This opinion will be unpublished and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
Filed February 7, 2006
Hennepin County District Court
File No. 03054102
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Minge, Judge.
Appellant Rickey Dukes challenges his conviction for first-degree controlled substance crime, arguing that it violated his constitutional right to be free from double jeopardy for the same offense. Appellant contends that the district court abused its discretion by dismissing the only African American juror for cause, erred in various evidentiary rulings, and erred by imposing discovery sanctions. Appellant also raises a number of issues in a pro se brief.
Because (1) no conviction was entered against appellant after an aborted Lothenbach proceeding; (2) the record supports the district court’s dismissal of the juror for cause; (3) the district court did not abuse its discretion by permitting a police officer to offer expert testimony or by allowing evidence that did not constitute Spreigl testimony; (4) the district court erred by precluding witness testimony as a discovery sanction, but it was harmless error; and (5) appellant’s pro se issues are without merit or untimely; we affirm.
D E C I S I O N
I. Lothenbach Proceeding/Double Jeopardy
Appellant argues that the district court erred by setting this matter on for trial after he stood trial on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), claiming that the second proceeding put him in double jeopardy. After reviewing the transcript of the attempted Lothenbach proceeding, we conclude that it could not support a later claim of double jeopardy because the earlier proceeding did not result in a conviction.
means any of the following accepted and recorded by the court: (1) A plea
of guilty; or (2) A verdict of guilty by a jury or a finding of guilty by the
court.” Minn. Stat. § 609.02, subd. 5
(2004). But a guilty finding must be
recorded before it is a conviction. See State v. Hoelzel, 639 N.W.2d 605,
In State v. Pflepsen, 590 N.W.2d 759, 767 (
In this matter, the Lothenbach proceeding is the epitome of an “imprecise and unclear” proceeding. From the transcript, it is not clear that a conviction was entered. Thus, appellant’s claim of double jeopardy based on this hearing is not supported by the record, and must fail.
II. Batson Motion
raises a Batson challenge, claiming
that the state’s motion to strike the only African American prospective juror
for cause was motivated only by the juror’s race. See
grounds for a challenge for cause are set forth in Minn. R. Crim. P. 26.02,
subd. 5. The relevant ground here is
“[t]he existence of a state of mind on the part of the juror, . . . which
satisfies the court that the juror cannot try the case impartially and without
prejudice to the substantial rights of the party challenging.”
Here, the record shows that (1) the African American juror stated that he did not trust police and disliked them; his assurances that he could be fair are not as convincing as his statements of distrust; (2) the juror’s mother’s house had been raided during execution of a search warrant for drugs, a situation factually similar to the case here; and (3) the juror initially concealed the fact that his brother had been a crime victim and that the family was not satisfied with the police investigation into that incident. The district court also struck two other panel members, one who had drug convictions, the other who was related to a person convicted of dealing drugs.
asks this court to apply a Batson
analysis to the state’s challenge for cause.
Generally, a Batson challenge
does not extend to challenges for cause, but is made when a party exercises a
peremptory challenge in a manner that is not racially neutral. State
v. Bowers, 482 N.W.2d 774, 776 (
III. Admission of Expert Testimony
argues that the district court erred by permitting expert testimony from a
police officer about whether appellant possessed cocaine with intent to
distribute. We will reverse a district
court’s evidentiary rulings only for a clear abuse of discretion.
district court has broad discretion to admit expert testimony. State
v. Lopez-Rios, 669 N.W.2d 603, 612 (
Here, the officer’s testimony as a whole provided a context for the jury to evaluate whether appellant was selling cocaine. This is an appropriate use of expert testimony. See id. (approving expert testimony on whether quantity of cocaine indicated intent to sell). Appellant also has not shown that admission of the expert testimony affected the outcome of the case. Other record evidence also supported appellant’s conviction for selling cocaine: (1) a steady stream of people visited appellant’s apartment, consistent with drug sale activity; (2) a large quantity of cocaine (more than 240 grams) was found in appellant’s apartment; (3) other items recovered at the apartment, including a scale and small-sized Baggies, are typically used to prepare and package drugs for sale; and (4) more than $870 in cash was found in the apartment.
The district court did not abuse its discretion by permitting the expert testimony, and appellant has failed to show plain error that affected the outcome of this matter.
IV. Spreigl Evidence
argues that the district court erred by allowing evidence of bad acts despite
the absence of a Spreigl notice and
by failing to give a curative instruction.
We review the district court’s admission of Spreigl evidence for an abuse of discretion. See Ture
v. State, 681 N.W.2d 9, 15 (2004).
Appellant has the burden of proving that the district court abused its
discretion and that he was thereby prejudiced.
State v. Nunn, 561 N.W.2d 902,
Appellant cites as objectionable the following testimony of his apartment manager: (1) there were reports of an odor of marijuana coming from appellant’s apartment; (2) appellant made late rent payments; (3) appellant had a loud party; (4) appellant was verbally assertive with staff; (5) the manager threatened appellant with an unlawful detainer action if he refused to vacate the apartment after his arrest; and (6) appellant was charged a fee for various problems after he vacated the apartment. In addition, police officers testified that among the mailings they discovered addressed to appellant was a citation asking appellant to provide insurance information.
evidence that a defendant has committed a crime unrelated to the one for which
he or she is on trial or evidence of other crimes to show that defendant has a
propensity to commit crimes is inadmissible.
Nunn, 560 N.W.2d at 907. Such evidence may be admissible for limited
purposes, as set forth in Minn. R. Evid. 404(b), but notice of intent to use
the evidence must be provided to the defendant, the evidence must be clear and
convincing, and the court must provide a cautionary instruction. State
v. Smith, 563 N.W.2d 771, 773 (
unfavorable evidence is not necessarily Spreigl
evidence. For example, in Ture, evidence that the defendant kept
detailed lists of women’s names, license plate numbers, addresses, and phone numbers
was held not to be Spreigl evidence,
despite the fact that it could be characterized as evidence of stalking
behavior. Ture, 681 N.W.2d at 16-17.
Evidence that is a necessary part of the substantive proof of the crime
is also not Spreigl evidence. State v.
Roy, 408 N.W.2d 168, 171 (Minn. App. 1987), review denied (Minn. July 22, 1987). In
Appellant here claimed that he gave the apartment key to a relative; he himself had limited access to the apartment; and he was rarely there, suggesting that the cocaine belonged to someone else, presumably the relative. Because appellant lived in two different apartments in the same building, the state offered most of the evidence to which appellant objects to prove that appellant lived in the apartment and controlled the premises.
Like Ture, some of the proffered evidence
involves neither a crime nor a bad act per se.
Having a loud party, and being verbally assertive or late with rent, is
somewhat like Ture’s stalking claim—they are not positive claims, but they are not
really crimes or bad acts. Like
Appellant has failed to show that the district court committed plain error that affected his substantial rights by allowing this testimony.
V. Discovery Sanctions
further challenges the district court’s order refusing to permit him to call a
witness as a discovery sanction. The
district court ruled that appellant failed to notify the state of alibi
witnesses, as required by Minn. R. Crim. P. 9.02, subd. 1(3)(c). As a sanction under Minn. R. Crim. P. 9.03,
subd. 8, the district court refused to allow the witness to testify. Rule 9.03, subd. 8, states that when a party
fails to comply with a discovery rule, the district court may “order such party
to permit the discovery . . . , grant a continuance, or enter such order as it
deems just in the circumstances.” We
review the district court’s evidentiary rulings for an abuse of
discretion. In re M.P.Y., 630 N.W.2d 411, 415 (
defendant has a constitutional right to present a defense. The district court’s sanction barring a
witness will be reversed if this constitutional right is violated, unless the error
is harmless beyond a reasonable doubt.
invoking a discovery sanction, the district court should determine: (1) the reason the disclosure was not made;
(2) the prejudice to the opposing party; (3) whether the prejudice could be
rectified by a continuance; and (4) whether there are any other relevant
Although appellant delayed giving the state witness information and the state undoubtedly was prejudiced by this because it hampered its investigations, the situation could have been rectified by granting a short continuance to allow the state to interview the girlfriend. We conclude that the district court erred by imposing the preclusion sanction. But we are persuaded that this error was harmless. Appellant was permitted to testify as to the substance of his girlfriend’s testimony, and therefore the sanction did not prevent him from presenting this defense. See id. at 374 (noting harmless error where testimony was cumulative).
VI. Appellant’s Pro Se Issues
Failure to Disclose CRI
argues that the district court erred by refusing to order disclosure of the state’s
confidential reliable informant (CRI).
Although the state has a legitimate interest in shielding the identity
of a CRI, the informant’s identity must be disclosed if such information is
relevant, helpful, or essential to the defense.
State v. Litzau, 650 N.W.2d
177, 184 (
Suppression of Search Warrant
argues that the evidence seized following execution of the search warrant
should have been suppressed because it was based on a false statement and a
material omission. A warrant may be
suppressed if the application contains intentional or reckless
misrepresentations. State v.
Ineffective Assistance of Counsel
Appellant alleges ineffective assistance of counsel from both of his trial attorneys. He relies in part on affidavits submitted by actual or proposed trial witnesses, which are not part of the trial record.
a strong presumption that counsel’s performance falls within a range of
acceptable professional conduct. State v. Gustafson, 610 N.W.2d 314, 320
here, the defendant relies on additional facts not in the record, a claim of
ineffective assistance of counsel is better raised in a postconviction
proceeding for relief.
District Court’s Participation in Plea Bargaining
Appellant argues that the district court improperly participated in plea bargaining during the attempted Lothenbach proceeding. Because appellant himself rejected the outcome of this proceeding, we conclude that appellant’s rights were not affected.
Refusal to Declare a Mistrial
Appellant alleges that the district court erred by denying his motion for a mistrial after a police officer testified that he obtained a search warrant based on “information [received] prior to serving” the warrant. Appellant argues that this improperly injected information about the CRI into evidence. The district court refused to grant a mistrial, but cautioned both parties to avoid testimony about the CRI. No curative instruction was requested or given.
district court’s denial of a motion for mistrial is reviewed for an abuse of
discretion. State v. Spann, 574 N.W.2d 47, 52 (
Impeachment by a Prior Statement
was impeached by statements he made at an unemployment hearing. Generally, statements made of a defendant’s
own will and not coerced by police may be used to impeach a defendant’s
 Appellant claims double jeopardy, arguing that the Lothenbach proceeding resulted in a conviction. Because it was not raised, we do not reach the issue of when jeopardy attaches in a Lothenbach proceeding.