State v. Rodriguez, A06-974.

738 N.W.2d 422

STATE of Minnesota, Respondent, v. Pedro Maldono RODRIGUEZ, Jr., Appellant.

No. A06-974.

Court of Appeals of Minnesota.

September 11, 2007.

Lori Swanson, Attorney General, St. Paul, MN; and Gregory A. Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, Crookston, MN, for respondent.

John M. Stuart, State Public Defender, Paul J. Maravigli, Assistant Public Defender, Minneapolis, MN, for appellant.

Considered and decided by HALBROOKS, Presiding Judge; KALITOWSKI, Judge; and MUEHLBERG, Judge.

OPINION

MUEHLBERG, Judge.^*

Appellant challenges the district court's order sentencing him to a total of 338 months in prison, arguing that (1) the admission of hearsay evidence during a sentencing-jury proceeding violated his federal and state constitutional rights to confront witnesses against him; (2) the district court erred by failing to give an accomplice instruction to the jury; and (3) the district court erred by imposing consecutive sentences. Because we conclude that a criminal defendant does not have a federal or state constitutional right to confront witnesses against him in sentencing-jury proceedings, any potential error in failing to give an accomplice instruction to the jury was harmless error and the district court did not err by imposing consecutive sentences, we affirm.

FACTS

In March 2004, Crookston police learned that appellant Pedro Maldono Rodriguez, Jr. and another individual, Glen Eric McGee, had returned from Texas with a substantial amount of cocaine. A Crookston police officer spotted appellant's Ford Explorer and saw McGee get out of appellant's truck with a bag and enter his residence. The officer stopped appellant, and a police drug-detection dog sniffed the car. The dog alerted to the presence of a controlled substance in and around appellant's car. Appellant was subsequently arrested.

After drugs were detected in appellant's car, the officer informed Deputy Randy Sondrol of the Polk County Sheriff's Office. Sondrol and another deputy sheriff went to McGee's residence to speak to him. McGee admitted that he had been in Texas during the past few days with appellant and another person, although he was on probation and did not have permission to leave the state. Sondrol informed McGee that he had information that McGee and appellant had just returned from Texas with a large amount of cocaine and asked McGee if he was involved. McGee responded, "Okay, come here," and led the officers to a bag filled with 60 individually-wrapped baggies of white powder, later analyzed by the BCA to contain cocaine. McGee also gave the police a semi-automatic pistol and ammunition.

After being advised of and waiving his rights, McGee stated that he and appellant had traveled to Big Wells, Texas, in March 2004, along with appellant's step-daughter, A.W., who was a minor at the time, in order to purchase drugs to sell in Minnesota. Once they arrived in Big Wells, McGee gave appellant $12,000, and appellant and A.W. went to purchase the drugs. Eight hours later, appellant returned with a Hershey's syrup container containing cocaine. McGee stated that he and appellant had made the trip on two other occasions. McGee was arrested and taken to the Crookston jail.

After arresting McGee, Sondrol interviewed appellant. After being advised of and waiving his rights, appellant repeated the story told by McGee about traveling to Texas to buy drugs. He said that he had shot the pistol found in McGee's possession in Texas, and he brought it back to Minnesota to sell to McGee or trade to him for drugs. He also admitted giving cocaine to minors during parties in the past.

Deputy Sondrol received consent to search appellant's home and recovered drug paraphernalia and rifle ammunition. When Sondrol interviewed McGee again, McGee stated that the first time he and appellant went to Texas was in January 2003, and the second time was in September 2003. McGee informed Deputy Sondrol that on the second trip, appellant bought four to five ounces of cocaine and a handgun; the cocaine was brought back to Crookston and given to another person to sell.

Appellant pleaded guilty to four counts of controlled-substance crime, one count of failing to affix a tax stamp, and one count of felon in possession of a firearm, arising out of activity that occurred between January 2003 and March 2004. Count I, the relevant crime here, was conspiracy to commit controlled-substance crime in violation of Minn.Stat. §§ 152.096, subd. 1; 152.021, subds. 1(1), 2(1), and 3(b); 152.0261, subds. 1, 3; and 609.11, subd. 5a. The district court sentenced appellant to 278 months for conspiracy to commit controlled-substance crime, an upward durational departure; as well as 158 months for possession of a controlled substance with intent to sell, to be served concurrently and 60 months for felon in possession of a firearm, to be served consecutively. Appellant challenged the sentences imposed by the district court.

In July 2005, this court concluded that because the district court imposed a sentence for conspiracy to commit controlled-substance crime that was an upward durational departure from the presumptive sentence based solely on judicially found facts, it violated appellant's Sixth Amendment rights. See State v. Rodriguez, 2005 WL 1669493 (Minn.App. July 19, 2005), review denied (Minn. Sept. 28, 2005). This court reversed and remanded for resentencing in accordance with Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

On remand, in February 2006, the district court convened a sentencing-jury proceeding on the aggravating facts required for an upward durational departure. Prior to the jury's empanelment, appellant made a number of motions. Appellant moved in limine to exclude (1) his taped admission that he provided cocaine to juveniles; (2) BCA lab results of cocaine without the testimony of the lab chemist; and (3) evidence of any cocaine beyond the statutorily required amount for charging. The district court denied these motions. Appellant also moved to exclude his guilty-plea transcript and to allow him to stipulate to the felon in possession of a firearm conviction, which were also denied.

The state moved for an order denying the applicability of the rules of evidence and the right of confrontation to the sentencing-jury proceeding, which was granted. The district court instructed the jury that "[appellant] is presumed innocent with respect to the issues that you are being asked to decide, even though the defendant already has pled guilty to committing the charged crimes."

At the sentencing trial, the state presented its entire case through the testimony of Deputy Sondrol. The state put into evidence a number of photographs, BCA reports on the examination of physical evidence, two tape-recorded statements by McGee, and appellant's tape-recorded statement. The jury was also informed of the six charges to which appellant pleaded guilty. Appellant objected to the admission of McGee's taped statements on the grounds of foundation, confrontation, hearsay, and relevance, but was overruled. Appellant also objected to the admission of his own taped statement, but was overruled.

Prior to final jury instructions, appellant requested an accomplice instruction, but it was denied. The district court granted appellant's request for a "right not to testify" instruction. The jury found that the following factors were proved beyond a reasonable doubt: (1) Count I (conspiracy) was a major controlled-substance offense, based on findings that (a) the offense involved at least three separate transactions wherein controlled substances were sold, transferred, or possessed with intent to sell, (b) the offense involved an attempted or actual sale or transfer of controlled substances substantially larger than for personal use, (c) appellant knowingly possessed a firearm during commission of the offense, and (d) the offense involved a high degree of sophistication or planning over a lengthy period of time or involved a broad geographic area of disbursement; (2) appellant sold cocaine to juveniles during the course of Count I; (3) Count I was committed as part of a group of three or more persons who all actively participated in the crime; and (4) a juvenile was present during the commission of Count I, and appellant was a parent, legal guardian, or caretaker of the juvenile. The district court reimposed the sentences that it had originally ordered. This appeal follows.

ISSUES

I. Did the district court err by admitting hearsay evidence during a sentencing-jury proceeding in violation of appellant's federal and state constitutional rights to confront witnesses against him?

II. Did the district court abuse its discretion by admitting hearsay evidence during a sentencing-jury proceeding in violation of the rules of evidence?

III. Did the district court err by failing to give an accomplice instruction to the sentencing jury?

IV. Did the district court err by imposing consecutive sentences in violation of Blakely v. Washington?

ANALYSIS

I.

Appellant argues the district court erred by allowing the admission of hearsay evidence during a sentencing-jury proceeding in violation of the Confrontation Clause of the Sixth Amendment.¹ Respondent argues that even if there was a violation of appellant's Sixth Amendment rights, any error was harmless. Normally, this court will not address issues of constitutional law unless necessary to decide a case. State v. Otterstad, 734 N.W.2d 642, 647 (Minn. 2007); State v. Hoyt, 304 N.W.2d 884, 888 (Minn.1981). Therefore, we first consider whether any potential error was "harmless."²

Appellant contends the state's use of McGee's recorded statements and the BCA report³ led to the upward durational departure and, therefore, their admission was not harmless error. Confrontation Clause violations under Crawford are subject to a constitutional harmless-error analysis. State v....