This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-72

State of Minnesota,
Respondent,

vs.

Raymond Buster Hunt,
Appellant.

Filed November 30, 1999
Affirmed
Willis, Judge

Winona County District Court
File No. K998233

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Charles E. MacLean, Winona County Attorney, Steven L. Schleicher, Assistant County Attorney, 171 West Third Street, Winona, MN 55987 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Raymond Buster Hunt challenges his convictions of conspiring to sell and selling a controlled substance, claiming that the district court erred in denying his motion for a new trial. We affirm.

FACTS

On February 27, 1998, the state filed two complaints against Hunt, alleging two counts of conspiracy to commit controlled substance crime in the first degree, in violation of Minn. Stat. ßß 152.021, subd. 1(1), subd. 3(b), 152.096, 609.175, subd. 2 (Supp. 1997 & 1998); one count of controlled substance crime in the first degree, in violation of Minn. Stat. ßß 152.021, subd. 1(1), subd. 3(b), 609.05 (Supp. 1997); and one count of controlled substance crime in the fourth degree, in violation of Minn. Stat. ßß 152.024, subd. 1(1), subd.3(b), 152.01, subd. 15a(2) (1998). After a four-day jury trial, Hunt was found guilty on all four counts.

Jonathon Schalow is an informant who testified at Huntís trial. Before the trial, the Winona County Attorney charged Schalow with felony terroristic threats in an unrelated matter. Schalow moved for a competency evaluation pursuant to Minn. R. Crim. P. 20.01. The attorney prosecuting Hunt knew about Schalowís rule 20 evaluation but did not mention it to Huntís attorney. Nor did he disclose the evaluation results--that Schalow was incompetent--when he learned about them while the jury was deliberating. Upon receiving the incompetency determination, the court in Schalowís case ordered an adverse competency evaluation.

During his closing argument, the prosecutor compared the jurors to ancient Greek jurors who placed stones on a scale to determine which side tipped the balance. The prosecutor also suggested that the defenseís voice-identification expert testified in a predetermined manner for money.

After the jury returned guilty verdicts, the prosecutor told Huntís counsel of Schalowís rule 20 evaluation. Huntís counsel then moved to compel discovery, to dismiss, for judgment of acquittal, and for a new trial. The district court stated that, while nothing about Schalow "raised a red flag" as to his competency to testify, it would defer ruling on Huntís motions until Schalowís adverse competency evaluation was completed. The second evaluator deemed Schalow competent. The district court in Huntís case received a copy of the second report, along with Schalowís affidavit explaining that he "purposely tricked the [first] examiner into finding [him] incompetent to avoid being sent back to Wisconsin."[1] Based on the second evaluation of Schalow, the district court denied Huntís motions. He appeals.

D E C I S I O N

1. Newly discovered evidence

Hunt argues that the trial court erred in not granting him a new trial to impeach Schalow with the affidavit in which he admitted to feigning incompetence. He claims the affidavit constitutes new material evidence crucial to his cross-examination of Schalow.

A postconviction courtís decision to grant or deny a new trial will not be disturbed absent an abuse of discretion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990). To obtain a new trial on the ground of newly discovered evidence, the defendant must establish "(1) that the evidence was not known to him or his counsel at the time of trial, (2) that his failure to learn of it before trial was not due to lack of diligence, (3) that the evidence is material (or, as we have sometimes said, is not impeaching, cumulative or doubtful), and (4) that the evidence will probably produce either an acquittal at a retrial or a result more favorable to the petitioner." Race v. State, 417 N.W.2d 264, 266 (Minn. 1987).

Hunt fails to meet the third and fourth requirements. The Schalow affidavit is merely impeaching and unlikely to produce a different trial outcome. Additionally, it is not material to Huntís trial because Schalowís deceit occurred in the context of another trial. While the affidavit is relevant to show Schalowís willingness to lie to obtain favorable treatment from the state, it is cumulative. Hunt offered considerable impeachment evidence against Schalow, including his long-term addiction to methamphetamine, his incarceration at the Winona County Jail, his four felony convictions, his history of dishonesty, the fact that he received consideration for cooperating with the state, and the fact that he violated certain provisions of his informant agreement. Moreover, none of the claimed new evidence shows that Schalow testified other than truthfully at Huntís trial. We conclude that the district court did not abuse its discretion in denying Huntís motion for a new trial on the ground of newly discovered evidence.

2. Prosecutorial misconduct

Hunt argues that remarks in the prosecutorís closing argument denied him a fair trial by misinforming the jury of the stateís burden of proof and by improperly attacking Huntís voice-identification expert.

Hunt contends that the prosecutor twice used a misleading analogy that suggested the stateís burden was proof by a preponderance of the evidence. Misstatements of the burden of proof are highly improper and constitute prosecutorial misconduct. State v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985). But Huntís counsel did not object to the analogy made by the prosecutor in his closing argument so the issue is not properly before us. See State v. Atkins, 543 N.W.2d 642, 647 (Minn. 1996) (noting that failure to object to prosecutorís statement forfeits defendantís right to have issue reviewed on appeal). This court may review the claim under the plain-error rule if the alleged conduct was so clearly erroneous under applicable law and so prejudicial to the defendantís right to a fair trial that the defendantís right to a remedy should not be forfeited. Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996). This is not such a case. We note that the prosecutor also correctly stated the burden of proof in his closing argument. Additionally, the district court properly instructed the jury on the burden of proof and told the jury to disregard any statements to the contrary made by the attorneys.

Next, appellant argues that the prosecution improperly attacked the defendantís voice-identification expert, J. Frederic De Vir. De Vir testified that Huntís voice did not appear on the tape recording of a telephone conversation in which the state alleged that Hunt and Schalow arranged a drug transaction. The prosecutor said:

Mr. De Vir isnít an expert. He advertises in the yellow pages. And his testimony establishes nothing except that the defendant can produce someone who for $ 100 an hour Ė

The district court overruled an objection by Huntís counsel. The prosecutor continued, "For a hundred dollars an hour, Mr. De Vir will come down from St. Paul and tell Winona County, ĎDonít believe your ears.í"

The Minnesota Supreme Court has held that it is improper to characterize an expert witness as a professional witness who will testify in a predetermined manner for money. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). The supreme court has also noted that "[e]xperts are not the paid harlots of either side in a criminal case and should not be portrayed in such a light." State v. Schneider, 402 N.W.2d 779, 788 (Minn. 1987). While attacking De Virís credibility was entirely proper, implying that he would testify in a predetermined manner for money was not.

But not every instance of misconduct warrants a new trial. State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997); State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995). "Where misconduct has been established, we must still determine whether the defendant was denied a fair trial." Porter, 526 N.W.2d at 365. Generally, a defendant will not be granted a new trial if the misconduct was harmless. Atkins, 543 N.W.2d at 648. Whether prosecutorial misconduct was harmless depends partly upon the type of misconduct committed. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). In cases involving unusually serious misconduct, we must be certain beyond a reasonable doubt that the misconduct was harmless before affirming. Id. Misconduct is harmless beyond a reasonable doubt if the verdict rendered was "surely unattributable to the error." Ashby, 567 N.W.2d at 28 (looking to the basis on which the jury rested its verdict and determining what effect the error had on the actual verdict) (quotation omitted). On the other hand, in cases involving less serious prosecutorial misconduct, we apply the test of whether "the misconduct likely played a substantial part in influencing the jury to convict." Caron, 300 Minn. at 128, 218 N.W.2d at 200.

We conclude that the prosecutorís remark does not rise to the level of unusually serious misconduct. Applying the Caron test for less serious misconduct, it does not appear that the misconduct likely played a substantial part in influencing the jury to convict Hunt. The state introduced ample other evidence to support the juryís decision, including the testimony of its own voice-identification expert, who testified that Huntís expert used a "reckless procedure" that provided no useful information in identifying the speaker. Therefore, the prosecutorís remark was harmless error.

3. Pro se brief

Huntís pro se supplemental brief raises two additional claims that are without merit. Hunt argues that evidence of his taped interview with Investigator Jerome Olson was taken out of context. And it appears that Hunt claims that without the interview evidence there is insufficient evidence to sustain his conviction of the second conspiracy count. Where there is a challenge to the sufficiency of the evidence, appellate review 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); see also State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988) (stating test is whether jury "could reasonably conclude that a defendant was proven guilty"). This court must view the evidence in the light most favorable to the verdict. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).

The evidence supports Huntís convictions on both counts of conspiracy to commit a controlled substance crime in the first degree. The record shows that (1) Schalow testified that Hunt twice agreed to sell him 15 grams of crack cocaine; (2) Schalowís testimony was corroborated by an audiotape of a telephone conversation, recorded by the police, in which Schalow and Hunt arranged the January 1, 1998, drug buy; (3) during the conversation Hunt agreed to sell Schalow 15 grams of crack cocaine for $1,350 and agreed to meet Schalow at the Freedom gas station at 11:30 p.m. on January 1, 1998; (4) Sergeant Thomas Williams testified that Hunt arrived at the Freedom gas station at 11:30 p.m. on January 1, 1998; and (5) a second audiotape contained a February 27, 1998, interview of Hunt by Investigator Olson, during which Hunt admitted that he arranged to meet Schalow but denied that it was to sell drugs.

On appeal, Hunt contends that portions of the audiotaped interview offered at trial were misinterpreted by the jury. But the record contains ample evidence on which the jury could convict Hunt on both charges of conspiracy to commit a controlled substance crime in the first degree, wholly apart from evidence of the taped interview.

Hunt also challenges the use of the Hernandez method to calculate his criminal history score. Hunt argues that he should have been assigned only two criminal history points in determining his sentence for the January 1 offense. We disagree. Where a defendant is sentenced on one day for separate convictions that were not part of a single behavioral incident, the first conviction may be counted in calculating the criminal history score for the subsequent conviction. State v. Hernandez, 311 N.W.2d 478, 481 (Minn. 1981). The district court sentenced Hunt for the December 22 controlled substance crime in the first degree based on a criminal history score of 2.5 points.[2] In sentencing Hunt for the January 1 offense, the district court assigned him two additional criminal history points, as a result of the previous conviction, for a total of 4.5 points.

The district courtís determination of a defendantís criminal history score will not be reversed absent an abuse of discretion. Bolstad v. State, 439 N.W.2d 50, 53 (Minn. App. 1989). The district courtís method of sentencing was appropriate and consistent with Hernandez.

Affirmed.

[1] Schalow was wanted in Wisconsin on an outstanding charge.

[2] Hunt was on probation and had a prior controlled substance crime in the third degree, which is a Level VI offense. He thus received 1.5 criminal history points for the Level VI conviction, and one criminal history point for his custody status.