State of Minnesota, Respondent, vs. Jesse Rodger Barr, Appellant. A05-2376, Court of Appeals Unpublished, February 6, 2007. (2023)

This opinion willbe unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

IN COURT OF APPEALS

Affirmed

Blue Earth CountyDistrict Court

File No. CR05308

Lori Swanson,Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 BremerTower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Ross Arneson, BlueEarth County Attorney,

John M. Stuart, StatePublic Defender, Rochelle R. Winn, Assistant Public Defender,

Consideredand decided by Stoneburner,Presiding Judge; Halbrooks,Judge; and Huspeni,Judge.*

STONEBURNER, Judge

Appellant challenges his convictionof first-degree controlled-substance crime arguing that the district court (1) committedreversible error by conducting a pretrial hearing in appellant’s absence, (2) abusedits discretion by denying appellant’s motion for a mistrial based on thestate’s failure to disclose a taped statement of a witness, and (3) violatedhis Sixth Amendment rights by using juvenile adjudications to enhance hissentence. In a pro se supplementalbrief, appellant raises additional issues.Because (1) appellant’s absence from pretrial proceedings was harmlesserror in this case; (2) the district court did not abuse its discretion bydenying appellant’s motion for a mistrial for an alleged discovery violation;(3) there was no error in the calculation of appellant’s criminal historyscore; (4) and appellant’s pro se arguments are untimely and without merit, weaffirm.

CommanderRittmiller of the Minnesota River Valley Drug Task Force and Mankato Police OfficerTimothy Spellacy stopped a vehicle in which appellant Jesse Barr was apassenger in order to execute a warrant for Barr’s arrest. Jesse Rauchman and Kyle Gjerstad were alsopassengers in the car, and Rauchman was also the subject of an arrest warrant.

Atthe time of his arrest, Barr told Rittmiller that he had hypodermic syringes inhis pocket. The syringes were found in asubsequent pat-down search. The officersfound a marijuana pipe and several coffee filters[1] inthe pocket of the hooded sweatshirt Rauchman was wearing. Rauchman denied that the filters belonged tohim.

AsRittmiller was talking to the occupants in the vehicle, he observed a jarcontaining clear liquid and a white substance lying on the floor of thevehicle. Near the jar were two crumpledcoffee filters, which field-tested positive for methamphetamine. Rittmiller suspected the jar containedmethamphetamine and asked whom the “jar of dope” belonged to. Barr, who was seated in the back of a squadcar, told Rittmiller that the jar belonged to him. Rauchman and Gjerstad denied knowing aboutthe existence of the jar or its contents.Barr, Rauchman, and Gjerstad were arrested. Subsequent testing confirmed that the jar containedmethamphetamine. Barr was charged withfirst-degree controlled-substance crime.

Rittmiller’spost-arrest interview with Kyle Gjerstad was recorded. Rittmiller testified that Gjerstad denied thatthe jar or filters belonged to him and denied knowing whom they belonged to orhow they came to be in the car. Rittmiller’sforty-minute post-arrest interview with Barr was not successfully recorded,apparently due to an equipment malfunction.Rauchman was interviewed by officer Jeff Wersal. During discovery, Barr’s attorney was toldthat this interview was also not successfully recorded. Barr’s attorney went to the police station toreview the original tapes from all of the interviews. He listened to the three tapes listed on theevidence log: two contained only background noise and one contained Gjerstad’sinterview.

At apretrial hearing held on the morning of trial, the district court denieddefense motions to dismiss the charges against Barr based on the state’sfailure to record the interviews with Barr and Rauchman, or in the alternative,to preclude the officers’ testimony regarding the unrecorded interviews. Barr was not present at this hearing.

Attrial, Rittmiller testified that, in his interview, Barr confirmed that the jarcontaining methamphetamine and the filters that field-tested positive formethamphetamine belonged to him. Barrtold Rittmiller that he had stashed the jar and filters behind the seat when policestopped the vehicle. Barr also toldRittmiller that he used methamphetamine intravenously. Rittmiller described Barr’s demeanor duringthe interview as “very matter of fact” and said that he spoke withouthesitation.

Wersaltestified that Rauchman, in his interview, denied possessing anymethamphetamine, said that he had borrowed the sweatshirt he was wearing fromBarr, and said that he did not know that there were coffee filters in thepocket. Wersal testified that he hadused his personal micro-cassette tape recorder to record the interview withRauchman rather than the police station recording equipment and that he hadgiven the micro-cassette of Rauchman’s interview to Rittmiller. Wersal could not recall if he had listened tothe tape recording after it was made and did not know what happened to themicro-cassette after he gave it to Rittmiller.

Barr’sattorney immediately moved for a mistrial on the basis that the state hadfailed to provide him with the micro-cassette tape of Rauchman’sinterview. The district court denied themotion, concluding that the state did not commit a discovery violation and thatthe missing tape was a “non-issue” because there was no conclusive evidence aboutwhat happened to the tape or that it recorded successfully and because Rauchmanwas available to testify about the interview.

Gjerstad,Rauchman, and Amanda Adams, the driver of the car, testified on Barr’s behalfat trial. All three denied knowing aboutthe jar or seeing Barr place the jar behind the front seat on the floor of thevehicle at the time of the stop. Barrtestified that the jar did not belong to him and that he only told the officersit was his so that his friends would not get in trouble.

Barr’sattorney first raised the matter of Barr’s absence from the pretrial hearing attrial after both sides had rested, but before the case was submitted to thejury. The district court and counseldiscussed on the record the fact that Barr’s absence from the hearing waserror, but no remedial action was proposed or taken.

The jury found Barr guilty, and the district courtsentenced him to 122 months in prison based on a criminal history score of 3, whichincluded a juvenile adjudication. Thisappeal followed.

I.

Barrargues that the district court committed reversible error by conducting apretrial hearing in his absence. Acriminal defendant has the right to be present at every critical stage of histrial. Minn. R. Crim. P. 26.03, subd.1. A pretrial suppression hearing is onesuch critical stage during which a defendant has the right to be present. State v.Grey, 256 N.W.2d 74, 77 (Minn.1977). The right to be present may bewaived. State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993).The decision to waive “is a decision not for counsel to make but apersonal decision for defendant to make after consultation with counsel.” Id. But, even if a defendant is denied the rightto be present during a critical stage of his trial, “the defendant is notentitled to relief if it can be said that the error was harmless error beyond areasonable doubt.” Id.at 457-58.

The partiesdo not dispute that the pretrial hearing is a critical stage of trial, and Barrdid not waive his right to be present.The state argues that Barr has forfeited his right to be present at thehearing “because neither [Barr] nor his attorney, who was present, objected to [Barr’s]absence from the hearing.”[2]

In State v. Grey, the supreme court heldthat a defendant’s absence from a pretrial suppression hearing was a violationof the due process and confrontation clauses found in the state and federalconstitutions and that the error was not harmless beyond a reasonable doubtbecause it was not possible, on the record in that case, “to determine whatcontribution or assistance to counsel defendant could have rendered had he beenpresent to hear” the oral testimony presented at that hearing. 256 N.W.2d at 77. In Grey,as in this case, the defendant’s absence appeared to be an inadvertentoversight rather than a purposeful exclusion of the defendant from thehearing. Id.

Thestate cites State v. Thompson toargue that Barr has forfeited the issue on appeal. SeeState v. Thompson, 430 N.W.2d 151,152 (Minn. 1988) (citing United States v.Gagnon,470 U.S. 522, 529, 105 S. Ct.1482, 1485-86 (1985) for the proposition that a defendant, who does not asserthis right to be present at an in-chambers hearing he knows about, may not claimit for the first time on appeal from a conviction of guilt).Thompsonrecognized that an in-chambers competency hearing is a stage of trial atwhich a criminal defendant has a right to be present under Minn. R. Crim. P. 26.03,subd. 1, and noted that if the right has been asserted, it would be “error forthe trial court to deny defendant that right and we would have to determinewhether or not the error was prejudicial.”Id. at 152-53. And in State v. Hannon, the supreme court concludedthat Hannon waived any right he had to attend an in-chambers conference becauseneither Hannon nor his attorney objected to what occurred during the conference“nor was any objection raised at trial to Hannon’s exclusion from theconference.” 703 N.W.2d 498, 506 (Minn. 2005).

Inthis case however, Barr was absent from a proceeding that took place in opencourt, and his absence was raised at trial. In Statev. Ware, the supreme court, referring to Thompson’s holding thatthe right to be present at a critical stage of trial may be forfeited, stated:“[w]e are less inclined to rely on the doctrine of forfeiture where thedefendant, as here, is not present during proceedings actually occurring inopen court . . . [m]oreover, this decision to waive is a decision not forcounsel to make but a personal decision for defendant to make afterconsultation with counsel.” 498 N.W.2d at457. Because it is not clear from therecord before us that Barr was aware of the pretrial conference, the error wasnoted during the trial, and Barr’s absence was from a court hearing rather thana chambers conference, we decline to hold that he has forfeited the issue ofhis absence on appeal. But even if Barr has not forfeitedthis issue, he is not entitled to relief if it can be said that the error washarmless beyond a reasonable doubt. Id.at 457-58.

Atthe hearing, Barr’s attorney moved to suppress evidence of the police-stationinterviews of Barr and Rauchman based on the state’s failure to record theinterviews. Barr argues on appeal that hadhe been present, “he could have made an offer of proof as to the substance ofhis statement to [Rittmiller], thus providing his counsel with a betterunderstanding of how [Barr] would be prejudiced if the trial court ruledagainst him.” But the state asserts, andwe agree, that Barr’s absence from the pretrial proceeding was harmless underthe four-factor harmless-error analysis in Statev. Breaux, 620 N.W.2d 326, 332-33 (Minn. App. 2001).

Inperforming a harmless-error analysis regarding a defendant’s absence from astage of trial, this court considers (1) whether the evidence against thedefendant was overwhelming, (2) the strength of the defense’s evidence, (3) whatthe defendant would have contributed to his defense if he had been present, and(4) whether an appropriate cautionary instruction was given. Id.

Inthis case, Barr, who possessed two syringes when he was arrested, admitted atthe scene of his arrest that the solution and filters containingmethamphetamine belonged to him. DespiteBarr’s recantation at trial, the evidence against him was strong.

Incontrast, Barr’s defense was not strong.Although Barr testified at trial that the jar did not belong to him, andhis witnesses denied seeing him place the jar or filters in the car, no onecould explain where these items came from.

Onthis record, there is no showing that Barr could have contributed to hisdefense if he had been present at the pretrial hearing. Barr testified at trial that he was“extremely high” when he talked to Rittmiller and did not “have a lot ofrecollection of the night.” Additionally,counsel has not explained how Barr’s absence prevented counsel from making anoffer of proof at the pretrial. Finally,a cautionary instruction was not necessary in this case because the jury wasunaware of the existence of the pretrial hearing or Barr’s absence from thathearing. We conclude that, in this case,the error of conducting the pretrial hearing in Barr’s absence was harmlesserror beyond a reasonable doubt.

II.

Barrargues that the district court abused its discretion by refusing to grant amistrial based on the state’s alleged failure to disclose the micro-cassettecontaining the taped statement of Rauchman.Whether a discovery violation occurred is an issue of law, whichappellate courts review de novo. State v. Bailey, 677 N.W.2d 380, 397 (Minn. 2004).

Prosecutorsare required to disclose and permit defense counsel to inspect any relevant writtenor recorded statements that relate to the case. Minn. R. Crim. P. 9.01 subd. 1(2). This requirement extends to any informationor material possessed by members of the prosecuting staff or by others who haveparticipated in the investigation of the case. Id.at 1(7). “The prosecution has the dutyto learn of any evidence known to others acting on the government’s behalf,including police, and to disclose this information to the defense. Failure to disclose is not excused becausethe prosecutor...was unaware of the information.” State v.Smith, 655 N.W.2d 347, 354 (Minn. App.2003) (citation omitted), rev’d on othergrounds, 674 N.W.2d 398, 403 (Minn.2004).

Inthis case, the state was unaware of the existence of the micro-cassette untilWersal testified. Neither Wersal nor theprosecutor could explain why the micro-cassette was not on the evidence log andwas not provided to Barr’s attorney. Thestate made no effort to discover what happened to the micro-cassette. Despite the district court’s ruling to thecontrary, the scant information about the micro-cassette in the record suggeststhat there was a discovery violation.

Indetermining sanctions for discovery violations, we consider the followingfactors: (1) the reason why the disclosure was not made, (2) the extent of theprejudice, (3) the feasibility of rectifying that prejudice with a continuance,and (4) any other relevant factors. State v. Scanlon,719 N.W.2d 674, 685 (Minn.2006). “A trial court’s determination [ofa remedy for a discovery violation] should be reversed on appeal only when theprosecutor’s misconduct, viewed in the light of the whole record, appears to beinexcusable and so serious and prejudicial that the defendant’s right to a fairtrial was denied.” Id.(quotation omitted). “Any discovery-related misconduct on the partof the state is harmless beyond a reasonable doubt if the verdict rendered wassurely unattributable to the error.” Id.(quotation omitted).

Wersaland Rauchman both testified at trial.Barr argues that the recording of Wersal’s interview of Rauchman might havebeen used to challenge Wersal’s assertion that Rauchman told him that thesweatshirt he was wearing at the time of the arrest belonged to Barr. But the charge against Barr was not based onor related to the sweatshirt or the items found in it. Barr does not claim that Rauchman saidanything in his taped interview that was exculpatory as to the charges against Barr.And Rauchman testified that atthe time he gave his statement, he was high on methamphetamine. Therefore, even if the district court erred in concludingthat there was not a discovery violation, the verdict was surely unattributableto a failure of the state to produce the micro-cassette of Wersal’s interviewof Rauchman, and any error was harmless.

Regarding Barr’s argument that we should reverse as anexercise of supervisory authority, we find nothing in this case that warrantsreversal based on the interests of justice and leave the exercise ofsupervisory power to the supreme court.

III.

Barrargues that the district court violated his Sixth Amendment right to a jurytrial under Blakely v. Washington,542 U.S. 296, 124 S. Ct. 2531 (2004),byincluding a juvenile-adjudication point in the calculation of his criminal-historyscore. This issue involves aconstitutional question, which appellate courts review de novo. Statev. McFee, 721 N.W.2d 607, 609 (Minn.2006). Barr concedes that he did notraise this issue below but asks this court to consider the issue in the interestof justice. See State v. Allen, 706 N.W.2d 40, 44 (Minn. 2005) (stating that thesupreme court will consider defendant’s claim in the interest of justicebecause “the importance of determining Blakely’s applicability to upwarddispositional departures and the assignment of a custody-status point [are]issues that affect numerous cases statewide”).

Barrargues that juvenile adjudications are not convictions for purposes of the“prior conviction” exception under Apprendiand Blakely for two reasons: first,because juvenile adjudications are not “convictions,” and, second, becausejuveniles do not serve sentences. See Blakely, 542 U.S. at 301, 124 S. Ct.at 2536. But the supreme court recently heldthat juvenile adjudications fall within the prior conviction exception to the Apprendi/Blakely rule and may be used incalculating the criminal history score without submitting the fact of theadjudication to a jury. McFee, 721 N.W.2d at 619. McFee notesthat Minnesotacourts have long approved the use of prior juvenile adjudications incalculating a defendant’s criminal history score under the SentencingGuidelines. Id.at 614-15. Furthermore the supreme courtstated that “such behavior, even though committed by a juvenile, isappropriately considered when sentencing the offender as an adult.” Id. at 615. The district court did not err by includingBarr’s juvenile adjudications in his criminal-history score.

IV.

We decline to address the additionalissues raised in Barr’s pro se supplemental brief, because they were not raisedin the district court. See Roby v. State, 547 N.W.2d 354, 357(Minn. 1996) (stating that appellate courts will generally not consider mattersnot argued and considered in the court below).We note, however, that the claims are also without merit.

Affirmed.