State of Minnesota, Respondent, vs. John Douglas Garritsen, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-59

 

State of Minnesota,

Respondent,

 

vs.

 

John Douglas Garritsen,

Appellant.

 

Filed December 14, 2004

Affirmed

Forsberg, Judge*

 

Lincoln County District Court

File No. K3-03-130

 

 

Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Michael W. Cable, Lincoln County Attorney, P.O. Box 190, 214 N. Norman Street, Ivanhoe, MN 56142 (for respondent)

 

John Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Forsberg, Judge.           

U N P U B L I S H E D  O P I N I O N

FORSBERG, Judge

In this appeal from a conviction and sentence for aiding and abetting first-degree manufacture of methamphetamine, John Douglas Garritsen argues that because the specific statutory offense of distributing ephedrine for illegal purposes covers his conduct, he cannot be convicted of the more general crime of aiding and abetting first-degree controlled substance offense.  He also argues that he was deprived of a fair trial by the district court's cumulative errors in failing to suppress evidence seized during a nighttime warrantless arrest at his home, in allowing his impeachment with prior drug convictions, and in failing to instruct the jury on accomplice testimony.   He also raises ineffective-assistance-of-counsel claims.  Finally, he asserts that the district court abused its discretion in imposing the presumptive sentence when he played a minor role in the offense.   We affirm.

FACTS

 

            A jury convicted Garritsen of first-degree controlled substance crime (aiding and abetting methamphetamine manufacture) in violation of Minn. Stat. §  152.021, subds. 2(1), 3(b) (2002), Minn. Stat. §  609.05, subd. 1 (2002), and Minn. Stat. §  609.11, subds. 5 and 5a (2002); and of selling or distributing methamphetamine for illegal purposes under Minn. Stat. § 152.135, subds. 5, 6 (2002).    The charges were based on Garritsen's activities in assisting in the manufacture of methamphetamine, which included purchasing large quantities of pseudoephedrine or ephedrine at retail stores and supplying them to Cory Thompson for manufacturing activity at Thompson's cabin.

            In early July 2003, a cashier at a Wal-Mart store in Brookings, South Dakota observed Garritsen make three separate purchases of pseudoephedrine within a 40-minute period.  The next weekend, a cashier observed him begin to purchase three small boxes of pseudoephedrine before voiding the transaction to purchase three larger boxes instead.  A cashier alerted the assistant manager, who obtained the license plate number of Garritsen's car and forwarded it to police. 

            On the afternoon of July 23, a Lincoln County deputy sheriff on routine patrol identified Garritsen's car by its license plate and observed it parked in front of the Thompson family's cabin.  The police had received a previous report of possible methamphetamine manufacture at the property. 

Later that afternoon, the City of Marshall police received a call from the Hy-Vee store in Marshall that a person, later identified as Garritsen, who had previously purchased an ephedrine-based product on several occasions, had just purchased 396 tablets of pseudoephedrine.  A short time later, the police received another call, stating that the person was back to purchase more ephedrine.    The police went to the Hy-Vee parking lot and followed Garritsen's car to the gas pumps, where Garritsen and Thompson momentarily got out.  Police continued following the car, and after it left their jurisdiction, informed the Lincoln County sheriff, who found the car parked directly in front of the Thompson cabin. 

Police obtained a search warrant for the Thompson property and began searching it shortly after 1 a.m. the next morning.  On the porch of the cabin, they found a cooler with several plastic containers of liquid that tested positive for the possible presence of methamphetamine, and another smaller container with strips of tinfoil and a pack of altered lithium batteries.  The police also found, on the porch, Heet containers, five empty Coleman fuel cans, and a pail containing hosing, a funnel, and about two quarts of a sludge-type material.  When police went into Thompson's bedroom, they discovered a scale and a small baggie of white powder that tested positive for methamphetamine.  A drawer in the living area contained smoking devices and bags of white powder.  In the living room, they also found a lockbox with $872 in currency and, on the floor, a Wal-Mart receipt from July 23.  This receipt showed the purchase of Isoheat, pseudoephedrine, paper towels, lithium batteries, and Coleman fuel and that the buyer paid $439.55 in cash.  Outside, near a burn barrel, police found garbage bags containing an empty muriatic acid bottle, an empty tin-foil box, and hundreds of stained paper towels and coffee filters.  Next to these bags were a pail with coffee filters; two coolers containing Heet and Coleman fuel, ice packs, and hoses; and two containers holding 298 grams of an off-white powder that tested positive for ephedrine.  

During the search, the police learned that Garritsen had left the property a short time earlier. The police then went to Garritsen's house and, when he came to the door to answer the police knock, asked him to step outside and told him he was under arrest.  The police did not enter the home.

A security videotape from the Wal-Mart store in Marshall, recorded on July 23, showed Garritsen shopping at a location in the store where ephedrine was kept and leaving the store with Thompson.  In a statement to police after his arrest, Garritsen said that he took Thompson to the Wal-Mart and Hy-Vee stores, but that he did not know what Thompson had bought.  Later, he said that he had seen some of the items, including walkie-talkies, food, and a red container of lantern fuel that he had carried into the cabin. But he denied manufacturing methamphetamine and stated that he did not know how to do it. 

A few days later, in an inventory search of Garritsen's vehicle, police discovered a note in the glove box with the handwritten words, "red sulfur, matchbook strikers,  crystallized iodine."  These substances are used in methamphetamine manufacture by the red phosphorus method, not the method used at the cabin.   When Garritsen was released from jail and he received his personal items back, he said, in the presence of the jailer, that the police did not even look in his billfold, where he had a receipt for a box of matches that they did not investigate.

Garritsen was charged with first-degree controlled substance crime, aiding and abetting methamphetamine manufacture, and conspiracy to manufacture methamphetamine.  Before trial, the district court granted the defense motion to add the additional charge of distributing ephedrine for illegal purposes, a misdemeanor offense, and granted the state's motion to allow impeachment evidence of two prior drug-related convictions.

Garritsen did not testify at trial, and the defense called no other witnesses.  Thompson, who earlier pleaded guilty to one count of conspiracy to manufacture methamphetamine, testified that on the evening of July 23, he was making methamphetamine, that Garritsen was a major source of the ephedrine that he needed for that manufacture, and that he gave Garritsen money and methamphetamine in exchange for his services.  He testified that the ephedrine purchases Garritsen made that afternoon had been ground into powder to manufacture methamphetamine when the search warrant was executed. 

A jury convicted Garritsen of both aiding and abetting first-degree methamphetamine manufacture and distribution for illicit purposes, but acquitted him of conspiracy to manufacture methamphetamine.  The district court sentenced him to the presumptive sentence, and this appeal followed. 

D E C I S IO N

 

I.

 

            Garritsen asserts that because the statute prohibiting distribution of ephedrine for illegal purposes, Minn. Stat. §  152.135, subds. 5, 6 (2002), was more specific and properly described his conduct, it was error to charge him with aiding and abetting methamphetamine manufacture under Minn. Stat. §  609.05, subd. 1 (2002) and Minn. Stat. §  152.021, subd. 2(1) (2002).  Statutory interpretation is a question of law that this court reviews de novo.  State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). 

            When two criminal statutes, one general and one specific, conflict because they have the same elements but carry different penalties, the more specific statute prevails over the more general statute, unless the legislature manifestly intends the general statute to control.  State v. Craven, 628 N.W.2d 632, 635 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001).  We thus examine the plain language of the statutes involved to determine whether they contain different elements.  See Minn. Stat. §  645.16 (2002) (requiring plain-language reading of statutes).  

            A person may be convicted of the felony-level offense of aiding and abetting the manufacture of methamphetamine if he intentionally aids another person in committing the crime of methamphetamine manufacture.  Minn. Stat. §  152.021, subd. 2(1); Minn. Stat. §  609.05, subd. 1.  A person may be convicted of the misdemeanor of sale or distribution of ephedrine if he sells or distributes and  "knows or reasonably should know that the product will be used as a precursor to an illegal substance."  Minn. Stat. § 152.135, subds. 5, 6.  Thus, a conviction for aiding and abetting first-degree methamphetamine manufacture requires the commission of the crime of methamphetamine manufacture, which the distribution statute does not.   Also, under Minn. Stat. §  609.02, subd. 9(2), (3) (2002), to "know," as used in the ephedrine-distributing statute, means only that the actor believes that a specific fact exists, while "intentionally," as used in the aiding-and-abetting statute, means that the actor has a purpose to do the thing or cause the specified result, or believes that the action will, if successful, cause that result.  Finally, the production of an "illegal substance," cited in the distribution statute, may not necessarily be methamphetamine.  Thus, because the statutes contain different elements, Garritsen may properly be convicted of either offense. 

            Garritsen's argument that he was deprived of due process because the felony statute did not provide him fair warning also lacks merit because the statute clearly defines the prohibited conduct.  A "basic rule is that absent legislative intent to the contrary and absent discrimination against a particular class of defendants, the prosecutor may prosecute under any statute that the defendant's acts violate without regard to the penalty."  State v. Chryst, 320 N.W.2d 721, 722 (Minn. 1982). Thus, the district court did not err in denying the motion to dismiss on the ground that the more specific statute controlled. 

II.

Garritsen claims that cumulative errors committed by the district court deprived him of his right to a fair trial.  See State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998) (observing that defendant is entitled to new trial if errors, taken cumulatively, had effect of denying him a fair trial).   We examine each of these asserted errors.

Warrantless arrest

           

Garritsen argues that his statements to police must be suppressed, contending that although there may have been probable cause for his arrest, the police violated the Fourth Amendment by seizing him in his home without a warrant.  See U.S. Const. amend. IV; Minn. Const. Art. I, § 10  (prohibiting unreasonable searches and seizures); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967) (holding that, subject to a few exceptions, searches conducted outside the judicial process are per se unreasonable).  Although Garritsen failed to raise this issue before the district court, we may consider it if there was plain error affecting his substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).   

Police entry of a home without a warrant requires both probable cause and exigent circumstances.  Payton v. New York, 445 U.S. 573, 585-86, 100 S. Ct. 1371, 1379-80 (1980); State v. Perkins, 582 N.W.2d 876, 878 (Minn. 1998).  But "Payton does not prohibit a nonexigent warrantless arrest initiated at the threshold of a suspect's residence if the suspect voluntarily opens the door in response to knocking by the police."  State v. Howard, 373 N.W.2d 596, 598 (Minn. 1985); see also State v. Alayon, 459 N.W.2d 325, 328 (Minn. 1990) (holding that defendant who chooses to open door and stand in doorway is in "public place" for Fourth Amendment purposes). 

In this case, Garritsen responded to the police knock by coming to the door and  inquiring about what was happening.  Police then told him to step outside and that he was under arrest.  They did not go into the house.  Thus, although Garritsen was seized as he stood on the threshold of the residence, the Fourth Amendment was not implicated in his arrest, and there was no plain error affecting his substantial rights.  

Impeachment evidence of prior convictions

           

            Garritsen challenges the district court's denial of his motion to exclude impeachment evidence of two 1996 felony-level convictions for controlled substance possession, one in Minnesota and one in South Dakota.  A district court's ruling on the admissibility of impeachment evidence will not be disturbed absent an abuse of discretion.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). 

            Under Minn. R. Evid. 609(a)(1), impeachment by a prior offense not involving dishonesty is authorized if the offense was punishable by more than one year in prison and the district court determines that the probative value of admitting the evidence outweighs its prejudicial effect.  In determining whether probative value outweighs the prejudicial effect, the district court considers the following factors:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.

 

State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). 

 

            In this case, the district court did not record findings on the five Jones factors.    See State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991) (stating that court should make explicit findings on record to demonstrate it exercised discretion appropriately).  Although it is error not to include analysis of the factors in the record, this failure is harmless error if a proper Jones-factor analysis would have supported the admission of the evidence.   State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). 

We conclude that the application of the Jones factors supports the admissibility of the prior convictions.  First, although convictions of controlled-substance crimes do not relate directly to the veracity of a defendant, State v. Zernechel, 304 N.W.2d 365, 366 (Minn. 1981), Garritsen's conviction would have "aid[ed] the jury by allowing it to see the whole person and thus to judge better the truth of [Garritsen's ] testimony."  State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (quotations omitted).  Second, the seven-year-old convictions were not stale.  See Minn. R. Evid. 609(b) (stating general ten-year time limit for introducing evidence of prior convictions for impeachment).  Third, although the controlled-substance possession convictions are somewhat similar to the charged crime of aiding and abetting methamphetamine manufacture, Minnesota courts have generally allowed impeachment by prior conviction when the elements of the crime are different. See Ihnot, 575 N.W.2d at 588 (finding no abuse of discretion in admitting third-degree criminal sexual conduct conviction as impeachment in trial for first-degree criminal sexual conduct); see also State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985) (affirming decision to impeach with prior rape convictions in trial for first-degree criminal sexual conduct).   Finally, because Garritsen did not make an offer of proof as to what his testimony would have been, had he decided to testify, it may be inferred, based on his statement to police, that he would have denied aiding and abetting methamphetamine manufacture.  See Ihnot, 575 N.W.2d at 587 (inferring defendant's denial of charges in absence of his testimony).  Therefore, the fourth and fifth Jones factors would be satisfied because, had he testified, his credibility would have been a central issue.  See id. (stating that, had defendant testified, his credibility would have been a central issue).  Thus, the district court did not abuse its discretionin allowing the state to introduce evidence of the prior convictions for impeachment purposes.

Lack of accomplice instruction

 

A criminal conviction cannot be based solely on the uncorroborated testimony of an accomplice.  Minn. Stat. § 634.04 (2002);  State  v. Lee, 683 N.W.2d 309, 314 (Minn. 2004).  Because the credibility of an accomplice is inherently untrustworthy, district courts have a duty to instruct juries on accomplice testimony and this duty exists even if defense counsel fails to request the instruction.  State v. Strommen, 648 N.W.2d 681, 689 (Minn. 2002). Thus, in this case the district court erred by failing to instruct the jury on accomplice testimony. 

We review the erroneous omission of this instruction under a harmless error analysis to determine whether "beyond a reasonable doubt ‘the omission did not have a significant impact on the verdict . . ..'"  Lee, 683 N.W.2d at 316 (quoting State v. Shoop, 441 N.W.2d 475, 481 (Minn. 1989)).  Although Thompson's downward sentencing departure in exchange for his testimony weakens his credibility, his testimony was clear and consistent with independent corroborating evidence that supported the jury's verdict.  See State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995) (observing that independent corroborating evidence may be either circumstantial or direct and is viewed in the light most favorable to the verdict).   The state introduced evidence that Garritsen drove with Thompson into Marshall and purchased a large quantity of ephedrine at the Hy-Vee.  Garritsen was also seen exiting the Wal-Mart with Thompson.  After the purchase, police followed Garritsen's car to Thompson's cabin, where later that evening, they executed a search warrant that produced a significant amount of material used in methamphetamine manufacture, a Wal-Mart receipt for some of the materials, and evidence that the manufacturing process was underway.  Garritsen had left the cabin shortly before the warrant was executed and admitted carrying some items from the Wal-Mart purchase into the cabin.  Because ample corroborating evidence supported Garritsen's conviction, we conclude that the admission of Thompson's accomplice testimony without an accompanying instruction was harmless beyond a reasonable doubt. 

Thus, because Garritsen's arrest was lawful, the Jones-factor analysis supports admission of the impeachment evidence, and the failure to give an accomplice instruction was harmless beyond a reasonable doubt, Garritsen is not entitled to a new trial under a cumulative-effect-of-error theory.

III.

Garritsen argues that ineffective assistance of counsel deprived him of a fair trial.  Generally, such an argument is made in a postconviction hearing, not a direct appeal.  Roby v. State, 531 N.W.2d 482, 484 n.1 (Minn. 1995).  Although a postconviction proceeding is not absolutely required for raising a claim of ineffective assistance of counsel, appellate courts normally reject claims of ineffective assistance when no record is made in the district court of the reasons for defense counsel's decisions or behavior.  See Zernechel, 304 N.W.2d at 367 (rejecting defendant's ineffective assistance claim because of failure to raise below).

To prevail on a claim of ineffective assistance of counsel, the defendant must show that his attorney's representation "‘fell below an objective standard of reasonableness' and ‘that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).  "[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances."  State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted).   A  strong presumption exists that counsel's performance "falls within the wide range of reasonable professional assistance."  Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted).  

Garritsen first maintains that his attorney impermissibly conceded his guilt of the misdemeanor charge of possession and distribution of ephedrine without obtaining a waiver from his client. "Admitting a client's guilt without the client's consent or acquiescence is deemed ineffective assistance of counsel and is grounds for a new trial." State v. Provost, 490 N.W.2d 93, 97 (Minn. 1992).  But Minnesota courts have not required a waiver on the record when an attorney has conceded a client's guilt if the defendant was present and did not object, and if the concession was consistent with trial strategy.  See id. (holding that there was no ineffective assistance of counsel when counsel took consistent position throughout trial and defendant acquiesced in trial strategy); see also State v. Pilcher, 472 N.W.2d 327, 337 (Minn. 1991) (stating same).        In this case, although no record exists of Garritsen's consent to pleading guilty to the misdemeanor charge, the defense moved before trial for an instruction on that charge when Garritsen was present in the courtroom.  When counsel referred again to the concession in closing arguments, Garritsen did not object.  Therefore, the record shows that he acquiesced to his counsel's trial strategy, which included conceding guilt of the misdemeanor charge. 

Garritsen also alleges ineffective assistance of counsel based on his attorney's failure to object to an unlawful arrest, an effective concession of guilt to the felony offense by conceding guilt to the misdemeanor offense, and the failure to request an accomplice instruction.  

Because we have concluded that Garritsen's arrest was lawful, we need not consider the argument that he was deprived of effective assistance by his attorney's failure to object to the arrest.  We find no merit in Garritsen's contention that his attorney improperly conceded Garritsen's guilt to the felony charge by conceding guilt to the misdemeanor offense because the elements of the two crimes are different. And even if counsel's actions fell below an objective standard of reasonableness in failing to request an accomplice instruction, Garritsen has failed to meet the second prong of the Strickland test:  that but for counsel's deficient performance, there is a reasonable probability that the result of the trial would have been different.  A reasonable probability is one sufficient to undermine confidence in the outcome of the proceeding.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.    Because the corroborating evidence is sufficiently strong to support the jury's verdict even without Thompson's testimony, we conclude that there is no reasonable probability that an instruction to the jury on accomplice testimony would have changed the result.

IV.

 

            The district court has broad discretion in determining whether to depart downward from the sentencing guidelines.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  Although this court has statutory authority to review or modify a sentence that is unreasonable or excessive, Minn. Stat. §  244.11, subd. 2 (2002), and discretionary authority to modify a sentence, Minn. R. Crim. P. 28.05, subd. 2, it is a "rare case" that would warrant reversal of the refusal to depart.  Kindem, 313 N.W.2d at 7. 

            Garritsen argues that the district court abused its discretion in denying his motion for a downward departure and sentencing him to an executed term of 122 months, the presumptive guidelines sentence based on the offense and his criminal history score.  He claims that because he had offense-related mitigating factors, the district court should have departed downward dispositionally.  See, e.g., State v.  Wittman, 461 N.W.2d 247, 249 (Minn. App. 1990) (affirming downward disposition because of defendant's minor role in conspiracy to sell LSD).  But the record does not establish that Garritsen's participation was an atypical offense of aiding and abetting methamphetamine manufacture.  In addition, "[t]he fact that a mitigating factor [is] clearly present [does] not obligate the court to place defendant on probation or impose a shorter term than the presumptive term."   State v. Wall, 343 N.W.2d 22, 25 (Minn. 1984).           

Garritsen also contends that he should have received a downward durational departure because he received a longer sentence than Thompson, who was more blameworthy.  But a defendant is not necessarily entitled to the same sentence received by a co-defendant or accomplice, even if the defendant's conduct is shown to be less culpable.  State v. Vazquez, 330 N.W.2d 110, 112-13 (Minn. 1983).  Therefore, the district court did not abuse its discretion in sentencing Garritsen according to the presumptive guidelines. 

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.