This opinion will be unpublished and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
State of Minnesota,
Juan Manuel Alameda,
Filed September 4, 2007
Watonwan County District Court
File No. CR-05-405
Lori Swanson, Attorney General, Kimberly
Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street,
St. Paul, MN 55101; and
Lamar Piper, Watonwan County Attorney, 710 Second Avenue South, P.O. Box 518, St. James, MN 56081 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Hudson, Judge.
Appellant challenges his conviction of second-degree controlled-substance crime, arguing that the conviction is not supported by sufficient evidence and that the prosecutor committed prejudicial prosecutorial misconduct. We affirm.
This appeal involves two controlled drug purchases executed by the Minnesota River Valley Drug Task Force (task force). Both purchases were conducted in the same manner; at the same house in St. James, Minnesota; and using the same informant, B.L. As a result of these transactions, appellant was charged with a second-degree controlled-substance crime, in violation of Minn. Stat. § 152.022, subd. 1(1) (2004), and child endangerment, in violation of Minn. Stat. § 609.378, subd. 1(b)(2) (2004). A jury trial was held, and appellant was convicted of the second-degree controlled-substance crime. The district court sentenced appellant to the presumptive sentence. This appeal follows.
The first issue is whether appellant’s conviction of the second-degree controlled-substance crime is supported by sufficient evidence. When considering a claim of insufficient evidence, “our review on appeal is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). Witness-credibility determinations are strictly committed to the jury. State v. Blanche, 696 N.W.2d 351, 374 (Minn. 2005). “We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proven guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004) (quotation omitted).
The only disputed issue at trial was the identity of the individual who sold cocaine to informant B.L. on May 9 and June 16, 2005. Appellant argues that the evidence is insufficient to support the jury’s determination that he was the seller. The record indicates that the task force met B.L. to prepare for the controlled drug purchases. The task force searched B.L. and his vehicle, equipped him with a body microphone, and gave him money to purchase drugs. On both occasions, after preparing for the controlled purchases, B.L. entered the same house in St. James, negotiated with the seller in the kitchen of the house, and purchased cocaine. After each drug purchase, the task force again searched B.L. and his car, retrieved the body microphone and the remaining money, and took possession of the purchased cocaine.
At trial, B.L. testified that he “[did not] have any doubt” that appellant was the person who sold him drugs on May 9 and June 16. B.L. also testified that he identified appellant in a photograph that police had asked him to view on May 10, the day after the first controlled drug purchase. A member of the task force testified that after the initial drug purchase, she checked public records and verified that appellant lived at the location of the transaction.
Additionally, the tape recording of the second controlled purchase indicates that, near the end of the conversation, the seller told B.L. that he had “to go to that cop store,” for “[his] [B]reathalizer.” At trial, a St. James police officer testified that at the time of the second controlled purchase, appellant was required to report to the St. James jail on a daily basis for a Breathalyzer test. During the second controlled purchase, the seller also indicated that he had “kids” and a “little girl.” When he testified at trial, appellant stated that he had two young girls. This circumstantial evidence is consistent with B.L.’s identification of appellant as the person that sold him cocaine on May 9 and June 16. Appellant argues that because B.L. identified appellant with the name of “Mike,” and because during both controlled purchases B.L. asked the seller where “Mike” was, appellant could not have been the seller. We note that there is evidence that B.L. also knew appellant’s nephew and a suggestion that B.L. referred to the nephew as “Mike.” The record does not otherwise clarify this inconsistency about the name “Mike” in B.L.’s testimony. However, this name problem is minimal in comparison to B.L.’s identification of appellant by photograph after the first purchase and B.L.’s in-court identification. Moreover, as previously discussed, there is significant circumstantial evidence corroborating B.L.’s identification of appellant.
Appellant also argues that given B.L.’s criminal history and the incentives offered him to aid in convicting appellant, B.L. was not credible. The record indicates that the task force apprehended B.L. in May 2005 for selling methamphetamine and offered to reduce the charges against him if he assisted the task force by facilitating three first-degree controlled-substance purchases. B.L. agreed, but because he only assisted the task force in two purchases, the charges were not dropped. We note that the use of confidential informants with criminal histories is a regular part of gathering evidence for the prosecution of drug crimes. The testimony of B.L. and Officer Peterson of the task force established that B.L. was guaranteed nothing by testifying for the prosecution. Furthermore, any issues regarding B.L.’s credibility and any inconsistencies in B.L.’s testimony were jury questions.
Because there is ample evidence in the record to support the jury’s verdict and because the weighing of conflicting evidence and credibility determinations are committed to the jury, we conclude that appellant’s conviction of second-degree controlled-substance crime is supported by sufficient evidence.
The next issue is whether the prosecutor engaged in prejudicial misconduct. Typically, unless objected to, prosecutorial misconduct is waived on appeal. State v. Darris, 648 N.W.2d 232, 241 (Minn. 2002). But we may still review unobjected-to conduct under the plain-error doctrine. State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006). Under the three-part plain-error analysis, a new trial is only ordered if there is error, that is plain, and the error affected the defendant’s substantial rights. Id. at 298. Error is plain if it is clear or obvious. Id. at 302. The defendant bears the burden of establishing plain error, but once established, the burden shifts to the state to show that the defendant’s substantial rights were not affected by the prosecutorial misconduct. Id.
Appellant asserts that the prosecutor engaged in misconduct in several ways. Appellant failed to object to any of the alleged misconduct at trial.
A. Alleged Mischaracterization of Evidence and Improper Speculation
It is misconduct for a prosecutor to intentionally misstate evidence. State v. Mayhorn, 720 N.W.2d 776, 788 (Minn. 2006). It is also misconduct for a prosecutor to speculate about evidence not in the record. See State v. Thompson, 578 N.W.2d 734, 742 (Minn. 1998).
Appellant contends that the prosecutor committed misconduct in his opening statement by stating that B.L. knew both appellant and appellant’s cousin as “Mike.” The prosecutor stated:
[T]he evidence will be that [B.L.] knew who [appellant] was by sight, but he did not know a name. He knew him by a nickname of Mike. And he also believed or understood that [appellant] had a cousin or a nephew named Mike, so he had a couple people named Mike that he knew were Hispanic and knew who they were by sight, but did not know their formal name.
B.L. testified that appellant was the seller and that B.L. knew appellant as “Mike.” In the tape-recorded conversations that were played at trial, B.L. and appellant refer to “Mike” during the transactions. The recording suggests that B.L. knew both appellant and the third person, appellant’s nephew, as “Mike.” However, the prosecutor’s direct statement regarding names goes beyond the evidence presented. At trial, the prosecutor neither elicited a clear statement from B.L. regarding names nor clarified this ambiguity in B.L.’s testimony.
Assuming that the prosecutor’s statement constitutes improper speculation about names and that it is not supported by evidence in the record, we conclude that there is not a reasonable possibility that the statement influenced the jury’s verdict. The statement was made during the prosecutor’s opening statement and was not reasserted during his closing argument. The statement was isolated. See State v. Haynes, 725 N.W.2d 524, 530 (Minn. 2007) (observing that the isolated nature of alleged misconduct decreases the probability that the challenged conduct influenced the jury’s verdict). Furthermore, the district court properly instructed the jury that the attorneys’ statements are not evidence. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (noting that jury instructions are relevant in determining whether misconduct influenced the jury). During closing argument, appellant’s attorney emphasized the potential inconsistency in B.L.’s name-identification testimony. Finally, as noted earlier, B.L. visually identified appellant. All of these factors indicate that the prosecutor’s opening statement regarding names, even if it was plain error, was not prejudicial.
2. Nephew’s Presence
Appellant argues that the prosecutor also committed misconduct in his closing argument by asserting that appellant did not establish that his nephew was living with him at the time of the controlled drug purchases. During his closing argument, the prosecutor stated:
So the question becomes, “Who else could have sold or given the drugs to [B.L.]?” [Appellant] indicated that there was no one else that lived there, although a nephew apparently had lived there with him for a period of time. But it really wasn’t established when. It wasn’t established or wasn’t claimed the nephew looked anything like him. It wasn’t established if the nephew was even in St. James on these days . . . .
Contrary to appellant’s assertion, the prosecutor’s statement is consistent with the testimony offered at trial. Responding to leading questions, appellant asserted that one of his nephews was living at his house “in May or June of 2005.” But in response to the statement, “[y]ou were working at McDonald’s and living there with your nephew in May and June of 2005,” appellant answered, “Actually, my nephew was living there, and then – he lived there for a while, and then he moved out there by St. Paul.” Appellant later stated that his nephew was in jail. Thus, the testimony regarding appellant’s nephew was inconsistent and vague, and the prosecutor did not misstate evidence by asserting that the evidence did not clearly establish the presence of appellant’s nephew in appellant’s home at the time of the drug transactions. The prosecutor’s statement was a reasonable evaluation of the evidence presented on the nephew’s presence at the time of the drug transactions.
3. B.L.’s Credibility
Finally, appellant claims that the prosecutor committed misconduct by “mischaracteriz[ing] the evidence and facts not in evidence bearing on [B.L.’s] credibility.” During his closing argument, the prosecutor stated:
[B]y the time we got to trial, you heard both from [B.L.] and from [Officer] Peterson, that [B.L.] had lost any potential benefit because he didn’t follow through. He made the buys from [appellant], and then he quit working. . . . So he is here simply as a subpoenaed witness to tell the truth. He has no deal. So that’s – that’s one indication of reliability.
Contrary to appellant’s assertion, the prosecutor’s statement is consistent with the record. The prosecutor correctly stated that because B.L. did not assist the task force in facilitating three first-degree buys, he was guaranteed nothing by testifying for the state. There is no inaccuracy in the prosecutor’s description of the circumstances under which B.L. testified. While it may have been more accurate for the prosecutor to tell the jury that B.L. hoped his testimony would increase the likelihood that his pending case would be transferred to drug court, the prosecutor’s failure to do so was not misconduct. A prosecutor’s emphasis of favorable facts and de-emphasis of unfavorable facts is inherent in the adversarial process. Moreover, the circumstances surrounding B.L.’s testimony were clearly developed at trial for the jury. B.L. and Officer Peterson unambiguously testified that the transfer of B.L.’s charges to drug court was a possibility, but that he was promised nothing.
In sum, we conclude that on review the record does not support appellant’s assertion that the prosecutor improperly mischaracterized evidence regarding B.L.’s credibility.
B. Alleged Elicitation of Evidence that Guaranteed B.I.’s Truthfulness
It is misconduct for a prosecutor to “impliedly guarantee a witness’s truthfulness.” State v. Jackson, 714 N.W.2d 681, 696 (Minn. 2006). Appellant contends that the prosecutor improperly elicited evidence guaranteeing B.L.’s truthfulness when Officer Peterson testified that B.L. purchased drugs from appellant, even though Officer Peterson had no personal knowledge of who sold the cocaine to B.L.
Here, there is no indication of impropriety on the part of the prosecutor. The questions that precipitated Officer Peterson’s objectionable testimony were general, open-ended questions. In answering, Officer Peterson asserted that the seller was appellant. Appellant did not object to the statements as hearsay or outside Officer Peterson’s personal knowledge. See Minn. R. Evid. 602 (“A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). Finally, the fact that no member of the task force, including Officer Peterson, ever made visual contact with the seller was made clear during appellant’s cross-examination of Officer Peterson and throughout the trial.
Here, appellant has failed to show misconduct on the part of the prosecutor incident to Officer Peterson’s testimony that impliedly guaranteed the truthfulness of B.L.’s testimony.