IN SUPREME COURT
Court of Appeals
Anderson, Russell A., C.J.
Filed: June 7, 2007
Office of Appellate Courts
Jermaine Sean Brown,
S Y L L A B U S
The state failed to present sufficient evidence that defendant knew of an alleged conspiracy.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, Russell A., Chief Justice.
The conviction arises out of three separate cocaine sales, the first occurring on August 27, 2004, and the second and third occurring on September 1, 2004.
On August 27, 2004, a Confidential Reliable Informant (CRI) informed police that an individual, P. K., had offered to bring the CRI to P. K.’s source for crack cocaine. The police provided the CRI with an electronic monitoring device and $300 in recorded currency and directed the CRI to purchase an “eight ball” of crack cocaine. The CRI and P. K. drove to the apartment of Jerome Slack and asked to buy crack cocaine from Slack. Slack apparently called his source for the crack cocaine and informed the CRI that he needed to drive to his source to obtain the crack cocaine.
Slack, who was
followed by police, drove alone to an apartment complex, entered, and shortly
thereafter exited a building in the complex. As Slack was leaving the complex, a red
Pontiac Grand Prix entered the lot, momentarily stopping by Slack’s car. Slack turned his car around, parked next to
On September 1,
2004, the police instructed the CRI to purchase an additional $450 of crack cocaine
from Slack. Police observed the CRI and
Slack drive separately to a gas station, where the CRI waited. Slack drove on until he met Esquivel’s red
Later on September 1, the CRI made a second purchase of crack cocaine from Slack. Again under police surveillance and equipped with an electronic monitoring device, the CRI returned to the gas station and met Slack, who had an unidentified passenger with him. Slack drove to Brown and Esquivel’s duplex residence. Slack entered the main door of the duplex and, approximately 25 minutes later, left the duplex, returned to the gas station, and met the CRI. The CRI later gave police the crack cocaine purchased from Slack.
On September 3, 2004, in a search by warrant of Brown and Esquivel’s duplex residence, police seized from a kitchen cabinet plastic baggies, “corner cuts” of plastic baggies, commonly used to package powder or rock narcotics, and a digital scale with a small amount of residue on it, too little for testing. In a purse containing Esquivel’s state ID card, the police seized three recorded $100 bills used in the controlled purchases. Police found no cocaine in the home. The BCA later determined that the CRI had purchased from Slack a total of 3.2 grams of crack cocaine.
At trial, Slack testified that he was a drug user who did not remember much from the time period in question. When asked about arranging for a crack cocaine purchase for P. K. and about the other events of August 27 and September 1, 2004, Slack claimed he did not remember any of it. Slack denied ever purchasing drugs from Brown.
Brown’s claim that the evidence was insufficient for conviction, we make a
painstaking review of the record to determine whether the evidence and
reasonable inferences drawn therefrom, viewed in a light most favorable to the
verdict, were sufficient to allow the jury to reach its verdict. State
v. Pendleton, 706 N.W.2d 500, 511 (
Brown was neither
charged with nor convicted of selling contraband or aiding and abetting the
sale of contraband. Instead, he was
charged and convicted of aiding and abetting a conspiracy. Although
Brown argues that
we are not convinced that the state has proven the existence of a conspiracy,
we turn first to the dispositive question of whether the state has proven that
Brown knew of a conspiracy. A criminal
conspiracy is (1) an agreement between two or more people to commit a crime,
and (2) an overt act in furtherance of the conspiracy. State
v. Stewart, 643 N.W.2d 281, 297 (
there is no evidence that Brown knew of a conspiracy between Slack and Esquivel
to sell cocaine to a third party. Even
if the state proved that Esquivel was selling drugs to Slack and Brown knew it,
such proof does not establish knowledge of a conspiracy between Esquivel and Slack
because a simple agreement between a seller and a buyer of controlled
substances cannot support a conspiracy charge.
Because we have vacated Brown’s conviction for insufficient evidence, we need not consider Brown’s additional claim that he is entitled to a new trial because a racially biased juror was allowed to sit on the jury. We are mindful, however, of our obligation to uphold the integrity of the judicial system and we are extremely troubled by the fact that a juror who was plainly biased against members of Brown’s race was allowed to sit on the jury that found Brown guilty. During voir dire, a juror admitted that he was racially biased, that he did not trust black people, and that his daughter was dating a black man and he would not allow the man in his home. The juror also stated that he thought he could be fair to the defendant even though the defendant is black. Brown’s attorney did not challenge the juror for cause, nor exercise a peremptory challenge against the juror, and the juror sat on the jury that found Brown guilty. The state concedes on appeal that the juror’s statements establish an actual and an implied bias.
Amendment requires that in all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury. U.S. Const. amend. VI;
errors require automatic reversal because such errors “call into question the
very accuracy and reliability of the trial process.” State
v. Osborne, 715 N.W.2d 436, 448 n.8 (
Since we have vacated Brown’s conviction, we do not address Brown’s claim that he is entitled to a new trial because a biased juror was allowed to sit on the jury.
 The court of appeals concluded that
the CRI could not be a party to the conspiracy because law enforcement acting
in their official capacity cannot be a party to a conspiracy as they lack the
requisite intent to commit the substantive crime. Brown,
2006 WL 2052962, at *7 (citing 2
 An actual bias is a state of mind on
the part of the juror, in reference to the case or to either party, which would
prevent the juror from trying the issue impartially and without prejudice to
the substantial rights of either party. See
An implied bias, on the other
hand, is a bias that is conclusively presumed as a matter of law.