Opinion
No. C8-00-249.
Filed October 24, 2000.
Appeal from the District Court, Anoka County, File No. K6995406.
Mike Hatch, Attorney General, and Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, (for appellant)
Considered and decided by Peterson, Presiding Judge, Crippen, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Thomas Richard Nordstrom appeals from his conviction of controlled-substance crime in the second degree, in violation of Minn. Stat. § 152.022, subd. 1(1) (1998). We affirm.
FACTS
In June 1999, detectives from the Anoka-Hennepin Drug Task Force arrested K.H. for possession of a trace amount of methamphetamine. K.H., after agreeing to serve as an informant in exchange for not being charged with drug possession, told police that he knew of a drug dealer, appellant Thomas Richard Nordstrom, who lived in Spring Lake with S.K.
While under the supervision of the task force, K.H. called S.K. at Nordstrom's residence to set up a methamphetamine purchase. But each time he called, he talked only with S.K., who offered to sell K.H. the drugs herself. K.H. arrived at the residence on June 23, 1999, outfitted with a "body bug" by task-force detectives to allow for audio recording of the transaction. After being searched by the detectives, K.H. entered the residence and purchased from Nordstrom for $300 a plastic "baggie," which contained methamphetamine.
After a jury trial, Nordstrom was convicted of controlled-substance crime in the second degree, in violation of Minn. Stat. § 152.022, subd. 1(1) (1998). He appeals.
DECISION
Nordstrom argues that his right to a speedy trial was violated and that the district court erred by allowing the jury to bring an audio recording of the alleged drug buy into its deliberations. Nordstrom argues in his pro se supplemental brief insufficiency of the evidence, entrapment, and ineffective assistance of counsel.
I. Speedy trial.
Nordstrom claims that because on July 7, 1999, he demanded a speedy trial and his trial was not held until October 19, 1999, his conviction must be reversed. A defendant's right to a speedy trial "is as fundamental as any of the rights secured by the Sixth Amendment." State v. Windish, 590 N.W.2d 311, 315 (Minn. 1999) (quotation omitted). But there is "no constitutional basis for holding that the speedy trial right can be quantified into a specific number of days or months," and, therefore, "the states are free to prescribe a reasonable period consistent with constitutional standards." State v. Kasper, 411 N.W.2d 182, 184 (Minn. 1987) (quoting Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 2188 (1972)). In Minnesota, under Minn.R.Crim.P. 6.06 11.10, a "reasonable time period to effectuate the speedy trial right" is 60 days. Id.
But a defendant's right to a speedy trial is not absolute. When a defendant has accepted without objection a trial date that is more than 60 days from the date of the speedy-trial demand, the defendant has "waived his right to strict compliance with the 60-day rule." State v. Curtis, 393 N.W.2d 10, 12 (Minn.App. 1986). And delay occasioned by the defendant "is deemed a temporary waiver of his speedy trial demand, which can only be revived when the defendant reasserts his speedy trial right." State v. Johnson, 498 N.W.2d 10, 16 (Minn. 1993). On July 7, 1999, Nordstrom asserted his right to a speedy trial. But on July 27, 1999, the state and Nordstrom agreed to set the case for trial on September 13, 1999, more than 60 days after Nordstrom's speedy-trial demand. Additionally, on September 13 Nordstrom's counsel requested a continuance because he was ill, and Nordstrom did not thereafter reassert his speedy-trial right. We conclude, therefore, that Nordstrom waived his demand for a speedy trial.
II. Deliberations with audio tape.
Nordstrom argues that the district court erred in allowing the jury to take into the jury room for their deliberations the audio tape of the alleged drug buy received into evidence and in providing a tape recorder for the jury to replay the tape. Defense counsel objected to providing the tape recorder for the jury's use. Minn.R.Crim.P. 26.03 provides that
[t]he [district] court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received into evidence, or copies thereof * * *.
Minn. R. Crim P. 26.03, subd. 19(1) (emphasis added). But rule 26.03 does not imply "that the [district] court has unreviewable discretion to allow the jury" to deliberate with exhibits. State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991). Rather, "the [district] court's discretion necessarily must be broad, but that * * * discretion is reviewable pursuant to an abuse-of-discretion test." Id.
It would have been preferable to require the jury to review the tape in the courtroom. Id. at 516. But the taped material was not a witness's statement or in any way akin to a deposition, and therefore the jury's access to the tape was not "tantamount to sending [a witness] into the jury room." Id. at 517 (Tomljanovich, J., dissenting). For that reason, and based on the factors cited in Kraushaar, id. at 516, we conclude that any error was not prejudicial.
III. Insufficiency of the evidence, entrapment, and ineffective assistance of counsel.
In his pro se supplemental brief, Nordstrom argues first that the evidence is insufficient to sustain his conviction of controlled-substance crime in the second degree, in violation of Minn. Stat. § 152.022, subd. 1(1) (1998). When reviewing a claim of insufficiency of the evidence, we view the evidence "in the light most favorable to the jury's verdict and assume that the jury believed the state's witnesses and disbelieved contrary evidence." Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995) (citation omitted). This court must determine whether the facts in the record, and the legitimate inferences that may be drawn from those facts, would reasonably permit the jury to conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted. State v. Moore, 481 N.W.2d 355, 360 (Minn. 1992).
A defendant is guilty of controlled substance crime in the second degree if the defendant sells on one occasion a mixture of a total weight of three grams or more containing methamphetamine. Minn. Stat. § 152.022, subd. 1(1). Here, the jury heard (1) K.H. testify that Nordstrom sold him a quantity of methamphetamine in a plastic "baggie," (2) an audio recording of this exchange, and (3) testimony from a forensic scientist from the Bureau of Criminal Apprehension that the substance in the baggie was 3.3 grams of methamphetamine. This evidence reasonably permitted the jury to conclude that Nordstrom was guilty beyond a reasonable doubt of the offense of controlled-substance crime in the second degree.
Nordstrom next argues that his conviction must be reversed because he was the victim of police entrapment. However, Nordstrom failed to raise entrapment as a defense before trial and that defense, therefore, is waived. Minn.R.Crim.P. 10.01 10.03; see State v. Grilli, 304 Minn. 80, 95-96, 230 N.W.2d 445, 455-56 (1975) (discussing when a defendant may raise the issue of entrapment).
Finally, Nordstrom argues that he received ineffective assistance of counsel because, he alleges, (1) his counsel failed to raise the entrapment defense and (2) his counsel failed to "protect [Nordstrom's] right not to have to wear identifiable jail clothes."
An appellant arguing that he or she received ineffective assistance of counsel must demonstrate that counsel's representation fell below an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel's errors.
State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citations omitted). But "failure of defense counsel to [interpose] defenses * * * which on the record would have been without merit does not constitute inadequate representation." State v. Roberts, 279 Minn. 319, 323, 156 N.W.2d 760, 763 (1968).
Entrapment exists when a party was "induced" by law officers or their agents to commit an offense that the party was not otherwise "predisposed" to commit. Grilli, 304 Minn. at 91-92, 230 N.W.2d at 453. But to demonstrate inducement, "the evidence must show that the state did something more than merely solicit the crime." State v. Olkon, 299 N.W.2d 89, 107 (Minn. 1980) (citations omitted). Rather, "something in the nature of persuasion, badgering, or pressure by the state must occur before the inducement element is satisfied." Id. Here, Nordstrom concedes that K.H. had no direct contact with Nordstrom regarding this purchase until K.H. arrived to purchase the methamphetamine. Nordstrom could not, therefore, have demonstrated inducement beyond mere solicitation. Thus, the fact that Nordstrom's counsel did not present an entrapment defense, which on the record would have been without merit, does not constitute ineffective assistance of counsel. And even if we were to assume that Nordstrom's counsel's failure to provide Nordstrom with "adequate" non-prison clothes fell below the objective standard of reasonableness required for effective assistance of counsel, there is not a reasonable probability that the outcome of the jury's deliberation would have been different if Nordstrom had worn better clothes, given the substantial evidence of Nordstrom's guilt. We conclude that Nordstrom has not demonstrated ineffective assistance of counsel.