This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2423

 

State of Minnesota,

Respondent,

 

vs.

 

Rickey Dukes,

Appellant.

 

Filed February 7, 2006

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. 03054102

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

John M. Stuart, State Public Defender, Sharon Jacks, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Rickey Dukes challenges his conviction for first-degree controlled substance crime, arguing that it violated his constitutional right to be free from double jeopardy for the same offense.  Appellant contends that the district court abused its discretion by dismissing the only African American juror for cause, erred in various evidentiary rulings, and erred by imposing discovery sanctions.  Appellant also raises a number of issues in a pro se brief.

            Because (1) no conviction was entered against appellant after an aborted Lothenbach proceeding; (2) the record supports the district court’s dismissal of the juror for cause; (3) the district court did not abuse its discretion by permitting a police officer to offer expert testimony or by allowing evidence that did not constitute Spreigl testimony; (4) the district court erred by precluding witness testimony as a discovery sanction, but it was harmless error; and (5) appellant’s pro se issues are without merit or untimely; we affirm.

D E C I S I O N

I.  Lothenbach Proceeding/Double Jeopardy

            Appellant argues that the district court erred by setting this matter on for trial after he stood trial on stipulated facts under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), claiming that the second proceeding put him in double jeopardy.  After reviewing the transcript of the attempted Lothenbach proceeding, we conclude that it could not support a later claim of double jeopardy because the earlier proceeding did not result in a conviction.[1] 

            “‘Conviction’ means any of the following accepted and recorded by the court: (1) A plea of guilty; or (2) A verdict of guilty by a jury or a finding of guilty by the court.”  Minn. Stat. § 609.02, subd. 5 (2004).  But a guilty finding must be recorded before it is a conviction.  See State v. Hoelzel, 639 N.W.2d 605, 609 (Minn. 2002) (stating that a “formal adjudication of conviction” based on a finding of guilt must be recorded and appear in a judgment in the file). 

            In State v. Pflepsen, 590 N.W.2d 759, 767 (Minn. 1999), the sentencing order stated that the defendant was found guilty of three offenses but did not specify for which count a conviction was entered.  In vacating the convictions and remanding for resentencing, the supreme court noted that a conviction is not the guilty verdict, but rather a formal adjudication of guilt, and stated, “[W]e typically look to the official judgment of conviction, which generally appears as a separate entry in the file, as conclusive evidence of whether an offense has been formally adjudicated.”  Id.  The supreme court reasoned that the formal entry of conviction is necessary, because “the testimony and statements recorded in hearing and trial transcripts are often imprecise and unclear with respect to sentencing and conviction orders,” whereas the recorded entry of conviction is “conclusive evidence of whether an offense has been formally adjudicated.”  Id. 

            In this matter, the Lothenbach proceeding is the epitome of an “imprecise and unclear” proceeding.  From the transcript, it is not clear that a conviction was entered.  Thus, appellant’s claim of double jeopardy based on this hearing is not supported by the record, and must fail.

II.  Batson Motion

            Appellant raises a Batson challenge, claiming that the state’s motion to strike the only African American prospective juror for cause was motivated only by the juror’s race.  See Batson v. Kentucky, 476 U.S. 79 (1986).  This court reviews an order granting a challenge for cause to determine whether the district court erred by concluding that a prospective juror could not be impartial; special deference is paid to the district court’s decision because such a determination involves questions of credibility and demeanor.  State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995). 

            The grounds for a challenge for cause are set forth in Minn. R. Crim. P. 26.02, subd. 5.  The relevant ground here is “[t]he existence of a state of mind on the part of the juror, . . . which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.”  Id. at subd. 5(1).  The district court need not accept a prospective juror’s “unequivocal assertion of fairness at face value” and is “free to believe those statements that were the most fully articulated or that appeared to have been least influenced by leading.”  Logan, 535 N.W.2d at 323-24 (quotation omitted). 

            Here, the record shows that (1) the African American juror stated that he did not trust police and disliked them; his assurances that he could be fair are not as convincing as his statements of distrust; (2) the juror’s mother’s house had been raided during execution of a search warrant for drugs, a situation factually similar to the case here; and (3) the juror initially concealed the fact that his brother had been a crime victim and that the family was not satisfied with the police investigation into that incident.  The district court also struck two other panel members, one who had drug convictions, the other who was related to a person convicted of dealing drugs.

            Appellant asks this court to apply a Batson analysis to the state’s challenge for cause.  Generally, a Batson challenge does not extend to challenges for cause, but is made when a party exercises a peremptory challenge in a manner that is not racially neutral.  State v. Bowers, 482 N.W.2d 774, 776 (Minn. 1992).  We decline to extend the Batson analysis to this dismissal for cause and conclude that, on this record, the district court did not err by dismissing the juror for cause.

III.  Admission of Expert Testimony

            Appellant argues that the district court erred by permitting expert testimony from a police officer about whether appellant possessed cocaine with intent to distribute.  We will reverse a district court’s evidentiary rulings only for a clear abuse of discretion.  Bernhardt v. State, 684 N.W.2d 465, 474 (Minn. 2004).  When, as here, no objection to the admission of evidence has been made, appellant must show plain error that affected his or her substantial rights.  Id. at 475.  “[A]ppellant bears a heavy burden of persuasion to show that the error was prejudicial and affected the outcome of the case.”  Id. (quotation omitted).

            The district court has broad discretion to admit expert testimony.  State v. Lopez-Rios, 669 N.W.2d 603, 612 (Minn. 2003).  Expert testimony is admissible if it will assist the jury in understanding the evidence or in determining a fact in issue.  Minn. R. Evid. 702.  “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”  Minn. R. Evid. 704.  Generally, an expert should not address a mixed question of fact and law, or make a legal analysis.  State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).

            Here, the officer’s testimony as a whole provided a context for the jury to evaluate whether appellant was selling cocaine.  This is an appropriate use of expert testimony.  See id. (approving expert testimony on whether quantity of cocaine indicated intent to sell).  Appellant also has not shown that admission of the expert testimony affected the outcome of the case.  Other record evidence also supported appellant’s conviction for selling cocaine:  (1) a steady stream of people visited appellant’s apartment, consistent with drug sale activity; (2) a large quantity of cocaine (more than 240 grams) was found in appellant’s apartment; (3) other items recovered at the apartment, including a scale and small-sized Baggies, are typically used to prepare and package drugs for sale; and (4) more than $870 in cash was found in the apartment. 

            The district court did not abuse its discretion by permitting the expert testimony, and appellant has failed to show plain error that affected the outcome of this matter. 

IV.  Spreigl Evidence

            Appellant argues that the district court erred by allowing evidence of bad acts despite the absence of a Spreigl notice and by failing to give a curative instruction.  We review the district court’s admission of Spreigl evidence for an abuse of discretion.  See Ture v. State, 681 N.W.2d 9, 15 (2004).  Appellant has the burden of proving that the district court abused its discretion and that he was thereby prejudiced.  State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997).  Where, as here, appellant fails to object, the district court’s actions are reviewed for plain error that affected appellant’s substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).

            Appellant cites as objectionable the following testimony of his apartment manager:  (1) there were reports of an odor of marijuana coming from appellant’s apartment; (2) appellant made late rent payments; (3) appellant had a loud party; (4) appellant was verbally assertive with staff; (5) the manager threatened appellant with an unlawful detainer action if he refused to vacate the apartment after his arrest; and (6) appellant was charged a fee for various problems after he vacated the apartment.  In addition, police officers testified that among the mailings they discovered addressed to appellant was a citation asking appellant to provide insurance information.

            Generally, evidence that a defendant has committed a crime unrelated to the one for which he or she is on trial or evidence of other crimes to show that defendant has a propensity to commit crimes is inadmissible.  Nunn, 560 N.W.2d at 907.  Such evidence may be admissible for limited purposes, as set forth in Minn. R. Evid. 404(b), but notice of intent to use the evidence must be provided to the defendant, the evidence must be clear and convincing, and the court must provide a cautionary instruction.  State v. Smith, 563 N.W.2d 771, 773 (Minn. App. 1997).  Here, no notice was provided and no cautionary instruction was given.

            But unfavorable evidence is not necessarily Spreigl evidence.  For example, in Ture, evidence that the defendant kept detailed lists of women’s names, license plate numbers, addresses, and phone numbers was held not to be Spreigl evidence, despite the fact that it could be characterized as evidence of stalking behavior.  Ture, 681 N.W.2d at 16-17.  Evidence that is a necessary part of the substantive proof of the crime is also not Spreigl evidence.  State v. Roy, 408 N.W.2d 168, 171 (Minn. App. 1987), review denied (Minn. July 22, 1987).  In Roy, evidence that the defendant had vandalized property and fraudulently transferred the title to the victim’s car was found to be part of his attempt to cover up the crime, and thus substantive proof of the crime itself.  Id.

            Appellant here claimed that he gave the apartment key to a relative; he himself had limited access to the apartment; and he was rarely there, suggesting that the cocaine belonged to someone else, presumably the relative.  Because appellant lived in two different apartments in the same building, the state offered most of the evidence to which appellant objects to prove that appellant lived in the apartment and controlled the premises.

            Like Ture, some of the proffered evidence involves neither a crime nor a bad act per se.  Having a loud party, and being verbally assertive or late with rent, is somewhat like Ture’s stalking claim—they are not positive claims, but they are not really crimes or bad acts.  Like Roy, the testimony tends to be part of the substantive proof of the offense; the state had to prove that appellant possessed the cocaine found in the apartment; the apartment manager’s testimony confirmed his residence there, as well as his presence.  Appellant used what could be seen as the most damaging piece of evidence, the smell of marijuana, to bolster his claim that his relative was responsible for the cocaine.

            Appellant has failed to show that the district court committed plain error that affected his substantial rights by allowing this testimony.

V.  Discovery Sanctions

            Appellant further challenges the district court’s order refusing to permit him to call a witness as a discovery sanction.  The district court ruled that appellant failed to notify the state of alibi witnesses, as required by Minn. R. Crim. P. 9.02, subd. 1(3)(c).  As a sanction under Minn. R. Crim. P. 9.03, subd. 8, the district court refused to allow the witness to testify.  Rule 9.03, subd. 8, states that when a party fails to comply with a discovery rule, the district court may “order such party to permit the discovery . . . , grant a continuance, or enter such order as it deems just in the circumstances.”  We review the district court’s evidentiary rulings for an abuse of discretion.  In re M.P.Y., 630 N.W.2d 411, 415 (Minn. 2001). 

            A defendant has a constitutional right to present a defense.  The district court’s sanction barring a witness will be reversed if this constitutional right is violated, unless the error is harmless beyond a reasonable doubt.  Id.  “Preclusion of evidence is a severe sanction which should not be lightly invoked.”  State v. Lindsey, 284 N.W.2d 368, 374 (Minn. 1979). 

            When invoking a discovery sanction, the district court should determine:  (1) the reason the disclosure was not made; (2) the prejudice to the opposing party; (3) whether the prejudice could be rectified by a continuance; and (4) whether there are any other relevant factors.  Id. at 373. 

            Although appellant delayed giving the state witness information and the state undoubtedly was prejudiced by this because it hampered its investigations, the situation could have been rectified by granting a short continuance to allow the state to interview the girlfriend.  We conclude that the district court erred by imposing the preclusion sanction.  But we are persuaded that this error was harmless.  Appellant was permitted to testify as to the substance of his girlfriend’s testimony, and therefore the sanction did not prevent him from presenting this defense.  See id. at 374 (noting harmless error where testimony was cumulative).

VI.  Appellant’s Pro Se Issues

            Failure to Disclose CRI

            Appellant argues that the district court erred by refusing to order disclosure of the state’s confidential reliable informant (CRI).  Although the state has a legitimate interest in shielding the identity of a CRI, the informant’s identity must be disclosed if such information is relevant, helpful, or essential to the defense.  State v. Litzau, 650 N.W.2d 177, 184 (Minn. 2002).  The district court must consider whether: (1) the CRI is a material witness; (2) the CRI’s testimony is material to the issue of guilt; (3) the state’s evidence is suspect; and (4) the CRI’s testimony would disclose entrapment.  Id.  In Litzau, the substance of the CRI’s tip was introduced at trial and played a prominent role in testimony.  Id.  None of these factors are present here, and we find no error in the court’s refusal to disclose the identity of the CRI.

            Suppression of Search Warrant

            Appellant argues that the evidence seized following execution of the search warrant should have been suppressed because it was based on a false statement and a material omission.  A warrant may be suppressed if the application contains intentional or reckless misrepresentations.  State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989).  A Franks hearing was held at pretrial to consider appellant’s challenge to the warrant; the district court found that the officer had not made a deliberate or reckless omission from his affidavit. The district court also found credible police testimony that the CRI had provided updated information.  The district court’s refusal to suppress evidence seized pursuant to the search warrant was not error.

            Ineffective Assistance of Counsel

            Appellant alleges ineffective assistance of counsel from both of his trial attorneys.  He relies in part on affidavits submitted by actual or proposed trial witnesses, which are not part of the trial record. 

            There is a strong presumption that counsel’s performance falls within a range of acceptable professional conduct.  State v. Gustafson, 610 N.W.2d 314, 320 (Minn. 2000).  In order to maintain a claim of ineffective assistance of counsel, a defendant must show that defense counsel’s performance was deficient and that he or she was prejudiced thereby.  Id. 

            When, as here, the defendant relies on additional facts not in the record, a claim of ineffective assistance of counsel is better raised in a postconviction proceeding for relief.  Id.at 321. 

            District Court’s Participation in Plea Bargaining

            Appellant argues that the district court improperly participated in plea bargaining during the attempted Lothenbach proceeding.  Because appellant himself rejected the outcome of this proceeding, we conclude that appellant’s rights were not affected.

            Refusal to Declare a Mistrial

            Appellant alleges that the district court erred by denying his motion for a mistrial after a police officer testified that he obtained a search warrant based on “information [received] prior to serving” the warrant.  Appellant argues that this improperly injected information about the CRI into evidence.  The district court refused to grant a mistrial, but cautioned both parties to avoid testimony about the CRI.  No curative instruction was requested or given. 

            The district court’s denial of a motion for mistrial is reviewed for an abuse of discretion.  State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998).  In light of the limited nature of the statement, this was not an abuse of discretion.

            Impeachment by a Prior Statement

            Appellant was impeached by statements he made at an unemployment hearing.  Generally, statements made of a defendant’s own will and not coerced by police may be used to impeach a defendant’s testimony.  See State v. Sutherlin, 396 N.W.2d 238, 243 (Minn. 1986).

            Affirmed.