This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2376

 

State of Minnesota,
Respondent,

vs.

Jesse Rodger Barr,
Appellant.

 

Filed February 6, 2007

Affirmed

Stoneburner, Judge

 

Blue Earth County District Court

File No. CR05308

 

Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Ross Arneson, Blue Earth County Attorney, 410 South Fifth Street, Box 3129, Mankato, MN 56002-3129 (for respondent)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge; Halbrooks, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his conviction of first-degree controlled-substance crime arguing that the district court (1) committed reversible error by conducting a pretrial hearing in appellant’s absence, (2) abused its discretion by denying appellant’s motion for a mistrial based on the state’s failure to disclose a taped statement of a witness, and (3) violated his Sixth Amendment rights by using juvenile adjudications to enhance his sentence.  In a pro se supplemental brief, appellant raises additional issues.  Because (1) appellant’s absence from pretrial proceedings was harmless error in this case; (2) the district court did not abuse its discretion by denying appellant’s motion for a mistrial for an alleged discovery violation; (3) there was no error in the calculation of appellant’s criminal history score; (4) and appellant’s pro se arguments are untimely and without merit, we affirm.

FACTS

 

Commander Rittmiller of the Minnesota River Valley Drug Task Force and Mankato Police Officer Timothy Spellacy stopped a vehicle in which appellant Jesse Barr was a passenger in order to execute a warrant for Barr’s arrest.  Jesse Rauchman and Kyle Gjerstad were also passengers in the car, and Rauchman was also the subject of an arrest warrant.

At the time of his arrest, Barr told Rittmiller that he had hypodermic syringes in his pocket.  The syringes were found in a subsequent pat-down search.  The officers found a marijuana pipe and several coffee filters[1] in the pocket of the hooded sweatshirt Rauchman was wearing.  Rauchman denied that the filters belonged to him. 

As Rittmiller was talking to the occupants in the vehicle, he observed a jar containing clear liquid and a white substance lying on the floor of the vehicle.  Near the jar were two crumpled coffee filters, which field-tested positive for methamphetamine.  Rittmiller suspected the jar contained methamphetamine and asked whom the “jar of dope” belonged to.  Barr, who was seated in the back of a squad car, told Rittmiller that the jar belonged to him.  Rauchman and Gjerstad denied knowing about the existence of the jar or its contents.  Barr, Rauchman, and Gjerstad were arrested.  Subsequent testing confirmed that the jar contained methamphetamine.  Barr was charged with first-degree controlled-substance crime.

Rittmiller’s post-arrest interview with Kyle Gjerstad was recorded.  Rittmiller testified that Gjerstad denied that the jar or filters belonged to him and denied knowing whom they belonged to or how they came to be in the car.  Rittmiller’s forty-minute post-arrest interview with Barr was not successfully recorded, apparently due to an equipment malfunction.  Rauchman was interviewed by officer Jeff Wersal.  During discovery, Barr’s attorney was told that this interview was also not successfully recorded.  Barr’s attorney went to the police station to review the original tapes from all of the interviews.  He listened to the three tapes listed on the evidence log: two contained only background noise and one contained Gjerstad’s interview.

At a pretrial hearing held on the morning of trial, the district court denied defense motions to dismiss the charges against Barr based on the state’s failure to record the interviews with Barr and Rauchman, or in the alternative, to preclude the officers’ testimony regarding the unrecorded interviews.  Barr was not present at this hearing.

At trial, Rittmiller testified that, in his interview, Barr confirmed that the jar containing methamphetamine and the filters that field-tested positive for methamphetamine belonged to him.  Barr told Rittmiller that he had stashed the jar and filters behind the seat when police stopped the vehicle.  Barr also told Rittmiller that he used methamphetamine intravenously.  Rittmiller described Barr’s demeanor during the interview as “very matter of fact” and said that he spoke without hesitation.

Wersal testified that Rauchman, in his interview, denied possessing any methamphetamine, said that he had borrowed the sweatshirt he was wearing from Barr, and said that he did not know that there were coffee filters in the pocket.  Wersal testified that he had used his personal micro-cassette tape recorder to record the interview with Rauchman rather than the police station recording equipment and that he had given the micro-cassette of Rauchman’s interview to Rittmiller.  Wersal could not recall if he had listened to the tape recording after it was made and did not know what happened to the micro-cassette after he gave it to Rittmiller. 

Barr’s attorney immediately moved for a mistrial on the basis that the state had failed to provide him with the micro-cassette tape of Rauchman’s interview.  The district court denied the motion, concluding that the state did not commit a discovery violation and that the missing tape was a “non-issue” because there was no conclusive evidence about what happened to the tape or that it recorded successfully and because Rauchman was available to testify about the interview. 

Gjerstad, Rauchman, and Amanda Adams, the driver of the car, testified on Barr’s behalf at trial.  All three denied knowing about the jar or seeing Barr place the jar behind the front seat on the floor of the vehicle at the time of the stop.  Barr testified that the jar did not belong to him and that he only told the officers it was his so that his friends would not get in trouble.

Barr’s attorney first raised the matter of Barr’s absence from the pretrial hearing at trial after both sides had rested, but before the case was submitted to the jury.  The district court and counsel discussed on the record the fact that Barr’s absence from the hearing was error, but no remedial action was proposed or taken.

            The jury found Barr guilty, and the district court sentenced him to 122 months in prison based on a criminal history score of 3, which included a juvenile adjudication.  This appeal followed.

D E C I S I O N

 

I.

 

Barr argues that the district court committed reversible error by conducting a pretrial hearing in his absence.  A criminal defendant has the right to be present at every critical stage of his trial.  Minn. R. Crim. P. 26.03, subd. 1.  A pretrial suppression hearing is one such critical stage during which a defendant has the right to be present.  State v. Grey, 256 N.W.2d 74, 77 (Minn. 1977).  The right to be present may be waived.  State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993).  The decision to waive “is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel.”  Id.  But, even if a defendant is denied the right to be present during a critical stage of his trial, “the defendant is not entitled to relief if it can be said that the error was harmless error beyond a reasonable doubt.”  Id. at 457-58. 

The parties do not dispute that the pretrial hearing is a critical stage of trial, and Barr did not waive his right to be present.  The state argues that Barr has forfeited his right to be present at the hearing “because neither [Barr] nor his attorney, who was present, objected to [Barr’s] absence from the hearing.”[2] 

In State v. Grey, the supreme court held that a defendant’s absence from a pretrial suppression hearing was a violation of the due process and confrontation clauses found in the state and federal constitutions and that the error was not harmless beyond a reasonable doubt because it was not possible, on the record in that case, “to determine what contribution or assistance to counsel defendant could have rendered had he been present to hear” the oral testimony presented at that hearing.  256 N.W.2d at 77.  In Grey, as in this case, the defendant’s absence appeared to be an inadvertent oversight rather than a purposeful exclusion of the defendant from the hearing.  Id.

The state cites State v. Thompson to argue that Barr has forfeited the issue on appeal.  See State v. Thompson, 430 N.W.2d 151, 152 (Minn. 1988) (citing United States v. Gagnon,470 U.S. 522, 529, 105 S. Ct. 1482, 1485-86 (1985) for the proposition that a defendant, who does not assert his right to be present at an in-chambers hearing he knows about, may not claim it for the first time on appeal from a conviction of guilt). Thompson recognized that an in-chambers competency hearing is a stage of trial at which a criminal defendant has a right to be present under Minn. R. Crim. P. 26.03, subd. 1, and noted that if the right has been asserted, it would be “error for the trial court to deny defendant that right and we would have to determine whether or not the error was prejudicial.”  Id. at 152-53.  And in State v. Hannon, the supreme court concluded that Hannon waived any right he had to attend an in-chambers conference because neither Hannon nor his attorney objected to what occurred during the conference “nor was any objection raised at trial to Hannon’s exclusion from the conference.”  703 N.W.2d 498, 506 (Minn. 2005). 

In this case however, Barr was absent from a proceeding that took place in open court, and his absence was raised at trial.  In State v. Ware, the supreme court, referring to Thompson’s holding that the right to be present at a critical stage of trial may be forfeited, stated: “[w]e are less inclined to rely on the doctrine of forfeiture where the defendant, as here, is not present during proceedings actually occurring in open court . . . [m]oreover, this decision to waive is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel.”  498 N.W.2d at 457.  Because it is not clear from the record before us that Barr was aware of the pretrial conference, the error was noted during the trial, and Barr’s absence was from a court hearing rather than a chambers conference, we decline to hold that he has forfeited the issue of his absence on appeal.  But even if Barr has not forfeited this issue, he is not entitled to relief if it can be said that the error was harmless beyond a reasonable doubt.  Id.at 457-58.

At the hearing, Barr’s attorney moved to suppress evidence of the police-station interviews of Barr and Rauchman based on the state’s failure to record the interviews.  Barr argues on appeal that had he been present, “he could have made an offer of proof as to the substance of his statement to [Rittmiller], thus providing his counsel with a better understanding of how [Barr] would be prejudiced if the trial court ruled against him.”  But the state asserts, and we agree, that Barr’s absence from the pretrial proceeding was harmless under the four-factor harmless-error analysis in State v. Breaux, 620 N.W.2d 326, 332-33 (Minn. App. 2001).

In performing a harmless-error analysis regarding a defendant’s absence from a stage of trial, this court considers (1) whether the evidence against the defendant was overwhelming, (2) the strength of the defense’s evidence, (3) what the defendant would have contributed to his defense if he had been present, and (4) whether an appropriate cautionary instruction was given.  Id. 

In this case, Barr, who possessed two syringes when he was arrested, admitted at the scene of his arrest that the solution and filters containing methamphetamine belonged to him.  Despite Barr’s recantation at trial, the evidence against him was strong.

In contrast, Barr’s defense was not strong.  Although Barr testified at trial that the jar did not belong to him, and his witnesses denied seeing him place the jar or filters in the car, no one could explain where these items came from.

On this record, there is no showing that Barr could have contributed to his defense if he had been present at the pretrial hearing.  Barr testified at trial that he was “extremely high” when he talked to Rittmiller and did not “have a lot of recollection of the night.”  Additionally, counsel has not explained how Barr’s absence prevented counsel from making an offer of proof at the pretrial.  Finally, a cautionary instruction was not necessary in this case because the jury was unaware of the existence of the pretrial hearing or Barr’s absence from that hearing.  We conclude that, in this case, the error of conducting the pretrial hearing in Barr’s absence was harmless error beyond a reasonable doubt.

II.

 

Barr argues that the district court abused its discretion by refusing to grant a mistrial based on the state’s alleged failure to disclose the micro-cassette containing the taped statement of Rauchman.  Whether a discovery violation occurred is an issue of law, which appellate courts review de novo.  State v. Bailey, 677 N.W.2d 380, 397 (Minn. 2004). 

Prosecutors are required to disclose and permit defense counsel to inspect any relevant written or recorded statements that relate to the case.  Minn. R. Crim. P. 9.01 subd. 1(2).  This requirement extends to any information or material possessed by members of the prosecuting staff or by others who have participated in the investigation of the case. Id. at 1(7).  “The prosecution has the duty to learn of any evidence known to others acting on the government’s behalf, including police, and to disclose this information to the defense.  Failure to disclose is not excused because the prosecutor . . . was unaware of the information.”  State v. Smith, 655 N.W.2d 347, 354 (Minn. App. 2003) (citation omitted), rev’d on other grounds, 674 N.W.2d 398, 403 (Minn. 2004). 

In this case, the state was unaware of the existence of the micro-cassette until Wersal testified.  Neither Wersal nor the prosecutor could explain why the micro-cassette was not on the evidence log and was not provided to Barr’s attorney.  The state made no effort to discover what happened to the micro-cassette.  Despite the district court’s ruling to the contrary, the scant information about the micro-cassette in the record suggests that there was a discovery violation.

In determining sanctions for discovery violations, we consider the following factors: (1) the reason why the disclosure was not made, (2) the extent of the prejudice, (3) the feasibility of rectifying that prejudice with a continuance, and (4) any other relevant factors.  State v. Scanlon,719 N.W.2d 674, 685 (Minn. 2006).  “A trial court’s determination [of a remedy for a discovery violation] should be reversed on appeal only when the prosecutor’s misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that the defendant’s right to a fair trial was denied.”  Id.(quotation omitted).  “Any discovery-related misconduct on the part of the state is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.”  Id. (quotation omitted).

Wersal and Rauchman both testified at trial.  Barr argues that the recording of Wersal’s interview of Rauchman might have been used to challenge Wersal’s assertion that Rauchman told him that the sweatshirt he was wearing at the time of the arrest belonged to Barr.  But the charge against Barr was not based on or related to the sweatshirt or the items found in it.  Barr does not claim that Rauchman said anything in his taped interview that was exculpatory as to the charges against Barr.  And Rauchman testified that at the time he gave his statement, he was high on methamphetamine.  Therefore, even if the district court erred in concluding that there was not a discovery violation, the verdict was surely unattributable to a failure of the state to produce the micro-cassette of Wersal’s interview of Rauchman, and any error was harmless. 

            Regarding Barr’s argument that we should reverse as an exercise of supervisory authority, we find nothing in this case that warrants reversal based on the interests of justice and leave the exercise of supervisory power to the supreme court.

III.

 

Barr argues that the district court violated his Sixth Amendment right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004),by including a juvenile-adjudication point in the calculation of his criminal-history score.  This issue involves a constitutional question, which appellate courts review de novo.  State v. McFee, 721 N.W.2d 607, 609 (Minn. 2006).  Barr concedes that he did not raise this issue below but asks this court to consider the issue in the interest of justice.  See State v. Allen, 706 N.W.2d 40, 44 (Minn. 2005) (stating that the supreme court will consider defendant’s claim in the interest of justice because “the importance of determining Blakely’s applicability to upward dispositional departures and the assignment of a custody-status point [are] issues that affect numerous cases statewide”). 

Barr argues that juvenile adjudications are not convictions for purposes of the “prior conviction” exception under Apprendi and Blakely for two reasons: first, because juvenile adjudications are not “convictions,” and, second, because juveniles do not serve sentences.  See Blakely, 542 U.S. at 301, 124 S. Ct. at 2536.  But the supreme court recently held that juvenile adjudications fall within the prior conviction exception to the Apprendi/Blakely rule and may be used in calculating the criminal history score without submitting the fact of the adjudication to a jury.  McFee, 721 N.W.2d at 619.  McFee notes that Minnesota courts have long approved the use of prior juvenile adjudications in calculating a defendant’s criminal history score under the Sentencing Guidelines.  Id. at 614-15.  Furthermore the supreme court stated that “such behavior, even though committed by a juvenile, is appropriately considered when sentencing the offender as an adult.”  Id. at 615.  The district court did not err by including Barr’s juvenile adjudications in his criminal-history score.

IV.

 

            We decline to address the additional issues raised in Barr’s pro se supplemental brief, because they were not raised in the district court.  See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that appellate courts will generally not consider matters not argued and considered in the court below).  We note, however, that the claims are also without merit.

            Affirmed.