This opinion will be unpublished and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
Thomas R. Lindstrom,
Filed April 4, 2006
Toussaint, Chief Judge
Dissenting, Randall, Judge
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)
Craig E. Cascarano, 150 South Fifth Street, Suite 3260, Minneapolis, MN 55402; and
Jennifer M. MacCaulay, 700 St. Paul Building, 6 West 5th Street, St. Paul, MN 55102 (for appellant)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On this appeal from his conviction of second-degree controlled substance offense and the order denying his petition for postconviction relief, appellant Thomas R. Lindstrom argues that statements he made to police should have been suppressed, that the trial court abused its discretion in denying his Batson challenge, and that the evidence was insufficient to prove he was part of a conspiracy to sell narcotics. Because appellant did not raise the suppression issue at trial, provided an inadequate record to review the Batson issue, and was convicted on ample evidence of conspiracy to sell narcotics, we affirm.
D E C I S I O N
Appellant argues that the
district court erroneously denied his motion to suppress his statements made
while in custody. The state contends that appellant’s suppression argument was not
raised in the district court. After a
thorough review of the record, we agree that appellant failed to seek suppression
of any statement except the “recorded statement,” which was never introduced as
evidence at trial. Defense counsel argued at the pretrial hearing
only that “the recorded statement by [an officer] of [appellant] out on the
porch should be suppressed.” Therefore, appellant
waived review of other statements allegedly made during execution of the search
warrant. See Roby v. State, 547 N.W.2d 354, 357 (
Appellant argues that the prosecutor did not offer a sufficient reason to preemptively strike the only prospective juror of color and argues that the trial court did not conduct the appropriate inquiry for a Batson challenge. The state argues that appellant failed to produce a complete record to evaluate the trial court’s ruling on the Batson challenge and, even if the record is deemed complete, there was no showing of a prima facie discriminatory preemptory challenge.
Appellant has not provided this
court with a complete record of jury voir dire.
The lack of a voir dire transcript does not necessarily preclude raising
a Batson challenge. See generally State v. Benedict, 397 N.W.2d 337, 340 (
In any event, the existing record
does not indicate error by the trial court.
Not only did the trial court not think appellant had made a prima facie
showing of racial discrimination, but the prosecutor also explained her
decision adequately. She had struck two
prospective jurors because they did not provide complete information in
response to basic questions on the jury questionnaire. The state’s reason for a preemptory strike
does not have to be persuasive as long as it is race-neutral. State
v. Reiners, 664 N.W.2d 826, 832 (
Appellant argues that a review of the record “conclusively shows that there is no evidence that [he] committed any criminal act other than engage in telephone conversations with his brother.” Appellant was charged with and convicted of conspiracy to sell narcotics.
When considering a claim of
insufficient evidence, our review is limited to a painstaking analysis of the
record to determine whether the evidence, when viewed in the light most
favorable to the conviction, was sufficient to allow the jurors to reach their
verdict. State v. Webb, 440 N.W.2d
426, 430 (
“[T]he crime of conspiracy
requires (1) an agreement between two or more people to commit a crime and (2)
an overt act in furtherance of the conspiracy.”
Appellant’s conviction was based in significant part on phone calls made by his brother, who was in jail on a methamphetamine possession charge, to their mother’s home. The transcript of the four phone calls reveals ample evidence of appellant’s role in a conspiracy to sell narcotics. In one phone call, appellant’s brother directed appellant to go get the “twenty-two packages of ‘glass from two individuals.’” Appellant agreed to follow this instruction, stating that he would go down and get the packets and “pound” the individuals if they did not have the packets or cash. In the next call, appellant indicated that there were 21 packages in the cooler all along, it was at their mother’s house, and he had given, in exchange for money, three baggies to certain individuals. The phone conversations and reasonable inferences drawn therefrom show that appellant attempted to retrieve the drugs from the address at which his brother had recently been arrested, learned that the drugs were in the cooler at his mother’s home, verified that all packets were accounted for, and assured his brother that he had sold three packets and planned to sell the remainder to raise cash for his brother’s bail. Appellant argues that his “sale” of the packets was contradicted by defense witnesses, but on review, this court disregards their testimony. The evidence was sufficient to establish that there was an overt act and appellant participated in the agreement to sell drugs.
RANDALL, J. (Dissenting).
I respectfully dissent. I cannot join this court’s finding that appellant’s retrieval of the methamphetamines was not a direct response to explicit police presence and improper pressure.
The Fifth Amendment protects individuals from
self-incrimination without a full understanding and waiver of their
rights. The state sought to admit
evidence of appellant’s physical possession of methamphetamines without
affording appellant this Fifth Amendment protection. Appellant’s failure to object below is not
dispositive. In the interest of justice,
this court may consider an issue which may be decisive of the entire
controversy. Watson v. United Servs. Auto. Ass’n, 566 N.W.2d 683, 687 (
Miranda requires that the defendant be warned of his rights before police officers
begin custodial interrogation. A
custodial interrogation is defined as “questioning initiated
enforcement officers after a person has
been taken into custody or otherwise deprived of his freedom of
action in any significant way.” Mirandav.
The Minnesota Supreme Court recognizes that one or more of the following circumstances may indicate a suspect is not in custody:
questioning taking place in the suspect’s home; police expressly informing the suspect that he or she is not under arrest; the suspect leaving the police station at the close of the interview without hindrance; the brevity of questioning (fifteen minutes); the suspect’s freedom to leave at any time; a non-threatening environment; and the suspect’s ability to make phone calls.
v. Staats, 658 N.W.2d 207, 212 (
Questioning of appellant while in police
handcuffs was a custodial interrogation. The offering of the possession of the drugs
against appellant in the district court proceedings raises the question of whether
appellant’s physical retrieval of the methamphetamines was an incriminating
statement against appellant’s interests.
statement obtained from an accused during custodial interrogation to be
admissible, “the state must prove by a preponderance of the evidence . . . that
the accused . . . freely and voluntarily
gave the statement.” State
v. Williams, 535 N.W. 2d 277, 286 (
The state failed to address in its brief to the court whether appellant’s retrieval of the drugs after the police threatened him and his mother constituted a “statement” to the police. In these circumstances, appellant’s production of the methamphetamines was the equivalent of a statement within the parameters of Miranda. Had appellant responded to the police questioning in this investigation, “I have the drugs in the closet of my mother’s room beneath her bed,” this statement would be excludable under Miranda. The police coerced appellant to display dominion and control over the methamphetamines through a threat that would have involved, not just himself, but appellant’s mother.
The state’s only argument against exclusion was that a properly executed search of the home would have “inevitably discovered” the methamphetamines. This argument fails to purge the taint in a case where an exercise of control over the drugs constituted an element of the crime. While the discovery of the drugs during a search of the home of appellant’s mother may have been inevitable, appellant’s physical possession of the methamphetamines was anything but inevitable. The “deal” brokered between a handcuffed suspect and armed police officers that sent appellant to find the drugs for the government is the impetus which allowed appellant to produce the methamphetamines for the police.
The police tactics seen in this case are the
coercive approach to policing that the Court in Miranda warned against. See Dickerson v. United States, 530
 In district court, appellant also argued that the search warrant was invalid and sought suppression of the drugs seized pursuant to the warrant. He does not challenge the ruling on the validity of the warrant on this appeal.