This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Todd James Jeka,
Ramsey County District Court
File No. K4-03-1621
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134l; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, 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 Wright, Presiding Judge; Lansing, Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Todd James Jeka contends that the district court erred in (1) ruling that his prior convictions were admissible at trial; and (2) giving a no-adverse-inference jury instruction regarding appellant’s decision not to testify without obtaining appellant’s permission. Appellant also challenges fines imposed by the district court administrator, and in his pro se brief challenges venue and the admission of certain evidentiary items. We affirm.
We review a district court’s ruling on the impeachment of a witness by prior convictions under a clear-abuse-of-discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Whether the probative value of the prior convictions outweighs their prejudicial effect is a matter within the discretion of the district court. State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985). And the district court’s decision will not be reversed absent a clear abuse of discretion. Id. at 209.
Minn. R. Evid. 609 provides that, for the purpose of attacking the credibility of a witness, evidence of prior convictions may only be admitted if (1) the conviction was punishable by death or imprisonment in excess of a year and the court determines that the probative value outweighs its prejudicial effect, or (2) the conviction involved dishonesty or false statement, regardless of the punishment. Appellant’s prior convictions did not involve dishonesty or false statement, but were punishable by imprisonment in excess of one year. Therefore, the district court weighed the probative value of admitting the convictions against its prejudicial effect.
“[District] courts have great discretion in determining what prior convictions are admissible under the balancing test of Rule 609(a)(1).” State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993). The district court uses the following factors to carry out this balancing test:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.
Ihnot, 575 N.W.2d at 586 (quoting State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978)).
If a defendant’s credibility is central to the determination of the case, “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.” State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980). And the district court should also consider whether the admission of the evidence would cause the defendant not to testify. Id. But “[d]epending on the particular facts of the case, the trial court may assign different weights to different factors. Because the trial court is in a unique position to make this determination, it must be accorded broad discretion.” State v. Hochstein, 623 N.W.2d 617, 625 (Minn. App. 2001).
Here, the district court weighed on the record each of the five Jones factors. The district court found that the similarity of appellant’s past drug-crime conviction with the current charge would prejudice appellant, but that the centrality of appellant’s credibility to the case weighed heavily in favor of admission of the assault and drug-crime convictions. The district court excluded two terroristic-threats convictions because of their age. We conclude that the district court did not abuse its discretion in admitting the prior convictions because the district court properly applied the Jones factors and found the convictions to be more probative than prejudicial.
A district court ordinarily should obtain a criminal defendant’s permission before giving CRIMJIG § 3.17, the no-adverse-inference instruction regarding appellant’s right not to testify. State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988). Although appellate courts generally do not consider jury-instruction issues if they were not objected to at trial, we may review jury instructions if they contain plain error affecting substantial rights. State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). To establish plain error, the challenging party must show: (1) error, (2) that is plain, and (3) that affects substantial rights. Id.
Here, the record indicates that the district court plainly erred by failing to ask appellant personally whether he wanted the no-adverse-inference instruction. But appellant must also show that the error was prejudicial and affected the outcome of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). Plain error is prejudicial when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury’s verdict. Id.
We conclude that appellant has not shown prejudice. The prosecutor made no prejudicial comments during trial or closing argument, nor did she comment on defendant’s decision not to testify. And in light of the strong evidence of defendant’s guilt, the instruction likely did not have a significant effect on the jury’s verdict. The record indicates that a witness placed appellant at the scene with a white plastic bag and shortly thereafter, a police officer confronted appellant and recovered a white plastic bag nearby. And the bag contained a white rocky substance later identified as methamphetamine. In addition, the police officer testified that when he retrieved the white plastic bag, appellant made an exclamation, tacitly admitting the bag was his.
Moreover in Thompson, which was decided prior to the plain-error test articulated in Griller and Baird, the supreme court noted that “it does not follow . . . that the defendant is entitled to a new trial simply because the record on appeal is silent as to whether the defendant and his attorney wanted the instruction . . . .” Thompson, 430 N.W.2d at 153. Here, the record does not reflect whether appellant and his trial attorney discussed the instruction. Rather, the record reflects that appellant’s attorney agreed to the instruction. We conclude that appellant is not entitled to a new trial when the record is silent as to his wishes during the trial.
Finally, appellant concedes that the error in the instruction is not so prejudicial as to require a new trial but argues that the cumulative prejudicial errors in the trial justify reversal. Even when an error at trial, standing alone, would not be sufficient to require a reversal, the cumulative effect of the errors may compel reversal. State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979). But as discussed above, the district court did not err in admitting evidence of appellant’s prior convictions. Therefore, any error in the no-adverse-inference instruction is singular, not cumulative, and does not justify reversal.
Appellant challenges the fees and surcharges imposed by the court administrator, which were in addition to the fine the district court imposed at sentencing. The oral sentence pronounced by the judge at a sentencing hearing constitutes the judgment of the court. See State v. Rasinski, 527 N.W.2d 593, 595 (Minn. App. 1995). But Minnesota law authorizes the court administrator to impose surcharges and law-library fees on controlled substance crimes. See Minn. Stat. § 609.101, subd. 3(b) (2002) (allowing the court administrator to impose a surcharge required by section 357.021, subdivision 6); Minn. Stat. § 134A.09 (2002) (authorizing the court administrator to impose a county law-library fee in Ramsey and Hennepin counties). We thus conclude that appellant is required to pay the surcharge and law-library fee in addition to the judicially imposed fine.
Appellant argues that the evidence is insufficient to prove venue, an element of second-degree controlled-substance crime, possession of methamphetamine. When reviewing a sufficiency-of-the-evidence claim, “this court must view the evidence in the record in the light most favorable to the jury’s verdict and must assume the jury believed the state’s witnesses and disbelieved contrary evidence.” State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). We review “that evidence and the legitimate inferences drawn from it to determine if they were sufficient to permit the jury, giving due regard for the presumption of innocence, to reasonably conclude the [defendant] was guilty beyond a reasonable doubt of the offense of which he was convicted.” Id. Appellant’s attorney moved for acquittal at the close of the evidence for failure to prove venue. The district court found that the state established venue through the police officer’s testimony because the officer stated that he responded to the east side of St. Paul on Third Street and that the location was across the street from his home. Because the jury could legitimately infer that the offense occurred in Ramsey County, the evidence on venue is sufficient to uphold the jury’s verdict.
Appellant challenges the admission of a syringe found on his person, a white plastic bag found near where appellant was apprehended, and certain statements appellant made when he was arrested. A district court’s admission of physical evidence will be affirmed unless it constitutes an abuse of discretion. State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985). Here, the district court found that the police officer had probable cause to arrest appellant for disorderly conduct or terroristic threats prior to the officer’s search of appellant. Then, while the officer searched appellant incident to arrest, the officer found a syringe in the front pocket of appellant’s sweater. “If an arrest is valid, police may conduct, without a warrant, a full search of the person of the arrestee as an incident of the arrest without any additional justification.” State v. Walker, 584 N.W.2d 763, 766 (Minn. 1998). Thus, we conclude that the search was lawful and evidence arising out of that search was admissible.
Appellant also argues that the district court erred in admitting the white plastic bag found by the police officer. But warrantless seizures of “abandoned” property are not objectionable under the constitution. Abel v. United States, 362 U.S. 217, 241, 80 S. Ct. 683, 698 (1960). “A finding of abandonment is not dependent upon ‘probable cause’ to believe that the property has been abandoned.” 7 Minnesota Practice § 5.18 (2001). “Examples of abandoned property include property dropped by a suspect prior to arrest . . . .” Id. Here, appellant abandoned the property prior to his arrest and thus, the police officer lawfully seized the evidence.
Finally, appellant argues that the district court improperly admitted incriminating statements he made prior to the police officer’s interrogation. Statements made by a suspect during custodial interrogation are generally inadmissible unless the suspect is first given a Miranda warning. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). The Miranda warnings are required in order to protect a defendant’s Fifth Amendment privilege against self-incrimination. Rhode Island v. Innis, 446 U.S. 291, 297, 100 S. Ct. 1682, 1688 (1980).
Here, we conclude that appellant was in custody when the police officer handcuffed and secured appellant in the police car. See State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998) (concluding that when the police gave the suspect a breathalyzer after a report that he had attempted to run down several persons with a vehicle and then placed him in a squad car, the suspect was in police custody for Miranda purposes). But in addition to custody, the accused must face some type of interrogation or coercion so that the statements are rendered involuntary. Id. In Innis, the U.S. Supreme Court concluded that the Miranda safeguards apply “whenever a person in custody is subjected to either express questioning or its functional equivalent.” 446 U.S. at 300-301, 100 S. Ct. at 1689. The “functional equivalent” of interrogation for purposes of Miranda means “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301, 100 S. Ct. at 1689-90. Such police conduct, to trigger Miranda, “must reflect a measure of compulsion above and beyond that inherent in custody itself.” Id. at 300, 100 S. Ct. at 1689.
Here, the police officer did not elicit appellant’s inculpatory statement because the officer did not question appellant while the officer retrieved the white plastic bag containing incriminating evidence. Rather, appellant voluntarily made the statement. Thus we conclude that appellant’s statement was admissible.