State v. Flowers

State of Minnesota, Respondent, v. Dontrell Dyna Flowers, Appellant.

A13-1450

STATE OF MINNESOTA IN COURT OF APPEALS

Filed July 28, 2014

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed Reyes, Judge

Hennepin County District Court File No. 27CR1113822

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Hooten, Judge; and Reyes, Judge.

UNPUBLISHED OPINION

REYES, Judge

On appeal from his conviction for being a prohibited person in possession of a firearm, appellant argues that the district court erred by (1) denying his motion tosuppress evidence based on a confidential informant's tip; (2) suppressing evidence related to his defense; (3) ruling that his prior felony conviction could be used for impeachment purposes; and (4) denying his request for an evidentiary hearing regarding jury misconduct. Appellant also alleges several instances of prosecutorial misconduct. Because we conclude that the district court did not err, and any prosecutorial misconduct did not result in prejudice to appellant, we affirm.

FACTS

On the evening of May 10, 2011, after receiving a tip from a confidential informant that appellant Dontrell Dyna Flowers was always in possession of a gun, two police officers engaged in surveillance of a house located in north Minneapolis, which was the residence of C.P., Flowers's girlfriend. From their position on the street, the officers saw a black suburban parked behind the residence and observed Flowers walk from the house to the vehicle while carrying a multi-colored light-and-dark-blue towel or two towels. The officers saw Flowers lean into the vehicle at the driver's door for several seconds, emerging empty-handed. Flowers got into the vehicle, and police followed him as he drove away. Another officer initiated a traffic stop and ordered Flowers out of the vehicle.

Police searched the vehicle, finding a blue towel in the bottom compartment of the center console, which was wrapped around a handgun and an extra magazine. Another towel, in a darker shade of blue, was found on the backseat. When questioned, Flowers told an officer that he had been at his girlfriend's house, that he left to go wash her car,and he did not know that the gun was in the car. He also stated that his DNA would not be on the gun. The recovered gun was never tested for fingerprints or DNA evidence.

Flowers was charged under Minn. Stat. § 624.713, subds. 1(2) and 2(b) (2010), as a prohibited person in possession of a firearm. Flowers moved to suppress evidence obtained as a result of the search and seizure, arguing that the information received from the confidential informant was not reliable and that police did not have probable cause to stop, arrest, or search Flowers. The district court denied this motion.

Before trial, Flowers stipulated that he was a person prohibited from possessing a firearm. He also moved to suppress evidence of his prior conviction from being used as impeachment evidence and moved to admit evidence about the history of the gun, including its link to two prior incidents. The court denied both motions, but limited the state to impeachment using an unspecified felony conviction only.

At trial, jurors heard testimony from C.P. and three police officers. C.P. testified that Flowers was driving her car when he was stopped. She also testified that the recovered gun was hers, claiming that she had bought it on the street from someone she knew a couple of weeks before the stop for safety reasons and that she had forgotten to take it out of her car that day. Flowers waived his right to testify. The jury found Flowers guilty of being a prohibited person in possession of a firearm.

After trial, the jury foreperson wrote to the judge expressing concern that one juror acquiesced to the rest in finding Flowers guilty. Flowers moved for a new trial and a hearing to impeach the verdict. The district court denied the motions and sentenced Flowers to 60 months in prison. This appeal followed.

DECISION

I. Motion to suppress

On appeal, Flowers states that there was insufficient corroboration of the tip provided by the confidential informant to establish probable cause for the stop and search. But because Flowers did not provide an argument with relevant legal authority in his brief, this issue is waived.

Flowers's attempt to incorporate a 15-page memorandum into a brief that is already 41 pages long is a clear violation of the rules of this court. See Minn. R. Civ. App. P. 132.01, subd. 3 (providing that, except with good cause and permission of the court, a principal brief must not exceed 45 pages, unless it contains no more than 14,000 words or 1,300 lines of text and is accompanied by a certificate of compliance with one of these exceptions). Flowers did not obtain permission from this court to file a brief in excess of the 45 page limit, nor did he certify that his brief complied with one of the exceptions to this page limit. In a similar circumstance, the supreme court stated:

This is a novel, but nonetheless unacceptable attempt to expand the page limitation for appellate briefs set out in Rule 132.01, subd. 3 (1992) of our Rules of Civil Appellate Procedure. To be absolutely clear, if these issues were important enough to have been reviewed, they should have been set forth with specificity within the ample page limit our rules permit. As it is, having these issues before the court in the manner in which they were raised has not been at all helpful in reviewing [the appellant's] petition.

Indep. Sch. Dist. No. 622 v. Keene Corp., 511 N.W.2d 728, 733-34 (Minn. 1994) (emphasis added), overruled on other grounds by Jensen v. Walsh, 623 N.W.2d 247 (Minn. 2001). Because Flowers did not brief his probable-cause argument on appeal, it iswaived. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating that issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).

Even considering this issue in the interest of justice, we find no merit in Flowers's contention that the stop and search of the vehicle was unreasonable because the police lacked probable cause. The district court determined that the stop was justified under the Terry warrant exception, which requires only a showing of reasonable suspicion, a less-demanding threshold than probable cause. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct. 1868, 1879-80 (1968); see State v. Flowers, 734 N.W.2d 239, 351 (Minn. 2007) (stating that Terry applies to investigative vehicle stops and allows a limited search of a vehicle for weapons based on reasonable suspicion that the person stopped is engaged in criminal activity and may gain control of a weapon). Therefore, we conclude that the issue of probable cause is irrelevant.

II. Gun history

Flowers contends that, because he has a constitutional right to present a defense, the district court erred by not allowing him to present the gun's history. We disagree.

Evidentiary rulings rest within the sound discretion of the district court and will not be overturned absent a clear abuse of discretion, "even when constitutional rights are implicated." State v. Pendleton, 706 N.W.2d 500, 510 (Minn. 2005). The district court "must allow defendants to present evidence that is material and favorable to their theory of the case," as long as it is relevant and its probative value outweighs any prejudicial effect. State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995), review denied (Minn.Jan. 23, 1996). The appealing party has the burden to establish an abuse of discretion by the district court and prejudice resulting from the error. Pendleton, 706 N.W.2d at 510.

At trial, Flowers sought to admit the testimony of (1) a ballistics expert who would testify that the gun was used in two prior shooting incidents; (2) a police officer who would link the gun to a shooting in south Minneapolis in September 2010 and testify to the suspect's physical description, which did not match Flowers's; and (3) a witness to that incident who would also describe the suspect. The district court refused admission of this testimony, determining that "[t]he fact that [the gun] apparently was fired at some point 8 months prior" is not relevant and "the fact that the gun was used in a prior incident, perhaps a crime," is prejudicial.

Flowers contends that this evidence is relevant to "the theory of defense . . . that [C.P.] plausibly could have bought, without a permit, a gun floating around on the streets that had no connection to [Flowers] and was never obtained or used by him." But to prove that Flowers was a prohibited person in possession of a firearm, the state only had to prove that Flowers knowingly possessed the gun on the date that he was stopped. See 10A Minnesota Practice, CRIMJIG 32.17 (2013) (listing the elements of felon in possession of a firearm). Whether C.P. owned the gun, though not dispositive, is relevant to Flowers's knowledge of the gun. But the gun's involvement in a crime several months earlier, before C.P. purchased it, does not have any tendency to make the existence of Flowers's knowledge of possession or C.P.'s purchase of the gun on the street more or less probable than it would be without the testimony. See Minn. R. Evid. 401 (defining "relevant evidence" as "evidence having any tendency to make the existence of any factthat is of consequence to the determination of the action more probable or less probable than it would be without the evidence").

Flowers also argues that any prejudice created by this evidence would have been to the state, making it unfair for the court to impede his constitutional right to present a defense. But even...