STATE OF MINNESOTA

IN COURT OF APPEALS

A06-854

State of Minnesota,
Respondent,

vs.

Michael Curtiss Schwender,
Appellant.

Filed July 24, 2007

Affirmed

Minge, Judge

Ramsey County District Court

File No. K3-05-187

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, G. Tony Atwal, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Ross, Judge.

U N P U B L I S H E D O P I N I O N

MINGE, Judge

Appellant challenges his conviction for a first-degree-controlled-substance crime on the grounds that (a) his incriminating statements were obtained in violation of the Scales requirement; (b) the district court abused its discretion by allowing evidence of his prior controlled-substance conviction; and (c) the admissible evidence is insufficient to support his conviction. We affirm.

FACTS

On November 17, 2004, the Ramsey County Sheriff’s Department’s Narcotics Task Force placed the motel room of appellant Michael Curtiss Schwender under surveillance for suspected drug trafficking. Deputies observed that during a 30 to 40 minute time span, three individuals entered the room, stayed a few minutes, and left in vehicles. Based on that activity, the deputies stopped and searched one of the vehicles, and discovered methamphetamine.

Officers also obtained a search warrant, and pursuant to that warrant, searched appellant’s motel room. As the officers entered, appellant dropped a bag with methamphetamine and a scale. A small amount of marijuana, a methamphetamine pipe, marijuana paraphernalia, and $1,200 in cash were also found in the room. Based on the results of the search and various statements by appellant, he was charged with first-degree possession of methamphetamine with intent to sell in violation of Minn. Stat. § 152.01, subd. 1(1) (2004). That charge and the lesser-included offenses of second- and third-degree possession of methamphetamine were submitted to the jury. The jury returned a verdict of guilty on the first-degree offense. The district court denied appellant’s motion for a downward departure and sentenced him to the 98-month guideline sentence. This appeal follows.

D E C I S I O N

The first issue is whether the district court erred by denying appellant’s motion to suppress his confession that he sold methamphetamine, made during an in-custody interrogation, because that part of the interrogation was not recorded. The supreme court has held that “all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.” State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). We review de novo whether an officer’s failure to record an in-custody interrogation substantially violates the Scales requirement. State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).

Law enforcement’s failure to comply with the Scales requirement results in suppression of “any statements the suspect makes in response to the interrogation” at trial. Scales, 518 N.W.2d at 592. But suppression is only required if the violation is substantial. Id. In evaluating the substantiality of the violation, we consider whether the violation resulted in prejudice to the accused. State v. Inman, 692 N.W.2d 76, 81 (Minn. 2005). “If it is undisputed that the Miranda warning was administered, or that the accused waived his or her right to remain silent, the lack of a recording creates no prejudice to the accused.” Id.

Here, appellant filed a pretrial motion to suppress his alleged in-custody admission that he was selling methamphetamine. In the motion, appellant argued that the deputy who questioned him at the jail should be prohibited from testifying about his alleged admission because it was not recorded, as required by Scales. The deputy testified that he told appellant during the questioning that “if we got into an area that we would talk about his source or who he got his methamphetamine from, that he could request [that] the tape be turned off.” During the interview, the deputy asked appellant whether he sells methamphetamine, and appellant then requested that the officer turn off the tape recorder. The deputy testified that after he turned the tape recorder off, appellant admitted selling methamphetamine.

The record shows that before questioning, appellant was advised of and waived his Miranda rights and agreed to speak with the deputy. As a part of the Miranda warning, the deputy advised appellant that “anything you say can and will be used against you in a court of law.” The deputy did not limit this advisory to statements that appellant might make during the recorded portion of the interrogation. Here, as in Inman, “[t]he Scales violation . . . does not raise any factual dispute about the existence and validity of a Miranda waiver.” 692 N.W.2d at 81. The pertinent portions of the interview, including the information about appellant’s rights, the waiver, and the questioning were recorded before appellant requested that the deputy turn the tape off. Relying on Inman, the district court found that although a willful Scales violation had occurred, appellant was not prejudiced because he requested that the officer stop the recording after he received a Miranda warning. We concur with the district court that law enforcement has a serious obligation under Scales and that here the failure to record all of the questioning constituted a Scales violation. But on this record, we conclude that the violation was not substantial or prejudicial and that the district court did not err in denying the motion to suppress.

Appellant contends that the Ramsey County Sheriff’s Department has a practice of manipulating unrepresented accused individuals into requesting unrecorded interviews, lulling them into believing that unrecorded statements will not be used against them, and then obtaining a confession. This is a serious charge. However, there is no evidence of such conduct in this case.

II.

A. Admission of Prior-Conviction Evidence

The next issue is whether evidence of appellant’s 2004 conviction for possession of methamphetamine was erroneously introduced at trial. When a district court has ruled on the impeachment of a witness by evidence of a prior conviction, we review the district court’s evidentiary ruling for a clear abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). A defendant who fails to object to the admission of evidence waives the right to object on appeal. State v. Bauer, 598 N.W.2d 352, 363 (Minn. 1999). But see Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998) (describing the plain-error rule).

Here, we conclude that because appellant did not object to the introduction of prior-conviction evidence at trial, because the district court never actually ruled on the issue, and because appellant’s own trial counsel elicited the evidence on direct examination, the issue was not preserved for appeal.

B. Limiting Instruction

Appellant also contends that he was prejudiced because no limiting instruction was given to the jury when the evidence of the prior conviction was introduced. But appellant failed to propose any limiting instruction when he introduced the evidence. “A defendant’s failure to propose specific jury instructions or to object to instructions before they are given to the jury generally constitutes a waiver of the right to appeal.” State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). But, citing State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985), a comment to Minn. R. Evid. 609(a), and the Minnesota Jury Instructions Guide, appellant contends that a district court “must give a limiting instruction when [prior conviction] evidence is introduced and in its final instructions to the jury, whether or not requested by defense counsel.”

The committee comment to which appellant refers provides: “If the conviction is admitted, the court should give a limiting instruction to the jury whether or not one is requested.” Minn. R. Evid. 609(a) 1989 comm. cmt. (emphasis added). And according to Bissell, “the [district] court, on its own, should give a limiting instruction both when the evidence is admitted and as part of the final instructions to the jury.” 368 N.W.2d at 283 (emphasis added). By receiving a limiting instruction at the time the evidence is introduced, “the jury will probably get a clearer picture of the interrelation between the evidence and the factual issues to which they are relevant.” Id. (quotation omitted). If the district court merely provides closing instructions, “their impact will probably be minimal.” Id. (quotation omitted). We note that this language is permissive rather than mandatory. Therefore, while it is advisable for the district court to provide instructions when the evidence is introduced, the failure to do so is not necessarily reversible error.

Here, appellant’s direct testimony contained the information regarding the prior conviction. Thus, there was no element of surprise and appellant’s own failure to request the instruction is more significant. Also, the district court did provide a limiting instruction before the jury’s deliberation. That instruction comported with the instruction contained in the Jury Instructions Guide. The inclusion of such an instruction reduces the prejudicial effect of the failure to give an instruction at the time the evidence was introduced. Id. Based on this record, we conclude that the district court’s failure to sua sponte give a limiting instruction regarding the prior-conviction evidence presented by appellant was not error.

C. Ineffective-Assistance-of-Counsel Claim

Appellant contends that he was deprived of the effective assistance of counsel because his own trial attorney elicited prior-conviction evidence during appellant’s direct-examination. To obtain a new trial based on a claim of ineffective assistance of counsel, appellant must “affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasoanbleness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 688, 694, 104 S. Ct. 2052, 2068 (1984)). If one prong is not met, we need not address the other. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

Minnesota courts have ruled that to establish ineffective assistance of counsel, “[t]here must be a showing of actual prejudice, which requires this court to consider the totality of the evidence.” State v. Hood, 405 N.W.2d 459, 462 (Minn. App. 1987), review denied (Minn. June 9, 1987). An attorney’s representation is objectively reasonable if he “provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.” State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted).

Here, during the trial, outside of the jury’s presence, the following exchange took place:

THE COURT: Okay. Also, there was a discussion prior to today regarding whether or not there would be prior conviction evidence should [appellant] take the stand.

Does the State intend to use evidence of [appellant]’s prior convictions?

[RESPONDENT’S COUNSEL]: Yes, Your Honor, that’s correct, and it would be a 2004 conviction for – felony conviction for third degree controlled substance violation.

THE COURT: Any objection, [appellant’s counsel]?

[APPELLANT’S COUNSEL]: Your Honor, I have no basis upon which to object, of course. So I have no objection at this point.

Appellant contends that his trial counsel should have realized that the factors that determine the admissibility of prior-conviction evidence provided grounds for an objection and that counsel should not have elicited the testimony. See State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978) (stating five factors courts use in deciding whether to admit evidence of prior convictions).

“It is standard practice for defense counsel to bring out the witness’ conviction on direct in order to remove some of the sting from cross-examination.” Bissell, 368 N.W.2d at 283 (quotation omitted). Also, it is not clear that an objection by defense counsel to the introduction of the prior offense would have been successful. See Minn. R. Evid. 609(a) (permitting the use of prior convictions for impeachment purposes in limited circumstances); see also Jones, 271 N.W.2d. at 537-38. Under these circumstances, we cannot conclude that the representation appellant received fell below the objectively reasonable standard. But even if appellant could establish that his representation was not objectively reasonable, he has not met his burden to show that the result would have been different. He was discovered with methamphetamine and a scale in his possession at the outset of the search of his motel room. This is very strong evidence. We conclude that appellant has failed to establish a right to a new trial on the basis of his claim of ineffective assistance of counsel.

III.

The final issue is whether there was sufficient evidence for the jury to convict appellant. In considering a claim challenging sufficiency of the evidence, this court’s review is “limited to a painstaking analysis of the record to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict which they did.” State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). This court’s review includes an analysis of both the facts presented and the inferences that the jury could reasonably draw from those facts. State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000). The reviewing court must assume that 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). This is especially true when the resolution of the matter depends mainly on conflicting testimony. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).

An individual is guilty of a first-degree controlled-substance crime when he “sells one or more mixtures of a total weight of ten grams or more containing . . . methamphetamine” at least once within a 90-day period. Minn. Stat. § 152.021, subd. 1(1) (2004). “‘Sell’ means: (1) to sell, give away, barter, deliver, exchange, distribute or dispose of to another, or to manufacture; or (2) to offer or agree to perform an act listed in clause (1); or (3) to possess with intent to perform an act listed in clause (1).” Minn. Stat. § 152.01, subd. 15a (2004).

The state produced evidence that three cars had entered the parking lot of the hotel in less than an hour. The vehicles’ occupants entered appellant’s room, staying only a few minutes. A deputy testified that this activity is consistent with narcotics trafficking. Methamphetamine was found in one of the vehicles. During the search of appellant’s room, video surveillance equipment was recovered. A deputy testified that this type of equipment is often found in drug dealers’ homes. In addition, appellant dropped both a scale and methamphetamine when officers entered his room. More than 13 grams of methamphetamine were found inside the room, an amount that the officers testified is in excess of what a person would have for personal drug use. There was evidence that appellant admitted to selling methamphetamine. The officers recovered $1,200 in cash.

Although appellant presented some conflicting testimony, provided explanations for the events occurring at the hotel, and denied that he admitted to selling methamphetamine, we defer to the jury’s role in weighing conflicting evidence. Because the statute under which appellant was convicted only requires possession with intent to “sell,” “deliver,” “distribute,” or “dispose of to another,” id., we conclude that substantial evidence supports appellant’s conviction.

Affirmed.

Dated: