This opinion will be unpublished and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
Rodney Allan Schliemann,
Filed September 6, 2005
Kandiyohi County District Court
File No. K1-02-1776
Mike Hatch, Attorney General, 1800
Boyd Beccue, Kandiyohi County Attorney, John Kallestad, Assistant County Attorney, 415 Southwest 6th Street, P.O. Box 1126, Willmar, MN 56201 (for respondent)
John M. Stuart, State Public Defender, Suzanne Senecal-Hill,
Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.
challenges his conviction of first-degree controlled-substance offense, arguing
that evidence that he sold methamphetamine to an informant in a controlled buy
was insufficient to support the conviction because the credibility of the
informant, who was paid for the buy, was suspect, and her testimony was not
corroborated. Appellant also argues that
because the forensic scientist did not test the entire amount of the purchased
substance, there was insufficient evidence to prove that the quantity of
methamphetamine was more than ten grams.
In addition, he contends that the district court erred by failing to give
no-adverse-inference and addict-informer jury instructions. Because credibility is an issue for the jury
In April 2002, Deputy Jason Dingman contacted Katherine Braun, a paid police informant, and asked if Braun knew of anyone from whom she could buy drugs. Braun then made several phone calls, including one to appellant Rodney Allan Schliemann. According to Braun, appellant told her that he “could get some [drugs] or had some.” She then called Deputy Dingman and set up a meeting with him. Deputy Dingman testified that after Braun showed him where appellant lived, they
returned to the [l]aw [e]nforcement [c]enter where Ms. Braun was searched by [a female detective] and fitted with [a] body transmitter device or [a] body wire. [Braun] was then provided with $700 cash, which was previously photocopied so that [law enforcement] could have control over the money that she was using. [Braun] was then provided with one of the . . . [d]rug [t]ask [f]orce’s undercover vehicles, which had been . . . searched before it was given to Ms. Braun.
The search of Braun did not include her mouth or other body cavities.
Braun next placed a recorded phone call to appellant and arranged to meet him at his home. After arranging the meeting, Braun drove the undercover car to appellant’s home, followed by Deputy Dingman and two additional police vehicles. The officers parked the cars at various locations near appellant’s residence. The officers saw Braun drive up to appellant’s home, but, due to obstructions, did not actually see her enter the house.
The transmission from the body wire was poor, and Deputy Dingman was able to hear only bits of the conversation that took place. He did hear Braun use appellant’s name, saying “Hey, Rod. What’s up? Wake up.” He also heard a male voice respond. In addition, he heard the parties discussing a “scale,” “an eight ball,” and haggling over a price, indicating that a drug deal was taking place.
Braun testified that, after arriving at appellant’s home, she entered through an open garage door and saw appellant sleeping in a chair. Braun woke appellant, who then pulled a “tin container” containing methamphetamine from his pocket. She stated that appellant then put the methamphetamine in a plastic bag and sold it to her for $550. According to Braun, appellant sold her everything he had—“a little over 10 grams.”
Braun returned to her car and drove away. The officers followed her to a predetermined location where she gave Deputy Dingman a plastic bag containing chunks of a substance he believed to be methamphetamine and $150 cash. Braun and the vehicle were searched once again, and Braun provided a tape-recorded debriefing statement in which she described what happened in appellant’s home. She was then paid $500 for her assistance. According to the state, appellant was not arrested at this time because the officers wanted to use Braun as an informant in other cases.
The substance sold to Braun was initially field-tested and weighed, then sent to the Bureau of Criminal Apprehension (BCA) laboratory for analysis. The substance was analyzed by BCA forensic scientist Lisa Seurer, who reweighed the substance and found that it weighed 10.6 grams. Seurer testified that she first did a preliminary examination to provide “some sort of idea [of] what [she] might be working with,” then conducted a confirmatory analysis using a gas chromatograph mass spectrometer. To conduct this analysis, Seurer “shaved portions of numerous chunks, combined them, [and] ground them to form a composite of the entire sample.” She stated that she considered all of the chunks to compose “one sample” because they were all in the same package and noted that the sample “appear[ed] to be uniform in nature as well as color and consistency.” Based on her analysis, Seurer determined that the substance was methamphetamine.
On December 9, 2002, appellant was charged with one count of controlled substance crime in the first degree in violation of Minn. Stat. § 152.021, subds. 1(1), 3(a) (2000). Appellant moved to dismiss the complaint for lack of probable cause. At the omnibus hearing, appellant also moved to suppress the audiotape of Braun’s body wire because the recording was inaudible. The district court denied both motions.
In May 2003, the public defender assigned to appellant moved to withdraw as counsel because appellant was uncooperative and “[a]dopted a hostile, abusive, and accusatory attitude toward counsel, culminating with four separate consecutive abusive, profane and threatening voice[-]mail messages.” The district court found that appellant had constructively terminated his attorney-client relationship and that it would be “impossible” for a public defender to continue to represent him. The district court then granted appellant a continuance to hire a private attorney.
In late August, appellant filed a pro se motion to dismiss because of the actions of the public defender’s office or, in the alternative, for appointment of a new public defender or another continuance to hire an attorney. Appellant also requested a second omnibus hearing. The district court granted appellant two additional months to hire an attorney and denied appellant’s other motions. In mid-November, appellant’s private attorney filed a certificate of representation and asked for a continuance, which the district court granted.
Following a jury trial, appellant was convicted of first-degree sale of a controlled substance. Appellant moved for a new trial or, alternatively, that the district court find him guilty of a lesser charge of fifth-degree controlled-substance crime. Appellant also moved for a downward sentencing departure. The district court denied appellant’s motion for a new trial or guilty verdict on the lesser-included offense. The district court then sentenced appellant to the presumptive sentence of 93 months in prison. This appeal follows.
Appellant first argues that
the evidence at trial was insufficient to support his conviction of sale
of a controlled substance because the testimony of the police informant was
inherently suspect and was not corroborated.
When considering a claim of insufficient evidence, our review is limited
to a careful assessment of the record to determine whether “a jury could
reasonably find the defendant guilty given the facts in evidence and the
legitimate inferences which could be drawn from those facts.” State
v. Miles, 585 N.W.2d 368, 372 (
reviewing the record, an appellate court must view the evidence in the light
most favorable to the jury’s verdict. State
argues that the informant’s testimony requires corroboration because the
informant was paid, has used drugs in the past, and had a prior relationship
with appellant. But under
Moreover, even if corroboration were required, it exists
in this case. Circumstantial evidence
can provide the requisite corroboration.
Cf. State v. Bowles, 530 N.W.2d 521, 532 (
Appellant asserts Braun’s status as a paid informant, her
alleged history with appellant, and her drug use render her testimony
unreliable and insufficient to support a conviction. But Braun’s potential bias and the deal she
had made with the police were brought out multiple times during the trial, both
by the state and by appellant. Braun’s
prior drug use and her alleged relationship with appellant were also addressed
during the trial. Moreover, in closing,
appellant argued that Braun’s drug history, relationship with appellant, status
as a paid informant, and deal with the police made her unreliable and asked the
jury to disregard her testimony. The
weight and credibility of Braun’s testimony was for the jury to determine.
II. Sampling Methods
argues that because the sampling method used by the BCA was defective, the
state failed to meet its burden of proof regarding the weight of the
support of his argument, appellant cites State
v. Robinson, 517 N.W.2d 336 (
supreme court reversed, finding that the state’s evidence was insufficient to
sustain a conviction.
Robinson is distinguishable. There, as the supreme court noted, the
evidence consisted of thirteen “individually wrapped plastic packets with some
amount of some kind of white substance in each, whose packaging [gave] no
assurance that the same substance was wrapped in each packet.”
question thus becomes whether the state is required to test all of a suspected
controlled substance when the entire amount is contained in a single
package. The supreme court has not
adopted a per se rule requiring the detailed testing of all disputed
evidence. Rather, as the Robinson court recognized, instances may
arise when extrapolation from random samples is sufficient to establish the
weight of an entire mixture. 517 N.W.2d
at 340; see also State v. Traxler,
583 N.W.2d 556, 561 (
III. Jury Instructions
In his pro se brief, appellant argues that the district court erred by failing to instruct the jury that no adverse inference should be drawn from appellant’s decision not to testify on his own behalf and by failing to give “cautionary addict-informer instructions.” But appellant points to no evidence in the record that he requested either of these jury instructions.
supreme court has held that the district court “ordinarily should obtain a criminal
defendant’s permission before giving” a no-adverse-inference instruction. State
v. Thompson, 430 N.W.2d 151, 153 (