This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Jesse Rodger Barr,
Blue Earth County District Court
File No. CR05308
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Ross Arneson, Blue
Earth County Attorney,
John M. Stuart, State
Public Defender, Rochelle R. Winn, Assistant Public Defender,
Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.*
Appellant challenges his conviction of first-degree controlled-substance crime arguing that the district court (1) committed reversible error by conducting a pretrial hearing in appellant’s absence, (2) abused its discretion by denying appellant’s motion for a mistrial based on the state’s failure to disclose a taped statement of a witness, and (3) violated his Sixth Amendment rights by using juvenile adjudications to enhance his sentence. In a pro se supplemental brief, appellant raises additional issues. Because (1) appellant’s absence from pretrial proceedings was harmless error in this case; (2) the district court did not abuse its discretion by denying appellant’s motion for a mistrial for an alleged discovery violation; (3) there was no error in the calculation of appellant’s criminal history score; (4) and appellant’s pro se arguments are untimely and without merit, we affirm.
Commander Rittmiller of the Minnesota River Valley Drug Task Force and Mankato Police Officer Timothy Spellacy stopped a vehicle in which appellant Jesse Barr was a passenger in order to execute a warrant for Barr’s arrest. Jesse Rauchman and Kyle Gjerstad were also passengers in the car, and Rauchman was also the subject of an arrest warrant.
At the time of his arrest, Barr told Rittmiller that he had hypodermic syringes in his pocket. The syringes were found in a subsequent pat-down search. The officers found a marijuana pipe and several coffee filters in the pocket of the hooded sweatshirt Rauchman was wearing. Rauchman denied that the filters belonged to him.
As Rittmiller was talking to the occupants in the vehicle, he observed a jar containing clear liquid and a white substance lying on the floor of the vehicle. Near the jar were two crumpled coffee filters, which field-tested positive for methamphetamine. Rittmiller suspected the jar contained methamphetamine and asked whom the “jar of dope” belonged to. Barr, who was seated in the back of a squad car, told Rittmiller that the jar belonged to him. Rauchman and Gjerstad denied knowing about the existence of the jar or its contents. Barr, Rauchman, and Gjerstad were arrested. Subsequent testing confirmed that the jar contained methamphetamine. Barr was charged with first-degree controlled-substance crime.
Rittmiller’s post-arrest interview with Kyle Gjerstad was recorded. Rittmiller testified that Gjerstad denied that the jar or filters belonged to him and denied knowing whom they belonged to or how they came to be in the car. Rittmiller’s forty-minute post-arrest interview with Barr was not successfully recorded, apparently due to an equipment malfunction. Rauchman was interviewed by officer Jeff Wersal. During discovery, Barr’s attorney was told that this interview was also not successfully recorded. Barr’s attorney went to the police station to review the original tapes from all of the interviews. He listened to the three tapes listed on the evidence log: two contained only background noise and one contained Gjerstad’s interview.
At a pretrial hearing held on the morning of trial, the district court denied defense motions to dismiss the charges against Barr based on the state’s failure to record the interviews with Barr and Rauchman, or in the alternative, to preclude the officers’ testimony regarding the unrecorded interviews. Barr was not present at this hearing.
At trial, Rittmiller testified that, in his interview, Barr confirmed that the jar containing methamphetamine and the filters that field-tested positive for methamphetamine belonged to him. Barr told Rittmiller that he had stashed the jar and filters behind the seat when police stopped the vehicle. Barr also told Rittmiller that he used methamphetamine intravenously. Rittmiller described Barr’s demeanor during the interview as “very matter of fact” and said that he spoke without hesitation.
Wersal testified that Rauchman, in his interview, denied possessing any methamphetamine, said that he had borrowed the sweatshirt he was wearing from Barr, and said that he did not know that there were coffee filters in the pocket. Wersal testified that he had used his personal micro-cassette tape recorder to record the interview with Rauchman rather than the police station recording equipment and that he had given the micro-cassette of Rauchman’s interview to Rittmiller. Wersal could not recall if he had listened to the tape recording after it was made and did not know what happened to the micro-cassette after he gave it to Rittmiller.
Barr’s attorney immediately moved for a mistrial on the basis that the state had failed to provide him with the micro-cassette tape of Rauchman’s interview. The district court denied the motion, concluding that the state did not commit a discovery violation and that the missing tape was a “non-issue” because there was no conclusive evidence about what happened to the tape or that it recorded successfully and because Rauchman was available to testify about the interview.
Gjerstad, Rauchman, and Amanda Adams, the driver of the car, testified on Barr’s behalf at trial. All three denied knowing about the jar or seeing Barr place the jar behind the front seat on the floor of the vehicle at the time of the stop. Barr testified that the jar did not belong to him and that he only told the officers it was his so that his friends would not get in trouble.
Barr’s attorney first raised the matter of Barr’s absence from the pretrial hearing at trial after both sides had rested, but before the case was submitted to the jury. The district court and counsel discussed on the record the fact that Barr’s absence from the hearing was error, but no remedial action was proposed or taken.
The jury found Barr guilty, and the district court sentenced him to 122 months in prison based on a criminal history score of 3, which included a juvenile adjudication. This appeal followed.
argues that the district court committed reversible error by conducting a
pretrial hearing in his absence. A
criminal defendant has the right to be present at every critical stage of his
trial. Minn. R. Crim. P. 26.03, subd.
1. A pretrial suppression hearing is one
such critical stage during which a defendant has the right to be present. State v.
Grey, 256 N.W.2d 74, 77 (
The parties do not dispute that the pretrial hearing is a critical stage of trial, and Barr did not waive his right to be present. The state argues that Barr has forfeited his right to be present at the hearing “because neither [Barr] nor his attorney, who was present, objected to [Barr’s] absence from the hearing.”
In State v. Grey, the supreme court held
that a defendant’s absence from a pretrial suppression hearing was a violation
of the due process and confrontation clauses found in the state and federal
constitutions and that the error was not harmless beyond a reasonable doubt
because it was not possible, on the record in that case, “to determine what
contribution or assistance to counsel defendant could have rendered had he been
present to hear” the oral testimony presented at that hearing. 256 N.W.2d at 77. In Grey,
as in this case, the defendant’s absence appeared to be an inadvertent
oversight rather than a purposeful exclusion of the defendant from the
state cites State v. Thompson to
argue that Barr has forfeited the issue on appeal. See
State v. Thompson, 430 N.W.2d 151,
152 (Minn. 1988) (citing United States v.
this case however, Barr was absent from a proceeding that took place in open
court, and his absence was raised at trial. In State
v. Ware, the supreme court, referring to Thompson’s holding that
the right to be present at a critical stage of trial may be forfeited, stated:
“[w]e are less inclined to rely on the doctrine of forfeiture where the
defendant, as here, is not present during proceedings actually occurring in
open court . . . [m]oreover, this decision to waive is a decision not for
counsel to make but a personal decision for defendant to make after
consultation with counsel.” 498 N.W.2d at
457. Because it is not clear from the
record before us that Barr was aware of the pretrial conference, the error was
noted during the trial, and Barr’s absence was from a court hearing rather than
a chambers conference, we decline to hold that he has forfeited the issue of
his absence on appeal. But even if Barr has not forfeited
this issue, he is not entitled to relief if it can be said that the error was
harmless beyond a reasonable doubt.
At the hearing, Barr’s attorney moved to suppress evidence of the police-station interviews of Barr and Rauchman based on the state’s failure to record the interviews. Barr argues on appeal that had he been present, “he could have made an offer of proof as to the substance of his statement to [Rittmiller], thus providing his counsel with a better understanding of how [Barr] would be prejudiced if the trial court ruled against him.” But the state asserts, and we agree, that Barr’s absence from the pretrial proceeding was harmless under the four-factor harmless-error analysis in State v. Breaux, 620 N.W.2d 326, 332-33 (Minn. App. 2001).
performing a harmless-error analysis regarding a defendant’s absence from a
stage of trial, this court considers (1) whether the evidence against the
defendant was overwhelming, (2) the strength of the defense’s evidence, (3) what
the defendant would have contributed to his defense if he had been present, and
(4) whether an appropriate cautionary instruction was given.
In this case, Barr, who possessed two syringes when he was arrested, admitted at the scene of his arrest that the solution and filters containing methamphetamine belonged to him. Despite Barr’s recantation at trial, the evidence against him was strong.
In contrast, Barr’s defense was not strong. Although Barr testified at trial that the jar did not belong to him, and his witnesses denied seeing him place the jar or filters in the car, no one could explain where these items came from.
On this record, there is no showing that Barr could have contributed to his defense if he had been present at the pretrial hearing. Barr testified at trial that he was “extremely high” when he talked to Rittmiller and did not “have a lot of recollection of the night.” Additionally, counsel has not explained how Barr’s absence prevented counsel from making an offer of proof at the pretrial. Finally, a cautionary instruction was not necessary in this case because the jury was unaware of the existence of the pretrial hearing or Barr’s absence from that hearing. We conclude that, in this case, the error of conducting the pretrial hearing in Barr’s absence was harmless error beyond a reasonable doubt.
argues that the district court abused its discretion by refusing to grant a
mistrial based on the state’s alleged failure to disclose the micro-cassette
containing the taped statement of Rauchman.
Whether a discovery violation occurred is an issue of law, which
appellate courts review de novo. State v. Bailey, 677 N.W.2d 380, 397 (
are required to disclose and permit defense counsel to inspect any relevant written
or recorded statements that relate to the case. Minn. R. Crim. P. 9.01 subd. 1(2). This requirement extends to any information
or material possessed by members of the prosecuting staff or by others who have
participated in the investigation of the case.
In this case, the state was unaware of the existence of the micro-cassette until Wersal testified. Neither Wersal nor the prosecutor could explain why the micro-cassette was not on the evidence log and was not provided to Barr’s attorney. The state made no effort to discover what happened to the micro-cassette. Despite the district court’s ruling to the contrary, the scant information about the micro-cassette in the record suggests that there was a discovery violation.
determining sanctions for discovery violations, we consider the following
factors: (1) the reason why the disclosure was not made, (2) the extent of the
prejudice, (3) the feasibility of rectifying that prejudice with a continuance,
and (4) any other relevant factors. State v. Scanlon,719 N.W.2d 674, 685 (
Wersal and Rauchman both testified at trial. Barr argues that the recording of Wersal’s interview of Rauchman might have been used to challenge Wersal’s assertion that Rauchman told him that the sweatshirt he was wearing at the time of the arrest belonged to Barr. But the charge against Barr was not based on or related to the sweatshirt or the items found in it. Barr does not claim that Rauchman said anything in his taped interview that was exculpatory as to the charges against Barr. And Rauchman testified that at the time he gave his statement, he was high on methamphetamine. Therefore, even if the district court erred in concluding that there was not a discovery violation, the verdict was surely unattributable to a failure of the state to produce the micro-cassette of Wersal’s interview of Rauchman, and any error was harmless.
Regarding Barr’s argument that we should reverse as an exercise of supervisory authority, we find nothing in this case that warrants reversal based on the interests of justice and leave the exercise of supervisory power to the supreme court.
argues that the district court violated his Sixth Amendment right to a jury
trial under Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004),by
including a juvenile-adjudication point in the calculation of his criminal-history
score. This issue involves a
constitutional question, which appellate courts review de novo. State
v. McFee, 721 N.W.2d 607, 609 (
argues that juvenile adjudications are not convictions for purposes of the
“prior conviction” exception under Apprendi
and Blakely for two reasons: first,
because juvenile adjudications are not “convictions,” and, second, because
juveniles do not serve sentences. See Blakely, 542
We decline to address the additional issues raised in Barr’s pro se supplemental brief, because they were not raised in the district court. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will generally not consider matters not argued and considered in the court below). We note, however, that the claims are also without merit.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Coffee filters are commonly used to manufacture methamphetamine and to ingest the drug.
 Although Barr’s attorney did not object to Barr’s absence at the time of the hearing, he made a record of Barr’s absence from a critical stage of the proceedings before the conclusion of the trial.