This opinion will be unpublished and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

A05-2231

 

 

State of Minnesota,

Respondent,

 

vs.

 

Rodney A. Miller,

Appellant.

 

 

Filed September 4, 2007

Affirmed in part, reversed in part, and remanded

Toussaint, Chief Judge

 

Beltrami County District Court

File No. K3-04-1279

 

 

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

 

Timothy R. Faver, Beltrami County Attorney, 619 Beltrami Avenue Northwest, Suite 40, Bemidji, MN 56601 (for respondent)

 

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

 

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Rodney A. Miller challenges his conviction of fifth-degree controlled substance crime—possession and the order denying his postconviction petition.  Because we see no error in the district court’s determinations that the evidence was properly admitted, that appellant’s confession was not involuntary, and that appellant was not denied the effective assistance or counsel, we affirm them.  Because appellant’s waiver of his right to a jury trial violated Minn. R. Crim. P. 26.01, subd. 3, we reverse and remand.

D E C I S I O N

1.         Denial of motion to suppress

            “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). 

            The district court found that “Agents were outside the curtilage of [appellant’s] home when they viewed and seized [marijuana] plant samples on July 23, 2004” and concluded that “The information validly obtained on July 23, 2004, did not taint or otherwise invalidate the search warrant [for appellant’s property] executed on August 11, 2004.”  Appellant’s motion to suppress the evidence obtained on July 23, 2004, was denied.  He challenges the finding that the agents were outside the curtilage. 

            “[C]urtilage is generally the area so immediately and intimately connected to the home that within it, a resident’s reasonable expectation of privacy should be respected.”  Garza v. State, 632 N.W.2d 633, 639 (Minn. 2001).  “[T]he Fourth Amendment protects the curtilage of a house and . . . the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.”  State v. Krech, 403 N.W.2d 634, 636 (Minn. 1987) (quoting United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139 (1987)).

            Both the application for the search warrant and the agents’ testimony support the finding that they were not in appellant’s curtilage.  The application stated that: (1) on July 15, 2004, an agent heard from a confidential informant that appellant was growing cannabis; (2) the agent drove past appellant’s residence and “observed . . . purported cannabis plants”; (3) on July 20, 2004, the agent received information from a concerned citizen who “believes that [appellant] is involved in the drug activity in the . . . area”; (4) on July 23, 2004, the agent “searched the surrounding wooded area around [appellant’s] residence . . . located and observed several purported cannabis plants growing on the edge of the yard . . . photographed what cannabis plants he could see . . .  further located a single cannabis plant growing off the curtilage in the wooded area [and] took a sample of the cannabis plant that was taken as evidence”; and (6) the agent “observed the cannabis plants growing in what appeared to be a garden-type setting with garden tools lying around the plants.”  

            At the hearing on the motion to suppress, the agent testified that “we went up to the residence and did an off curtilage search. . . . [A]t no point did we step onto the yard part.”  When asked, “From the roadway would you be able to see if marijuana was planted,”  the agent answered, “With using binoculars, yes.”  He stated that the plant from which he took a sample was growing outside the yard in “the wooded area” and that the plants were not covered in any way but were “out in the open.”  On cross- examination, he testified:  “This area where we took the sample of marijuana was in the weed area where there was weeds and trees” and that he did not go up to the other marijuana plants he could see.

            The other agent involved testified that “while in the tree line we discovered one marijuana plant that had been planted in the brush, took a sample off that, then proceeded back out to our pick up point.”  When asked if there was an attempt to hide the plants, he said the marijuana plants “outgrew the foliage that was planted in front of them.”  He also testified: “We were still in the trees and couldn’t quite see it yet before we could start smelling the marijuana.”  Both officers testified that there were no “private property” or “no trespassing” signs anywhere.

            The district court did not err in finding that the agents did not obtain the marijuana sample that lead to the search warrant from the curtilage of appellant’s house, in concluding that the search warrant was valid, and in denying appellant’s motion to suppress the evidence.

2.         Confession

            In reviewing the denial of a motion to suppress a confession on the ground that it was involuntary, this court’s duty is “to independently determine, on the basis of all factual findings that are not clearly erroneous, whether or not the confession was voluntary.”  State v. Thaggard, 527 N.W.2d 804, 807 (Minn. 1995) (quoting State v. Anderson, 396 N.W.2d 564, 565 (Minn. 1986)).

            The transcript of the police interview of appellant reads in relevant part:

[Officer]:        I do need to read you your Miranda Warning. . . . Just so we understand everything, ok . . .Today’s date is 8-11-2004, time is approximately 7:00 p.m. . . . [Y]ou have the right to remain silent, anything you say can and will be used against you in the court of law.  You have the right to talk to a lawyer and have him present with you while you’re being questioned.  If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish.  You can decide at any time to exercise these rights and not answer any questions or make any statements.  Do you understand those rights . . . ?

 

[Appellant]:    Yes I do.

 

[Officer]:        Ok and uh there’s some things we need to talk to you about, uh, about your residence.  Are you willing to talk to us with those rights in mind?

 

[Appellant]:    Uh no.

 

[Officer]:        No?

 

[Appellant]:    No.

 

[Officer]:        This will conclude taped statement time is approximately 7:01 p.m.

 

[Appellant]:    I’ve been honest all my life, I’ll just stay that way but I can’t uh I can’t say anything that would (inaudible).

 

[Officer]:        I, I don’t want anything that can help me, I want something that can help you.

 

[Appellant]:    Well what do you want to know that could have possibly help me?

 

[Officer]:        What’s that?  If, if.

 

[Appellant]:    What do you want to know that could possibly help me?

 

[Officer]:        Well, well you know you just told me you’re a marijuana smoker correct?

 

[Appellant]:    Yeah.

 

[Officer]:        But before I ask any questions . . . About what’s going on and where you live and why I’m talking to you I need to make sure that you understand those rights I’ve explained to you.

 

[Appellant]:    OK as long as you’re not gonna ask me about some of my neighbors.

 

[Officer]:        No, I won’t.

 

[Appellant]:    I’ll talk to you.

 

[Officer]:        Ok, great and before, before I, I did just shut the tape off for a brief second, the time is approximately 7:01 still, did I threaten you at all?

 

[Appellant]:    No.

 

[Officer]:        Ok did I make any promises to you?

 

[Appellant]:    No.

 

[Officer]:        Ok did I tell you, you had to talk to us, and if, if you didn’t talk to us I was going to harm you in any way?

 

[Appellant]:    No.

 

[Officer]:        Um, what I, what I said to you was is this corrected, tell me if [t]his is incorrect, I, I turned the tape off and I told you it would be in your best interest to talk to us, is that all that I said to you?

 

[Appellant]:    Yes.

 

The transcript shows that appellant first said he would not answer questions, then changed his mind and said he would answer questions that did not pertain to his neighbors. 

            Appellant’s reliance on Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321 (1975), is misplaced. Mosley notes that Miranda does not “create a per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent” id. at 102-03, 96 S. Ct. at 326, and holds:  “There is no reason . . . to rob the accused of the choice to answer questions voluntarily for some unspecified period of time following his own previous contrary decision.”  Id. at 111, 96 S. Ct. at 330.  Moreover, the conduct Mosley proscribes, i.e., police “either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down [a suspect’s] resistance and make him change his mind”, id. at 105-06, 96 S. Ct. at 327, did not occur here.  The officer immediately terminated the interrogation when appellant said he was not willing to talk and, when the interrogation resumed, appellant agreed that he had not been threatened, that no promises had been made to him, and that the officer had done no more than say it would be in appellant’s best interests to talk.

The postconviction court did not err in determining that appellant’s confession was voluntary.

3.         Ineffective assistance of counsel

            The postconviction court also determined that appellant was not denied effective assistance of counsel.  This determination is reviewed de novo.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004). A party claiming ineffective assistance of counsel must prove both that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s errors, the outcome would have been different.  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).

Our conclusion that appellant’s confession was voluntary defeats appellant’s argument that his attorney’s failure to move to suppress an involuntary confession was representation below an objective standard of reasonableness.  In any event, appellant cannot show a reasonable probability that the outcome would have been different.  If appellant’s confession had been suppressed as involuntary, the district court would still have had sufficient evidence of marijuana on his property to convict him of fifth-degree controlled substance crime—possession.  It is not reasonably probable that suppressing appellant’s confession would have resulted in a different outcome.[1]

4.         Waiver of  right to jury trial

As a threshold matter, we note that this issue is not properly before us because appellant raises it for the first time on appeal. This court does not generally consider issues not raised to and considered by the district court.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  But we may review any matter “as the interest of justice may require.”  Minn. R. Civ. App. P. 103.04.  The interest of justice requires our review of this issue.[2]

            Following the denial of his motion to suppress the evidence, appellant agreed to proceed under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), to a stipulated-facts trial.  He now contends that he did not validly waive his rights under Minn. R. Crim. P. 26.01, subd. 3, providing that:

By agreement of the defendant and the prosecuting attorney, [a case] . . . may be submitted to and tried by the court based on stipulated facts.  Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court.  The agreement and the waiver shall be in writing or orally on the record.

 

A defendant in a stipulated-facts trial must personally waive the rights listed in Minn. R. Crim. P. 26.01, subd. 3.  State v. Halseth, 653 N.W.2d 782, 786 (Minn. App. 2002) (reversing and remanding because defendant did not personally waive his Minn. R. Crim. P. 26.01, subd. 3, rights).[3]  The hearing transcript shows that the district court asked appellant only if he wished “to waive or give up [his] right to have a jury trial.”  The district court did not ask if appellant waived his rights to testify, to have prosecution witnesses testify, to question those witnesses, and to produce favorable witnesses.  Because appellant was not informed of and did not waive the rights enumerated in Minn. R. Crim. P. 26.01, subd. 3, he is entitled to a new trial.  For that reason, we reverse and remand.

Affirmed in part, reversed in part, and remanded.