This opinion will be unpublished and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

A03-1244

 

 

State of Minnesota,

Respondent,

 

vs.

 

Thomas R. Lindstrom,

Appellant.

 

 

Filed April 4, 2006

Affirmed

Toussaint, Chief Judge

Dissenting, Randall, Judge

 

Ramsey County District Court

File No. K3-02-2894

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

Craig E. Cascarano, 150 South Fifth Street, Suite 3260, Minneapolis, MN 55402; and

 

Jennifer M. MacCaulay, 700 St. Paul Building, 6 West 5th Street, St. Paul, MN 55102 (for appellant)

 

 

            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On this appeal from his conviction of second-degree controlled substance offense and the order denying his petition for postconviction relief, appellant Thomas R. Lindstrom argues that statements he made to police should have been suppressed, that the trial court abused its discretion in denying his Batson challenge, and that the evidence was insufficient to prove he was part of a conspiracy to sell narcotics.  Because appellant did not raise the suppression issue at trial, provided an inadequate record to review the Batson issue, and was convicted on ample evidence of conspiracy to sell narcotics, we affirm.

D E C I S I O N

I.

 

Appellant argues that the district court erroneously denied his motion to suppress his statements made while in custody. The state contends that appellant’s suppression argument was not raised in the district court.   After a thorough review of the record, we agree that appellant failed to seek suppression of any statement except the “recorded statement,” which was never introduced as evidence at trial.[1] Defense counsel argued at the pretrial hearing only that “the recorded statement by [an officer] of [appellant] out on the porch should be suppressed.”  Therefore, appellant waived review of other statements allegedly made during execution of the search warrant.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (rejecting an appellant’s attempt to raise issue not raised in district court).

II.

Appellant argues that the prosecutor did not offer a sufficient reason to preemptively strike the only prospective juror of color and argues that the trial court did not conduct the appropriate inquiry for a Batson challenge.  The state argues that appellant failed to produce a complete record to evaluate the trial court’s ruling on the Batson challenge and, even if the record is deemed complete, there was no showing of a prima facie discriminatory preemptory challenge.

Appellant has not provided this court with a complete record of jury voir dire.  The lack of a voir dire transcript does not necessarily preclude raising a Batson challenge. See generally State v. Benedict, 397 N.W.2d 337, 340 (Minn. 1986) (determining whether court was required to hold hearing to determine juror misconduct for impeaching verdict where no voir dire transcript existed). The record on appeal, however, indicates that the trial court judge’s Batson inquiry and decision were based on conduct, statements, and observations that are not part of the record on appeal.  Absent a transcript of the voir dire, this court has an inadequate record to review the trial court’s Batson inquiry and its decision.

In any event, the existing record does not indicate error by the trial court.  Not only did the trial court not think appellant had made a prima facie showing of racial discrimination, but the prosecutor also explained her decision adequately.  She had struck two prospective jurors because they did not provide complete information in response to basic questions on the jury questionnaire.  The state’s reason for a preemptory strike does not have to be persuasive as long as it is race-neutral.  State v. Reiners, 664 N.W.2d 826, 832 (Minn. 2003) (citation omitted).  The reason proffered was race-neutral, no facts on record justify an inference of racial discrimination, and the trial court’s ruling that the state rebutted the prima facie case of discrimination is entitled to “great deference” on review.  See Batson v. Kentucky, 476 U.S. 79, 98 n.21, 106 S. Ct. 1712, 1724 n.21 (1986).  We see no error in the trial court’s handling of the Batson challenge.

III.

Appellant argues that a review of the record “conclusively shows that there is no evidence that [he] committed any criminal act other than engage in telephone conversations with his brother.”  Appellant was charged with and convicted of conspiracy to sell narcotics.

When considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach their verdict. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume the jury believed the state’s witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

“[T]he crime of conspiracy requires (1) an agreement between two or more people to commit a crime and (2) an overt act in furtherance of the conspiracy.”  State v. Tracy, 667 N.W.2d 141, 146 (Minn. App. 2003) (citing State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001)).   A conspiracy agreement need not be established by proof of a formal agreement, but can be inferred from the circumstances. State v. Vereb, 643 N.W.2d 342, 348 (Minn. App. 2002).  “[W]here several persons commit separate acts which form parts of a connected whole, an inference of conspiracy--that there was concert in both planning and execution--is permissible.” State v. Burns, 215 Minn. 182, 189, 9 N.W.2d 518, 522 (1943).

Appellant’s conviction was based in significant part on phone calls made by his brother, who was in jail on a methamphetamine possession charge, to their mother’s home.  The transcript of the four phone calls reveals ample evidence of appellant’s role in a conspiracy to sell narcotics.  In one phone call, appellant’s brother directed appellant to go get the “twenty-two packages of ‘glass from two individuals.’”  Appellant agreed to follow this instruction, stating that he would go down and get the packets and “pound” the individuals if they did not have the packets or cash.   In the next call, appellant indicated that there were 21 packages in the cooler all along, it was at their mother’s house, and he had given, in exchange for money, three baggies to certain individuals.  The phone conversations and reasonable inferences drawn therefrom show that appellant attempted to retrieve the drugs from the address at which his brother had recently been arrested, learned that the drugs were in the cooler at his mother’s home, verified that all packets were accounted for, and assured his brother that he had sold three packets and planned to sell the remainder to raise cash for his brother’s bail.  Appellant argues that his “sale” of the packets was contradicted by defense witnesses, but on review, this court disregards their testimony.  The evidence was sufficient to establish that there was an overt act and appellant participated in the agreement to sell drugs.

Affirmed.

 

RANDALL, J. (Dissenting). 

            I respectfully dissent.  I cannot join this court’s finding that appellant’s retrieval of the methamphetamines was not a direct response to explicit police presence and improper pressure. 

The Fifth Amendment protects individuals from self-incrimination without a full understanding and waiver of their rights.  The state sought to admit evidence of appellant’s physical possession of methamphetamines without affording appellant this Fifth Amendment protection.  Appellant’s failure to object below is not dispositive.  In the interest of justice, this court may consider an issue which may be decisive of the entire controversy.  Watson v. United Servs. Auto. Ass’n, 566 N.W.2d 683, 687 (Minn. 1997).  In cases in which the claim is made that a defendant’s statement was involuntary given, “the trial court must make a subjective factual inquiry into all the circumstances surrounding the giving of the statement.”  State v. Hardimon, 310 N.W.2d 564, 567 (Minn. 1981).  The district court found that appellant voluntarily produced the methamphetamines.  This court makes an independent determination of voluntariness on the facts as found.  Id.  Upon a full review of the circumstances surrounding appellant’s decision to provide self-incriminating evidence, I find a custodial interrogation by the police without the protection of Miranda.  Appellant’s retrieval of the drugs was brought about through police coercion and without the Fifth Amendment Miranda warning.  Appellant’s additional issues on appeal are not part of my dissent. 

            Miranda requires that the defendant be warned of his rights before police officers begin custodial interrogation.  A custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Mirandav. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966). The test for whether the defendant is in custody is an objective one:  it is whether a reasonable person in the detainee’s situation would have understood that he was in custody.  State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn. 1990) (citing Berkemer v. McCarthy, 468 U.S. 420, 442, 104 S. Ct. 3138, 3151 (1984)).  When police executed the “no-knock” warrant upon the home of appellant’s mother with weapons drawn and immediately detained appellant in handcuffs, the government severely limited/entirely removed appellant’s ability to control his movements.  When the police physically removed appellant from his mother’s home, their actions further restrained him.  A reasonable person in appellant’s situation would have known he was in police custody.  See Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389 (1991).

The Minnesota Supreme Court recognizes that one or more of the following circumstances may indicate a suspect is not in custody:

questioning taking place in the suspect’s home; police expressly informing the suspect that he or she is not under arrest; the suspect leaving the police station at the close of the interview without hindrance; the brevity of questioning (fifteen minutes); the suspect’s freedom to leave at any time; a non-threatening environment; and the suspect’s ability to make phone calls.

 

State v. Staats, 658 N.W.2d 207, 212 (Minn. 2003) (citingState v. Wiernasz, 584 N.W.2d 1, 3-5 (Minn. 1998)).  While the questioning took place in the home of appellant’s mother, appellant was not given a choice whether to submit to questioning; the police broke through the front door with no warning and immediately placed the appellant in handcuffs.  At all times prior to appellant providing the incriminating evidence against himself, appellant was handcuffed.  Appellant had no ability to make phone calls and was in what can only be described from his viewpoint as a threatening environment.  The police made at least one clear threat that they would arrest appellant and his mother if he did not answer their questions sufficient to their liking.  Under each of the criteria utilized out by the supreme court, appellant was within police custody. Without an appropriate Miranda warning to appellant or a knowing, intelligent, and voluntary waiver of his Fifth Amendment rights, any information obtained through government interrogation of appellant must be excluded. 

Questioning of appellant while in police handcuffs was a custodial interrogation.  The offering of the possession of the drugs against appellant in the district court proceedings raises the question of whether appellant’s physical retrieval of the methamphetamines was an incriminating statement against appellant’s interests.  For a statement obtained from an accused during custodial interrogation to be admissible, “the state must prove by a preponderance of the evidence . . . that the accused . . . freely and voluntarily gave the statement.”  State v. Williams, 535 N.W. 2d 277, 286 (Minn. 1995) (emphasis added).  The district court never made a ruling regarding the tape recorded interview.  It is interesting to note that the state did not enter that taped interview as evidence against appellant.  That raises the inference that they knew the taped interview obtained without the benefit of a Miranda warning would have been, in all likelihood, suppressed if it had been offered. 

The state failed to address in its brief to the court whether appellant’s retrieval of the drugs after the police threatened him and his mother constituted a “statement” to the police.  In these circumstances, appellant’s production of the methamphetamines was the equivalent of a statement within the parameters of Miranda.  Had appellant responded to the police questioning in this investigation, “I have the drugs in the closet of my mother’s room beneath her bed,” this statement would be excludable under Miranda.  The police coerced appellant to display dominion and control over the methamphetamines through a threat that would have involved, not just himself, but appellant’s mother.   

The state’s only argument against exclusion was that a properly executed search of the home would have “inevitably discovered” the methamphetamines.  This argument fails to purge the taint in a case where an exercise of control over the drugs constituted an element of the crime.  While the discovery of the drugs during a search of the home of appellant’s mother may have been inevitable, appellant’s physical possession of the methamphetamines was anything but inevitable.  The “deal” brokered between a handcuffed suspect and armed police officers that sent appellant to find the drugs for the government is the impetus which allowed appellant to produce the methamphetamines for the police. 

The police tactics seen in this case are the coercive approach to policing that the Court in Miranda warned against.  See Dickerson v. United States, 530 U.S. 428, 435-36, 120 S. Ct. 2326, 2331 (2000) (citing Miranda, 384 U.S. at 455, 86 S. Ct. at 1602).  Coercion of suspects to incriminate themselves is not tolerated.  I respectfully dissent.