika that she had cooked methamphetamine with appellant at his house on three or four occasions. She also testified that she did not leave the backpack containing methamphetamine manufacturing materials at appellant’s home and, in fact, had no specific knowledge of the backpack.
Deputy Juneau also testified, describing the manufacturing process he believed was being used by appellant. The deputy went through the search warrant inventory list, and explained how each of the items found in appellant’s residence would be used to manufacture methamphetamine.
The district court instructed the jury that other evidence must corroborate testimony by an accomplice in order to convict appellant. The court further informed the jury that Reitan and Dean DeRocker were considered accomplices and their testimony must be corroborated. The district court also stated to the jury that it should disregard any attorney’s statement that differed from the law given by the court.
The jury found appellant guilty of manufacturing methamphetamine and guilty of a sale of methamphetamine by giving it to Dean DeRocker. The jury found appellant not guilty of conspiracy to manufacture methamphetamine and not guilty of possession of controlled substance in the first degree. Appellant’s motion for a new trial was denied. This appeal followed.
Appellant points to two arguments made by the prosecutor, first during his closing statement, and second, during his rebuttal argument, each of which he alleges constituted misconduct sufficient to entitle him to a new trial.
When reviewing a claim of prosecutorial misconduct, we “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000)). In determining whether prosecutorial misconduct deprived a defendant of a fair trial, there are two distinct standards. Id. In cases in which the misconduct was serious, the standard is whether the misconduct is harmless beyond a reasonable doubt. Id. “[M]isconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.” Id. (quotation omitted). In cases involving less serious misconduct, the standard is whether the misconduct likely played a substantial part in influencing the jury to convict. Id.
Appellant first objects to the remark that was made during the prosecution’s closing argument regarding the first count of conspiracy to manufacture methamphetamine:
And the judge in the instructions read to you that on a conspiracy charge, a defendant can’t be convicted solely on the basis of testimony of other people that are charged. And this is really the main and only count in the complaint where the instruction applies.
Defense counsel objected, stating:
Your Honor, the instructions are to be read as a whole and they apply to all counts.
The court then told the jury:
The jury is instructed to rely on the statement from the court regarding the instructions.
The prosecutor then proceeded with his closing argument, correctly stating to the jury that the defendant could not be found guilty based only on the testimony of his alleged co-conspirators. He reminded the jury that there had to be corroborating evidence, and he proceeded to discuss in detail the corroborating evidence and the credibility of the witnesses.
Appellant argues that the prosecutor’s statement that the accomplice testimony rule applied only to the conspiracy count was a misstatement of the law and requires reversal. Appellant points out that both Dean DeRocker and Reitan could have been charged with manufacturing the drug and that the court’s instructions reflected that both were accomplices, but did not distinguish their accomplice status by offense.
When appellant’s attorney moved for a new trial on the basis of the prosecutor’s statements during closing, the court denied the motion.
So, I do find beyond a reasonable doubt of this court whether there was misstatements [sic] of the testimony by Mr. Kendall or not I don’t believe that it had an impact on this jury’s findings.
Respondent points out that the court applied the standard for serious misconduct in determining beyond a reasonable doubt that any misstatements were harmless.
The prosecutor’s statements in closing, although error, do not warrant reversal or a new trial. The jury received specific instructions from the court indicating that accomplice testimony must be corroborated by other evidence, and the court reminded the jury, immediately following the prosecutor’s incorrect statement, that it must rely on the court’s statements of law rather than the prosecutor’s. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating that trial court’s jury instructions are factors to consider in determining whether jury was unduly influenced by prosecutor’s misconduct). These instructions were further reinforced by appellant’s counsel, who made extensive arguments concerning the requirement that accomplice testimony be corroborated by other evidence. In fact, the court again reminded the jury to rely on the instruction of the court when the prosecutor objected during defense counsel’s closing argument that the defense was misstating the jury instructions.
Viewed in the context of the whole argument, because the error was immediately corrected and the jury was reminded numerous times to rely on the correct instruction of the court, the prosecutor’s comment regarding accomplice corroboration is harmless error.
The second statement that appellant points to as prosecutorial misconduct requiring reversal was made during the prosecutor’s rebuttal argument. The prosecutor stated:
Dean DeRocker testified and told the officers that he cleaned all of the methamphetamine dishes . . . that makes him an accomplice, that makes him a party to the conspiracy. For count 1 (conspiracy) you could not convict Chad DeRocker solely on the basis of that testimony. Now with regard to count 4, the sale count. Dean DeRocker is not an accomplice to that count. He was not conspiring with his brother to sell the methamphetamine to him. When one person sells methamphetamine to another, the person selling is guilty of sale. The person if they buy it is guilty of possession, they are not guilty of conspiring with the other person to sell it to themselves, they are buying it and possessing it. So Dean DeRocker is not an accomplice to count 4, the sale, and you can convict the defendant based on Dean DeRocker’s testimony regarding that count.
Appellant’s counsel did not object to this statement. A defendant who fails to object to the prosecutor’s closing argument or to seek a cautionary instruction ordinarily waives the right to have the issue considered on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). Only when the misconduct is unduly prejudicial will relief be granted absent a trial objection or request for instruction. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). And while “a court may reverse a conviction despite the defendant’s failure to object or seek instructions if the prosecutor’s comments were unduly prejudicial[,] [t]he defendant’s failure to object implies that the comments were not prejudicial.” Id. (citation omitted). Accordingly, unchallenged prosecutorial misconduct is reviewed for plain error; this court determines if the misconduct was “so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object . . . should not forfeit his right to a remedy.” Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).
Appellant has not made a clear argument that the prosecutor’s statement on rebuttal was indeed error. The error, if any, was slight, and there is no evidence that the jury’s verdict was attributable to the statement.
Appellant argues to this court that the incriminating testimony of appellant’s accomplices was not sufficiently corroborated and, accordingly, there was insufficient evidence to convict appellant. A conviction in Minnesota cannot rest solely on the incriminating testimony of an accomplice unless it is corroborated by “such other evidence as tends to convict the defendant of the commission of the offense.” Minn. Stat. § 634.04 (2002). In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
The evidence corroborating an accomplice’s testimony, need not, by itself, establish a prima facie case of the defendant’s guilt, and it may be circumstantial or direct. State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995), cert. denied, 517 U.S. 1125 (1996).
Corroborating evidence may be secured from the defendant’s association with those involved in the crime in such a way so as to suggest joint participation, as well as from the defendant’s opportunity and motive to commit the crime and his proximity to the place where the crime was committed. The defendant’s entire conduct may be looked to for corroborating circumstances. If his connection to the crime may be fairly inferred from those circumstances, the corroboration is sufficient. Corroborating evidence is sufficient if it “restores confidence in the accomplice’s testimony, confirming its truth and pointing to the defendant’s guilt in some substantial degree.”
Id. (citations omitted).
Appellant acknowledges that there is ample evidence to show that methamphetamine was in the house, but claims that the corroborating evidence was insufficient to establish that methamphetamine was manufactured in the house. But the record contains substantial evidence to support the conviction. Deputy Vosika testified that his ongoing investigation indicated that appellant was engaged in the manufacture of methamphetamine and that he observed Reitan’s vehicle at appellant’s residence. Methamphetamine was found at appellant’s home. Further, almost every ingredient and material necessary for the manufacture of methamphetamine was found in appellant’s home. Although each of the accomplices stated at one point that actual manufacture had occurred, the police did not encounter appellant actively involved in the act of manufacturing. But there is ample circumstantial evidence to support the truth of the statements of appellant’s accomplices, and we decline to reverse his conviction.
Finally, appellant argues that he was improperly convicted of the offense of selling methamphetamine to Dean DeRocker. Appellant gave the drug to his brother, which constitutes a sale under Minnesota law. See Minn. Stat. § 152.01, subd. 15a (2002) (defining sale to include giving drug away without charge).
Dean DeRocker was appellant’s accomplice in manufacturing methamphetamine. Appellant alleges that it is nonsensical to deem a transfer of drugs from a defendant to his accomplice a sale, despite the statutory definition of “sale.” See Minn. Stat. § 645.17(1) (2002) (legislature does not intend an absurd result). Minn. Stat. § 152.01, subd. 15a, defines “sell” to include: “sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture. . . .” Under any interpretation of the statute, by giving methamphetamine to Dean DeRocker, appellant completed a sale of the drug. Accordingly, appellant was appropriately convicted, and we affirm.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.