State v. Brown, No. A05-1041 (Minn. App. 7/25/2006)
| Decision Date | 25 July 2006 |
| Docket Number | No. A05-1041.,A05-1041. |
| Parties | State of Minnesota, Respondent, v. Jermaine Sean Brown, Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Blue Earth County, File No. CR-04-2704.
Mike Hatch, Attorney General, and Ross Arneson, Blue Earth County Attorney, Christopher J. Rovney, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, (for appellant).
Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.
UNPUBLISHED OPINION
Appellant alleges a number of errors in his trial, which culminated in a conviction of aiding and abetting a conspiracy to commit a second-degree controlled-substance crime. First, appellant alleges ineffective assistance of counsel on the part of his trial counsel because his counsel failed to challenge for cause or use a peremptory strike on an individual who initially admitted to being prejudiced against African Americans. Second, appellant contends that the charge of aiding and abetting a conspiracy is not a viable charge in Minnesota. Third, appellant claims that the district court abused its discretion by not disclosing the identity of the informant and producing the audiotapes made during the controlled drug buys. Finally, appellant contends that the district court abused its discretion by allowing a police officer to testify to inadmissible hearsay statements. Because failing to object to the inclusion of an individual on appellant's jury was not ineffective assistance of counsel, because aiding and abetting a conspiracy is a viable charge in Minnesota, and because the district court did not abuse its discretion by not requiring disclosure of the identity of the informant and by allowing the police officer's testimony, we affirm.
Law enforcement agencies in the Mankato area worked together on a series of controlled drug buys commencing on August 27, 2004. The officers used a confidential reliable informant (CRI) to effectuate the controlled buys because the CRI had been approached by a woman, Penny Kelly, to purchase crack cocaine.
On August 27, 2004, the date of the first buy, the officers gave the CRI money to purchase an 8-ball of crack cocaine. (During each buy, the CRI was wired with a listening device so that law-enforcement agents were able to monitor what was said in the CRI's presence.) The CRI picked up Kelly and went to Jerome Slack's apartment. The CRI met with Slack and inquired about purchasing an 8-ball of crack cocaine, and Slack contacted the source of his drugs. Then Slack, the CRI, and Kelly left Slack's apartment and went to Burger King, where Slack was dropped off at his vehicle. He told the CRI and Kelly to meet him at his apartment. Slack got into his vehicle and drove to another apartment building, where officers saw him enter the building.
Shortly thereafter, Slack left the building and began exiting the parking lot. As he did so, a red Pontiac Grand Prix entered the parking lot and stopped next to Slack's vehicle. The Grand Prix was registered to Maria Esquivel, appellant Jermaine Brown's live-in girlfriend. Slack then re-entered the building. A law-enforcement officer also entered the building to determine what Slack was doing and reported that Slack had entered apartment number five, previously identified as appellant's apartment. After Slack left the building, he returned to his apartment and delivered the crack cocaine to the CRI.
After the first buy, the officers believed that appellant and Esquivel were Slack's sources and wanted to make a purchase directly from them. But that was not possible because after the first controlled buy, appellant and Esquivel changed residences. As a result, the police needed Slack's assistance. On September 1, 2004, the CRI made two controlled buys, both times using Slack. The first time, the CRI was given money and instructed to purchase two 8-balls of crack cocaine. Again, the CRI went to Slack's apartment and both the CRI and Slack then drove to a Spur gas station. Slack then continued driving.
Officers saw Slack pull up to Esquivel's Grand Prix, which was driven by a black male, who was subsequently identified as appellant. Officer Rittmiller observed Slack reach out his car window toward the Grand Prix, but did not see appellant's actions. After that interaction, Slack drove to another building, parked, and entered. Appellant left Slack, drove to the Spur station to get gas, and then returned to the building that Slack had entered. A short time later, Slack returned directly to the Spur station and delivered the crack cocaine to the CRI.
Following that controlled buy, an officer went to the building that Slack had entered and, after inquiring about a "For Rent" sign in the window, learned that appellant and Esquivel had just moved into the upstairs apartment. Later that evening, the CRI engaged in the third controlled buy. The police instructed the CRI to purchase another 8-ball of crack cocaine. The CRI telephoned Slack and agreed to meet him at the Spur station. Slack then drove from the Spur station to appellant's residence. Slack subsequently returned to the Spur station and delivered crack cocaine to the CRI.
On September 3, 2004, the police executed a search warrant at appellant's and Esquivel's residence. The officers seized a digital scale that had a white residue on it, plastic baggies, and Esquivel's purse, which contained three one-hundred-dollar bills that had been used in the controlled buys.
Appellant moved to compel the state to disclose the CRI's identity and to disclose the audiotapes that were made during the three controlled buys. The district court denied those motions, finding that the CRI was not a material witness to the crime, was not an eyewitness to the crime, and had no personal knowledge of either Slack's or appellant's activities. Thus, the state was not compelled to disclose the CRI's identity; and, because the identity could be gleaned from the audiotapes, the district court did not compel the state to produce the tapes.
During trial, appellant's counsel objected frequently during Rittmiller's testimony. Appellant alleged that the officer was testifying to things that he did not have personal knowledge of and that his testimony contained inadmissible hearsay statements. The district court had previously ruled that the officer could not testify about actual statements made by the CRI or Slack that were obtained from the listening device, but did allow the officer to testify about what transpired during the investigation and controlled buys. The jury convicted appellant of aiding and abetting a conspiracy to commit a second-degree controlled-substance crime, and the district court imposed the presumptive sentence. This appeal follows.
Appellant alleges that his trial counsel was ineffective because he failed to challenge for cause or, in the alternative, peremptorily strike an individual on his petit jury based on racial bias or prejudice. Because a claim of ineffective assistance of counsel involves a mixed question of law and fact, our standard of review is de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citing Strickland v. Washington, 466 U.S. 688, 698, 104 S. Ct. 2052, 2070 (1984)).
The defendant must affirmatively prove that his counsel's representation "fell below an objective standard of reasonableness" and
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).
A juror may be challenged for cause by either party upon the following grounds: 1. The existence of a state of mind on the part of the juror, in reference to the case or to either party, which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging.
Minn. R. Crim. P. 26.02, subd. 5(1). In order to challenge a juror for cause, the motion "may be oral and shall state the grounds on which it is based." Id., subd. 5(2).
"In an appeal based on juror bias, an appellant must show that the challenged juror was subject to challenge for cause, that actual prejudice resulted from the failure to dismiss, and that appropriate objection was made by appellant." State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). Thus, it is appellant's burden to prove actual bias. This court has stated that not challenging a juror at the time of voir dire, but only asserting the claim of bias after a conviction, may be fatal to a claim of juror bias. State v. Blais, 379 N.W.2d 236, 238 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986).
In State v. Logan, a case that appellant heavily relies on, the supreme court stated that the failure to use a peremptory strike after the district court denied a challenge for cause presents the question of whether appellant could complain about the individual's presence on the jury. 535 N.W.2d 320, 324 (Minn. 1995). But the supreme court did not answer the question because those were not the facts before it, as Logan had no peremptory strikes remaining at the time of his challenge for cause. Id. Logan's attorney challenged a potential juror's statement that he would give a police officer's testimony more weight than other witnesses' testimony. Id. at 322. The district court allowed the prosecutor an opportunity to rehabilitate the juror before ruling on the challenge, and following further questioning, the defense attorney renewed his challenge for...
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