A06-1529

State of Minnesota,

Respondent,

vs.

Alberto Ignacio Sanchez,

Appellant.

Filed October 9, 2007

Affirmed

Hudson, Judge

Winona County District Court

File No. K8-05-440

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

Charles E. MacLean, Winona County Attorney, Nancy L. Bostrack, Assistant County Attorney, Winona County Courthouse, 171 West Third Street, Winona, Minnesota 55987 (for respondent)

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

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

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

HUDSON, Judge

This is an appeal from a conviction of first- and second-degree controlled-substance offense. Appellant raised an entrapment defense and argues that the trial court committed plain error when it admitted an undercover law-enforcement officer’s testimony that appellant was involved in selling cocaine to a confidential informant. Appellant argues that the informant’s statement was hearsay and that its admission prejudiced appellant’s entrapment defense by tending to show predisposition. Finally, appellant argues that the district court committed plain error by allowing the jury access to tapes of the informant’s statement to police and of the controlled buy during deliberations without court supervision. Because the district court did not err in admitting the officer’s testimony, and because the district court did not abuse its discretion by allowing the tapes into the jury deliberation room, we affirm.

FACTS

In March 2005, appellant Alberto Ignacio Sanchez was arrested after selling 14 grams of cocaine to a confidential informant during a controlled buy. The confidential informant, M.B., had been previously convicted of a controlled-substance offense and avoided prison time in exchange for assisting with the investigation. E.C., another confidential informant, also took part in the controlled buy.

M.B. met appellant at a bar in Winona County on the pretense of wanting to buy some cocaine. After a brief conversation, appellant left the bar and returned 20 to 30 minutes later. Appellant and M.B. then got into a car parked outside the bar. After another brief discussion, appellant gave M.B. a package of cocaine in exchange for $650.

The serial numbers of the money used in the buy had been pre-recorded, and M.B. wore an electronic transmitting device to enable a Winona County sheriff’s department investigator to listen to the cocaine buy. After appellant and M.B. completed the buy, law-enforcement officials arrested appellant. At the time of his arrest, appellant had a package of cocaine and the $650 in pre-recorded cash in his possession. An investigator interviewed appellant two days later with the aid of an interpreter. During the interview, appellant told the investigator that he was just the “middle man” and was “not the big drug dealer.”

Winona County officials charged appellant with two counts of first-degree controlled-substance crime in violation of Minn. Stat. § 152.021, subds. 1(1), 3(a) (2004), and two counts of second-degree controlled-substance crime in violation of Minn. Stat. § 152.022, subds. 1(1), 2(1), 3(a) (2004). The charge of second-degree controlled-substance crime in violation of Minn. Stat. § 152.022, subds. 1(1), 3(a), was later dismissed.

At appellant’s jury trial, the Winona County sheriff’s narcotics investigator testified, as well as three other law-enforcement officials who were involved with the March 21 controlled buy. All of the law-enforcement officials identified appellant as the individual who had sold M.B. the cocaine. During his testimony, M.B. also identified appellant as the person who had sold him cocaine on March 21 and stated that appellant had told him there was “plenty more” cocaine available.

During the trial, the district court concluded that appellant had made a prima facie case of entrapment and that, therefore, the state had the burden of showing appellant’s predisposition to commit the crime. As part of the state’s rebuttal, the Winona County sheriff’s investigator was recalled to testify about a different controlled buy made on January 18, 2005, involving E.C. E.C. told the investigator that he had been approached to sell drugs by appellant and another individual. The investigator then set up a controlled buy, which took place at appellant’s apartment, where E.C. bought approximately one ounce of cocaine for $900. Finally, the investigator testified that he was “told by [E.C.] that the cocaine that was brought to the apartment was given from Miguel to [appellant]. [Appellant] gave it to [E.C.].”

On cross-examination, the investigator admitted that even though the January 18 sale took place in appellant’s apartment, because he had not been able to directly observe the sale, it was possible that someone other than appellant actually sold E.C. the cocaine. During this portion of testimony, appellant did not object to any of the prosecutor’s questions or the investigator’s answers.

The jury returned verdicts of guilty on all counts, and the district court sentenced appellant to the presumptive sentence of 81 months in prison, executed. This appeal follows.

D E C I S I O N

Appellant argues that the district court erred by allowing the Winona County sheriff’s investigator to testify about what he was told by E.C. Appellant argues that the testimony was inadmissible hearsay that affected his substantial rights and, therefore, he is entitled to reversal of his conviction and a new trial.

Hearsay evidence, defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” Minn. R. Evid. 801(d), is inadmissible unless it falls within an exemption from or exception to the general rule. Minn. R. Evid. 802–07.

But because appellant did not object to the investigator’s testimony at trial, this court reviews the district court’s decision to admit the testimony for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); Minn. R. Crim. P. 31.02 (stating that appellate courts may consider plain errors that affect substantial rights even if those errors were not raised before district court). The plain-error standard requires an appellant to show that (1) the district court committed an error, (2) the error was plain, and (3) the error affected the appellant’s substantial rights. State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). An appellant “bears a heavy burden of persuasion to show that the error was prejudicial and affected the outcome of the case.” Bernhardt v. State, 684 N.W.2d 465, 475 (Minn. 2004) (quotation omitted); see State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002) (stating that an error is prejudicial if there is a “reasonable likelihood” that the error “had a significant effect on the verdict of the jury” (quotation omitted)).

Appellant argues that even under a plain-error analysis, he is entitled to relief because it was error to admit hearsay testimony and “[t]he case turned on whether the jury believed [appellant’s] testimony that [E.C.] induced him to sell cocaine or the state’s evidence that [appellant] was predisposed to sell the drugs.” According to appellant, the error was prejudicial.

But here, in addition to the investigator’s testimony about E.C.’s statements, considerable evidence was presented to the jury to support the state’s contention that appellant was predisposed to sell drugs, including: (1) testimony of M.B. that appellant told him that he could get more cocaine if necessary; (2) testimony of the investigator that during the March 21 sale he heard appellant tell M.B. that he could get M.B. large amounts of cocaine if he so desired; (3) testimony of M.B. that he and appellant discussed a more convenient place for M.B. to buy cocaine in the future; (4) testimony of the investigator regarding his observations of the activity surrounding the January 18 controlled buy of almost an ounce of cocaine at appellant’s apartment; and (5) testimony of a second investigator regarding what happened during the January 18 controlled buy. Even if the district court erred by allowing the testimony, we cannot conclude that appellant has satisfied his burden of showing that it had a significant effect on the jury’s verdict. Therefore, appellant has not shown plain error.

Appellant argues that the district court abused its discretion by permitting the jury access during its deliberations to recordings of the investigator’s interview of appellant and the controlled buy. Appellant argues that (1) the recordings were not helpful to the jury and did not aid it in proper consideration of the case; (2) it gave the state an unfair advantage by allowing the jury to hear the state’s evidence a second time; and (3) the recordings could have been subjected to improper use by the jury.

A district court “shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence, or copies thereof, except depositions and may permit a copy of the instructions to be taken to the jury room.” Minn. R. Crim. P. 26.03, subd. 19(1); see State v. Wembley, 712 N.W.2d 783, 787 (Minn. App. 2006) (applying rule 26.03, subdivisions 19(1) and 19(2), to questions regarding materials that may be taken into the jury room and replaying videotaped statements after the jury has begun deliberations), aff’d, 728 N.W.2d 243 (Minn. 2007). District courts must exercise caution and discretion when deciding whether an exhibit can be brought into the jury room. State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991). A district court has broad, but not unreviewable, discretion in allowing the jury to use such exhibits. Wembley, 712 N.W.2d at 787; Kraushaar, 470 N.W.2d at 515; State v. Haynes, 725 N.W.2d 524, 528 (Minn. 2007). In exercising its discretion, a district court should take into account “(i) whether the material will aid the jury in proper consideration of the case; (ii) whether any party will be unduly prejudiced by submission of the material; and (iii) whether the material may be subjected to improper use by the jury.” Kraushaar, 470 N.W.2d at 515.

“In some cases, it might be unduly prejudicial to permit a jury to review a tape on its own because it could result in an improper focus on one aspect of the evidence. But allowing a tape in the jury room will not result in undue prejudice in every case.” State v. Washington, 725 N.W.2d 125, 136 (Minn. App. 2006) (holding that allowing the jury access to the tape of a 911 call entered into evidence in the jury room did not result in undue prejudice and did not constitute an abuse of discretion by the district court) (citation omitted), review denied (Minn. Mar. 20, 2007); Kraushaar, 470 N.W.2d at 516–17 (holding that it is preferable that a district court not allow a jury unfettered access to a videotape entered into evidence, but that the district court did not abuse its discretion in doing so); State v. Barbo, 339 N.W.2d 905, 906 (Minn. 1983) (holding that it was proper for the district court to allow a jury to take tapes of incriminating phone conversations into the jury room).

Here, a portion of the controlled-buy recording was played to the jury during the trial, and both the investigator and M.B. presented detailed testimony regarding what had taken place during the buy. The recording of the controlled buy is approximately 46 minutes long and includes the investigator’s preparation of the confidential informant for the buy and the buy itself. The recording of appellant’s interview, however, was not played for the jury during the trial. That recording is approximately 35 minutes long. Appellant speaks Spanish during the interview, and he was interviewed with the aid of an interpreter. The first question the investigator asked appellant during the interview was whether he is in the United States illegally. Appellant described his arrival in the United States and the fact that he has a social security number. The investigator then asked whether he was still considered an illegal alien. Appellant responded that he did not know.

Immediately before the jury retired to deliberate, a brief discussion was held on the record, out of the presence of the jury, regarding the recordings. The discussion centered on obtaining a CD player to enable the jury to listen to the recordings during deliberations. The district court did not analyze or consider the Kraushaar factors before allowing the jury access to the recordings. Appellant did not object to giving the jury access to the recordings or to giving the jury a CD player.

Based on a review of both the transcript of the jury trial and the material on the compact discs, it appears that almost all of the material on the discs was discussed during the trial, and therefore, listening to the recordings during deliberations did not give the jury access to substantially more information than they had already heard via direct testimony. See Kraushaar, 470 N.W.2d at 516 (holding that allowing a jury to review a videotape entered into evidence on its own during deliberations was nonprejudicial because, in part, “at worst, the replaying of the tape allowed the jury to rehear what it had already heard”). And in our view, the material on the two recordings that was not discussed during the trial was peripheral.

But appellant argues that the jury was prejudiced by hearing appellant discuss his potentially illegal immigration status because it was inflammatory and undermined his credibility. Although the mention of appellant’s immigration status may have been prejudicial, it does not require reversal. Even if the jury considered this portion of the interview recording, appellant’s credibility was arguably damaged more by the fact that the prosecutor impeached appellant’s testimony at trial with statements he had made to the investigator. For example, during his interview, appellant admitted to the investigator that he had been involved in the sale of cocaine to the CI, but during his testimony, appellant stated, “I don’t know anything about that.” And when asked by the prosecution why his testimony was inconsistent with his statement to the investigator, appellant stated that he “ha[d] no idea what the other interpreter had said,” and implied that the interpreter was racist and had lied about what he had said.

Therefore, we conclude that appellant has not met his burden of showing that the jury’s access to the recordings resulted in undue prejudice and that the district court did not abuse its discretion by allowing the jury to have access to the recordings during their deliberations. See Bernhardt, 684 N.W.2d at 475–76 (stating that appellant must show the error was prejudicial). We take this opportunity, however, to remind district courts to apply the Kraushaar factors when considering whether to allow the jury unfettered access to recordings submitted into evidence.

Appellant also argues that the cumulative effect of the admission of the hearsay and the jury’s free access to the recordings was sufficiently prejudicial to warrant a new trial. “Cumulative error exists when the cumulative effect of the errors and indiscretions, none of which alone might have been enough to tip the scales, operate to the defendant’s prejudice by producing a biased jury.” State v. Johnson, 441 N.W.2d 460, 466 (Minn. 1989) (quotation omitted). But when the evidence against a defendant is very strong and “the errors did not affect the jurors’ deliberations or their assumptions about [the defendant’s] innocence or guilt,” the cumulative effect of the errors does not prejudice the defendant. State v. Erickson, 610 N.W.2d 335, 340–41 (Minn. 2000). Here, because there was considerable evidence presented to the jury regarding appellant’s participation in the March 21 controlled buy, appellant has not shown that the alleged errors affected the outcome of the trial.

In a pro se supplemental brief, appellant also argues that his conviction should be vacated because (1) his constitutional right to a speedy trial was violated; (2) his right to an interpreter was violated; (3) his constitutional rights against excessive bail and cruel and unusual punishment were violated; (4) the testimony of the confidential informant was unreliable; and (5) his constitutional right to call witnesses was violated. But appellant did not raise any of these arguments before the district court. This court will generally not consider matters not argued to and considered by in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

Affirmed.