State of Minnesota, Respondent, vs. Wayne Alan Philipp, Appellant.

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This opinion will be unpublished and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

C8-02-1485

 

State of Minnesota,

Respondent,

 

vs.

 

Wayne Alan Philipp,

Appellant.

 

Filed September 30, 2003

Affirmed Willis, Judge

 

Aitkin County District Court

File No. K801281

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Stuart T. Alger, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Thomas Murtha, Aitkin County Attorney, Aitkin County Courthouse, 209 Second Street NW, Aitkin, MN 56431 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges his convictions of terroristic threats, third-degree criminal damage to property, and obstructing legal process.  He argues that (1) the district court abused its discretion by admitting audiotape evidence of his post-arrest statements and by refusing to instruct the jury on the definition of "transitory anger"; (2) the district court erred by finding that appellant's acts resulting in the charges of terroristic threats and obstruction of legal process were not part of the same behavioral incident; and (3) he was denied effective assistance of counsel.  We affirm.

FACTS

            Appellant Wayne Alan Philipp was arrested at an Aitkin bar after a bar employee reported that he was intoxicated and had broken a window.  He was charged with (1) fourth-degree assault, in violation of Minn. Stat. § 609.2231, subd. 1 (2000); (2) terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2000); (3) third-degree criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 2(a) (2000); and (4) obstructing legal process, in violation of Minn. Stat. § 609.50, subd. 1(2) (2000).  Philipp was initially charged with one additional count, carrying a handgun in violation of a permit under Minn. Stat. § 624.714, subd. 1(b) (2000), but that charge was later dropped at the state's request.

At Philipp's jury trial, Aitkin Police Officer Jon Olson testified that (1) he responded to the call about Philipp and upon arriving, he observed Philipp, who appeared "very agitated," walking from the bar to the adjacent parking lot; (2) Philipp was shouting profanities and "flailing" his arms; (3) Philipp walked toward Officer Olson with his right arm behind his back and under his jacket; (4) Officer Olson drew his gun and ordered Philipp three times to stop and show his hands; (5) when Philipp finally complied, his hand was empty, and Officer Olson ordered him to get on the ground; and (6) Philipp refused to get on the ground and put his arm behind his back again, at which point Officer Olson took Philipp to the ground by kicking him in the abdomen and leg.

            Officer Olson testified that he restrained Philipp on the ground with the help of a bystander until backup arrived.  When State Trooper Keith Benz arrived, Officer Olson handcuffed Philipp, and he and Trooper Benz placed Philipp into a squad car.  Both officers testified that Philipp resisted them, and they described him as "uncooperative."  Two other witnesses to Philipp's arrest also testified that he resisted Officer Olson and Trooper Benz.  Trooper Benz testified that he found a .22-caliber revolver in one of Philipp's front pockets.  And Officer Olson testified that he sustained an abrasion to his knee and a split lip in the process of handcuffing Philipp and placing him in the squad car. 

Philipp testified that he had in fact resisted the two officers.  He stated that Officer Olson had punched him in the forehead shortly after placing him in the squad car and that Philipp responded by saying, "You shouldn't a [sic] done that, because when I get out I'm going to find you."

The officers transported Philipp to the police station, where he was restrained in a chair.  Officer Olson made an audiotape recording of Philipp while he was restrained.  A transcript of the recording shows that Philipp spoke at length, using mostly profanity and rambling incoherently.  Officer Olson offered Philipp water to drink, asked him if he had been drinking alcohol, and suggested that he "calm down."  According to the transcript of the audiotape, Philipp told Officer Olson, "If you don't mess with my family I'll mess with yours."  He also said, "I want my lawyer man," but shortly thereafter said, "I don't want no lawyer."

The state sought to play the audiotape at trial, and Philipp objected.  The district court allowed the audiotape to be played, and the jury also received copies of a transcript of the audiotape.  While deliberating, the jury requested additional instructions on the definition of "transitory anger" in connection with the terroristic-threats charge, but the district court refused to give additional instructions.  The jury found Philipp not guilty of assault and guilty of terroristic threats, criminal damage to property, and obstructing legal process.  This appeal follows.

D E C I S I O N

I.

Philipp first argues that the district court abused its discretion by admitting the audiotape evidence of his post-arrest statements.  He contends that (1) the evidence was irrelevant, (2) the prejudicial effect of the evidence outweighed its probative value, (3) his statements were obtained in violation of his right against self-incrimination and right to counsel, and (4) the district court was required to review the audiotape in camera before playing it for the jury.  Appellate courts largely defer to the district court's evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  If the district court has erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.

            A.            Relevance

             The state offered the audiotape under Minn. R. Evid. 803(3), which is the hearsay exception for a declarant's then-existing state of mind.  Evidence of Philipp's state of mind was relevant if it had

any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

 

Minn. R. Evid. 401.  The charges of terroristic threats and obstructing legal process both require a showing of intent.  See Minn. Stat. § 609.50, subd. 1 (2000); Minn. Stat. § 609.713, subd. 1 (2000).  "Intent, of course, is a subjective state of mind usually established only by reasonable inference from surrounding circumstances."  State v. Schweppe, 306 Minn. 395, 401, 237 N.W.2d 609, 614 (1975).

            Philipp contends that his state of mind during the time that he was restrained at the police station is irrelevant to his state of mind when the charged offenses occurred.  The record does not show how much time elapsed between when Philipp was arrested and when he was recorded at the police station.  But because intent is established by reasonable inference from surrounding circumstances, Philipp's state of mind at the police station is relevant to his state of mind when he was arrested.  The transcript of his statements shows that he was agitated and belligerent, which tends to make more probable the truth of the state's assertion that he was uncooperative when he was arrested.  Further, Philipp threatened Officer Olson while restrained at the police station, so his state of mind at that time, and not just at the time of his arrest, was directly relevant to proving the intent element of the terroristic-threats charge.

B.            Prejudice

            The audiotape of Philipp's statements was subject to exclusion if the danger of unfair prejudice outweighed the tape's probative value.  See Minn. R. Evid. 403; State v. Bauer, 598 N.W.2d 352, 367 (Minn. 1999).  "Prejudice" refers to "the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means."  State v. Cermak, 365 N.W.2d 243, 247 n.2 (Minn. 1985).

            Philipp contends that the audiotape was unduly prejudicial because the recording consisted of "a succession of obscenities," "descriptions of sexual acts," and "threatening, aggressive statements," and the jury therefore convicted him because they found him to be an offensive person.  We are persuaded, however, that the audiotape's probative value exceeds its potential for unfair prejudice because it shows Philipp's state of mind and because it corroborates Officer Olson's testimony that Philipp had threatened him at the police station.  Further, although Philipp contends that the district court improperly provided transcripts to the jury, thereby enhancing the prejudicial effect of the recording, the Minnesota Rules of Criminal Procedure specifically provide for admission of a transcript when an audiotape is made part of the record.  See Minn. R. Crim. P. 26.03, subd. 15. 

            C.            Right Against Self-incrimination and Right to Counsel

            Philipp argues that his statements on the audiotape were obtained in violation of his right against self-incrimination and his right to counsel.  Statements made by a suspect during custodial interrogation are generally inadmissible unless the suspect is first given a Miranda warning.  Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).  The Miranda warning is required to protect a defendant's Fifth Amendment privilege against self-incrimination.  Rhode Island v. Innis, 446 U.S. 291, 297, 100 S. Ct. 1682, 1688 (1980).  Here, neither side disputes the fact that Philipp did not receive a Miranda warning.

The Miranda safeguards apply "whenever a person in custody is subjected to either express questioning or its functional equivalent."  Id. at 300-301, 100 S. Ct. at 1689.  The "functional equivalent" of interrogation for purposes of Miranda means

any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

 

Id. at 301, 100 S. Ct. at 1689-90.  Such police conduct "must reflect a measure of compulsion above and beyond that inherent in custody itself."  Id. at 300, 100 S. Ct. at 1689.  A conviction will not be reversed on the basis of evidence admitted in violation of the accused's right against self-incrimination if the erroneous admission was harmless beyond a reasonable doubt.  See State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997). 

            Philipp claims that he was subjected to "techniques of persuasion" that produced "the compulsion to speak."  But the transcript shows that Philipp's statements generally followed innocuous statements from the police.  Officer Olson encouraged Philipp to calm down and offered him water.  Officer Olson also asked him if he had been drinking on the night of his arrest and whether he had a permit to carry a handgun.  But Philipp was not charged with any drinking-related offense and whether he was intoxicated would have been evident to the jury when the audiotape was played in court, even without Officer Olson's question.  Further, Philipp did not answer Officer Olson's question about whether he had a handgun permit, evidence of his valid permit was admitted at trial, and the handgun charge was dropped at the state's request.  Even if the questions about drinking and his handgun permit subjected Philipp to custodial interrogation and therefore required a Miranda warning, we conclude that admission into evidence of Philipp's responses to the questions was harmless beyond a reasonable doubt.

            Custodial interrogation that persists after invoking the right to counsel

violates an accused's fifth amendment right, and any statement or confession ensuing as the result of that interrogation may not be introduced in evidence at the trial of the accused.

 

State v. Robinson, 427 N.W.2d 217, 222 (Minn. 1988).

 

To invoke his right to counsel, a suspect

must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer, in the circumstances, would understand the statement to be a request for an attorney.

 

State v. Munson, 594 N.W.2d 128, 139 (Minn. 1999).

            Although Philipp contends that he "clearly stated" his desire to speak with a lawyer, the transcript of his statements shows that his request to see his lawyer came in the middle of a long stream of profanity and was followed shortly by his statement that he did not want a lawyer.  Philipp spoke at length after stating that he wanted a lawyer and then changing his mind, and, with the exception of answering questions about whether he had been drinking and whether he had a permit to carry a concealed weapon, his statements came without any questioning or prompting by the police.  See State v. Pilcher, 472 N.W.2d 327, 332 (Minn. 1991) (holding that defendant waives his right to counsel when he "talk[s] continually without police interrogation or inducement").  Because any Miranda violations were harmless beyond a reasonable doubt, and because Philipp did not effectively invoke his right to counsel, admission of the audiotape of his statements did not violate his right against self-incrimination or his right to counsel.

D.                In Camera Review

Philipp contends that the district court erred by refusing to review the audiotape in camera before admitting it into evidence.  But he cites no authority for the proposition that the district court was required to conduct an in camera review.  See State v. Wilson, 594 N.W.2d 268, 271 (Minn. App. 1999) (holding that "mere assertion" of error unsupported by argument or legal authority and not raised below will not be considered on appeal), review denied (Minn. Aug. 18, 1999).  The two cases that Philipp cites discuss in camera review only to suggest that it should be employed when it is doubtful whether certain evidence exists or may be produced.  See State v. Thiele, 279 Minn. 100, 103-04, 155 N.W.2d 397, 399 (1968) (citing State v. Grunau, 273 Minn. 315, 330, 141 N.W.2d 815, 826 (1966)) (noting that "in cases of doubt as to the producibility of a statement a hearing should be held in camera to determine the question").

E.            Harmless Error

Finally, Philipp claims that admission of the audiotape was not harmless beyond a reasonable doubt.  He contends that there is "no guarantee" that the jury did not convict him solely on the basis of the threatening language on the audiotape.  But both police officers and two bystanders testified that Philipp was uncooperative at the time of his arrest.  And Philipp admitted at trial that he threatened Officer Olson.  The district court did not abuse its discretion by admitting the audiotape.  But even if we were to conclude that there was an abuse of discretion, there appears to be no reasonable possibility that the wrongfully admitted audiotape significantly affected the verdict.

II.

            Philipp argues next that the district court abused its discretion by refusing to instruct the jury in response to its question about the definition of transitory anger, which is a defense that Philipp's counsel discussed in his closing argument.  The decision whether to modify instructions in response to questions from the jury lies within the sound discretion of the district court.  See State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986).  The district court is in the best position to decide what instructions are necessary to the jury's decision, and the court's discretion must be respected.  State v. Jones, 451 N.W.2d 55, 61 (Minn. App. 1990), review denied (Minn. Feb. 21, 1990).

Transitory anger, which does not support a charge of terroristic threats, is short-lived anger with no intent to terrorize.  State v. Taylor, 264 N.W.2d 157, 160 (Minn. 1978).  In State v. Dick, 638 N.W.2d 486, 492-93 (Minn. App. 2002), review denied (Minn. Apr. 16, 2002), this court rejected the appellant's contention that the district court had abused its discretion by refusing to instruct a jury that "the charge of terroristic threats is not meant to encompass verbal threats expressing transitory anger without intent to terrorize."  The court found "no authority" for the appellant's contention and noted that the district court properly instructed the jury on the elements of terroristic threats and allowed defense counsel to discuss transitory anger in his closing arguments.  Id. at 493; see also State v. Lavastida, 366 N.W.2d 677, 680 (Minn. App. 1985) (holding that instruction on terroristic threats was proper even though it excluded definition of transitory anger).

            Here, the district court likewise instructed the jury on the elements of terroristic threats, including the requirement that Philipp acted with the intent to cause "extreme fear" or in "reckless disregard of the risk of causing" such fear, and allowed Philipp's counsel to discuss transitory anger in his closing arguments.  Philipp does not contend that the district court failed to instruct the jury on the elements of the offense of terroristic threats.  Like the appellant in Dick, Philipp cites no authority for the proposition that the district court was required to instruct the jury on transitory anger.  We conclude, therefore, that the court's failure to provide such an instruction was not an abuse of discretion.

III.

Philipp also argues that the district court clearly erred by finding that the acts giving rise to the charges of terroristic threats and obstruction of legal process were not part of the same behavioral incident.  "Whether offenses were part of a single behavioral incident is a fact determination that will not be reversed on appeal unless clearly erroneous."  State v. Butterfield, 555 N.W.2d 526, 530 (Minn. App. 1996), review denied (Minn. Dec. 17, 1996).  Courts consider the factors of time and place and whether the offenses are motivated by a single criminal objective.  State v. Hartfield, 459 N.W.2d 668, 670 (Minn. 1990).

This court has affirmed separate sentences for assault on a police officer and obstructing legal process, terming it a "close question."  State v. Fischer, 354 N.W.2d 29, 35 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984).  We noted that

[t]he initial assault occurred against one officer upon appellant being told he was under arrest.  Later, after he calmed down and had been released, he obstructed legal process in a vain attempt at avoiding apprehension.  These offenses were thus separately motivated and separated in time sufficiently to allow multiple punishment for his actions.

 

Id.

Philipp contends that the acts that resulted in the charges of terroristic threats and obstruction of legal process "occurred contemporaneously against the same complainant."  But the record shows otherwise.  Philipp obstructed legal process by refusing to comply with Officer Olson's instructions to stop, to show his hands, and to get down on the ground.  He further obstructed legal process by being uncooperative and resistant when Officer Olson and Trooper Benz handcuffed him and placed him in the squad car.  He first threatened Officer Olson when he was seated in the car, in response to Officer Olson allegedly having punched him, and he did so again at the police station.  The offenses appear to have been separated in time and motivated by distinct criminal objectives, and the district court's finding that they were not part of the same behavioral incident is not, therefore, clearly erroneous.

IV.

In a pro se brief, Philipp argues that he was denied effective assistance of counsel.  To prevail on a claim of ineffective assistance of counsel, Philipp must demonstrate that his counsel's performance failed to meet "an objective standard of reasonableness, and that a reasonable probability exists that the outcome would have been different but for counsel's errors."  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001) (quotation omitted); see also Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65 (1984).  There is a strong presumption that counsel's performance was reasonable.  Voorhees, 627 N.W.2d at 649.  The supreme court has stated that a direct appeal is "generally not the proper method of raising" a claim of ineffective assistance of counsel "because of the difficulty an appellate court has in determining the facts regarding the representation."  State v. Christian, 657 N.W.2d 186, 194 (Minn. 2003).

Philipp contends that his counsel was unprepared for his omnibus hearing, had a conflict of interest, and failed to conduct a "proper investigation into the elements of the case."  He takes issue with his counsel's failure to call any witnesses at the omnibus hearing.  Although his counsel did not call any witnesses, he did file motions to dismiss for lack of probable cause and to suppress evidence.  Philipp also discusses his counsel's alleged conflict of interest, but he cites nothing in the record in support of his factual allegations.  And Philipp's general allegations about his counsel's investigative efforts do not appear to fall outside of what is considered reasonable competency.  Philipp fails to specify any prejudice or allege how the outcome of his trial would have been different if his counsel had represented him differently.  We conclude, therefore, that Philipp has not met his burden of showing that he was denied effective assistance of counsel.

Affirmed.