may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Larry Robert Anderson,
Cook County District Court
File No. K1-96-000103
Hubert H. Humphrey III, Attorney General, John B. Galus, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; William J. Hennessy, Cook County Attorney, P. O. Box 1150, Grand Marais, MN 55604 (for respondent)
Appellant Larry Robert Anderson, in challenging his convictions for second- and third-degree controlled substance crimes, contests the denial of his motion to suppress evidence and the admission of three transcripts into evidence. He also claims that the trial court violated his right to due process, that the evidence failed to sustain the convictions, and that the court erred in sentencing. Because appellant has failed to demonstrate grounds for reversal, we affirm.
On June 7, 1996, the police executed the warrants; they searched appellant's home and stopped him while he was driving his car. Appellant was taken to the law enforcement center and turned over to Officer Kevin Kushel, who began booking procedures. When directed to change into the center's coveralls, appellant surrendered a bag containing 27 bindles of white powder (later determined to weigh 22.9 grams).
When Deputy Eliason questioned appellant, appellant admitted that he had had approximately 27 grams of cocaine on his person. He also admitted that he had picked up the cocaine in Minneapolis the day before. The next day, appellant gave an additional statement, confirming that the cocaine was for resale to Stultz and admitting that he had repackaged the cocaine into the separate bindles.
After a jury trial, appellant was found guilty of a second-degree controlled substance crime (possession of six or more grams of cocaine) and a third-degree controlled substance crime (sale of a narcotic), and received presumptive guideline sentences for each conviction.
Appellant cites three bases for his claim that the 22.9 grams of white powder found on his person should have been suppressed: lack of probable cause, delay in executing the warrant, and illegal detention of his person.
A. Lack of Probable Cause
Probable cause exists to issue a search warrant if the affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe there is a basis for a search. State v. Bagley, 286 Minn. 180, 192, 175 N.W.2d 448, 456 (1970). The basis for a search is evident in this case. The affiant officer stated that he had been involved in a drug trafficking investigation with a confidential informant (CI) who had purchased controlled substances from appellant; the CI had been to appellant's home and observed appellant on numerous occasions weigh, package, and sell cocaine base to other dealers and users, and the CI stated that appellant drove to the Twin Cites area on a weekly basis to purchase cocaine to sell in Grand Marais. In addition, affiant stated that he and other officers had observed known users of controlled substances frequent appellant's residence; they had observed appellant on occasions when they believed him to be under the influence of controlled substances, and they had observed him drive the car described.
B. Delay in Execution
The police received the search warrants on June 4, 1996, but delayed execution until June 7, 1996. Appellant argues that he was prejudiced by the delay because if the officers had acted immediately, they would not have discovered the drugs purchased after June 4, 1996. We find no merit in appellant's argument.
In State v. Yaritz, 287 N.W.2d 13, 16 (Minn. 1979), the court held that a six-day delay did not cause probable cause to grow stale. Similarly, the record in this case does not demonstrate that the police no longer had probable cause on June 7, three days after issuance of the warrant. The Yaritz court also concluded that even a violation of Minn. Stat. § 626.11 (directing that the court must "forthwith" command the peace officer to search the person or place named) would not necessarily require suppression. Id. The delay in executing the warrant violated neither statutory nor constitutional rights of appellant.
C. Detention of Person
Appellant's contention that he was mistakenly "booked" at the police station, rather than searched pursuant to the warrant, does not require suppression of the controlled substance. Even if the officer erred, evidence obtained illegally need not be suppressed if the evidence would have inevitably been obtained by police. See Nix v. Williams, 467 U.S. 431, 441, 104 S. Ct. 2501, 2507 (1984), cited in State v. Richards, 552 N.W.2d 197, 203 n.2 (Minn. 1996). Because the police would have discovered the bindles during execution of the warrant to search appellant's person, the trial court's refusal to suppress was appropriate.
2. Admission of Transcripts
Appellant argues that the trial court committed reversible error when it admitted into evidence transcripts of tape recordings of statements made by appellant because they were not the best evidence, contained false statements, were inaccurate, and placed undue influence on this evidence.
We note initially that while it may be appropriate for the trial court to provide jurors with copies of a transcript to assist them when a tape recording is played, a transcript should not ordinarily be admitted in evidence unless both parties stipulate to its accuracy and admission. State v. Dominguez-Ramirez, 563 N.W.2d 245, 250 n.2 (Minn. 1997). State v. Swanson, 498 N.W.2d 435 (Minn. 1993), however, held that the admission of a transcript into evidence was harmless error where the officer who took the statements compared them to the transcripts and testified that each was true and accurate; the defendant could not point to any substantive inaccuracies in the transcripts; the taped statements were otherwise admissible; the defendant did not request a limiting instruction; and the evidence of guilt was overwhelming. Id. at 439-40. Because the trial court here played the recordings while the jury followed along on copies of the transcripts, the jury would have been able to hear any discrepancies first-hand. Further, appellant was allowed extensive examination of the individuals who spoke on the tapes (including himself) and failed to point out any substantive discrepancies or to show that the actual recordings were inadmissible. Appellant did not request a limiting instruction. The actual recordings were submitted as evidence and the jury had the opportunity to have them replayed, if it so desired. Although the trial court may have erred in actually allowing the transcripts to be submitted as exhibits into evidence, appellant has not shown reversible error.
3. Alleged Due Process Violations
Minn. R. Crim. P. 9.01, subd. 3 (2), provides that a prosecuting attorney may protect information relative to its witnesses on a case, if the prosecutor files a certificate with the trial court stating that to disclose such information "may endanger the integrity of a continuing investigation or subject such witnesses or persons or others to physical harm or coercion * * *." State v. Hathaway, 379 N.W.2d 498, 504 (Minn. 1985). Prior to trial, the prosecutor certified that information was being withheld to protect the identity of Stultz. The trial court may have erred here by failing to make a record of the evidence presented by the prosecutor and determining its sufficiency. See id. at 506 (requiring court to make record of sufficiency of certificate). However, appellant did not raise that requirement to the trial court. Moreover, appellant has not shown that he was entitled to disclosure at the time that the court would have, in fact, reviewed the information supporting the certificate. Further, any error was harmless because, although appellant argues knowledge of Stultz's involvement would have permitted appellant to know sooner about a potential entrapment defense, the record indicates that appellant did, in fact, present his entrapment defense at trial. He examined Stultz and the officers as to the events leading to the request for the purchase. The jury was instructed on entrapment, but rejected it.
Appellant also contends that the prosecution violated the rules of discovery by failing to provide a complete witness list prior to the day of trial. With regard to witness Kushel, the prosecutor informed the court that he was unaware of Kushel's role in retrieving evidence from appellant until just before trial. Even if we assume error in permitting Kushel to testify, appellant has failed to show prejudice. As we have indicated earlier, the evidence retrieved by Kushel clearly would have been admissible under the doctrine of inevitable discovery. Nothing in his testimony altered that conclusion or prejudiced appellant.
Appellant also complains that the state withheld a Bureau of Criminal Apprehension (BCA) report until the end of the first day of trial. The record indicates, however, that appellant had already requested that BCA scientist Violet Stevens testify at trial, and he had an extensive opportunity on the second day of trial to question her regarding the report. Appellant has failed to demonstrate what more he would have done if he had received the report earlier. See State v. Swenson, 396 N.W.2d 855, 858 (Minn. App. 1986) (affirming conviction where defendant not prejudiced by prosecutor's inadvertent failure to disclose exculpatory report which was admitted at trial), review denied (Minn. Feb. 13, 1987). We find no basis for reversal.
Appellant next argues that the trial court erred in permitting Police Chief Billings to be seated at the prosecutor's counsel table during the trial. In State v. Koskela, 536 N.W.2d 625, 630-31 (Minn. 1995), the supreme court disapproved of this practice. The court found no prejudicial error, however, where the officer was the first to testify and did not hear the testimony of other witnesses before he took the stand, and where there was no indication of intimidation. Id. Billings was the first to testify in this case. While the officer also testified as a rebuttal witness, appellant has pointed to nothing in the record suggesting intimidation or other prejudice. Further, the trial court deferred ruling on this issue and there is no further reference to it in the record. Without a record indicating that Billings actually sat at the counsel table during trial after objection, we cannot reverse on this issue.
Appellant also argues that he was denied due process because the charging documents failed to include "charging language indicating the specific elements of the offense." See State v. Wurdemann, 265 Minn. 92, 94, 120 N.W.2d 317, 318 (1963) (charging document "must fairly apprise the defendant of the charge brought against him, in order, it has been said, that he might properly prepare his defense, and so that he is protected from subsequent prosecution for the same offense."). All the necessary information to put appellant on notice of the crimes alleged and the statutes violated was contained in the charging documents. Further, Minn. R. Crim. P. 17.06, subd. 1, requires appellant to show prejudice resulting from any defects in a charging document. Appellant knew of the charges and is not threatened by multiple prosecutions. Therefore, we will not reverse on this issue.
Appellant argues that the totality of many errors and misconduct dictate that a new trial be granted. See State v. Schwartz, 266 Minn. 104, 113-14, 122 N.W.2d 769, 775-76 (1963) (granting new trial because of combination of incidents which, taken together, might have created prejudice in view of the crime charged). Although appellant has raised many issues, he has failed to show that the combination of incidents complained of might have created prejudice requiring a new trial.
4. Sufficiency of Evidence
Appellant argues that the evidence fails to support the conviction for possession of six grams or more of cocaine. The weight of the mixture containing a controlled substance is an essential element of the offense charged that must be proven beyond a reasonable doubt. State v. Robinson, 517 N.W.2d 336, 339 (Minn. 1994). In Robinson, the chemist tested six or seven of 13 packets of white powder and determined that the mixture was 87.6% cocaine base. Id. at 338. The court, in reversing the conviction, held that that random sampling testing was insufficient to establish the total weight required, stating:
[T]here seems to be no good reason why a sufficient quantity of the mixture should not be scientifically tested so as to establish beyond a reasonable doubt an essential element of the crime charged.
Id. at 339.
Here, Stevens subjected each of the 27 bindles to a visual, color, and smell test. The visual, or "gross examination," consisted of examining the weight, appearance, and packaging. The color test consisted of placing a sample on a spot plate with several reagents. The odor test consisted of placing a sample on a spot plate, adding another reagent, stirring, allowing the mixture to evaporate, and smelling the sample. All of these tests indicated that the substance in each bindle was cocaine.
Stevens admitted that she only tested five of the 27 bindles with the mass spectrometer, a device that conclusively determines the active ingredient in a substance. Stevens testified, however, that to a reasonable scientific certainty, all of the 27 bindles contained cocaine. She stated that the wintergreen odor in the smell test is unique to cocaine, that all of the samples here produced that odor, and that she had never had another substance produce that smell.
We conclude that the concerns expressed by the Robinson court are answered in this case. All of the samples here were tested by the sight, color, and odor tests. See State v. Galvan, 532 N.W.2d 210, 210 (Minn. 1995) (declining to reverse conviction where analyst testified that his visual examination, including microscopic examination, of material, which was a mixture of 23 samples from 23 bags of suspected marijuana, satisfied him that all material was marijuana). Further, the court in Robinson stated that the material suspected to contain cocaine "was not so homogeneously packaged as to permit random sample testing" to provide a sufficient basis. 517 N.W.2d at 337. In this case, however, appellant admitted that he purchased cocaine and personally packaged it into the smaller bindles. The record indicates that he bought the powder from a dealer (apparently in two baggies, according to appellant's statement to the police), and repackaged into smaller bindles from that supply, without adding anything to the mixture. These facts reduce the likelihood that some of the bindles did not contain cocaine. See Galvan, 532 N.W.2d at 210 (denying review where facts did not support conclusion that there was a significant likelihood that some packages did not contain marijuana). In light of the more extensive testing performed here and the reduced likelihood of additives, we hold that the evidence established that appellant had six grams or more of cocaine in his possession.
Appellant also argues that he was entrapped, and therefore the evidence was insufficient to convict him. We disagree. To prove entrapment, defendant must show that the government induced the commission of the crime. State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985). Once defendant has shown inducement, the state must prove that he was predisposed to commit the crime. Id.; see also CRIMJIG 7.02. Even if appellant had shown inducement, the record established predisposition. Appellant admitted that he sold the cocaine to Stultz on May 24 and June 1; he admitted other instances of possession and purchase, at least for personal use; and he admitted "giving" other individuals some cocaine. Stultz testified that he had purchased drugs from appellant at least a dozen times during the last year and a half and had accompanied appellant on at least two trips to purchase cocaine. Thus, the jury could properly determine that appellant was not entrapped into possession of cocaine.
A. Dispositional Departure
Only in a "rare" case will a reviewing court reverse a trial court's imposition of a presumptive sentence under the guidelines. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). Appellant argues that the case should be remanded for resentencing because the trial court did not believe it had the authority to depart dispositionally from the presumptive sentences. At the time of sentencing the trial court stated:
I think * * * that you are an appropriate candidate otherwise for probation. You do have a generally clean record, you do have things going for you in terms of employability and family support. But as the Court understands the law, that simply isn't enough. The Legislature has said that those aren't the kinds of things that the Court ought to use to eliminate confinement. * * * I don't find any basis for sentencing any different than what the Legislature says the Court should sentence.
The record does not indicate that the court believed it lacked discretion to depart dispositionally. Rather, the record indicates that the court did not believe the facts supported departure.
B. Sentencing Entrapment
Appellant also contends the facts warrant a downward departure because the conduct of the police officers constituted sentencing entrapment. Sentencing entrapment occurs when "outrageous official conduct * * * overcomes the will of an individual predisposed only to dealing in small quantities, for the purpose of increasing the amount of drugs * * * and the resulting sentence of the entrapped defendant." State v. Soto, 562 N.W.2d 299, 305 (Minn. 1997). The supreme court has recently declined adoption of this doctrine "in the absence of egregious police conduct which goes beyond legitimate investigative purposes." Id. Further, even if the court had adopted the doctrine, appellant failed to bear his burden of showing that he was predisposed to sell only a smaller amount of cocaine. See id. (although record showed that Soto was asked to sell increased amount of cocaine in last sale to officer, he failed to show he was not predisposed to sell larger amount).
 The current statute requires only that a warrant be executed within ten days. Minn. Stat. § 626.15 (1996). The language of Minn. Stat. § 626.11 no longer directs a peace officer to execute the warrant forthwith. See Minn. Stat. § 626.11 (1996).
 As discussed above, the failure to identify Stultz as a witness and to provide the transcript identifying Stultz is not grounds for reversal.
 The total weight of the 27 bindles was 22.9 grams. The weights of the five bindles tested by mass spectrometer were .874, .906, .851, .941, and .811, for a total of 4.383 grams.
 In Robinson, "testing" of the six or seven packets included infrared analysis, gas chromatography, and G.C. mass spectrometry. 517 N.W.2d at 338 n.3. Robinson does not indicate that any testing was performed on the remaining packets, as was done here.