Opinion
No. C1-03-253.
Filed February 24, 2004.
Appeal from the Olmsted County District Court, File No. K0-01-3422.
Mike Hatch, Attorney General, St. Paul, Mn and Raymond F. Schmitz, Olmsted County Attorney, James S. Martinson, Assistant Olmsted County Attorney, Rochester, Mn, (for respondent).
John M. Stuart, State Public Defender, Scott Swanson, Special Assistant State Public Defender, Marie L. Wolf, Assistant Public Defender, Minneapolis, Mn, (for appellant).
Considered and decided by, Shumaker, Presiding Judge, Randall, Judge, and Schumacher, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On appeal from a conviction of and sentence for racketeering, conspiracy to commit first-degree controlled-substance crime, importing a controlled substance across state borders, and solicitation of a juvenile, appellant argues that the district court (1) erred by granting the state's motion to exempt a police investigator, who was also a witness, from sequestration and allowing him to assist the prosecutor during trial; and (2) abused its discretion in departing durationally on three counts based on the "major controlled substance offense" aggravating factor, after improperly aggregating all the offenses in determining whether that aggravating factor had been met. We affirm.
FACTS
Between 1998 and 2001, appellant Anthony Osborne Sr. was the subject of investigation by the Rochester Police Department (RPD). The RPD believed that Osborne Sr. was the head of a drug-trafficking organization that imported drugs from Chicago, Illinois and sold them in Rochester. According to the RPD, appellant utilized his two sons, Anthony Osborne Jr. (Osborne Jr.) and Ricky Osborne, along with a number of other individuals, including Willie Wolff Perry, to help him sell drugs in the Rochester area. The RPD also believed that because the Osborne family was known to package their drugs in aluminum foil, appellant was known to some of his customers as "Tin-Foil Tony."
Through a series of controlled drug buys conducted by the RPD, the State of Minnesota (respondent) gathered enough evidence to charge appellant in October 2001, with 28 drug-related offenses, including racketeering, conspiracy to commit first-degree controlled-substance crime, and solicitation of a juvenile. In connection with the charges against appellant, respondent also charged Perry with a variety of drug related crimes. Following a lengthy trial, the jury returned guilty verdicts for all 28 offenses with which appellant was charged. Appellant was subsequently convicted and sentenced for 22 of the offenses.
After charges were bought against appellant and Perry, the state moved to try both defendants jointly, and the motion was granted over appellant's objection. Pursuant to the state's motion, Ricky Osborne's case was also joined with appellant and Perry's case. But immediately before trial, Ricky Osborne pleaded guilty pursuant to a plea agreement.
Counts 1 (racketeering), 2 (conspiracy to commit controlled substance crime in the first degree), 27, and 28 (solicitation of a juvenile) were broadly stated to encompass events that occurred between August 1, 1998, and August 24, 2001. Appellant's convictions of these counts rely on evidence presented for other charged offenses, some of which are offenses that are predicated for the racketeering and conspiracy charges. The following is a summary of the facts under which appellant was convicted:
Count 3: Importing Controlled Substance Across State Border
On July 13, 1999, Thomas Brazier, acting as a confidential informant, notified the RPD that he was en route from Chicago with Osborne Jr. and a load of drugs. The RPD prepared a search warrant and stopped a Grand Am on Highway 52 in Rochester. Osborne Jr., Lisa Johnson, Terrell Phillips, Maurice McDonald, and Brazier were all passengers in the car, and a search of the car revealed 49.4 grams of crack cocaine and 6.8 grams of heroine. Brazier testified at trial that while the group was in Chicago, he observed appellant, among others, buying and preparing drugs for sale.
Count 10: Controlled Substance Crime in the Third Degree
On November 22, 2000, Charlene West assisted the RPD with a controlled buy. West contacted appellant by calling his cellular telephone, and she arranged to purchase the drugs from Sandra Brown. West went to that address where she met Brown who said that appellant had sent her. West then purchased .6 grams of crack that was wrapped in foil. Brown later admitted that appellant was present inside her apartment at the time of the transaction. Officer West testified that in the recorded telephone conversation between West and appellant, she identified appellant's voice because he has a very distinct voice.
Count 11: Controlled Substance Crime in the Third Degree
On December 2, 2000, Adrian King assisted the RPD with a controlled buy. King contacted Perry on his cell phone, and arranged to meet Perry outside a Rochester motel. Appellant and Perry arrived in a silver Volkswagon Jetta and King proceeded to purchase a small amount of cocaine from appellant.
Count 12: Controlled Substance Crime in the Third Degree
On January 12, 2001, King purchased .3 grams of cocaine from Perry outside an apartment in Rochester. King, acting as an informant for the RPD, arranged the deal by contacting appellant and Perry via their cell phones. The crack purchased by King was wrapped in foil.
Count 13: Controlled Substance Crime in the Third Degree
On May 24, 2001, the RPD used Tiffany Stevens as a confidential informant to assist them with a controlled buy. Stevens contacted Osborne Jr. by calling his cell phone. She then met him at a motel in Rochester where she purchased 1.0 gram of cocaine from Osborne Jr.
Count 14: Controlled Substance Crime in the Second Degree
On May 29, 2001, Stevens again contacted Osborne Jr. by his cell phone and arranged to meet him at Slatterly Park in Rochester. While acting again as a confidential informant, Stevens purchased from Osborne Jr. .145 grams of heroin packaged in plastic.
Count 15: Controlled Substance Crime in the Third Degree
On May 31, 2001, Stevens arranged another controlled buy for the RPD by calling appellant's cell phone. Appellant told Stevens to go to Todd Brown's apartment. When she arrived at that address, Stevens gave Brown $40 to give to appellant for some heroin that he had previously "fronted" her. She also purchased two bindles of heroin that were wrapped in foil. Officer Wilson testified that he and Stevens both saw appellant walking in the area immediately after the controlled buy was completed.
Count 16: Controlled Substance Crime in the Third Degree
On June 5, 2001, Terrence Blanford acted as a confidential informant for the RPD by calling Osborne Jr.'s cell phone and arranging to meet him at a house in Rochester. Once inside the residence, Blanford purchased .17 grams of cocaine wrapped in tin foil from Osborne Jr. and appellant. Officer Kaase testified that he recognized both Osborne Jr. and appellant's voices during the controlled buy.
Count 17: Controlled Substance Crime in the Third Degree
On June 6, 2001, the RPD set up another controlled buy with Stevens. Stevens arranged the purchase by calling appellant's cell phone, and they agreed to meet outside of a bar in Rochester. Stevens then purchased five tin foil bags of heroin from an unknown male and appellant at the Fourth Avenue house. Before giving the heroin to police, Stevens used some of it in the bathroom at a Super America gas station.
Count 18: Controlled Substance Crime in the Third Degree
On June 12, 2001, Stevens made another controlled buy for the RPD. Stevens called both appellant and Osborne Jr. on cell phone numbers previously supplied, and arranged to meet Osborne Jr. at Todd Brown's house. Stevens initially went to the apartment, but Osborne Jr. was not there. She then left and called him twice before going back to the apartment and purchasing .116 grams of heroin from Osborne Jr. Stevens testified that Osborne Jr. kept the heroin concealed in his mouth and that Todd Brown was present at his apartment during the sale.
Counts 19 and 20: Controlled Substance Crime in the Third Degree
On June 13, 2001, Stevens participated in another controlled buy for the RPD. This time, Stevens arranged to meet Osborne Jr. at Antonio Snell's house in Rochester. While she was at Snell's house, Osborne Jr. and Snell went into a back room before they sold .2 grams of cocaine and .03 grams of heroin to Stevens.
Count 21: Controlled Substance Crime in the Third Degree
On June 15, 2001, Blanford contacted appellant and Osborne Jr. via cell phone, and arranged to purchase a cocaine/heroin mixture from Todd Brown. While acting as a confidential informant for the RPD, Blanford negotiated over the price of the drugs and eventually proceeded to Brown's apartment where he purchased .03 grams of the cocaine/heroin mixture.
Count 22: Controlled Substance Crime in the Fifth Degree
On July 11, 2001, the RPD executed a search warrant at a house on Fourth Avenue in Rochester (the house is next door to a Rochester bar where there had been prior dealings). Antonio Snell and appellant were arrested when the warrant was executed. Snell had .351 grams of cocaine and .068 grams of heroin concealed between his buttocks when he was arrested, and police also seized a cell phone and $686 cash from Snell. Located on appellant's person at the time of his arrest was: a cell phone, $20 cash, and Della Ree Mayweathers driver's license. Also discovered pursuant to the search warrant was a plate with powder cocaine on it, baggies with the corners cut/twisted off, one baggie with a corner torn off, small bags with "$" on them, and a box of baggies with nine others stuffed inside of the roll. Officer Seidel testified at trial that a common method for packaging crack cocaine was in the torn or twisted off corners of plastic sandwich baggies, and that such evidence indicated sales, not use.
Counts 23 and 24: Controlled Substance Crime in the Third Degree
On August 21, 2001, Robert Jarmon assisted the RPD with two controlled buys. Jarmon arranged to purchase $100 worth of crack from Ricky Osborne at the same house in Rochester that had been searched by police on July 11. Later on in the day, Jarmon went to a different house in Rochester and purchased more crack and powder cocaine from Osborne Jr. Officer Kaase testified that appellant's wife lived at that house, and she and appellant were in the house when the transaction occurred.
Count 25: Controlled Substance Crime in the Third Degree
On August 22, 2001, Jarmon again assisted the RPD with a controlled buy. Jarmon went to the Fourth Avenue address and purchased .392 grams of crack wrapped in tin foil from appellant. While they were alone in the bathroom, appellant gave Jarmon the drugs, and they discussed the $20 that appellant owed Jarmon for a previous ride that he had given appellant.
Count 26: Controlled Substance Crime in the Third Degree
On August 24, 2001, Jarmon participated in another controlled buy for the RPD. Jarmon again went to the Fourth Avenue address and purchased .1 gram of heroin wrapped in foil from appellant. Jarmon testified that Michael Lewis delivered the heroin to appellant from the back of the apartment, and Billie Ollie gave appellant a plastic bag to put the heroin in before he gave it to Jarmon.
On October 3, 2001, the RPD executed a search warrant at the Osbornes' residence. Appellant was present at the time the warrant was executed, and the following items were found on his person: $255 in cash and a cell phone. Also discovered at the residence were plastic bags and a plate with drug residue, a crack pipe, and a triple-beam scale. The RPD arrested appellant and charged him with the aforementioned crimes.
Before appellant's trial began, respondent requested that Officer Seidel of the RPD's narcotics unit be exempted from appellant's sequestration motion because he was the complainant on the charges filed against appellant, and he had been very involved in the investigation of the case. Specifically, respondent wanted to use Seidel to assist the prosecution with exhibits, the marshaling of evidence, and to act as a consultant in the prosecution's general presentation of the case. Despite appellant's objection, the district court granted respondent's request. Appellant was subsequently convicted.
At appellant's sentencing, the district court departed from the presumptive sentence of 134 months on the conviction for Conspiracy to Commit a Controlled Substance Crime in the First Degree (Count 2). The court added 61 months onto the sentence for a total of 195 months. On Count 27, Solicitation of a Juvenile, the court added 41 months to the presumptive sentence of 79 months, sentencing appellant to 120 months. Finally, on Count 3, Importing Controlled Substance Across State Borders, the court added 67 months to the presumptive sentence of 158 months, sentencing appellant to 225 months. This appeal followed.
DECISION I. Sequestration
Appellant argues that he is entitled to a new trial because the district court erred by exempting Officer Seidel from sequestration and permitting him to be present in the courtroom to assist the prosecution during trial. The Minnesota Rules of Evidence provide that "[A]t the request of a party the court may order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion." Minn. R. Evid. 615. The comment to this rule provides that:
[A] request for sequestration in criminal cases rarely should be denied. State v. Jones, 347 N.W.2d 796 (Minn. 1984); State v. Garden, 267 Minn. 97, 125 N.W.2d 591 (1963). The committee agrees, however, with the Advisory Committee Note to Fed.R.Evid. 615 that investigating officers, agents who were involved in the transaction being litigated, or experts essential to advise counsel in the litigation can be essential to the trial process and should not be excluded.
Minn. R. Evid. 615, advisory comm. note. "Ordinarily, in criminal cases the question of sequestration of witnesses rests in the sound discretion of the trial court, and where there is no showing that failure to sequester witnesses was prejudicial to the accused, the court's refusal to require it does not in itself constitute reversible error." Garden, 267 Minn. at 112, 125 N.W.2d at 601.
Minnesota courts have uniformly disapproved of a court order allowing an investigator to sit at the counsel table during trial. State v. Koskela, 536 N.W.2d 625, 630-31 (Minn. 1995); State v. Schallock, 281 N.W.2d 186, 187-88 (Minn. 1979). But they have also consistently refused to reverse on those grounds due to a lack of prejudice. See, e.g., Koskela, 536 N.W.2d at 631 (concluding there was no prejudicial error in permitting the investigating officer to sit at prosecuting counsel's trial table throughout the trial because there was no indication of inappropriate intimidation); State v. Biehoffer, 269 Minn. 35, 49-50, 129 N.W.2d 918, 927 (1964) (upholding defendant's conviction because the defendant was unable to show he was denied a fair trial by the investigating officer's presence at the prosecutor's table during trial).
Here, appellant contends that he was prejudiced by Officer Seidel's presence in the courtroom because Seidel was not the first witness to testify. It is not a practice to encourage, and with Seidel not the first to testify, he had no good reason to be in the courtroom. However, appellant cannot show how Seidel's presence in the courtroom before he testified altered his testimony. Seidel was one of the lead investigators in this long, drawn-out drug investigation, and it is speculative that he might have altered his testimony after observing a few of respondent's witnesses.
Appellant also contends that Seidel's presence in the courtroom resulted in a clear case of intimidation. Specifically, appellant points to Seidel's actions during a court recess where he spoke with a witness, Sandra Brown, prior to her scheduled testimony. Again, Seidel's actions, though inappropriate and troubling, do not, in and of themselves, demonstrate prejudice. Also, Seidel did not sit at the counsel table. He was merely in the courtroom during trial. We conclude that Seidel's actions or presence in the courtroom, although troubling and of marginal value to the trial (other than to lead to an issue on appeal that did not have to be there), did not amount to reversible error.
Finally, appellant argues that even if he was not prejudiced by the district court's decision to exempt Officer Seidel from sequestration, a reversal is warranted as a prophylactic measure. Appellant cites State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993) for the proposition that this court would not hesitate to make a prosecutor try a case over again in situations where the prosecutor employed improper tactics. But, appellant fails to show that having Officer Seidel in the courtroom during trial was a blatantly improper measure taken by respondent. Minnesota law states that the decision to sequester witnesses is at the sound discretion of the district court. Garden, 267 Minn. at 112, 125 N.W.2d at 601. Because appellant fails to show prosecutorial misconduct or prejudice resulting from the district court's decision not to sequester Officer Seidel, a reversal is not warranted.
II. Sentencing
Appellant argues that the court's decision to depart from the guidelines on three of his convictions was an abuse of discretion because the aggravating factors used by the district court at sentencing to justify upward departures duplicated considerations incorporated in statutes relating to drug crimes and presumptive sentences. Upward departure is within the discretion of the district court only if substantial and compelling circumstances are present. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). Substantial and compelling circumstances arise when the "defendant's conduct was significantly more or less serious than that typically involved in the commission of a crime." State v. Cermak, 344 N.W.2d 833, 837 (Minn. 1984). If the record supports the district court's findings of substantial and compelling circumstances, a reviewing court will uphold the sentence unless it strongly feels that the sentence is disproportionate to the offense. State v. Schroeder, 401 N.W.2d 671, 674 (Minn. App. 1987), review denied (Minn. Apr. 23, 1987).
The Minnesota Sentencing Guidelines state that the commission of a "major controlled substance offense" may be considered an aggravating factor that justifies sentencing departure. Minn. Sent. Guidelines II.D.2.b(5). The guidelines describe a "major controlled substance offense" as "an offense or series of offenses related to trafficking in controlled substances under circumstances more onerous than the usual offense," occurring where two or more of the following factors are present:
(a) the offense involved at least three separate transactions wherein controlled substances were sold, transferred, or possessed with intent to do so; or
(b) the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; or
(c) the offense involved the manufacture of controlled substances for use by other parties; or
(d) the offender knowingly possessed a firearm during the commission of the offense; or
(e) the circumstances of the offense reveal the offender to have occupied a high position in the drug distribution hierarchy; or
(f) the offense involved a high degree of sophistication or planning or occurred over a lengthy period of time or involved a broad geographic area of disbursement; or
(g) the offender used his or her position or status to facilitate the commission of the offense, including positions of trust, confidence or fiduciary relationships (e.g., pharmacist, physician, or other medical professional).
Id. Here, the district court determined that because factors (a), (b), (c), (e), and (f) were exceeded by appellant's criminal conduct, and that appellant committed a "major controlled substance offense" as defined by the sentencing guidelines, and thus the court granted upward durational departures on the three aforementioned convictions.
Appellant argues that the sentencing guidelines indicate that individual offenses must be considered in and of themselves in order for a sentencing departure to be made with regard to a particular offense. Thus, appellant asserts that his sentence was improper because the district court mistakenly considered in the aggregate the offenses for which he was convicted in its determination that upward sentencing departures were justified. We disagree. Appellant's argument relies on a statement taken from the sentencing transcript where the district court stated that "[I]n the aggregate, the [appellant] was a prime mover in a major controlled substance offense . . . involving trafficking under circumstances much more onerous in the aggregate than the usual offense and well beyond what is necessary to meet the elements of any of the crimes of conviction in this case." But, the district court also stated that it would specify and elaborate in the Minnesota Sentencing Guidelines Commission (MSGC) report the additional grounds on which the court upwardly departed from the sentencing guidelines. After reviewing the MSGC report, we conclude that the district court provided specific reasons for the upward departure on each of appellant's sentences. We also note that although helpful, it is not always necessary for the district court to examine each departure separately. See State v. Hines, 343 N.W.2d 869, 872 (Minn. App. 1984). Accordingly, because the district court did not consider the offenses in the aggregate, nor was it necessary for it to do so, the district court did not abuse its discretion when it durationally departed from the Minnesota Sentencing Guidelines on three of the convictions for which appellant was sentenced.
In the MSGC report, the district court provided the following aggravating factors as reasons justifying the upward departure for the sentencing on Count 2, Conspiracy to Commit Controlled Substance Crime in the First Degree: (1) committed crime as part of a group of three or more persons who all actively participated in the crime; (2) major controlled substance crime involving: (a) 3 or more separate transactions; (b) sale quantities larger than personal use; (c) high position in drug distribution hierarchy; and (d) high degree of sophistication/lengthy period of time. For Count 3, Importing Controlled Substance Across State Borders, the district court provided the following aggravating factors as reasons justifying the upward departure: (1) committed crime as part of a group of three or more persons who all actively participated in the crime; (2) major controlled substance crime involving: (a) high position in drug distribution hierarchy; (b) high degree of sophistication/lengthy period of time; and (c) use of position/status. For Count 27, Solicitation of a Juvenile, the district court provided the following aggravating factors as reasons justifying the upward departure: (1) committed crime as part of a group of three or more persons who all actively participated in the crime; (2) major controlled substance crime involving: (a) 3 or more separate transactions; (b) manufacture by others; (c) high position in drug distribution hierarchy; (d) high degree of sophistication/lengthy period of time; and (d) use of position/status; (3) position of authority, superiority, confidence or trust — father/son; and (4) victim was particularly vulnerable — dependent son.
III.
Finally, appellant raises several issues in his pro se brief. We have considered these issues, and conclude they are without merit.