Opinion
A11-1392
07-16-2012
State of Minnesota, Respondent, v. Derrick Lamarr Tyler, Sr., Appellant.
Lori Swanson, Attorney General, Michael T. Everson, Assistant Attorney General, St. Paul, Minnesota; and Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, St. Paul, Minnesota (for appellant)
his opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).
Affirmed
Willis, Judge
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
St. Louis County District Court
File No. 69DU-CR-11-138
Lori Swanson, Attorney General, Michael T. Everson, Assistant Attorney General, St.
Paul, Minnesota; and
Mark S. Rubin, St. Louis County Attorney, Duluth, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Suzanne M. Senecal-Hill,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Willis, Judge.
UNPUBLISHED OPINION
WILLIS , Judge
Appellant challenges his conviction of aiding and abetting second-degree controlled-substance crime, arguing that the evidence is insufficient to support his conviction, that the district court committed prejudicial error by admitting improper drug-profile evidence, and that he was denied the effective assistance of counsel. We affirm.
FACTS
The state charged appellant Derrick Lamarr Tyler Sr. with one count of aiding and abetting second-degree controlled-substance crime (sale of cocaine in a park zone), in violation of Minn. Stat. §§ 152.022, subd. 1(6)(i) (2010); 609.05, subd. 1 (2010); and aiding and abetting third-degree controlled-substance crime, in violation of Minn. Stat. §§ 152.023, subd. 1(1); 609.05, subd. 1 (2010). The charges arose from Tyler's conduct relating to a controlled buy in which a confidential informant purchased crack cocaine in a Duluth park. Tyler waived his right to a jury trial, and the district court conducted a bench trial.
The informant met with Officer Jason Salo of the Lake Superior Drug and Gang Task Force and at his direction made a call to S.J., from whom she had previously purchased cocaine, and arranged to meet S.J. in the park. The informant was outfitted with electronic recording equipment and supplied with $300 to purchase an "eight ball" of crack cocaine. She testified that when she arrived at the park, she saw a group of people standing at the bottom of some steps by the basketball court. The group included S.J.; S.J.'s sisters, L.J. and L.W.; and a man. The informant testified that L.J., who had received the cocaine from a man, approached the informant and gave her the cocaine in exchange for the controlled-buy money. The informant identified Tyler as the man who was present with the group but testified that he remained by the basketball court during the transaction.
Officer Salo testified that S.J. was the target of the controlled buy. The prosecutor questioned Officer Salo:
PROSECUTOR: From your experience, . . . is it common that groups of people may be involved in sales like this?Defense counsel did not object to this testimony.
A.: Yes, it is. In. . .the drug sales, the people play different roles. I've seen some people acting as look-outs, some people are like the street level dealers who will actually, you know, deliver the actual controlled substances. Then oftentimes there's like hierarchies where there will be people above them who actually have the controlled substances and they have their runners deliver the controlled substances for them and then the money comes back.
PROSECUTOR.: Money comes back to the person who was the source of the drugs?
A.: Yes. If the . . . higher level dealer gives the drugs out to the runner who actually does . . . the sale, we call it fronting, and then when they bring the money back, that's the payment.
PROSECUTOR: Okay. And does the person who does the actual deal, the runner, they get some kind of compensation for that?
A.: Yes, oftentimes they do.
PROSECUTOR: What type of compensation?
A.: They can either be paid in money or in the controlled substance itself, sometimes they'll get a . . . little piece for themselves.
PROSECUTOR: From your experience in those types of cases, does the source or the initial seller make the calls [him]self to set these deals up?
A.: No, oftentimes not. They use other people to insulate. . . themselves, particularly people who are, you know, experienced in the drug game.
PROSECUTOR: What do you mean by insulate?
A.: Well, what I found out from my experience is, . . . you have the street level kind of dealers and they're oftentimes getting their drugs from people who hold larger amounts of controlled substances. They oftentimes will have other people distribute those drugs for them and have them bring the money back so that they don't actually have to do hand-to-hand transactions with the addicts and people who they might believe are potentially working for the police. So they insulate themselves by having other people do the actual transactions.
PROSECUTOR: Then they also have the other people make the . . . or do the phone calls to set the deals up?
A.: Yes.
Officer Rodney Wilson, who was also involved in the investigation, conducted video surveillance of the controlled buy from his vehicle. He testified that before the transaction, he saw the group of people near the steps, including three women talking with each other and the top of another person's head and hands but that a jacket hanging over a railing partially blocked his view of that other person. Officer Wilson testified that while taping, he looked up, he saw the previously unidentified person stand up from a seated position, and recognized him as Tyler, with whom Officer Wilson was familiar.
The district court viewed the videotaped evidence of the transaction. After the videotape was shown, the prosecutor questioned Officer Wilson:
PROSECUTOR: From your experience both as an investigator in the Special Investigations Unit, as a supervisor of that unit and also your other work as a Duluth police offer, are you familiar with cases where people who sell drugs give money back to other people?
A.: Yes.
PROSECUTOR: Why does that happen?
. . . .
A: [In m]y training, experience . . . drug dealers will often use other people to sell drugs for them. That person will supply other people with drugs. The farther up the drug chain they are, the more people they'll use to sell drugs for them. That creates a buffer between them and law enforcement if they were to be arrested.
In this case you're talking about crack cocaine. A lot of times dealers won't want to expose themselves to a potential police informant, especially somebody like Mr. Tyler who was -
DEFENSE COUNSEL: Objection, Your Honor.DEFENSE COUNSEL: --speculation or argumentative, I guess.
THE COURT: Just a minute.
THE COURT: Sustained.
PROSECUTOR: People who sell the—they actually make the actual transactions for the—for the source of the drugs and they do it for what reasons, from your experience?
A: Sometimes they're users and the person supplying them with drugs will pay them with drugs or just to make a small profit themselves.
PROSECUTOR: So that they'll get some money back from the sale?
A.: Yes.
Tyler testified on his own behalf. He testified that (1) he was attempting to start a relationship with S.J. and was planning to meet her at a bus stop to go to a mall, where she was going to buy him a birthday gift, but as he was passing the park, she called him over; (2) he did not see the drug transaction, but after it occurred, S.J. told L.J. to give him the money; and (3) S.J. told him to count the money and give L.J. $20 back, even though he wanted to keep the money "for [his] birthday." Tyler also testified that he was not the man sitting at the bottom of the steps in the videotape and that he "just walked up" and was not paying attention to what L.J. was doing.
The district court found Tyler guilty of both counts. The district court found that his testimony that he was not the person sitting at the bottom of the steps before the transaction was not credible and instead credited Officer Wilson's testimony that he saw Tyler stand up at that location. The district court found that, although appellant claimed that L.J. gave him the money at the direction of her sister, the tape shows that appellant reached out to take the money from L.J. The district court noted the officers' testimony that it was a common practice for drug dealers to insulate themselves from transactions by having another person perform the actual transfer and then paying that person. The district court found that the circumstantial evidence led to only one reasonable conclusion: that Tyler was aware of the drug transaction and that he hired or procured the assistance of the other women to conduct the sale. The district court found that the evidence of Tyler's interaction with the women before the transaction and the fact that he took the money from L.J. and handed some of it back to her supported only a rational inference that he acted as a dealer and paid L.J. to perform the exchange.
The district court sentenced appellant to 108 months, stayed for 20 years with conditions of probation, a downward durational departure. This appeal follows.
DECISION
I. The evidence is sufficient to sustain Tyler's conviction.
When considering a challenge to the sufficiency of the evidence, this court performs "a painstaking review of the record to determine whether the evidence and reasonable inferences drawn therefrom, viewed in the light most favorable to the verdict, were sufficient to allow the [fact-finder] to reach its verdict." State v. Pendleton, 706 N.W.2d 500, 511 (Minn. 2005). In evaluating the reasonableness of the fact-finder's decision to convict, we defer to the fact-finder on the issues of witness credibility and the weight to be assigned each witness's testimony. State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). The same standard of review of the sufficiency of the evidence applies to bench trials, in which the district court is the trier of fact, and to jury trials. Davis v. State, 595 N.W.2d 520, 525 (Minn. 1999).
A person may be held liable for a crime committed by another if that person "intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime." Minn. Stat. § 609.05, subd. 1 (2010). To convict Tyler, the state was not required to prove his active participation in the overt act of the offense. Bernhardt v. State, 684 N.W.2d 465, 477 (Minn. 2004). But the state had to prove that Tyler had knowledge of the crime and intended his presence or actions to further its commission. State v. Hawes, 801 N.W.2d 659, 668 (Minn. 2011).
"The intent element of a crime, because it involves a state of mind, is generally proved circumstantially." State v. Davis, 656 N.W.2d 900, 905 (Minn. App. 2003), review denied (Minn. May 20, 2003). This court applies a stricter standard of review to convictions based on circumstantial evidence, even when only a single element rests on circumstantial evidence. State v. Al-Naseer, 788 N.W.2d 469, 473-74 (Minn. 2010) . In a circumstantial-evidence case, a reviewing court first identifies the circumstances proved, construing conflicting evidence in the light most favorable to the verdict. Hawes, 801 N.W.2d at 668. The reviewing court then determines whether those circumstances are "'consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of his guilt.'" Id. at 699 (quoting State v. Andersen, 784 N.W.2d 320, 329 (Minn. 2010)).
The fact-finder may infer the intent necessary for an aiding-and-abetting conviction "from factors including: defendant[']s presence at the scene of the crime, defendant[']s close association with the principal before and after the crime, defendant[']s lack of objection or surprise under the circumstances, and defendant[']s flight from the scene of the crime with the principal." Id. at 668 (quotation and citation omitted). The state points out that Officer Wilson provided direct evidence, testifying that he saw Tyler take the money from L.J. and hand her a single bill. We agree that, taken in the light most favorable to the verdict, the state proved the following circumstances: the informant called S.J. and arranged a drug purchase at the park; Tyler was with S.J. when she called the informant; Tyler was with S.J., L.J., and L.W. when the informant arrived at the park and remained there during the drug transaction; L.J. immediately returned to the group, which included Tyler; and Tyler reached out, took the drug-sale proceeds from L.J., and placed them in his pocket, except for a single bill, which he handed to L.J.
Tyler challenges the district court's finding that these circumstances were consistent only with a rational hypothesis that he was aware of the drug purchase and procured the assistance of others to sell drugs. He argues that the evidence supports an alternative rational inference that he was not criminally responsible for the sale, based on testimony that S.J. was the primary target of the drug investigation and that the informant was not previously familiar with Tyler. He maintains that his version of events is consistent with his presence at the park and the fact that he possessed the drug-sale proceeds after the transaction.
We reject this argument. The videotape, taken together with Officer Wilson's testimony, amply supports the district court's finding that Tyler was present with the group and interacting with L.J. and S.J. immediately before and after the drug transaction. The evidence is therefore consistent only with the rational hypothesis that Tyler knew about the drug transaction before it occurred and intended his actions to further its commission, and we conclude that the evidence sufficiently supports his conviction.
II. The district court did not commit plain error by admitting Officer Salo's testimony, and any error in the admission of Officer Wilson's testimony did not substantially influence Tyler's conviction.
Tyler argues that the district court committed prejudicial error by admitting Officer Salo's and Officer Wilson's testimony relating to a common structure of drug deals, in which a dealer employs other persons to perform a drug transaction. Tyler maintains that the officers' testimony on these subjects amounted to inadmissible drug-profile evidence.
In the context of drug-courier profiles, the United States Supreme Court has stated that such a profile is "a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics." Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 2754 (1980). Drug-courier profiles, which are used by law-enforcement agents to investigate criminal activity, are considered inherently prejudicial evidence because they carry the risk of including innocent citizens as profiled drug couriers. United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir. 1989).
The Minnesota Supreme Court has concluded that testimony from police officers that "in their experience most drug couriers behave a certain way" was "clearly and plainly inadmissible." State v. Williams, 525 N.W.2d 538, 548 (Minn. 1994). The Williams court observed that drug-courier evidence is "akin to character evidence" because it "involves a generalization based on the past acts of third persons" and asks the fact-finder to infer from the defendant's sharing of "some of the characteristics of these third persons that he shares their guilt." Id. at 547-48 (quotations omitted).
The supreme court extended the Williams rationale to include drug-dealer profile testimony that "drug dealers often purchase vehicles without transferring title to their own names, sometimes use a second older vehicle to transport drugs to avoid forfeiture of a newer vehicle, and often hide drugs in obscure places such as in the air cleaner." State v. Litzau, 650 N.W.2d 177, 185 (Minn. 2002). The court noted that this testimony "went well beyond" that permitted by a pretrial ruling that allowed the agent to testify regarding the quantities of drugs and items commonly found in a suspect's possession that would tend to indicate the sale of drugs, rather than personal use. Id.
As the Williams court observed, however, "[t]his is not to say that . . . all testimony by police officers as to techniques employed by other drug dealers or couriers is always inadmissible at trial." 542 N.W.2d at 548. For instance, testimony relating to techniques used by some drug dealers to avoid detection has been admitted to explain a defendant's conduct. United States v. de Soto, 885 F.2d 354, 360-61 (7th Cir. 1989). And this court has upheld the admission of police evidence on the quantity and grade of cocaine possessed by a defendant as it relates to the issue of intent to sell. State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987), review denied (Minn. Jan 15, 1988).
Officer Salo's testimony
Because Tyler did not object to Officer Salo's testimony, we review its admission under a plain-error standard, which involves determining whether error existed, whether it was plain, and whether it affected Tyler's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). An error is considered plain if it is "obvious" or "clear" or if it "contravenes case law, a rule, or a standard of conduct." State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (quotation omitted). The burden rests with the appellant to demonstrate that plain error has occurred. Id. Plain error is considered "prejudicial if there is a reasonable likelihood that [it] . . . had a significant effect on the verdict." Griller, 583 N.W.2d at 741 (quotation omitted). If these three prongs are met, this court addresses the error only if it affects the fairness and integrity of the judicial proceedings. Id. at 740.
Officer Salo testified regarding the general characteristics of drug transactions and their structure. Unlike the challenged evidence in Williams, this testimony did not refer to otherwise innocent activities that conformed with a profile of persons who deal drugs. Rather, it provided information on how illegal drug sales may occur, including the receipt of proceeds by a "runner," the delivery of those proceeds to a higher-level dealer, and the dealer's compensation of the runner. This testimony helped explain the state's videotaped evidence of the drug activity and assisted the fact-finder in evaluating that evidence. We conclude that appellant failed to sustain his burden to demonstrate that the district court committed plain error by admitting Officer Salo's testimony.
Officer Wilson's testimony
We next consider whether the district court committed prejudicial error by admitting Officer Wilson's testimony. We note that Tyler did not object to the first portion of that testimony, in which Officer Wilson stated that based on his training and experience, he was aware that drug dealers would return money to other people. We conclude that this testimony, like Officer Salo's testimony, provided the fact-finder with relevant information relating to the structure of drug deals, which placed the state's additional evidence in context and explained how Tyler's conduct showed that he was assisting in a drug transaction. Therefore, this portion of Officer Wilson's testimony did not constitute improper drug-profile evidence.
The defense did object to the second portion of Officer Wilson's testimony, in which he stated that "[a] lot of times dealers won't want to expose themselves to a potential police informant, especially somebody like Mr. Tyler." We agree with Tyler that this statement impermissibly invited the fact-finder to infer guilt based on an assumption that Tyler was a drug dealer. See Williams, 525 N.W.2d at 548 (stating that evidence is improper when fact-finder is urged to infer guilt because defendant's conduct fit drug-courier profile). But the district court sustained Tyler's objection to this statement, and we presume that the district court disregarded it.
And even if the district court did erroneously admit some portion of Officer Wilson's testimony, we will not reverse unless that error substantially influenced the district court's decision to convict Tyler. State v. Loving, 775 N.W.2d 872, 879 (Minn. 2009) (stating that an appellate court will reverse if an error substantially influenced the decision to convict); see State v. Anderson, 763 N.W.2d 9, 12 (Minn. 2009) (stating that an appellant has the burden of proving a district court's abuse of discretion in admitting evidence and the resulting prejudicial error). In this bench trial, the district court's role as fact-finder lessened any risk of unfair prejudice resulting from admission of the evidence. See State v. Burrell 772 N.W.2d 459, 467 (Minn. 2009) (noting the presumption that in a bench trial, the impact of prejudicial evidence is substantially less than it might have been in a jury trial). The district court expressly discredited Tyler's version of events and instead credited testimony that identified Tyler as the person present with the women immediately before the transaction. The district court also found that the surveillance videotape showed Tyler reaching for money after the transaction, putting all but one bill in his wallet, and then giving that bill to L.J. We therefore conclude that Tyler has failed to show that any wrongful admission of any portion of Officer Wilson's testimony substantially influenced his conviction.
III. Tyler's pro se argument is without merit.
Tyler argues in a pro se supplemental brief that he was deprived of the effective assistance of counsel because his attorney failed to seek a continuance to obtain a witness, S.J. A defendant who asserts an ineffective-assistance claim must prove both "that his counsel's performance fell below an objective standard of reasonableness and that a reasonable probability exists that, but for his counsel's unprofessional errors, the result of the proceedings would have been different." Davis v. State, 784 N.W.2d 387, 391 (Minn. 2010) (citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068, (1984)). There is also a strong presumption that an attorney's representation is within the range of reasonable professional assistance. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). "What evidence to present and which witnesses to call at trial are tactical decisions properly left to the discretion of trial counsel." State v. Mems, 708 N.W.2d 526, 534 (Minn. 2006). Likewise, trial counsel's decision not to seek a continuance is a matter of trial strategy. See Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (declining to review attacks on defense attorney's trial strategy). We therefore reject Tyler's ineffective-assistance claim.
Affirmed.