State v. Rodriguez, No. A06-974.

754 N.W.2d 672

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

No. A06-974.

Supreme Court of Minnesota.

August 21, 2008.

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

Lawrence Hammerling, Chief State Appellate Public Defender, Davi Elstan Forte Axelson, Assistant State Public Defender, St. Paul, MN, for appellant.

OPINION

ANDERSON, G. BARRY, Justice.

Appellant Pedro Maldono Rodriguez, Jr., pleaded guilty to a number of drug-related offenses, including conspiracy to commit controlled substance crime. On appeal, appellant asks us to reverse his sentence and remand for resentencing on the grounds that the district court erred in concluding that the Confrontation Clause and Minnesota Rules of Evidence do not apply in jury sentencing trials, that the district court declined to provide the sentencing jury an accomplice corroboration instruction, and that the district court's upward sentencing departure on the basis of appellant's possession of a handgun was invalid. We affirm appellant's sentence.

On March 4, 2004, the Crookston Police Department learned from the Drug Task Force that appellant and A.W., appellant's stepdaughter, were traveling from Texas to Crookston in a Ford Explorer with a large amount of cocaine and a handgun. In the early morning hours of March 5, a Crookston police officer observed the vehicle entering Crookston from the south on Highway 75 and followed the vehicle to Glen McGee's residence on the south side of town. The officer observed McGee leave the vehicle carrying a small duffel bag with a jacket draped over it. After dropping McGee off at his residence, appellant and A.W. were pulled over on West Sixth Street in Crookston. A drug detection dog alerted to the presence or close association of controlled substances in the interior and exterior of the vehicle, and appellant was arrested.

Polk County Deputy Sheriff Randy Sondrol bypassed the traffic stop and met Deputy Brad Johnson near McGee's residence. Sondrol and Johnson spoke with McGee, who explained that he had traveled to Texas with appellant and A.W. When the officers told McGee that they had information that he had transported cocaine from Texas, McGee retrieved a bag containing 60 smaller baggies of cocaine from his bedroom closet. (Sondrol later submitted the cocaine to the Minnesota Bureau of Criminal Apprehension Laboratory, which detected 88.6 grams of cocaine in the 15 baggies it analyzed.) McGee also showed the officers where a .45 semi-automatic handgun, ammunition, and empty magazines were hidden in his bedroom, and the officers found a Hershey's syrup jug, which had been glued shut and cut below the spout, in McGee's kitchen.

After being advised of and waiving his rights, McGee admitted to the officers that he, appellant, and A.W. had traveled to Big Wells, Texas, with the intention of purchasing drugs for resale. McGee explained that he gave appellant $12,000 to purchase the drugs when they were in Texas and that appellant returned about 9 hours later with the sealed Hershey's jug containing cocaine. McGee said that although A.W. accompanied him and appellant on the trip, he did not think that A.W. knew about the cocaine. McGee also stated that the handgun belonged to appellant and that he had been to Texas with appellant on two prior occasions. McGee indicated that appellant made arrangements to purchase 30 pounds of marijuana on their first trip to Texas. McGee was arrested following his interview with the police.¹

Following their interview with McGee on the morning of March 5, Sondrol and Johnson interviewed appellant. After being advised of and waiving his rights, appellant admitted that he and McGee had returned from buying cocaine in Big Wells, Texas. He explained that he bought about 16 ounces of cocaine from some friends in Texas with McGee's money and that McGee was going to sell the drugs and share the profit with him. Appellant said that his 17-year-old stepdaughter, A.W., had accompanied them on the trip and that he brought the gun back from Texas because McGee said he would buy it with some of the proceeds from the sale of the cocaine. According to appellant, he and McGee traveled to Texas to pick up drugs on one prior occasion. Finally, appellant admitted that he had probably given cocaine to minors at parties and that he had given cocaine to A.W. "[o]nce in a while." Appellant and his wife consented to a search of their residence, and the officers recovered marijuana paraphernalia and ammunition.

On July 6, 2004, appellant pleaded guilty to four counts of controlled substance crime, one count of failing to affix a tax stamp, and one count of being a felon in possession of a firearm. Count I, the relevant crime in this appeal, was conspiracy to commit controlled substance crime in violation of Minn.Stat. § 152.096, subd. 1 (2006), Minn.Stat. § 152.021, subds. 1(1), 2(1), 3(b) (2002), Minn.Stat. § 152.0261, subds. 1, 3 (2006), and Minn.Stat. § 609.11, subd. 5a (2006). On August 23, 2004, the Polk County District Court sentenced appellant to 278 months imprisonment for the conspiracy conviction, reflecting an upward departure based on the court's findings that the offense was a major controlled substance offense, that there were three or more active participants, and that a juvenile was present during the commission of the offense; 158 months imprisonment for first-degree possession of a controlled substance with intent to sell, to be served concurrently with the conspiracy sentence; and 60 months imprisonment for being a felon in possession of a firearm, to be served consecutively to the conspiracy sentence.

On appeal, the court of appeals concluded that appellant's Sixth Amendment rights were violated "[b]ecause the district court imposed a sentence that is an upward durational departure from the presumptive sentence based solely on judicially found facts." State v. Rodriguez, No. A04-2192, 2005 WL 1669493, at *1 (Minn. App. July 19, 2005), rev. denied (Minn. Sept. 28, 2005). The court of appeals 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). Id.

On remand, a jury sentencing trial was held to determine the existence of aggravating factors supporting an upward sentencing departure. At the State's request, the district court ruled that the Sixth Amendment right of confrontation and the Minnesota Rules of Evidence do not apply in jury sentencing trials and that McGee's statements to the police were admissible. Deputy Sondrol was the sole witness, and the sentencing jury was informed of the six counts to which appellant pleaded guilty. Appellant objected to the admission of his own recorded police statement as irrelevant; McGee's first recorded police statement on foundation, hearsay, and relevance grounds; and McGee's second recorded police statement on hearsay, relevance, and confrontation grounds. The district court overruled appellant's objections, and the recordings were received into evidence. Finally, the district court denied appellant's request that it give the sentencing jury an accomplice corroboration instruction.

The sentencing jury found four aggravating factors for appellant's conspiracy to commit controlled substance crime conviction. The first aggravating factor found by the sentencing jury was that appellant's conspiracy was a major controlled substance offense, which was supported by the following findings: the offense involved at least three separate transactions in which controlled substances were sold, transferred, or possessed with intent to do so; the offense involved an attempted or actual sale or transfer of controlled substances in quantities substantially larger than for personal use; appellant knowingly possessed a firearm during the commission of the offense; and the offense involved a high degree of sophistication or planning, occurred over a lengthy period of time, or involved a broad geographic area of disbursement.² The other aggravating factors found by the sentencing jury were that appellant sold cocaine to juveniles during the course of the offense, that the offense was committed as part of a group of three or more persons who all actively participated in the crime, and that appellant was the parent, legal guardian, or caretaker of a juvenile who was present during the commission of the offense. The district court adopted the sentencing jury's findings and reinstated the sentence it had previously imposed.

Appellant appealed the district court's judgment. The court of appeals affirmed, concluding that (1) the admission of hearsay evidence was harmless in light of appellant's statement to the police and admissions at his guilty plea hearing, (2) the Confrontation Clauses of the United States and Minnesota Constitutions do not apply in jury sentencing trials, (3) the Minnesota Rules of Evidence do not apply in jury sentencing trials, (4) any error in failing to give the sentencing jury an accomplice corroboration instruction was harmless, and (5) the imposition of consecutive sentences did not violate appellant's Sixth Amendment jury-trial right. State v. Rodriguez, 738 N.W.2d 422, 428, 431-33 (Minn.App. 2007). We granted appellant's petition for review.³

I.

The first issue presented in this case is whether the right of confrontation guaranteed by the Sixth Amendment applies in jury sentencing trials. Appellant contends that his rights under the Confrontation Clause were violated by the admission at his jury sentencing trial of McGee's recorded police statements. Whether a defendant's confrontation rights have been violated "is a question of law that we review de novo." State v. Warsame, 735 N.W.2d 684, 689 (Minn.2007).

The Sixth Amendment of the United States Constitution provides as follows:

In all criminal prosecutions, the accused shall enjoy the right to...