This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Deunkause L. Davis,
St. Louis County District Court
File No. K002601393
Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, Suite 1800, 445 Minnesota Street, St. Paul, MN 55101; and
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent);
John Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
On appeal from conviction of first-degree controlled-substance offense, appellant Deunkause Laderious Davis argues that the evidence was insufficient to support his conviction. Appellant also argues that the prosecutor committed prejudicial misconduct in closing argument and that the court abused its discretion by imposing the presumptive sentence. We affirm.
I. Sufficiency of evidence
In considering a claim of insufficient evidence, this court reviews the record to determine whether the evidence, viewed in the light most favorable to the conviction, is sufficient to allow the jury to reach its verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994). The verdict will not be disturbed if the jury, acting with proper regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably find the defendant guilty. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant was convicted of unlawfully possessing with intent to sell “one or more mixtures of a total weight of ten grams or more containing cocaine.” Minn. Stat. § 152.021, subd. 1(1) (2002); see Minn. Stat. § 152.01, subd. 15a(3) (defining “sell” to include possession with intent to sell). Appellant argues that the state did not provide sufficient evidence to prove beyond a reasonable doubt that there were ten or more grams of mixtures containing cocaine in eight individually wrapped bindles found in a large baggie seized near appellant at his arrest. See State v. Robinson, 517 N.W.2d 336, 340 (Minn. 1994) (holding that, at least where packaging does not prove identity of substance, the state may not rely on extrapolation from testing of less than all of a quantity of individually packaged controlled substance).
As the state points out, this case is easily distinguishable from Robinson, in which the forensic chemist conducted no testing on 6 or 7 of 13 packets of suspected cocaine and the packets tested weighed less than ten grams. There, the supreme court held that the state could not rely on “extrapolation from random samples” to prove the required weight of a quantity of suspected cocaine that was individually packaged when the weight of the samples tested was less than 10 grams. Id. at 339.
In this case, BCA forensic chemist Scott Tschaekofske testified that he conducted the “Marquis” and “cobalt thiocyanate” color tests, in which cocaine produces a specific color, and one odor test, in which a wintergreen odor is produced if cocaine is present, on samples from each of the eight bindles that were in the large baggie. These tests confirmed, although preliminarily, that each bindle contained cocaine. Tschaekofske also testified that he weighed the contents of the eight bindles, yielding a total weight of 11.4 grams. Tschaekofske then performed gas-chromotaography-mass-spectrometry (GCMS) testing on samples from two of the five bindles containing “chunks” of suspected cocaine, on a composite mixture from the other “chunky” bindles, on one bindle of the three suspected “powder” cocaine bindles, and on a composite mixture from the remaining suspected “powder” cocaine bindles. Based on his analysis, Tschaekofske testified that “[a]ll eight bindles contained cocaine with a total weight of 11.4 grams of substance.” Tschaekofske testified that the combination of the two color tests and one odor test performed on each bindle separately would have eliminated placebo substances, and, therefore, in his opinion it was not possible that any of the bindles contained no cocaine.
The failure to conduct the GCMS test on each bindle separately after having preliminarily identified the presence of cocaine in each bindle is distinguishable from the failure of the chemist in Robinson to conduct any testing at all on some of the individual packages. The complete lack of testing of some of the packages in Robinson and testing of less than 10 grams meant that the state’s proof relied on the assumption that because some of the packages contained cocaine, all of the packages contained cocaine, and none of the untested packages contained only a placebo substance. See Id. at 339. The supreme court stated that “a sufficient quantity” of the mixture should be scientifically tested so as to establish the weight element of the crime beyond a reasonable doubt. Id. The lack of individual bindle final-stage testing in this case means only that the state’s proof relies in part on three earlier-stage tests that, according to the expert testimony of Tschaekofske, in combination are virtually conclusive even without the final-stage GCMS test. Tschaekofske testified that the combined weight of the substances in the bindles exceeded 10 grams, therefore the evidence was sufficient to support the conviction.
II. Prosecutorial misconduct
Appellant also argues that the prosecutor committed prejudicial misconduct in his rebuttal argument by bolstering the police officers’ testimonies and improperly appealing to the jury’s sympathies for police. Defense counsel did not object to the prosecutor’s argument, which generally constitutes a waiver of the challenge on appeal. State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997). The reviewing court, however, may reverse despite the failure to object if the prosecutor’s conduct was unduly prejudicial. See State v. Parker, 353 N.W.2d 122, 127-28 (Minn. 1984).
The general standard for determining whether a new trial is warranted due to prosecutorial misconduct is whether the misconduct, viewed in light of the entire record, is “inexcusable and so serious and prejudicial that [the] defendant’s right to a fair trial was denied.” State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (quotation omitted).
In this case, appellant compares the prosecutor’s “don’t second-guess police” rebuttal argument to a plea for a verdict favoring law and order, or an injection of the prosecutor’s personal opinion in support of the credibility of a witness. Although the prosecutor was certainly invoking the jury’s support for police, he was not asking the jury to find appellant guilty merely because he was a threat to law and order. Neither was the prosecutor stating his personal opinion that the police witnesses were credible. He was arguing that because of their demanding jobs, police should not be judged on the fastidiousness with which they generate investigative reports. But we nevertheless conclude that the prosecutor’s argument was improper because it invited the jury to assess the police-officer testimony in this case based on an irrelevant factor–the dangers of police work–a fact about which there was no evidence introduced at trial. The police officers in this case were executing a search warrant at a residence under circumstances that were not shown to be particularly dangerous. And there was no evidence that the officers needed to hurry their investigation to answer a call to a more dangerous assignment.
We also agree with appellant that the prosecutor committed misconduct by referring at several points to certain evidence as being “uncontradicted” or “not subject to question.” It is misconduct to refer to the state’s evidence as being “uncontradicted” because that implies that the defendant has some burden of proof. State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995). And in a case such as this, in which the defendant does not testify, such remarks could tend to encourage the jury to draw an adverse inference from his failure to do so.
In Minnesota, two different standards are applied in assessing whether prosecutorial misconduct requires a new trial. Serious misconduct requires a new trial unless found to be harmless beyond a reasonable doubt in that the verdict was surely unattributable to the error. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Less serious misconduct will be considered prejudicial only if it likely played a substantial part in influencing the jury to convict. Id.
The evidence against appellant in this case was overwhelming despite his challenge to the sufficiency of scientific testing. Appellant, after representing to the informant on the telephone that he was coming over with the requested cocaine, appeared at the informant’s back door with a baggie full of bindles that tested positive for cocaine. The only gap in the state’s case occurred when the baggie that officers saw in appellant’s pocket before the officers took him to the ground in the arrest came out of appellant’s pocket and was retrieved six or seven feet away from the spot where he was arrested. But the defense theory, that the baggie was lying in the grass the whole time and that appellant came to the informant’s door without cocaine, was extremely unlikely. And, as discussed above, the testing performed was sufficient to establish the identity and weight of the controlled substance. Given the overwhelming evidence supporting the conviction, we conclude beyond a reasonable doubt that the prosecutorial misconduct in bolstering police testimony and referring to some testimony as “uncontradicted” had no effect on the jury’s verdict.
Appellant argues that the district court abused its discretion by imposing the presumptive sentence and denying the defense motion for a downward dispositional departure. Appellant’s counsel argued that the Teen Challenge Program, a faith-based rehabilitation program, was an appropriate alternative to prison for appellant.
The decision to depart from the presumptive sentence is within the district court’s discretion and will not be reversed absent a clear abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The supreme court has held that only in a rare case will the reviewing court reverse a refusal to depart. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).
Appellant contends that the court improperly relied on facts in other cases and did not properly exercise its discretion by inquiring into his individual characteristics because at sentencing the district court noted that it had just presided over two murder trials involving crack cocaine or marijuana and that appellant stood convicted of “the most serious drug offense in Minnesota.” The district court went on to state that it might have been willing to look at a dispositional departure if appellant had been convicted only of possession but that given the evidence, the reasons appellant gave for being in the community, and his past failures at ending his addiction, it concluded it had “no recourse” but to follow the recommendations of the pre-sentence investigation and impose the presumptive sentence. Appellant seizes on the district court’s reference to the drug-related murder trials and statement that it “had no recourse” but to follow the sentencing recommendation to argue that the district court failed to exercise its discretion in sentencing in this case. We disagree that the comments show a disregard for appellant’s individual characteristics or a failure to exercise discretion. Appellant was a 31-year-old defendant with two prior crimes who, although he had the support of his family, also admitted to having a drug addiction. Appellant had not been admitted into the Teen Challenge program, and it is unclear that he met the requirements for admission to that program. And appellant admitted that he had driven to Duluth from Detroit expressly for the purpose of dealing drugs in Duluth. The district court appropriately exercised its discretion in sentencing.