State of Minnesota, Respondent, vs. Eldridge Terron Fisher, 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This opinion will be unpublished and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

C9-03-209

 

State of Minnesota,
Respondent,
 
vs.
 
Eldridge Terron Fisher,
Appellant.

 

Filed January 6, 2004

Affirmed

Wright, Judge

 

Stearns County District Court

File No. KX021542

 

 

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

 

Mike Hatch, Attorney General, Gunnar Bengt Johnson, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Roger S. VanHeel, Stearns County Attorney, 705 Courthouse Square, St. Cloud, MN  56302 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge, Presiding; Minge, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appealing his conviction of a third-degree controlled-substance offense, appellant argues that (1) the evidence is insufficient to prove that he committed the offense and   (2) the prosecutor committed prejudicial misconduct during closing argument.  We affirm.

FACTS

 

A confidential informant known to the Saint Cloud Police Department told Sergeant David LaBeaux that the informant could arrange to buy crack cocaine through Renee Evans from a dealer known as "T."  LaBeaux and the informant arranged to participate in a controlled buy at Evans's residence on March 28, 2002.  Immediately prior to the controlled buy, officers searched the informant and the informant's vehicle and equipped the informant with a wireless transmitter, which permitted the discussions during the drug sale to be recorded.  Officers observed the informant as he entered Evans's residence.  Once the informant was inside the house, Evans made a phone call.  At 1:13 p.m., appellant Eldridge Terron Fisher, who was accompanied by his girlfriend, Shannon Bueckers, arrived at the residence driving a gold Intrepid.  Fisher was wearing a black leather jacket and a white tee shirt.  At 1:16 p.m., a male in a white car arrived.  The second male was identified as a friend of Evans's son, who was not involved in the drug transaction.  Two minutes later, the informant left the residence through the back door.  Approximately one minute later, officers photographed Fisher and Bueckers leaving through the front door.  Immediately after the informant left the residence, LaBeaux called the informant's cell phone to ask which of the men was the dealer.  The informant stated that the man wearing the black leather jacket and white tee shirt who left with the woman was "T."

Later that day, LaBeaux saw the same man identified as the dealer driving a gold Intrepid with the same license number observed at the location of the controlled buy.  LaBeaux requested the assistance of officers in the area to make an investigatory stop to identify the driver.  After witnessing a traffic violation, officers pulled over the vehicle.  LaBeaux slowly drove by the driver's side of the Intrepid and verified that the driver was wearing the same clothing and was with the same woman LaBeaux had observed earlier at the location of the controlled buy.  Officers identified Fisher as the driver using his driver's license.  To avoid compromising the informant's identity in future investigations, Fisher was not arrested immediately after his identity was verified. 

On April 1, 2002, Fisher was arrested and charged with committing a third-degree controlled-substance crime, in violation of Minn. Stat. § 152.023, subd. 1(1) (2002).  The case proceeded to trial and, during his closing argument, the prosecutor addressed the presumption of innocence.  The jury returned a guilty verdict, and this appeal followed. 

D E C I S I O N

 

I.

Our review of a claim of insufficient evidence is limited to a careful analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach a guilty verdict.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We assume the jury believed the testimony that supports the conviction and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  We will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, reasonably could conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

To convict Fisher of committing a third-degree controlled-substance crime, the state was required to prove beyond a reasonable doubt that the defendant sold at least one mixture containing cocaine.  See Minn. Stat. § 152.023, subd. 1(1) (2002).  At trial, the informant testified that he received three rocks of a substance believed to be crack cocaine from a dealer known as "T" in exchange for $100, which he paid directly to "T."  The rocks subsequently tested positive for the presence of cocaine. 

            Fisher argues that the evidence is insufficient to prove beyond a reasonable doubt that he is the person who sold the crack cocaine in the controlled buy.  Identity is a question of fact to be decided by the jury.  State v. Oates, 611 N.W.2d 580, 586 (Minn. App. 2000).  Where the identification evidence is inconsistent or less than certain among eyewitnesses, the jury determines the weight and credibility of the evidence presented.  Id.; see also State v. Pippitt, 645 N.W.2d 87, 94 (Minn. 2002) (finding that weighing the credibility of witnesses is exclusively the function of the jury). 

On at least three occasions, the informant identified Fisher as the person called "T" who sold him the crack cocaine.  The first identification occurred on the date of the transaction when the informant advised LaBeaux that the dealer was the man, wearing a black leather jacket and white tee shirt, who was driving away from the residence in a gold Intrepid.  Fisher's identity as the person described by the informant was confirmed shortly thereafter by LaBeaux during a traffic stop.  The second and third identifications by the informant occurred at trial when the informant identified Fisher as the person in the courtroom from whom the informant purchased the crack cocaine and when the informant identified Fisher as the seller using a photograph exhibit of Fisher and his girlfriend leaving the residence after the controlled buy. 

The audiotape of the controlled buy provides additional evidence that Fisher, also known as "T," is the seller involved in the controlled buy.  The recording of the drug deal indicates that the informant was willing to purchase the drugs only from "T."  In addition to the informant, at least two male voices are heard on the recording.  The informant identified the male voice on the audiotape prior to Fisher's arrival as that of Evans's son.  Once Fisher and Bueckers arrive at Evans's home, a discernable knock is heard followed by the informant's voice saying, "What's up, ‘T'?"  Bueckers's testimony confirmed that Fisher is known as "T." 

            Fisher argues that the informant's testimony is not credible because the informant had an interest in Fisher's conviction.  That a witness receives favorable treatment in exchange for providing information to police does not render the testimony of an informant per se unreliable.  State v. Poganski, 257 N.W.2d 578, 581 (Minn. 1977) (holding that the jury could believe witness despite the fact he was given favorable treatment by prosecution for his testimony).  Testimony at trial established that the informant had given the police reliable information several times in the past.  Contrary to Fisher's contention, the record contains no evidence that the informant's payment was contingent on successful prosecution of the alleged supplier.  Rather, the informant was paid for the controlled buy involving Fisher on the day it occurred, and there is no evidence that the informant would receive additional compensation in the event of Fisher's conviction.  Thus, the informant's compensation provided no incentive to falsely accuse Fisher of participating in the sale.

As further support of his claim that the evidence is insufficient, Fisher argues in his pro se brief that LaBeaux testified falsely that Officer Jim Steve was also involved in surveillance of the residence during the controlled buy.  LaBeaux was cross-examined on Steve's involvement and the absence of any reference to Steve in police reports of the investigation.  During closing arguments, Fisher's counsel also asserted that LaBeaux lied about Steve's involvement in the investigation.  In reaching its verdict, the jury weighed the evidence, including the challenges to LaBeaux's credibility.  In light of the strength of the evidence in the record, when considered as a whole, Fisher's attack on LaBeaux's credibility does not warrant reversal.

            After a careful review of the evidence in the light most favorable to the verdict, we conclude that there is sufficient evidence to support Fisher's conviction of a third-degree controlled-substance crime.  

II.

In considering claims of prosecutorial misconduct, we will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant's right to a fair trial.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  A defendant who fails to object to the prosecutor's closing argument or to seek a curative instruction ordinarily waives the right to have the issue considered on appeal.  State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).  Absent an objection or a request for a curative instruction, relief will be granted only when the misconduct is unduly prejudicial.  State v. Whittaker,568 N.W.2d 440, 450 (Minn. 1997). 

Fisher argues that the prosecutor's remarks during closing argument misstated the law and deprived Fisher of a fair trial.  The prosecutor made the following remarks:

The presumption of innocence in my mind is a shield.  [The defendant] walked into the Court today with a shield on. . . .  Presumed innocent, okay?  But that shield is nonimpregnable.  Okay?  Once it's pierced by the evidence that you heard, it's gone, okay?  Once it's pierced, it's gone.  It doesn't just stay on you.  If the State proves its case, then the presumption has been rebutted.  You can find him guilty. 

 

Fisher made no objection to these statements.  The district court subsequently gave the following jury instructions:

 

You must follow and apply the rules of law as I give them to you, even if you believe the law is or should be different. 

 

. . . .

 

            The defendant is presumed innocent of the charge made.  This presumption remains with the defendant unless and until the defendant has been proven guilty beyond a reasonable doubt. . . . The burden of proving guilt is on the State.  The defendant does not have to prove innocence.  The State must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged.  The defendant has no obligation to prove innocence. 

 

As a general matter, Fisher's failure to object constitutes waiver of his right to raise the issue on appeal.  Powers, 654 N.W.2d at 678; Parker, 353 N.W.2d at 127.  We note, however, that the prosecutor's argument did not misstate the burden of proof.  Even if the jury perceived the prosecutor's remarks to shift the burden of proof to the defendant, the district court removed any prejudice by correctly instructing the jury on the burden of proof and reminding the jury of its obligation to apply the law as given by the court.  The verdict is not attributable to prosecutorial misconduct.  Rather, it is attributable to the jury's consideration of the evidence in light of the district court's correctly stated instructions of law.  Accordingly, a new trial is not warranted on the basis of prosecutorial misconduct.

Affirmed.