may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James Antino Walker,
Filed December 2, 1997
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 96010993
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
S. Mark Vaught, Gregory M. Pennella, 700 Saint Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Thoreen, Judge.
Appellant challenges his controlled substance conviction, arguing: (1) the district court abused its discretion in failing to suppress allegedly illegally seized evidence; (2) there was an insufficiency of the evidence; and (3) the district court improperly calculated the severity level of a Maryland controlled substance offense in determining his criminal history ranking. We affirm on the first two issues, but reverse the sentencing determination and remand for a correction of appellant's sentence.
Ultimately, Walker was tried before a jury and convicted of third-degree controlled substance crime pursuant to Minn. Stat. § 152.023, subd. 2(1) (1994). He was sentenced to 30 months incarceration. This appeal followed.
I. Evidence Incident to Arrest
Walker asserts that the district court abused its discretion by admitting evidence of six chunks of crack cocaine. The cocaine was seized during a search incident to Walker's arrest for murder. Walker argues that there was not probable cause to support the arrest, and therefore the evidence should have been suppressed. The district court held that the arrest was supported by probable cause. Probable cause for arrest without a warrant exists if
there is a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. Probable cause is concerned with probabilities and is something more than mere suspicion and something less than evidence which would sustain a conviction.
State v. Fish, 280 Minn. 163, 169, 159 N.W.2d 786, 790 (Minn. 1968).
On December 13, 1995, Golden Valley police received an anonymous letter identifying Walker as a participant in the murder of Loren Bussey. The writer of the letter, who claimed to have been present, recounted that Walker and a man named Vance Lee Crooks were driving when Walker gave Crooks a gun and asked if he was man enough to kill someone; Crooks took the gun and shot Loren Bussey, a bicyclist.
The Supreme Court has held that information supplied by informants is subject to a totality of the circumstances test, in which, while both reliability of the informant and the informant's basis for knowledge are relevant factors to consider, "a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other." Illinois v. Gates, 462 U.S. 213, 230-233, 103 S. Ct. 2317, 2328-29 (1983). While the anonymity of the letter detracts from the reliability of the informant, the informant's identification of Walker's address was corroborated. Corroboration of information can "lend credence to the informant's tip." State v. Wiley, 366 N.W.2d 265, 269 (Minn. 1985). Further, the informant did not act out of an attempt to avoid criminal prosecution and the informant also risked retribution from Walker or Crooks.
As a result of a police search of Walker's home, the police found .40-caliber bullets, which were the same caliber bullets used in the shootings. The police also found a photograph of Walker lying on a bed next to a nine-millimeter handgun.
Police next interviewed James Bliss, who was burglarized in July 1995. Several handguns were taken in the burglary, including a .40-caliber Sig Sauer semiautomatic handgun. Bliss's wife was living with Walker at the time, and Bliss suspected them of
taking the guns. Police showed Bliss the photograph of Walker, and Bliss said that he believed the gun in the photograph was his nine-millimeter Glock.
The bullets taken from the bodies of Loren Bussey and David Nuss were analyzed by Dave Lindman, a police firearms examiner, who concluded that the bullets were consistent with having been fired from a .40 caliber Sig Sauer handgun like the one stolen from Bliss.
The sum of the above evidence supports a finding of probable cause to arrest Walker. The evidence incident to that arrest was properly admitted.
Walker argues that the evidence was insufficient to support his conviction because the city chemist's chemical testing was inadequate to prove that he possessed more than three grams of cocaine and because the city chemist lacked personal knowledge that the scale used to weigh the cocaine had been calibrated.
After police seized the bag of six chunks of what appeared to be crack cocaine from Walker's pants pocket, Susan Gross, the city chemist, examined each of the six chunks and observed that they were the same color and texture. She randomly selected one chunk and subjected it to infrared testing; the chunk tested positively for cocaine base. The supreme court has held, in a case that involved 13 individually wrapped packets of what was presumably cocaine in a large, clear plastic bag, that each packet should have been tested until the minimum statutory weight was met. State v. Robinson, 517 N.W.2d 336, 339 (Minn. 1994). Robinson is not controlling in this case. Here, the cocaine, which had a uniform appearance, was in the same bag, not individually wrapped packets, as in Robinson. The fear of substitution is limited by the instant fact situation.
Walker's second claim regarding Gross's testimony--that she did not have personal knowledge of the calibration of the scale used to weigh the substance--is meritless. Not only is personal knowledge of calibration not necessary, but also an examination of the transcript reflects that the city chemist's scale was calibrated weekly by staff and twice a year by the manufacturer's representative.
Walker argues that the district court abused its discretion by determining that the offense was the equivalent of third-degree controlled substance crime. We agree. The Minnesota Sentencing Guidelines at II.B.5 provide:
The designation of out-of-state convictions as felonies, gross misdemeanors, or misdemeanors shall be governed by the offense definitions and sentences provided in Minnesota law.
It was not Walker's burden to prove that he deserved a lower criminal history score, but rather the state's burden to establish "the facts necessary to justify consideration" of the Maryland offense. See State v. Jackson, 358 N.W.2d 681, 683 (Minn. App. 1984). In the instant case, it was the state's burden to establish the weight of the drugs involved in the Maryland offense.
In addition to the fact that the district court shouldered what was the state's burden of proof, the district court's method was speculative. The use of an anonymous drug dealer's price list was not a reliable basis for determining how many points to attribute to an out-of-state drug offense. The Maryland conviction should have been given the same number of points as Minnesota's fifth-degree controlled substance crime, which does not require a minimum weight. We remand to effect this change in Walker's sentence, which is to be reduced to 26 (from 30) months.
Affirmed in part, reversed in part, and remanded.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.