This opinion will be unpublished and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
State of Minnesota,
Gregory Cooper Fraction,
Affirmed in part and reversed in part
Concurring specially, Dietzen, Judge
Clay County District Court
File No. K8041794
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North Eleventh Street, Box 280, Moorhead, MN 56561 (for respondent)
John M. Stuart, Minnesota Public Defender, Marie Wolf, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Dietzen, Judge.
Appellant challenges his convictions of racketeering, conspiracy to commit a controlled-substance crime, and three counts of aiding and abetting the sale of a controlled-substance crime. Appellant asserts that (1) the district court erred in failing to allow the jury to determine whether certain witnesses were accomplices and failing to give an accomplice instruction; (2) the evidence is insufficient to sustain the convictions; (3) the prosecutor engaged in misconduct; (4) the district court erroneously admitted evidence of acts in other states and evidence of edited audio and video recordings; (5) the district court’s assignment of a severity level to the racketeering conviction violated Blakely v. Washington; (6) the district court erred by submitting aggravating sentencing factors to a jury; and (7) his Sixth Amendment rights were violated when the district court denied his attorney’s request to withdraw and failed to instruct appellant of his right to self-representation. We affirm in part and reverse in part.
On March 16, 2004, Detective Krone
and Calloway executed two separate “buy-busts” of crack cocaine from people
associated with appellant. The first buy
was from appellant’s cousin, Ferris Lee, in
On June 14, 2004,
Appellant was arrested in
Following his arrest, Marvin Fraction agreed to provide information to law enforcement regarding the group’s drug-selling activities in exchange for less jail time. He testified as a state witness at appellant’s trial. A jury found appellant guilty of racketeering; conspiracy; the sale of a controlled substance on February 28, 2004; the sale of a controlled substance on July 26, 2004; aiding and abetting the March 16, 2004 drug sales made by Marvin Fraction and Charles Fraction; and aiding and abetting the June 14, 2004 sale by Christopher Lee.
Immediately after the guilty verdicts were read and the jury was polled, the district court instructed the jury that
The laws of
The district court instructed the jury on the guideline aggravating factor that the offense was a major controlled-substance offense and the statutory aggravating factor that appellant committed a violent crime. A corrections agent testified during the sentencing phase of the trial, and the jury found that the offense was a major controlled-substance offense, that appellant committed a violent crime by selling controlled substances, that he had two or more prior convictions for violent crimes, and that he is a danger to public safety.
At sentencing, the district court assigned the unranked racketeering conviction a severity level of IX. The district court sentenced appellant to 210 months in prison for racketeering (an upward departure), and concurrent sentences of 176 months for each of the two drug-sale convictions (also upward departures), 45 months for each of the three aiding-and-abetting convictions, and 51 months for the conspiracy conviction. This appeal followed.
I. Determination of accomplices and accomplice instruction
that the district court committed plain error by failing to give an accomplice
testimony instruction regarding Marvin Fraction’s testimony and by failing to
allow the jury to decide whether numerous other witnesses were accomplices
whose testimony also had to be corroborated. The state concedes that, even though
appellant did not request an accomplice instruction, the instruction should
have been given.
If the erroneous omission of the instruction “might have prompted the jury, which is presumed to be reasonable, to reach a harsher verdict than it might have otherwise reached, defendant must be awarded a new trial.” If, however, beyond a reasonable doubt “the omission did not have a significant impact on the verdict, reversal is not warranted.”
In this case, Marvin Fraction
testified that he had moved between
Marvin Fraction’s testimony was
corroborated by law-enforcement officers who testified about controlled buys
from group members and the results of search warrants executed on members of the
group. A detective testified that
surveillance of telephone calls and visits to jailed group members revealed
that the members cooperated to raise bail and had women members of the group
give them rides to bring money to certain places. Detective Krone testified that he learned
through investigative interviews that group members traveled to Chicago and
Minneapolis together; that during one attempted setup of a controlled buy,
appellant told CI Calloway to contact another group member, Dana Cobbins; and
that the information Krone received collectively from other law-enforcement
departments led to a determination of “who was involved with one another, and
that they were all operating together, working, selling crack cocaine.” Agent
Ashley Hunter, who admitted that he had once purchased marijuana and cocaine from appellant but who was not involved in selling or transporting drugs, testified that members of the group were “like partners,” that appellant and Dana Cobbins told other members “how they should do something different” and what quantity and where to sell drugs, and that group members obtained drugs from appellant and Cobbins to sell.
CI Jimmie Calloway testified that appellant and Cobbins “were the best organized couple of guys that I had seen.” He testified that appellant and Cobbins would send him to other group members to buy drugs when they were out of town. Bud Fontes, another CI, testified that he once contacted appellant to buy crack cocaine and that appellant referred him to another dealer.
Physical evidence also corroborated Marvin Fraction’s testimony. Several audio and video recordings of controlled purchases and conversations between group members were played to the jury revealing that male group members were frequently driven to sales by women, that group members picked up “food” and “barbecue” (code words for drugs) from each other’s residences, and that members made their cell phones available to each other to conduct drug sales.
From our review of the record, we conclude that the evidence that appellant was involved in and played a leadership role in a group whose business was to sell crack cocaine was overwhelming and that the evidence came from both accomplice or potential accomplice testimony and corroborating nonaccomplice testimony and physical evidence. The record compels the conclusion, beyond a reasonable doubt, that the erroneous omission of an accomplice instruction did not have a significant impact on the verdict in this case and, therefore, constituted harmless error. Likewise, any error in failing to submit to the jury a determination that witnesses other than Marvin Fraction could have been accomplices was harmless in light of the corroboration by testimony of the nonaccomplice witnesses and physical evidence.
II. Aiding and abetting—sufficiency of evidence
Appellant asserts that the evidence is
insufficient as a matter of law to support his convictions of aiding and
abetting two drug sales on March 16, 2004, and the sale on June 14, 2004. When reviewing 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, is sufficient to allow the jury to reach the verdict that it
Appellant was not present for any of the sales he was charged with aiding and abetting, and he argues that there is no evidence that he did anything to promote two of the sales. The state argues that because appellant does not challenge the sufficiency of the evidence to support the conviction of conspiracy to violate drug laws, which encompasses the period of time during which the sales took place, he is therefore guilty of aiding and abetting these sales. The state also asserts that appellant is guilty of aiding and abetting the sales because he supplied the drugs for these sales.
“A person is criminally liable for a
crime committed by another if the person intentionally aides, advises, hires,
counsels, or conspires with or otherwise procures the other to commit the
crime.” Minn. Stat. § 609.05, subd. 1
(2004). “Active participation in the overt act is not
required” for accomplice liability. State v. Williams, 415 N.W.2d 760, 761 (
In this case, there is evidence that appellant was the source of the crack cocaine involved in the sale by Marvin Fraction to CI Calloway, but there is no evidence directly linking appellant to the sale by Charles Fraction on March 16, 2004, or the sale on June 14, 2004. Viewing the evidence in the light most favorable to verdict, as we must, we conclude that there is sufficient evidence to support appellant’s conviction of aiding and abetting the sale of crack cocaine by Marvin Fraction on March 16, 2004, but insufficient evidence to support appellant’s convictions of aiding and abetting the other two sales. We therefore vacate the convictions of and sentences for aiding and abetting the sale by Charles Fraction on March 16, 2004, and the sale that occurred on June 14, 2004.
III. Sufficiency of evidence—racketeering
A racketeering conviction requires
proof beyond a reasonable doubt that a person participated in “a pattern of
(1) were committed within ten years of the commencement of the criminal proceeding;
(2) are neither isolated incidents, nor so closely related and connected in point of time or circumstance of commission as to constitute a single criminal offense; and
(3) were either: (i) related to one another through a common scheme or plan or a shared criminal purpose or (ii) committed, solicited, requested, importuned, or intentionally aided by persons acting with the mental culpability required for the commission of the criminal acts and associated with or in an enterprise involved in those activities.
Appellant has continuously
challenged the use of acts committed in
Appellant does not challenge his
convictions of two counts of sale of a controlled-substance crime under Minn.
Stat. § 152.022, subd. 1(1), for sales appellant made on February 28, 2004, and
July 26, 2004, in Clay County, Minnesota.
Each of these convictions is a “criminal act” under the racketeering
statutes. See Minn. Stat. § 609.902, subd. 4 (including “a felony violation
of chapter 152” as a “criminal act”). And
we have already rejected appellant’s pro
se challenge to his conspiracy conviction under Minn. Stat. § 152.023,
subd. 1(4), which constitutes the third “criminal act” for racketeering
also find no merit in appellant’s claim that the evidence is insufficient to
prove that he participated in an “enterprise.”
An “enterprise” includes a “group of persons, associated in fact although
not a legal entity.” Minn. Stat. §
609.902, subd. 3 (2004). Under
(1) a common purpose among the individuals associated with the enterprise; where
(2) the organization is ongoing and continuing; with its members functioning under some sort of decisionmaking arrangement or structure; and where
(3) the activities of the organization extend beyond the commission of the underlying criminal acts either to coordinate the underlying criminal acts into a pattern of criminal activity or to engage in other activities.
State v. Huynh, 519 N.W.2d 191, 196 (
Appellant concedes that in this case, the group members had a common purpose, but he argues that the evidence is insufficient to show that the group was “ongoing and continuing,” that it had a decision-making structure, or that its activities extended beyond the commission of the underlying criminal acts. We disagree.
The record contains evidence that
members of the same group were investigated for similar activities in
The record contains testimony that
there was a structure to the group responsible for acquiring, and in some
cases, manufacturing drugs; bailing members out of jail; continuing the
business of jailed members; handling money; and providing transportation,
lodging, and other necessary support to group members. The evidence also demonstrates that appellant
was one of the principals in the organization.
A “principal” is a person “who personally engages in conduct
constituting a [criminal act] or who is criminally liable . . . [for aiding and
abetting] the conduct of another constituting a [criminal act].”
The requirement that the activities extend beyond the commission of the predicate crimes “assures an entity distinct from the predicate crimes.” Huynh, 519 N.W.2d at 196 n.7. In this case, there is ample evidence that group members assisted and supported each other by providing places to live, transportation, bail, “banking,” and pooling of resources including money and drugs. We conclude that there is sufficient evidence in the record of the ongoing nature and structure of the group and of the extent of its activities beyond commission of the predicate acts to support appellant’s racketeering conviction.
IV. Prosecutorial misconduct
Appellant argues that he was denied
a fair trial because the prosecutor (1) repeatedly asked improper questions;
(2) introduced irrelevant gang-related evidence; and (3) appealed to the
passions and prejudices of the jury.
When reviewing a claim of prosecutorial misconduct, we will reverse only
if the misconduct, when viewed in light of the trial as a whole, was so serious
and prejudicial that it impaired the defendant’s right to a fair trial.
Appellant first complains that the prosecutor asked improper questions. Essentially appellant complains that after an objection to a question was sustained, the prosecutor repeated the same question. But the record shows that the prosecutor often rephrased the question or that there was no objection to the follow-up question. The questions that appellant complains about involved Trista Harris and Diana Girard, women involved with the group members, and Terrance Edwards, who “hung around” with the group. None of these witnesses provided testimony critical to the state’s case that was not already provided by other witnesses. Even if the prosecutor’s persistence in questioning could be considered misconduct, it is not possible that the verdict was attributable to the questioning of these three relatively minor and inconsequential witnesses.
Appellant also contends that the
state introduced irrelevant gang evidence.
Gang affiliation is admissible if relevant and if its probative value is
not substantially outweighed by the danger of unfair prejudice. State
v. Carlson, 268 N.W.2d 553, 559 (
Marvin Fraction testified to the gang affiliation of several
group members, and a detective pointed out gang signs in photographs that were
admitted as exhibits. The same detective
testified that gang affiliation was not important because
The prosecutor “must avoid inflaming the jury’s passions and
prejudices against the defendant.” State v. Porter, 526 N.W.2d 359, 363 (
Appellant also argues that the prosecutor improperly inflamed the jury’s prejudices and passions in its closing argument by stating: “Is it really so scary that you’re here, considering the charges against this defendant? Or is this what’s scary? This is what is scary.” The district court overruled appellant’s objection on grounds of “passion and prejudice.” After the jury left the courtroom, counsel for appellant told the district court that the state was “using the photographs that the state introduced showing my client and others with some friends, making gang signs” and that the state “was introducing evidence of gang affiliation or gang knowledge or gang friendship.”
It is unclear from the record which of the several photo exhibits the prosecutor was referring to. Without a clear record, and considering the remarks in the context of the prosecutor’s entire closing argument, we cannot conclude that these remarks, even if inappropriate, deprived appellant of a fair trial or in any way affected the verdict.
V. Instruction concerning evidence of acts committed in other states
Appellant concedes that the district
court admitted evidence of acts committed in other states for purposes other
than proving the criminal-acts requirement of racketeering but argues that the
district court erred by failing to instruct the jury about how it could use
this evidence. But the state points out
that the district court properly instructed the jury that the only evidence it
could consider for determining the criminal-acts element of racketeering was
evidence of the crimes committed in
We assume that the jury followed the
district court’s instructions.
VI. Assignment of severity level for racketeering
Appellant argues that Blakely v. Washington, 542
A Blakely issue arises only when the district court imposes a longer
sentence than the prescribed statutory maximum on the basis of judicial
findings. Blakely, 542
VII. Use of sentencing jury to determine aggravating factors to support upward sentencing departure
argues that the district court was without authority to submit the
determination of aggravating factors to support an upward sentencing departure
to a jury and that his sentence must be reduced to the presumptive guidelines
sentence. Appellant’s trial occurred
after the release of Blakely but
before the Minnesota Supreme Court ruled on Blakely’s
impact on the
After appellant was sentenced, the
supreme court held that, under Blakely,
the upward departure provisions in the
that the determination of a pattern of criminal conduct under [Minn. Stat. § 609.1095, subd. 4 (2004)], goes beyond solely the fact of a prior conviction and, therefore, the imposition of an enhanced sentence based on the district court’s finding of a pattern of criminal conduct violated Henderson’s Sixth Amendment right to trial by jury.
Minn. Stat. § 244.10, subd. 5, which
provides for sentencing hearings, was amended in 2005 to provide for sentencing
juries. The legislative changes became
effective on June 3, 2005, and apply to sentencing hearings, resentencing
hearings, and sentencing departures sought on or after that date. See
In Shattuck, the supreme court declined to direct the district court
to empanel a sentencing jury on remand, stating that “[f]or us to engraft
sentencing-jury or bifurcated-trial requirements onto the Sentencing Guidelines
and sentencing statutes would require rewriting them, something our severance
jurisprudence does not permit.” 704 N.W.2d
at 148. But the Shattuck court explicitly stated that it did not “foreclose the
district court from considering any constitutionally applicable and/or
available laws on remand.”
In Shattuck,we rejected the suggestion that the district court should use its inherent power to impanel a resentencing jury. We noted that although “[t]he authority to regulate matters of court procedure arises from the court’s inherent judicial powers,” this “authority extends only to its unique judicial functions.” Shattuck, 704 N.W.2d at 147. And while imposing a sentence within the limits of punishment for criminal acts is a judicial function, we observed that the power to fix these limits lies with the legislature and we ultimately left to the legislature the task of amending the Minnesota sentencing scheme to comport with the requirements of Blakely and Apprendi. Shattuck, 704 N.W.2d at 147. . . .
The state also asks us to find authority to empanel a sentencing jury on remand based on the 2005 amendments to Minn. Stat. § 244.10. The amendments authorize the district court to “impanel a resentencing jury” to determine “the existence of factors in support of an aggravated departure.” [Citation omitted.] But that section . . . applies solely to situations where the state seeks an aggravated departure under the sentencing guidelines, and not to mandatory minimum sentences.
This court is currently divided on the issue of whether the district court has inherent authority to empanel a sentencing jury to determine guideline or statutory aggravating factors as occurred in this case. The majority on this panel reads Shattuck and Barker as directing the district courts to rely on statutory authority constitutionally available and not to rely on inherent power to empanel sentencing juries. We agree with the reasoning in Hobbs that the plain language of Minn. Stat. § 609.1095, as it existed at the time of appellant’s sentence, which provided for enhanced sentences based on judicial findings of specific factors, precluded the district court from submitting those aggravating factors to a jury. Therefore, the district court in this case erred by submitting the statutory factors to a jury and erred by imposing an upward departure on appellant under Minn. Stat § 609.1095. Furthermore, because amendments to the statute are not applicable to appellant’s case, there is no authority for the district court to empanel a sentencing jury to determine the existence of the statutory aggravating factors on resentencing.
But, in this case, the enhancement of appellant’s sentence was based on guidelines aggravating factors as well as statutory aggravating factors, and the 2005 amendments authorizing sentencing juries for guideline aggravating factors apply to resentencing. If the district court can constitutionally empanel a sentencing jury on remand for resentencing under the guidelines, we conclude that any error in empaneling a jury to determine guidelines aggravating factors in appellant’s case was harmless.
Appellant argues that application of
the 2005 amendments to Minn. Stat. § 244.10 to him would violate the
constitutional proscription against ex post facto laws. He cites Miller
v. Florida, 482
even if the law operates to the defendant’s detriment, the ex post facto prohibition does not restrict legislative control of remedies and modes of procedure which do not affect matters of substance. Hence, no ex post facto violation occurs if the change in the law is merely procedural and does not increase the punishment, nor change the ingredients of the offense or the ultimate facts necessary to establish guilt.
Because the 2005 amendments to Minn. Stat. § 244.10 are merely procedural, we reject appellant’s argument that application of the amendments on resentencing would be unconstitutional. Appellant does not complain that the sentencing jury was improperly instructed concerning the guidelines aggravating factors or that use of the sentencing jury violated rights other than the constitutional proscription against ex post facto laws. We conclude that on resentencing, the district court may constitutionally empanel a sentencing jury to determine the guidelines aggravating factors. Because it would waste judicial resources to require the district court to do again what has already been done, we conclude that any error in the use of a sentencing jury in appellant’s case to determine guidelines aggravating factors was harmless. The jury’s finding of guidelines aggravating factors supports the upward sentencing departure imposed, and, therefore, we affirm the upward departure despite the district court’s error in submitting the statutory aggravating factors to the sentencing jury.
VIII. Appellant’s pro se arguments
argues in his supplemental pro se brief that he was denied a fair trial by the
district court’s admission of “innumerable edited recordings” that were
“extremely prejudicial.” “Evidentiary
rulings rest within the sound discretion of the trial court and will not be
reversed absent a clear abuse of discretion.
On appeal, the appellant has the burden of establishing that the trial
court abused its discretion and that appellant was thereby prejudiced.” State
v. Amos, 658 N.W.2d 201, 203 (
Appellant also argues that the
district court abused its discretion by not allowing his public defender to
withdraw because of a perceived conflict of interest and by not giving
appellant the option of proceeding pro se.
The district court made a determination that the public defender’s
perceived conflict of interest was not prejudicial to appellant and that there
was no benefit in appellant having a different attorney. From our review of the record, we conclude
that the district court did not err in its determination that there was no
conflict of interest that would prejudice appellant. And appellant has not shown that an actual
conflict existed or that he was in any way prejudiced by counsel’s perceived
conflict of interest. Appellant never unequivocally
requested the right to represent himself; therefore, the district court did not
deny such a right or otherwise err by not instructing appellant on the right to
self-representation. See State v. Richards, 456 N.W.2d 260,
Affirmed in part and reversed in part.
DIETZEN, Judge (concurring specially)
I agree and fully support the
reasoning and analysis of the majority in sections I-VI, and VIII of this
opinion. I write separately because I do
not agree with the majority’s reasoning and analysis in section VII, which
addresses whether, in light of the constitutional principles of Blakely, the district court had the
inherent authority to submit to the jury the determination of aggravating
factors to support an upward sentencing departure through post-verdict special
interrogatories, for the reasons set forth in State v. Albertson, No. A04-2277, 2006 WL 466454, at *8 (
Appellant makes one reference to counsel’s
failure to request the accomplice instruction as constituting ineffective
assistance of counsel, but he makes no further argument regarding ineffective
assistance of counsel. Issues not
briefed on appeal are waived. State v. Butcher,563 N.W.2d 776, 780 (
 An erroneous jury instruction is reviewed for plain
error. State v. Griller, 583 N.W.2d 736, 740 (
 In his pro se supplemental brief, appellant challenges the sufficiency of the evidence to support the conspiracy conviction, asserting that he had no knowledge of controlled-substance crimes committed by others, that no agreement existed among the group members, and that no overt act occurred. Because evidence in the record is more than sufficient to support the conspiracy conviction, we find appellant’s argument without merit.