This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1944

 

State of Minnesota,

Respondent,

 

vs.

 

Leland L. Kilpatrick,

Appellant.

 

Filed October 26, 2004

Reversed and remanded

Hudson, Judge

Dissenting

Kalitowski, Judge

 

Yellow Medicine County District Court

File No. K5-03-120

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Thomas G. Kramer, Yellow Medicine County Attorney, 132 Eighth Avenue, P.O. Box 128, Granite Falls, Minnesota 56241 (for respondent)

 

John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

Appellant Leland L. Kilpatrick argues that his conviction of first-degree sale of ten grams or more of methamphetamine must be reversed because he did not waive his right to have the jury consider his entrapment defense.  Appellant also argues that the evidence introduced at trial was insufficient to prove beyond a reasonable doubt that he sold methamphetamine to the confidential informant.  Because the trial court erred in ruling on the entrapment defense without first obtaining a waiver of appellant’s right to a jury trial, we reverse and remand.

FACTS

Tara Peterson met appellant Leland L. Kilpatrick in fall, 2002.  Appellant moved into Peterson’s apartment as a roommate, and they often used methamphetamine.  Appellant frequently supplied the drugs, and if appellant did not have any drugs, Peterson would buy them.

Peterson and appellant later moved into a house in Clarkfield, Minnesota.  Several other people, including Peterson’s boyfriend, lived in or stayed in the house at various times.  The house had two bedrooms upstairs:  Peterson and her boyfriend lived in one room; appellant lived in the other bedroom.  Appellant kept his bedroom door locked when he was not there.

In February 2003, after about a month in Clarkfield, Peterson decided to kick appellant out of the house.  Peterson went to the police stating that appellant was selling drugs.  Acting as a confidential informant, Peterson agreed to attempt to make a controlled buy from appellant.  Peterson understood that if she assisted the police, the police would help her pay $450 in fines owed from her DWI conviction.

On February 24, 2003, Peterson was fitted with a radio transmitter and given $950 in marked currency.  She and her car were searched, and the police followed her to her home.  Appellant’s truck was parked in front of the house.  Peterson went in through the front door, and Agent Brian Marquart, the agent in charge of the case, heard a conversation over the radio transmitter between Peterson and a male.  Peterson called the male “Leland” and later testified that she was talking to appellant.  Peterson told appellant that she needed some drugs and asked him how much he had.  Appellant stated that he had one-half ounce of methamphetamine.  Peterson asked how much he was charging for the half ounce, and appellant stated $500.  Peterson gave him $500 and appellant gave her methamphetamine from a drawer in a bedside stand.  Peterson sat and talked to appellant for a few minutes and then left.  Agent Marquart saw Peterson come out the front door and get into her car, ten minutes after she had entered the home.  Peterson gave Marquart the remaining $450 and 13.7 grams of methamphetamine.  Peterson and her car were searched a second time.

On March 12, 2003, a search warrant was executed at the house.  The officers watched appellant come out of the house and get into his vehicle; the officers then stopped and arrested appellant.  In the search incident to appellant’s arrest, police found a pipe with methamphetamine residue in it.  The officers searched the two upstairs bedrooms, and in the second bedroom the officers found an electronic scale, small weights to check the accuracy of the scale, numerous baggies in the second and bottom drawers of appellant’s cabinet or dresser, pipes, butane torches, a .32 caliber handgun and ammunition, instructions for making methamphetamine, a “grocery” list of ingredients to make methamphetamine, two bills with appellant’s name on them, and a notebook listing names and dollar amounts.  The police did not find any methamphetamine in the house, nor did they find the pre-recorded “buy money” from Peterson’s controlled buy or any other cash.

Appellant was charged with first-degree sale of ten grams or more of methamphetamine.  At the pretrial omnibus hearing, appellant’s counsel outlined several omnibus issues and stated that he had just received discovery disclosures that he thought might support an entrapment defense.  Appellant’s counsel stated that the entrapment defense was a “jury issue.”  At the hearing, the state called the lead investigator, who explained the arrangement between police and Peterson.  The parties submitted written arguments on the omnibus issues, including entrapment.  Without obtaining an oral or written waiver of jury trial from appellant, the trial court denied appellant’s entrapment defense in a written order.  Before trial began, the prosecutor stated that he wanted to clarify that appellant was not alleging entrapment.  Appellant’s trial counsel acknowledged that he was not alleging entrapment, noting “we’ve already taken our shot at it to the Court . . . you have an alternate choice, you can bring it to the jury or to the Court but not both.”

At trial, appellant testified that numerous people would come to the house and use methamphetamine and marijuana.  Appellant also testified that the scale belonged to a friend, he had never seen the methamphetamine recipe before, and the names and dollar amounts were a list of his debts.  Appellant denied selling drugs to Peterson and testified that the tape recording did not actually reflect that he sold the drugs, Peterson never tried to buy, or discuss buying, drugs from him, and he never discussed the $950 with Peterson.  Appellant admitted that he had a $4,000-per-month drug habit and claimed he supported it by odd jobs and loans.  Peterson testified regarding the controlled buy; she was impeached with evidence of her prior felony conviction.

The jury found appellant guilty of first-degree violation of the controlled substance statute.  The trial court denied appellant’s motion for a downward departure and sentenced him to 93 months in prison.  This appeal follows.

D E C I S I O N

Appellant argues that his conviction must be reversed because he did not waive his right to have the jury consider his entrapment defense.  Respondent claims that while appellant alluded to the entrapment defense, he in fact raised and argued a due-process defense which was properly decided by the district court, and waiver of a jury was unnecessary.

There are two possible doctrines “relevant to cases in which the government has encouraged the defendant to commit a crime”; each doctrine is handled by a different procedure in the trial court.  State v. Ford, 276 N.W.2d 178, 182 (Minn. 1979).  The first doctrine is a due-process defense, which “is a legal defense which must be left to the trial court to decide in a manner similar to the way it decides a search and seizure issue.”  Id. at 182.[1]  The second doctrine is true entrapment, which gives a defendant the option of having that defense determined either by the trial court or by the jury.  Id. at 182-83.[2]  But to validly raise a true entrapment defense, a defendant must follow the rules of criminal procedure for raising the defense.  First, a defendant must give written notice of his intent to rely on the defense of entrapment.  Minn. R. Crim. P. 9.02, subd. 1(3)(a).  Second, the defendant must also “include in the notice [of his intent to rely on the defense of entrapment] a statement of the facts forming the basis for the defense, and elect whether to have the defense submitted to the court or to the jury.”  Minn. R. Crim. P. 9.02, subd. 1(3)(e).  If a defendant elects to have the trial court decide this issue, the defendant “must in open court or in writing waive a jury trial as to that issue.”  State v. Grilli, 230 N.W.2d 445, 455 (Minn. 1975); Minn. R. Crim. P. 9.02, subd. 1(3)(e).

The parties agree that appellant’s counsel did not formally raise the entrapment defense in accordance with the applicable rules of criminal procedure.  Appellant did not file a formal notice of his intent to rely on the defense of entrapment, nor did he file a statement of facts forming the basis for the defense and elect whether to have the defense submitted to the court or to the jury.  But it is clear from the record that appellant’s counsel argued the entrapment defense (as well as the due-process defense) to the trial court and that the trial court specifically ruled on the entrapment defense in denying appellant’s motion to suppress evidence and dismiss the complaint.  The difficult issue before us is whether, despite appellant’s failure to properly raise the entrapment defense, the trial court erred by ruling on it without first obtaining appellant’s waiver of a jury on the record.  To make that determination, we must examine the procedural history of the case; specifically, the omnibus hearing, the motion to dismiss and suppress the evidence, and the pretrial discussions the morning of trial.

Omnibus hearing

Appellant’s counsel discussed entrapment at the omnibus hearing, but he did so in the context of stating he had not yet raised the defense.  Appellant’s counsel stated,

I have not yet noted the defense of entrapment.  One of the reasons I have not yet noted the defense of entrapment is I needed a lot of the information that Mr. Kramer kindly gave me this morning.  But very clearly where we are having a CRI, who was a paid informant, who is using government funds, and who is using them for the purpose of making an arrest the issue of entrapment is raised as a jury issue. 

 

The trial court allowed both attorneys to submit briefs on the issue.  Appellant’s counsel submitted his memorandum in support of his motion to suppress and dismiss, which, as noted below, briefly addressed the entrapment defense. 

Motion to dismiss and suppress the evidence

Appellant argues that he asserted the entrapment defense in his motion and accompanying memorandum to suppress and dismiss.  In his memorandum, appellant argued that the evidence “must be suppressed, either under an entrapment theory . . . a due process theory . . . or a bribery theory.”  Although the next several pages of the memo are devoted to arguing the due-process and bribery theories, appellant also devoted approximately three pages to addressing the entrapment defense.  Appellant argued that the controlled buy was improperly initiated by the informant and that “[w]hile it was never explicitly stated that they had a sexual relationship, and while there is no indication that law enforcement encouraged [Peterson] to live with [appellant], naivete [sic] should not blind us from the obvious.”  Appellant then cited a Florida case that upheld a finding of entrapment where the defendant and the informant had a sexual relationship and there was clear proof of predisposition.

Trial court’s omnibus order

            In its omnibus order, the trial court found appellant’s “entrapment and violation of due process defenses fail.”  In its accompanying memorandum, the trial court specifically stated that appellant “asserts the defense of entrapment and seeks to have the complaint and the charges against him dismissed for lack of probable cause.”  The trial court then noted that the defendant must prove “by a fair preponderance of the evidence the inducement by the government.”  The trial court also noted that the state must prove the defendant’s predisposition to commit the charged crime.  The trial court concluded that appellant “hardly proves by a preponderance of the evidence that he was induced to make the sale.  Even if he was induced, [appellant] was predisposed to sell drugs.”  The trial court went on to discuss appellant’s due-process claim, concluding that the government’s use of a paid informant in making a controlled buy is an accepted and necessary practice in combating narcotics trafficking and that the “evidence does not support the defenses of entrapment and violation of due process put forth by [appellant].”

Pre-trial discussions on the morning of trial

Before trial started, the following exchange took place:

Mr. Helgeson (prosecutor):And then I just want to clarify the defense isn’t alleging entrapment defense?

 

Mr. Mack (appellant’s counsel):      We’re not, we’ve already taken our shot at it to the Court.

 

The Court:      That was my -- we don’t get entrapment issues raised very often, but my research in that was addressed previously so --

 

Mr. Mack:      Yeah, you have -- ordinarily you have an alternate choice, you can bring it to the jury or to the Court but not both.

 

This exchange demonstrates that appellant’s trial counsel thought the trial court’s written order on the entrapment defense prevented him from raising the defense to the jury.  Appellant’s trial counsel did not object to the trial court’s ruling, even though the trial court did not obtain appellant’s waiver to his right to a jury trial.

Our review of this procedural history leads us to conclude that the trial court erred by ruling on the entrapment defense without obtaining a waiver of jury trial from appellant.  First, the trial court’s ruling on the entrapment defense was premature because even though appellant alluded to entrapment orally at the omnibus hearing and addressed it in his suppression memorandum, he had not filed notice of his intention to rely on the defense pursuant to Minn. R. Crim. P. 9.02, subd. 1(3)(a).  Nor did he submit a statement of facts to support the defense or elect whether to have the trial court or the jury decide the issue pursuant to Minn. R. Crim. P. 9.02, subd. 1(3)(e). 

When we cut to the chase, respondent’s position is essentially that appellant’s counsel did not clearly articulate the entrapment defense to the trial court.  There is merit to that claim, and the trial court was unfortunately put in an awkward position.  But as appellant notes here on appeal, whether argued skillfully or not, the trial court considered and rejected the entrapment defense in its pretrial ruling, and both the court and appellant’s trial counsel believed the issue had been resolved so as to preclude it from going to the jury.  That ruling effectively foreclosed any opportunity for appellant to properly raise the entrapment defense under the rules, and thereby knowingly and intelligently elect on the record whether to have the trial court or the jury decide the issue.  Therefore, we conclude that the trial court erred by ruling on the entrapment defense without appellant waiving his right to a jury trial in writing or orally on the record.[3]

Because the trial court erred in deciding the entrapment defense without first obtaining a waiver of appellant’s right to a jury trial, we reverse and remand.  Because we reverse and remand on this issue, we need not address appellant’s contention that the evidence was insufficient to prove beyond a reasonable doubt that he sold methamphetamine to Peterson. 

            Reversed and remanded.

 

 

 

KALITOWSKI, Judge (dissenting)

            I respectfully dissent.  Because appellant made the choice not to raise a true entrapment defense, the district court did not err by failing to get appellant to waive a jury determination of this issue.

            The record indicates that appellant never raised the defense of true entrapment in proceedings before the district court.  First, it is undisputed that appellant failed to file the required notice for an entrapment defense.  In addition, appellant presented no evidence or arguments regarding the determinative issue necessary to support such a defense, his predisposition to commit the charged crime.  Rather, at the omnibus hearing, appellant raised only due process concerns and sought the suppression of evidence.

            Appellant’s trial counsel incorrectly used the term entrapment when referring to some of the due process issues raised at the omnibus hearing.  And the district court made a passing reference to entrapment in its omnibus order.  But the totality of the record indicates that appellant’s trial counsel elected not to raise a true entrapment defense at the omnibus hearing.  And before trial, when asked by the prosecutor if he was alleging an entrapment defense, appellant’s trial counsel’s initial response was:  “We’re not.”  On this record, appellant should not be allowed to claim on appeal that he has somehow been prevented from litigating true entrapment based on the brief reference to entrapment in the district court’s order.  I would affirm the district court.