Opinion
No. C0-02-1450
Filed July 22, 2003.
Appeal from the Blue Earth County District Court, File No. K1001959
Mike Hatch, Attorney General, Hilary Lindell Caligiuri, Deputy Attorney General, John S. Garry, Assistant Attorney General, and Ross Arneson, Blue Earth County Attorney, (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, (for appellant)
Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Halbrooks, Judge
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Mary Pepper challenges her conviction of conspiracy to commit a controlled-substance crime in the first degree, arguing that (1) there was no probable cause to search her house; (2) there was insufficient evidence for the jury to reasonably conclude that she engaged in a conspiracy to commit a controlled-substance crime in the first degree; and (3) the trial court abused its discretion in denying her motion for a surrebuttal argument. We affirm.
FACTS
Appellant Mary Pepper owned the Lakeview Resort in Madison Lake and lived in a trailer house on the property with her husband, Terry Pepper. Her son, Jesse Pepper, and Joseph Dickie lived in a cabin at the resort a short distance from appellant's trailer.
On July 29, 2000, Rich Kruger, a police informant who agreed to participate in a series of controlled purchases of methamphetamine (meth), met Dickie at Bray Park in Madison Lake. In the course of the meeting, Dickie left Kruger at Bray Park, and surveillance officers then observed Dickie's car parked in front of appellant's trailer. Dickie subsequently returned to Bray Park and sold Kruger 2.6 grams of meth.
Kruger made arrangements to meet with Dickie on August 3, 2000 at Bray Park and to introduce him to undercover Minnesota Bureau of Criminal Apprehension (BCA) Special Agent Terri Vandergriff. When Dickie arrived at the park, Dickie got out of his vehicle and approached the passenger side of Agent Vandergriff's vehicle. Kruger introduced Agent Vandergriff to Dickie. Dickie said that he needed $260 and that he would drive by "Mary's place and honk the horn at which time Mary would come out and meet with him." He would then meet Agent Vandergriff and Kruger in the Wildwood Park parking lot. Agent Vandergriff told Dickie that she was not willing to front the money without having the meth present. Dickie told Kruger and Agent Vandergriff that he would get the meth and return.
Surveillance revealed that Dickie did not stop or go by appellant's trailer. Instead, he drove around for a little while, stopped for a short time on a gravel road, and then returned to the park to make the transaction after about 15 minutes. Agent Vandergriff and Kruger got out of their car and approached the passenger side of Dickie's vehicle. Dickie sold Agent Vandergriff 1.7 grams of meth for $260.
Kruger subsequently contacted Dickie again and arranged to meet in the parking lot of the Eagle's Nest bar in Eagle Lake to purchase more meth on August 10, 2000. Kruger and Agent Vandergriff arrived about ten minutes early and pulled into the parking lot. While they waited, they saw a yellow convertible driven by appellant pull into the parking lot. Appellant went into the liquor store next to the Eagle's Nest, made a purchase, and left. Surveillance showed that, after appellant left the liquor store, she drove to the entrance of Wildwood Park where she briefly met with the driver of a red pickup truck. Kruger and Agent Vandergriff went into the Eagle's Nest, and after a few minutes Kruger saw Dickie pull into the parking lot in a red pickup truck. Agent Vandergriff and Kruger met Dickie in the parking lot. Agent Vandergriff asked Dickie what had taken him so long, and Dickie replied that he didn't have a car, and "[t]hat this was his Dad's and that Mary was late meeting with him." Dickie sold Agent Vandergriff 2.3 grams of meth for $250. After the transaction, Dickie drove to his parents' home. A few minutes later, appellant arrived at Dickie's parents' home in her yellow convertible.
Kruger arranged to purchase meth from Dickie again on August 17, 2000 at Wildwood Park. Dickie met with Kruger and Agent Vandergriff at 6:35 p.m., but told them that he only had one-half the amount that they wanted. After negotiating a revised price of $120, Dickie sold Agent Vandergriff 0.7 grams of meth. They agreed that Dickie would contact Agent Vandergriff through Kruger when he had the rest of the meth.
On October 23, 2000, Kruger attempted to contact Dickie to set up another transaction, but ended up speaking to Jesse Pepper. Pepper told Kruger that he could come over to his cabin at the Lakeview Resort and that Pepper would take care of him. Kruger and Agent Vandergriff arrived at the Lakeview resort at about 6:40 p.m., and went to Pepper's cabin. As they approached the cabin, two young women walked out, and Kruger and Agent Vandergriff told them that they were looking for Pepper. The young women walked over to appellant's trailer and went inside. One of the women came out and told them that Pepper would be right out. When Pepper came out of appellant's trailer, they walked to Pepper's cabin. Once inside the cabin, Pepper reached down between the arm of the sofa and the sofa cushion and pulled out a ziplock bag that contained six pills. He said that he had gotten the wrong bag, but that he could still get what they wanted. He picked up the phone and appeared to call a pager. He told Kruger and Agent Vandergriff that it would take 15-20 minutes and that they could come back at around 7:30 p.m.
Kruger and Agent Vandergriff returned to the Lakeview Resort at about 7:50 p.m. They went with Pepper to his cabin, and Agent Vandergriff gave him $250. Before Pepper left to get the meth, he pulled some money out of the microwave and said that he was going to take some of his own money and get more than the amount they wanted. He then left the cabin and went into appellant's trailer. Pepper later testified that appellant was in her trailer that evening.
Pepper returned to the cabin a short time later. When Agent Vandergriff asked him if he had the meth, Pepper said that he was still waiting. Agent Vandergriff asked what the problem was, and Pepper replied that there were other customers in appellant's trailer and that it would just be a little longer. Pepper then left the cabin again and went into the trailer.
A short time later, another vehicle arrived, and Pepper came out of the trailer to greet the driver. They then both came into Pepper's cabin, and Agent Vandergriff observed that the driver of the vehicle appeared to be another customer. Pepper returned to the trailer, but he came back to the cabin a short time later, yelling that he thought he had seen a surveillance van down the road. Pepper said that he had gone up to the van, pounded on the window, and asked them what they were doing. The driver had said that he was waiting for a tow truck. Pepper then left the cabin.
Because they had been there for so long and the van was probably the police surveillance van, Agent Vandergriff told one of the young women she had seen earlier to find Pepper and get her money back because her kids were sick and she had to leave. Pepper came out of appellant's trailer, told Agent Vandergriff and Kruger that his source was ready, and that they should follow him in their vehicle. They followed him to an apartment complex. Pepper got out of the car, walked around the apartment building, came up to the passenger side of Agent Vandergriff's vehicle, and threw 2.0 grams of meth onto Kruger's lap. Agent Vandergriff testified that an agent watching the back of the apartment building reported that there was no way Pepper could have met anyone in the apartment building. She also testified that she felt Pepper had stopped and walked around the apartment building to throw authorities off as to who his source was.
On November 2, 2000, authorities executed a search warrant at appellant's trailer. Terry and Jesse Pepper were secured in the hallway of the trailer and, shortly thereafter, appellant emerged from the bedroom and was secured by authorities. As the search warrant was being executed, an officer who was assigned to observe the back of the trailer saw a bedroom window screen being forced out, a hand come out the window, and an object fly through the air. The object that was thrown out of the window was identified as a black leather zippered purse. Items found in the purse included 7.4 grams of meth, a scale, and plastic bags.
After the search of appellant's residence, she was interviewed by Minnesota BCA Special Agent James Bakos. Agent Bakos asked appellant about selling meth, and appellant said that she provided meth to a couple of people and that Dickie was one of them. But she denied that she had anyone selling meth for her. Appellant told Agent Bakos that she did not sell large amounts of meth, only an eight-ball every now and then. She said that she only had a quarter ounce at a time. When Agent Bakos accused her of throwing the black purse out of the trailer window, she did not deny it. When Agent Bakos told her that they found ten grams of meth in the bag, she corrected him and said that there was only one eight-ball, and two one-gram packets in the bag. She also told Agent Bakos that she met with Dickie at Wildwood Park on August 10, 2000, before the transaction at the Eagle's Nest.
An "eight-ball" is street slang for 3.5 grams of meth.
Appellant was arrested and charged with conspiracy to commit a controlled-substance crime in the first degree, controlled-substance sale crime in the second degree, and controlled-substance possession crime in the second degree. A jury found appellant guilty of all charges. The trial court sentenced appellant to 86 months on the conviction of conspiracy to commit a controlled-substance crime in the first degree and 68 months on the conviction of controlled-substance sale crime in the second degree to be served concurrently. This appeal follows.
DECISION 1. Probable Cause
Appellant argues that there was not a substantial basis for the issuing judge to conclude that there was probable cause to search her house. She asserts that much of the information in the application was stale, that there were intentional misrepresentations of material facts in the warrant application, and that there was an insufficient nexus between the meth sales and appellant's residence.
"A search warrant may be issued only upon a finding of probable cause by a neutral and detached magistrate." State v. Harris, 589 N.W.2d 782, 787 (Minn. 1999) (citation omitted). When reviewing a trial court's probable cause determination made in connection with the issuance of a search warrant, we afford the trial court's determination great deference. State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001). We review a trial court's decision to issue a warrant only to determine whether the trial court had a substantial basis for concluding that probable cause existed. Id.
"Minnesota has adopted a `totality of the circumstances' test for determining whether a search warrant is supported by probable cause." State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (citation and quotation omitted). The issuing judge
is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332 (1983)).
A. Staleness
Appellant argues that the application for the warrant to search appellant's house was unreliable and supported by stale information. Probable cause to conduct a search cannot be supported by stale information. State v. Jannetta, 355 N.W.2d 189, 193 (Minn.App. 1984), review denied (Minn. Jan. 14, 1985). The evidence supporting a conclusion that probable cause exists must be so closely related to the time that the warrant is issued so as to justify a finding of probable cause at that time. Id. But the question is determined based on the circumstances of each case, and courts have refused to impose arbitrary time limits or rigid formulas as a substitute for a judge's informed decision. Id.
In viewing the circumstances of each case, magistrates must apply "practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act."
Id. (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310 (1949)). Several factors may be considered in determining whether information supporting a search warrant is stale. State v. DeWald, 463 N.W.2d 741, 746 (Minn. 1990). Those factors include
the age of the person supplying the information, whether there is any indication of ongoing criminal activity, whether the items sought are innocuous or incriminating, and whether the property sought is easily disposable or transferable.
Id. (citation omitted). The passage of time is less significant when the activity is of a continuous and ongoing nature. State v. Souto, 578 N.W.2d 744, 750 (Minn. 1998); State v. Dyer, 438 N.W.2d 716, 719 (Minn.App. 1989), review denied (Minn. June 9, 1989).
Appellant challenges many parts of the affidavit supporting the warrant application as stale or unreliable. First, she challenges the general assertion that
Special Agent Jim Bakos has received Confidential Informant (CI) information for the past 8 years that Mary Louise Pepper has been involved with the illegal possession/sales/ distribution of controlled substances.
The affidavit provides no information regarding the reliability or the basis of knowledge of the confidential informant (CI). While the statement supports the ongoing and continuous nature of appellant's activities, without more facts to support the conclusory statement and the reliability and basis of knowledge of the CI, we conclude that this statement is stale, unreliable, and irrelevant as to the existence of probable cause at the time the application was submitted.
Appellant also challenges the information provided by "an additional [confidential reliable informant]" that on October 19, 2000, appellant was in possession and holding an undisclosed amount of meth at her residence. The affidavit does not provide information as to the reliability of the additional confidential reliable informant (CRI), or as to the basis of knowledge of the CRI. Thus, we conclude that the information provided by the additional CRI was unreliable and that the trial court improperly considered the information provided by the additional CRI.
Next, appellant challenges the information provided by the CRI who was involved in the controlled purchases of meth and asserts that the evidence of individual sales in July and August was insufficient to establish ongoing criminal activity. The affidavit states that the CRI who "was present during each of the controlled purchases has provided true and accurate information that has been corroborated by law enforcement." The CRI observed the drug activity, himself, and demonstrated his information to be reliable by continually providing accurate information that was corroborated by law enforcement. See State v. Wiley, 366 N.W.2d 265, 269 (Minn. 1985) (stating that reliability may be shown by stating in the affidavit that the informant has provided accurate information to police in the past). We conclude that the information provided by the CRI was not stale, was reliable, and was properly relied on by the court.
The affidavit connects transactions involving meth to appellant on July 29, August 3, August 10, August 17, and October 23, 2000. The meth from the October 23, 2000 transaction was directly tied to appellant's residence. While the July and August transactions viewed individually may have become stale as evidence for a November 2, 2000 search warrant, when the evidence in the affidavit is viewed together as a whole, there is substantial evidence of ongoing and continuing criminal activity. See id. at 268 (stating that the components of an affidavit should not be viewed in isolation, but should be viewed together as a whole). Even if we do not consider the information provided by the CI and the additional CRI, we conclude that the remaining information in the affidavit, taken as a whole, provided the issuing court with a substantial basis for holding that there was probable cause that appellant was involved in the continuous and ongoing enterprise of selling meth.
B. Misrepresentations
Appellant argues that the affidavit supporting the warrant application contained deliberate and intentional misrepresentations and that, when the misrepresentations are removed, there is insufficient evidence to support probable cause.
A search warrant is void, and the fruits of the search must be excluded, if the application includes intentional or reckless misrepresentations of fact material to the findings of probably cause.
State v. Moore, 438 N.W.2d 101, 105 (Minn. 1989). A misrepresentation should not be considered if the misrepresentation is material to the determination of probable cause, and the government agent deliberately or recklessly misrepresented the fact. State v. Causey, 257 N.W.2d 288, 292-93 (Minn. 1977).
Appellant argues that there are several instances of deliberate material misrepresentations in the affidavit. The affidavit states that after the July 29, 2000 transaction with Dickie, Dickie was observed returning to appellant's residence at Lakeview Resort and that on October 21, 2000, the CRI went to appellant's residence to meet with Dickie, who was then residing at appellant's residence. The affidavit also states with regard to the October 23, 2000 sale that the CRI called appellant's residence and made contact with Jesse Pepper, who is a resident of the Lakeview Resort and appellant's son. Appellant asserts that these statements were misrepresentations because Dickie and Jesse Pepper resided at the resort for a time, but in cabin 3 and not in appellant's trailer. Thus, appellant asserts that the failure to make the necessary qualifications in the affidavit demonstrates intentional misrepresentations. These statements are material in that the statements demonstrate a connection between the criminal activity and appellant's residence. But because appellant was the owner of the resort and lives there, it was reasonable for the affidavit to identify the resort generally as appellant's residence. We conclude that such a statement does not constitute a deliberate misrepresentation.
The affidavit states that the CRI learned from Dickie on August 3, 2000 that appellant was the source of the meth. Appellant asserts that this statement is a misrepresentation because, while Dickie told the CRI that he was going to meet appellant to get the meth, surveillance showed that he never met her. Even though surveillance showed that Dickie did not actually meet with appellant, the record still shows that Dickie told the CRI that his source for the meth was appellant. Based on this record, we conclude that the statement in the affidavit was not a deliberate misrepresentation.
The affidavit states that the August 10, 2000 controlled buy was made by Dickie and appellant. Appellant asserts that this is a misrepresentation because the record shows that the sale was actually made by Dickie alone, and the evidence only shows that Dickie met with appellant before and after the sale. But the affidavit goes on to explain the exact events that occurred that day, and explains that appellant was not present when the sale actually occurred. We, therefore, conclude that the statement in the affidavit was not a deliberate misrepresentation.
The affidavit states that after the August 17, 2000 sale by Dickie, Dickie was observed driving toward Madison Lake and was last seen near appellant's residence. Appellant asserts that this statement is a misrepresentation because Dickie was never observed near appellant's residence. The statement that Dickie was last seen near appellant's residence, when he was only observed driving toward Madison Lake, appears to be an overstatement. But there is no evidence demonstrating that it was a deliberate misrepresentation.
Appellant asserts that the misrepresentations were deliberately made in an effort to create a connection between the criminal activity and appellant and her residence. We find no deliberate misrepresentation, but even if the statements identified by appellant were material, deliberate misrepresentations, appellant has failed to show that probable cause would not exist if these statements were excluded. Based on this record, even if deliberate misrepresentations were made in the affidavit, we conclude that there was a substantial basis for the issuing judge to conclude that probable cause to search existed.
C. Nexus
Appellant argues that the affidavit fails to establish the required nexus between the meth sales and appellant's residence. Generally, there must be a nexus between the alleged criminal activity and the place to be searched, especially in cases involving the search of a residence for evidence of drug activity. Souto, 578 N.W.2d at 747-48.
Here, the record shows that following the July 29, 2000 meth sale, Dickie returned to the Lakeview Resort. The record also shows that the CRI observed appellant during the first week of August with meth in her possession near her residence and selling meth at the dock area of the Lakeview Resort. On October 21, 2000, the CRI went to the Lakeview Resort and set up a meth sale. On October 23, 2000, a resident of the Lakeview Resort reported to police that they had personal knowledge of ongoing narcotics possession and sales taking place at appellant's residence. But it does not appear that the reliability of the Lakeview Resort resident was established, nor can the reliability of the resident be presumed because it was not asserted in the affidavit that the resident was a civilian informant. See State v. Gabbert, 411 N.W.2d 209, 212 (Minn.App. 1987) (stating that reliability may be presumed when it is asserted in an affidavit that an informant is not part the criminal milieu). On October 23, 2000, Agent Vandergriff and the CRI went to the Lakeview Resort to make a controlled purchase of meth. After giving Jesse Pepper $250 for the purchase, they observed him go directly to appellant's trailer. Although Jesse Pepper did not give them the meth until later, it appeared that Pepper had obtained the meth from the trailer and was trying to make it appear as if he had gotten if from somewhere else. Based on this evidence, we conclude that there was a sufficient nexus between the criminal activity and appellant's residence and that the issuing court had a substantial basis for concluding that probable cause existed.
2. Sufficiency of the Evidence
In considering a claim of insufficient evidence, this court's review is limited to an examination of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). It is the exclusive role of the jury to determine the weight and credibility of witness testimony. State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998). In considering an appeal based on insufficiency of the evidence, this court must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). This court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Minn. Stat. § 152.021, subd. 1(1) (1998), states:
A person is guilty of a controlled substance crime in the first degree if:
(1) on one or more occasions within a 90-day period the person unlawfully sells one or more mixtures of a total weight of ten grams or more containing * * * methamphetamine.
Conspiracy to commit a controlled-substance crime in the first degree requires "(1) an agreement between two or more people to commit a controlled-substance crime and (2) an overt act in furtherance of the conspiracy." State v. Pinkerton, 628 N.W.2d 159, 162-63 (Minn.App. 2001), review denied (Minn. July 24, 2001). There does not need to be proof of a formal agreement to support a conspiracy conviction. State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002). The agreement required for a conspiracy must be shown by evidence that objectively indicates an agreement. Id. Generally, an agreement between only a buyer and a seller is not sufficient to support a conspiracy. Pinkerton, 628 N.W.2d at 163.
Appellant argues that there was insufficient evidence of an agreement between two or more persons to commit a first-degree controlled-substance crime and that the evidence provided by her alleged accomplices was not sufficiently corroborated. At trial, Joseph Dickie, Michael Denn, Twyla Osterman, and Terry Brossard testified on behalf of the state. Dickie testified that he got the meth he sold to Kruger and Agent Vandergriff from appellant. Dickie also testified that appellant fronted drugs to him by giving him drugs, and letting him pay her after he sold them. Dickie's testimony was corroborated by the testimony of Terry Brossard who saw appellant give meth to Dickie in the trailer house. While appellant did not admit that she was fronting drugs to Dickie, she told Agent Bakos that she provided meth to Dickie and that he would pay her back later. There is also evidence suggesting that appellant knew that Dickie was selling the meth. For example, on August 10, 2002, appellant met with Dickie briefly before Dickie made the sale to Agent Vandergriff at the Eagle's Nest, and then appellant met with Dickie again immediately following the sale.
Dickie pleaded guilty to the charge of conspiracy to sell a controlled substance, and agreed to give truthful testimony against co-conspirators.
Brossard was a teenager who was taken in by appellant and her husband after she had trouble with her family.
Denn testified that he was fronting about an ounce or two of meth to appellant about every two weeks. Appellant would then pay Denn for the fronted drugs within a couple of weeks. Denn's testimony was corroborated by Osterman who testified that Denn told her he was fronting drugs to appellant, and she also recalled an occasion when appellant gave her money to give to Denn, which she understood to be for drugs. Brossard also testified that Denn had appellant dealing drugs for him. Furthermore, appellant told Agent Bakos that she had used meth in the past, but that she was not currently using. Based on the amount of meth that appellant was receiving, and the fact that appellant was not using the meth personally, it appears that there was an implicit agreement between appellant and Denn that appellant would resell the meth.
Denn pleaded guilty to the charge of importing controlled substances across state lines, and agreed to give truthful testimony against co-conspirators.
Osterman worked as a bookkeeper for Denn's landscaping business.
Based on this record, we conclude that the jury could reasonably have found that appellant had an agreement to sell drugs for Denn and that appellant had an agreement with Dickie to sell meth for her. While there is no evidence of a formal agreement between the parties, the evidence, viewed objectively, is sufficient to demonstrate an unspoken agreement between the parties to engage in a conspiracy to sell meth. The evidence also shows that there was more than a buyer/seller relationship between the parties, and especially between appellant and Denn. Based on this record, we conclude that the jury could have reasonably concluded that appellant engaged in a conspiracy to sell more than ten grams of meth within a 90-day period in violation of Minn. Stat. § 152.021, subd. 1(1).
3. Surrebuttal
Appellant argues that the trial court abused its discretion in refusing to allow appellant's counsel an opportunity during closing to make a surrebuttal argument. Minn.R.Crim.P. 26.03, subd. 11(j), provides that the prosecutor may make a rebuttal argument to the defendant's closing argument. Minn.R.Crim.P. 26.03, subd. 11(k), provides that the court may allow the defendant to reply in a surrebuttal if the court finds that the prosecutor has made a misstatement of law or fact that is inflammatory or prejudicial.
During rebuttal, the prosecutor claimed that Jesse Pepper testified that he sold 2.0 grams of meth. His testimony was consistent with the exhibit received into evidence referring to 2.0 grams of meth. Appellant argues that the prosecutor's statement was a misstatement of fact because Pepper testified that he sold "[a]bout 2.1 gram[s]" to Agent Vandergriff, not 2.0 grams, and that the court abused its discretion by not allowing appellant to correct the misstatement in surrebuttal.
The evidence shows that Jesse Pepper testified on direct examination that he sold about 2.1 grams. But on cross-examination, Pepper also testified regarding the same transaction that he sold "[a]bout 2 grams" and agreed with the prosecutor that the transaction was for 2 grams. The trial court denied appellant's motion for a surrebuttal argument and stated that the jury had been taking notes and that they could decide what had and had not been said. Under the circumstances, we conclude that it was within the trial court's discretion to deny appellant's motion for a surrebuttal argument.