This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Michael Lamarr Hill,
Filed September 6, 2005
St. Louis County District Court
File No. K3-03-601138
Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, MN 55802 (for respondent)
Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Dietzen, Judge.
Michael Lamarr Hill was charged with one count of aiding and abetting
third-degree controlled substance crime (sale of cocaine). The charge was based on evidence obtained
during a controlled buy on October 14, 2003, between a paid police informant,
Because the evidence was sufficient to support the conviction, trial counsel was not ineffective, and Blakely does not apply to the sentence imposed here, we affirm.
Appellant argues that the evidence
is insufficient because Clater’s testimony is uncorroborated. Clater was a paid police informant, not an
accomplice; thus, the rule requiring corroboration of accomplice testimony does
not apply here. See
Even if we were inclined to adopt such a rule, this would not be the case to do so because Clater’s testimony was amply corroborated. In particular, Officer Jungers followed all of the safeguards that have been developed by law enforcement to insure the credibility of an informant during a controlled buy: Jungers conducted visual and audio surveillance of the buy; used marked buy money; searched Clater immediately before and after the buys; and arrested Liddell and appellant only after Clater had successfully completed at least two buys.
In addition, Clater’s testimony is further corroborated by the following evidence and the inferences that can be drawn from that evidence: (1) when appellant was arrested on October 17, after a second controlled purchase between Clater and Liddell, he had on his person one of the $100 bills used in the October 14 controlled buy; (2) Clater remembered appellant’s nickname shortly after the October 14 buy; (3) the jury could easily reject appellant’s purported alibi and explanation for possession of some of the October 14 buy money because certain details of his testimony did not make sense; (4) the jury could easily reject Liddell’s testimony that appellant was not present on October 14 because details of his testimony were directly contradicted by the testimony of Jungers and Clater; and (5) Spreigl evidence was presented of appellant’s earlier drug sale to a confidential informant.
Finally, appellant urges this court to adopt a jury instruction requiring independent corroboration of the testimony of a paid police informant. We decline to do so. Defense counsel did not request such an instruction, and there is no basis to require such an instruction, particularly when Clater’s testimony was corroborated by other evidence and when the jury was otherwise properly instructed on witness credibility.
We therefore conclude that the
evidence was sufficient to sustain appellant’s conviction for aiding and
abetting third-degree controlled substance crime: the jury could reasonably find that appellant
was in the back seat of the vehicle in which Liddell was riding on October 14,
that he handed the baggie containing cocaine to Liddell, and that he was
involved in the transaction.
Appellant claims that his trial attorney was ineffective when she (1) failed to object to the use of his prior conviction for impeachment purposes; (2) objected to the use of his prior conviction for Spreigl purposes after not objecting to its use for impeachment; (3) requested that the Spreigl instruction not be repeated; and (4) told the jurors during voir dire that she was from the public defender’s office.
The matters claimed by appellant to
demonstrate ineffective assistance all involve trial strategy and tactics,
which we will not review on appeal as long as that trial strategy appears
In order to establish a claim of
ineffective assistance of counsel, a defendant must show that (1) counsel’s
performance was so deficient that it fell below an “objective standard of
reasonableness,” and (2) the error prejudiced the outcome of the trial. State
Appellant argues that his sentence
must be reduced or vacated because a jury did not determine whether he had a
custody status point, which ultimately increased his criminal history score and
presumptive sentence, in violation of Blakely
v. Washington, 524 U.S. 296, 124 S. Ct. 2531 (2004). This court has held, however, that Blakely does not apply to facts relating
to a prior conviction, including custody status. State
v. Brooks, 690 N.W.2d 160, 163 (
Even if Blakely should be found to apply to custody status points, the only relief that appellant might conceivably receive would be the elimination of his custody status point. Given a criminal history score of 4, the presumptive sentence for third-degree cocaine crime, a severity level VI offense, is 45 months; appellant’s sentence of 28 months represents a downward departure based on a mitigating factor. Elimination of the custody status point would leave appellant with a criminal history score of 3, which would give him a presumptive sentence of 39 months, which is 11 months greater than the sentence that he actually received. Because the sentence received by appellant is well within the maximum sentence permitted by the jury’s findings alone, he is not entitled to a reduction in his sentence under Blakely.
 The state argues that we should not give appellant a second opportunity to litigate his ineffectiveness of counsel claims in any subsequent postconviction proceeding. We decline to issue a decision precluding appellant from seeking postconviction relief should such relief be warranted.