This opinion will be unpublished and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
Laurence Matthew Sarber,
Filed December 27, 2005
Dissenting, Randall, Judge
Washington County District Court
File No. K7-04-1171
Mike Hatch, Attorney General, Thomas R. Ragatz, Mary R. McKinley, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Douglas H. Johnson, Washington County Attorney, Washington County Courthouse, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)
John M. Stuart, State Public Defender, Theodore D.
Sampsell-Jones, Assistant State Public Defender,
Considered and decided by Randall, Presiding Judge; Peterson,
Judge; and Dietzen,
Appellant challenges his conviction for first-degree possession of a controlled substance, arguing that the district court (1) violated appellant’s Sixth Amendment right to confrontation by prohibiting appellant from inquiring whether the prosecution’s key witness was charged as a result of the same incident; (2) erred in denying appellant’s motion to suppress drugs seized as a result of an investigatory traffic stop; (3) improperly excluded evidence regarding the alleged involvement of the prosecution’s key witness in a prior drug incident; and that (4) he received ineffective assistance of counsel.
Because we conclude that the district court did not (1) deny appellant’s Sixth Amendment right of confrontation; (2) err in denying appellant’s motion to suppress evidence; (3) abuse its discretion in excluding evidence regarding the prosecution’s key witness’s involvement in a prior incident; and that (4) appellant was not deprived of effective assistance of counsel, we affirm.
In February 2004, police officers Timothy Morning and Don Johnston were on routine neighborhood patrol in the early morning hours when they witnessed a vehicle enter a public park. The park had closed at midnight, and it was a violation of city ordinance to enter the park at that time. The officers followed the vehicle. As the squad car approached the vehicle, it made a wide 180-degree turn and exited the park in the opposite direction. The officers were unable to run a check on the vehicle’s license number because the vehicle’s license-plate light was out. The vehicle made sudden and erratic maneuvers as it left the park and drove into a shopping area.
The officers pulled the vehicle over to investigate. Officer Morning approached the vehicle on the driver’s side and Officer Johnston approached the vehicle on the passenger’s side. The driver told Officer Morning his name was Jeremy Corwin but was unable to produce a driver’s license or proof of insurance. According to Officer Johnston, Corwin asked the officers for assistance in finding his license within the vehicle. When Corwin’s license was not recovered from the vehicle, he was taken into custody for driving without a license.
When Officer Johnston approached the vehicle’s passenger side, he noticed a pearl-handled object located between the vehicle’s passenger seat and central console that he believed to be a knife or gun. Consequently, he asked the passenger to exit the vehicle and requested identification. The passenger identified himself as appellant Laurence Matthew Sarber, and was not able to produce a driver’s license or proof of insurance. When it was discovered that he had two outstanding warrants for his arrest, appellant was placed under arrest and searched.
A license plate check on the vehicle revealed that its registered owner was a third party, Joel Ahrens. The officers had the vehicle towed and impounded in accordance with the department’s impoundment policy. During the inventory of the vehicle, Officer Johnston removed the pearl-handled knife and discovered a fanny pack located underneath the front passenger’s seat. While removing the fanny pack, he also noticed an open shaving kit under the seat, which contained several syringes, baggies, and miscellaneous drug paraphernalia. As a result, the officers called the canine narcotics unit. The canine sniffed the vehicle and detected an odor of narcotics in the right front console area of the vehicle and underneath the front passenger seat.
Following the search, it was determined that the fanny pack contained 42.9 grams of methamphetamine powder. Appellant was charged with first-degree controlled substance offense in violation of Minn. Stat. § 152.021, subd. 2(1) (2004). Corwin was not charged as a result of the incident.
Prior to trial, appellant moved to suppress the evidence seized during the search of the vehicle, arguing that the evidence was the fruit of an unconstitutional search and seizure. After an omnibus hearing, the district court denied appellant’s motion to suppress the evidence found in the vehicle, concluding that: (1) Corwin consented to the search; (2) the search of the vehicle was a lawful search incident to arrest; (3) the search was a valid inventory search conducted according to the department’s impound policy; and (4) the drugs would have inevitably been discovered.
At trial, the central issue was the ownership of the methamphetamine. Appellant’s theory of the case was that Corwin, not appellant, owned the methamphetamine and placed it in the car. During opening argument, appellant’s counsel informed the jury that Corwin was not charged in the case. Appellant’s counsel stated, “[o]ne last thing about Jeremy Corwin, he wasn’t charged. That is what the evidence will show.”
Subsequently, the prosecution brought a motion in limine seeking to disallow further questions about whether Corwin was charged in the case and to prevent appellant’s counsel from further arguing that Corwin was not charged. The prosecutor stated: “I have no trouble if [appellant] wants to argue stake and the outcome and all the factors which bear on credibility and weight of the testimony. That is standard operating procedure. I don’t object to that.” Over appellant’s objections, the district court granted the prosecutor’s motion to prohibit the potential testimony, concluding that its potential for prejudice outweighs its probative value.
Corwin testified that the drugs belonged to appellant. During cross-examination, appellant’s counsel attacked Corwin’s credibility. Corwin admitted that he lied to the police regarding several important facts of the incident, including his lies that he owned the car, that he had a driver’s license but could not find it in the car, and that the driver’s license was either in the trunk or the back seat. Appellant’s counsel then challenged Corwin to admit that he hid the drugs under the passenger seat. Corwin stated that while he had “lied in the past,” he did not hide drugs under the passenger seat. He also denied that he had ever hidden drugs from the police.
The state called Officer James Neuenfeldt, a police investigator assigned to the case, to testify about the incident in question. Appellant’s counsel sought to cross-examine Officer Neuenfeldt about a prior incident in which Corwin was allegedly arrested for possession of drugs. But during voir dire questioning conducted outside the presence of the jury, Officer Neuenfeldt testified that he was not present at the scene of the prior incident and only heard from other officers that Corwin was arrested for possession of drug paraphernalia and that Corwin tried to hide some packages containing some controlled substances under the seat of the vehicle. Officer Neuenfeldt thought Corwin was charged with fifth-degree possession of a controlled substance.
Appellant contended that the proposed testimony regarding Corwin’s prior incident constituted proper impeachment of Corwin. The prosecution argued, and the district court ruled, that the proposed testimony was inadmissible as hearsay and was barred by Minn. R. Evid. 608(b).
At the trial’s closing, the district court gave the jury the following instruction:
You cannot find the defendant guilty of a crime on the testimony of a person who could be charged with that crime unless the testimony is corroborated by other evidence that tends to convict the defendant of the crime. Such a person, who could be charged for the same crime, is called an accomplice. If you find that Jeremy Corwin is a person who could be charged with the same crime as the defendant, you cannot find the defendant guilty of a crime on that testimony unless the testimony is corroborated.
During closing argument, appellant’s counsel vigorously challenged Corwin’s credibility, arguing that Corwin’s testimony was a “huge, huge deal,” that Corwin was not trustworthy, and that Corwin had “too much to lose” by not implicating appellant as the possessor of the drugs. The jury found appellant guilty as charged, and appellant was sentenced. This appeal follows.
D E C I S I O N
Appellant raises four issues on appeal. First, appellant claims the district court violated his Sixth Amendment right to confrontation by prohibiting him from inquiring as to whether Corwin was charged for the same incident.
review questions concerning the admissibility of evidence for an abuse of
discretion, even where an appellant has challenged the exclusion of evidence as
a violation of constitutional rights. State v. Gustafson, 379 N.W.2d 81,
Appellant claims he was unable to properly reveal Corwin’s bias in testifying for the state because he could not question Corwin or others about why Corwin was not charged as a result of the incident. Appellant argues that he was unable to reveal Corwin’s bias, i.e., whether Corwin had received a deal from the prosecution for testifying against appellant, or whether Corwin hoped to receive leniency in exchange for his testimony.
Amendment of the United States Constitution guarantees a criminal defendant the
right to confront and cross-examine witnesses.
“In criminal cases, the Confrontation
Clause contemplates a cross-examination in which
the defendant has the opportunity to reveal a prototypical form of bias on the
part of the witness.” State v.
Lanz-Terry, 535 N.W.2d 635, 640 (
The crux of the issue is whether the jury had sufficient information to make a “discriminating appraisal” of Corwin’s alleged bias. Here, the jury was informed that Corwin was not charged in appellant’s opening statement. Second, Corwin admitted that he lied to police about his ownership of the car and his driver’s license, yet stated that the drugs belonged to appellant. Third, the evidence presented to the jury established that there were only two people in the car—Corwin and appellant—and that Corwin had an incentive to state that the drugs belonged to appellant to protect his own interests. Fourth, the jury was instructed that if Corwin could have been charged with the crime, his testimony must be corroborated. Finally, in closing argument, appellant’s counsel argued that Corwin had a substantial stake in the outcome of the case, i.e., that he had “too much to lose” by not testifying that the drugs belonged to appellant.
Next, appellant argues that
the district court erred in admitting drug evidence obtained as a result of the
search of the vehicle. Following an
omnibus hearing, the district court ruled that the evidence found in the
vehicle was admissible. “When reviewing
pretrial orders on motions to suppress evidence, we  independently review the
facts and determine, as a matter of law, whether the district court erred in
suppressing—or not suppressing—the evidence.”
State v. Harris, 590 N.W.2d
90, 98 (
Appellant argued that the evidence should have been suppressed because the search was an illegal search incident to an investigatory stop. Respondent argued, and the district court agreed, that the search was constitutional because Corwin consented to the search; and it was a valid search incident to arrest (SITA), or was pursuant to a valid inventory search, or would have been inevitably discovered.
Appellant first argues that the search was
an illegal expansion of the stop because no consent was given to search the
vehicle. Appellant argues that the
officers contradicted each other, i.e., Officer Johnston testified that he
discovered the methamphetamine while conducting the search authorized by
Corwin, but that Officer Morning did not corroborate that consent was given. But Morning did not contradict
Second, appellant argues that as a matter of
law, Corwin’s consent was insufficient to justify the search. Appellant relies on State v. Fort,
660 N.W.2d 415 (
Here, the officers articulated multiple bases for suspecting criminal activity that permitted the expansion of the scope of the stop to a consent search. In contrast to Fort, the officers did not simply ask to search the vehicle after a routine traffic violation and witnessing nervousness on the part of the suspects. Fort, 660 N.W.2d at 419. Officer Johnston testified that he saw a pearl-handled object, which he thought was a weapon, neither the driver nor the passenger produced a driver’s license or identification, neither knew the other by name, and neither had proof of insurance. And Officer Johnston discovered that there were two outstanding warrants for appellant’s arrest. In short, the officers articulated sufficient reasons to suspect criminal activity. Therefore, the district court did not err in concluding the search was a lawful consent search.
Search Incident to Arrest
Additionally, the district court concluded that
the search was a lawful SITA. When
the occupant of a vehicle is lawfully arrested, the police may, as a
contemporaneous incident of the arrest, search the passenger compartment of the
car and any containers found within the passenger compartment. State
v. Robb, 605 N.W.2d 96, 100 (
that the SITA exception does not apply here because appellant had already been
arrested when the officers searched the vehicle. But in
The district court also concluded that the motion to suppress should be denied because the evidence was discovered as a result of a lawful inventory search, and that it would have been inevitably discovered. Because we conclude that two other independent grounds exist for the search, we do not reach these issues.
argues that the district court erred in excluding the proposed cross-examination regarding
Corwin’s alleged involvement in a prior drug incident. The evidentiary rulings of a district court
lie within its sound judgment and will not be reversed absent an abuse of
discretion. State v. Amos, 658
N.W.2d 201, 203 (
Impeachment by Contradiction
Appellant makes two arguments in support of the proposed cross examination of Officer Neuenfeldt. First, appellant argues that the proposed testimony was admissible to directly impeach Corwin’s testimony that he never hid drugs from the police. Respondent argued, and the district court agreed, that the proposed testimony was barred by Minn. R. Evid. 608(b).
Appellant further argues that proposed testimony of Officer
Neuenfeldt qualifies as impeachment by contradiction. Impeachment by contradiction is not barred by Rule 608(b).
Here, we conclude
that it is unnecessary to reach the issue of whether the proposed testimony is
admissible as either impeachment or impeachment by contradiction evidence. Simply stated, Officer Neuenfeldt’s testimony
disqualified him from testifying because he lacked personal knowledge of the
subject matter of the testimony. Where
independent grounds for a district court’s evidentiary ruling exist that were
not expressly relied upon by the district court, we may consider such grounds.
Officer Neuenfeldt had no personal knowledge of whether Corwin was arrested or hid drugs from the police in the prior incident under Minn. R. Evid. 602. His knowledge was based on what he had heard from other officers. Appellant did not meet his burden of providing an adequate offer of proof, i.e., that he could establish the necessary foundation for Officer Neuenfeldt’s testimony. Amos, 658 N.W.2d at 203. Therefore, the district court did not abuse its discretion in ruling the proposed testimony of Officer Neuenfeldt inadmissible.
Evidence of Bias and Modus Operandi
Second, appellant argues that Officer Neuenfeldt’s testimony about Corwin’s prior incident was not collateral because it was relevant to show Corwin’s interest in testifying for the state; and it tended to show Corwin’s modus operandi to hide drugs from the police. But appellant failed to provide the necessary foundation to show that Officer Neuenfeldt had personal knowledge of the prior incident. Therefore, the district court did not abuse its discretion in denying admission of the proposed testimony.
In a supplemental pro se brief, appellant argues that he received ineffective assistance of counsel. Appellant argues that his attorney was ineffective because the attorney did not enforce his request that law enforcement take fingerprint evidence or investigate whether the license plate light on the vehicle was inoperable. On this record and on applicable law, we find no merit in appellant’s pro se arguments.
RANDALL, Judge (dissenting).
I respectfully dissent. My dissent focuses on appellant’s first issue: the district court’s violation of his Sixth Amendment right to confront and cross-examine a witness. I agree with the majority on appellant’s additional issues on appeal.
Appellant’s attempted cross-examination of Corwin, regarding not being charged with the same incident for the purpose of arguing bias, was improperly restricted. I conclude that the improper restriction of appellant’s attempted cross-examination of Corwin constituted reversible error entitling appellant to a new trial.
The Confrontation Clause of
the Sixth Amendment guarantees a criminal defendant the right “to be confronted
with the witness against him.” Davis v.
Where the accuracy and
truthfulness of a witness’s testimony are key elements in a case, the jury
should be afforded an opportunity to hear testimony regarding the witness’s
potential bias. See
A trial court possesses broad
discretion in limiting cross-examination if based on concerns of harassment,
prejudice, confusion, repetitive, or marginally-relevant testimony. See
Here, the jury was presented with some information insinuating Corwin’s alleged bias. But, cross-examination of Corwin was limited. Appellant was prohibited from inquiring as to whether Corwin was charged for the same incident. I do not understand that ruling. That was fair cross-examination and no more likely to confuse the jury than the evidence the state put in. Corwin’s testimony is crucial since only he and appellant were present in the vehicle prior to being pulled over. The fact that Corwin was not charged for the incident where the facts were inconclusive as to either Corwin or appellant could be charged for possession, means the prosecution chose to charge appellant rather than Corwin. Appellant should have been allowed to argue to the jury the reasonable inference that the leniency shown Corwin might make him prone to bolster the state’s position. For the constitutional right to cross-examine on the implications of bias, the cross-examiner does not have to prove positive of overt bias. The cross-examiner is allowed to bring out facts from which a reasonable inference could be drawn. The prosecutor will have a chance to rehabilitate the witness.
The majority points out that the jury was given some basis to judge Corwin’s credibility. I do not disagree. But what I point out is, the Sixth Amendment gives appellant the right to effective cross-examination through his attorney, and that right cannot be trumped by a ruling that you do not get your normal constitutional right to a thorough cross-examination because other favorable evidence is on the record. Put another way, the better practice is to leave the amount of cross-examination to defendant’s defense attorney, and then the court does not have to gratuitously decide if a cross-examination should be limited because the jury has other evidence.
I dissent and would reverse the conviction and remand for a new trial, permitting appellant to properly cross-examine the witness for the purpose of presenting to the jury Corwin’s potential bias.
 There is some discrepancy in the record as to where the fanny pack was discovered and who discovered it. The synopsis of Officer Morning’s report indicates that the fanny pack was found by the police canine in the car’s center console. The narrative portion of the same report indicates the fanny pack was found under the passenger seat. Officer Morning later testified that Officer Johnston found the fanny pack. Officer Johnston’s testimony also indicates it was found under the passenger seat.
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction for a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Appellant’s claim, although he does not label it as such, is that the evidence
should be admitted as reverse-Spreigl evidence. “[P]ursuant to rule 404(b), a defendant may seek to introduce
evidence of other crimes or misconduct of a third person to prove that the third person, rather than the
defendant, committed the crime charged. The defendant's
offer of proof in this situation is referred to as ‘reverse Spreigl’
State v. Johnson, 568 N.W.2d 426, 433 (