State of Minnesota, Respondent, vs. Bradley Arnold Quimby, 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This opinion will be unpublished and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

A03-383

 

State of Minnesota,

Respondent,

 

vs.

 

Bradley Arnold Quimby,

Appellant.

 

Filed June 1, 2004

Affirmed

Lansing, Judge

 

Olmsted County District Court

File No. K7-02-2052

 

 

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

 

Raymond F. Schmitz, Olmsted County Attorney, James P. Spencer, Assistant County Attorney, 151 Southeast Fourth Street, Rochester, MN  55904 (for respondent)

 

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Suite 140, 2499 Rice Street, Roseville, MN  55113-3724 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Bradley Quimby guilty of first-degree controlled-substance crime and three lesser-included offenses.  In this appeal from conviction, Quimby argues that a series of evidentiary errors denied him his constitutional right to a fair trial and that he was denied effective assistance of counsel.  Our analysis of the seven alleged evidentiary errors leads us to conclude that the district court did not abuse its discretion in any of the evidentiary rulings.  We further conclude that Quimby's ineffective-assistance-of-counsel claim lacks a factual basis and we therefore affirm.

F A C T S

Bradley Quimby's arrest and conviction for controlled-substance crime grew out of the Rochester Police Department's on-going investigation of Quimby for suspected manufacture and sale of methamphetamine.  A department narcotics officer saw Quimby driving a van in the city of Rochester on May 23, 2002.  The officer believed that Quimby did not have a valid driver's license and, while confirming that Quimby's driver's license was canceled, also learned that a warrant had been issued for Quimby's arrest.  The officer lost sight of Quimby's van but located it parked in a driveway at a residence in the town of Genoa where it had been observed earlier that day.  The van was parked directly in front of the residence's detached garage.  The garage door was partially open and the garage's chimney was emitting smoke.

The officer watched as Quimby repeatedly went from the garage to the van.  In one of these sequences, Quimby opened the back doors of the van, went back into the garage, ran out of the garage with a white object in his hands, and placed the object in the back of the van.  Police stopped Quimby's van shortly after he drove from the residence.  They placed Quimby under arrest and, in a search of his van, seized starter fluid, two glass pipes, a folding knife, a hollowed-out pen, and two Tupperware containers that each had "white powder substance" inside.  The Bureau of Criminal Apprehension (BCA) later determined that one of the Tupperware containers held 9.3 grams of methamphetamine.

The property owner, who resided on the premises, gave police permission to search the garage.  When police entered the garage, they detected a "strong ammonia smell" and observed Coleman fuel cans, a blue jug with attached tubing, and a propane tank with a connecting hose.  After donning protective gear, two police officers conducted a full search of the garage.  The search produced hoses, degreaser, antifreeze, rock salt, rubber gloves, coffee filters, a box of jars, two containers of drain cleaner, and a cooler containing anhydrous ammonia.  Ephedrine pills were found in the driveway.

Quimby was charged with first-degree controlled-substance crime, first-degree conspiracy to commit a controlled-substance crime, second-degree possession of a controlled substance, possession of anhydrous ammonia in an improper container, driving after cancellation, and expired registration.  He pleaded guilty to driving after cancellation, and the prosecution dismissed the expired-registration charge.  A jury found Quimby guilty of the four remaining controlled-substance charges, and Quimby appeals.

D E C I S I O N

I

            Evidentiary rulings are committed to the district court's discretion and will not be reversed absent a clear abuse of discretion.  State v. Bjork, 610 N.W.2d 632, 636 (Minn. 2000).  "Evidentiary errors warrant reversal if there is any reasonable doubt the result would have been different had the evidence not been admitted."  State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996) (quotation omitted).  As a general rule, when a defendant fails to object to a particular error at trial, the defendant is deemed to have forfeited his right to have the alleged error reviewed on appeal; however, "a defendant may obtain appellate review of and relief from plain errors affecting substantial rights if those errors had the effect of depriving the defendant of a fair trial."  State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994).  Under the plain-error test, the challenging party must show error that is plain and that affects substantial rights.  State v. Griller, 583 N.W.2d 736, 740-41 (Minn. 1998). 

Quimby asserts multiple evidentiary errors that were unobjected to at trial.  First, he asserts that the admission into evidence of a sealed package containing methamphetamine constituted error because the state failed to provide foundation by establishing an adequate chain of custody.  To establish a proper chain of custody, the proponent must provide testimony of continuous possession by each person having possession, along with testimony by each that the object remained in substantially the same condition during its presence in his possession.  State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982).  "Admissibility should not depend on the prosecution negat[]ing all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur."  State v. Johnson, 307 Minn. 501, 505, 239 N.W.2d 239, 242 (1976). 

A sheriff's deputy testified that he took all of the items found in the van, including the Tupperware containers, to the law enforcement center; that each item was sealed in a bag and marked with an evidence sticker; that he placed the items in an evidence locker; and that the Tupperware and its contents were not altered.  The narcotics officer testified that he removed the white powdery substance from one of the Tupperware containers and placed it in a package, which was then sealed and put back into the evidence locker.  He testified that he did not alter the white powdery substance and that the substance was sent to the BCA for analysis.  This testimony establishes that the sealed package containing methamphetamine remained in police custody from Quimby's arrest until it was sent to the BCA for analysis.  Thus, a proper foundation was laid for this evidence and no error occurred.

Second, Quimby argues that the sealed package of methamphetamine was not properly authenticated before being admitted into evidence.  "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."  Minn. R. Evid. 901(a).  The narcotics officer testified that he sealed the package containing methamphetamine, that he customarily used a heat sealer, that he initialed each sealed side of the package, and that he recognized the package being admitted into evidence.  This testimony sufficiently authenticated the package and did not create an omission in the chain of custody.

Third, Quimby argues the state failed to properly authenticate the BCA report that shows that the white powder placed in the package is methamphetamine.  A report of any laboratory analysis prepared by the BCA "purported to be signed by the person performing the analysis . . . shall be admissible as evidence without proof of the seal, signature, or official character of the person whose name is signed to it."  Minn. Stat. § 634.15, subd. 1 (2002).  At trial, a police sergeant testified that a forensic scientist at the BCA signed the report.  The forensic scientist's signature and her typed name appear on the report, and the record suggests no reason to question the report's authenticity.  The report was properly authenticated and no error occurred.

Fourth, Quimby argues that a proper foundation was not provided to permit a sheriff's deputy to testify that the glass pipes and hollowed-out pen found in the van, and a brass pipe found in Quimby's pocket at the time of his arrest, are drug paraphernalia.  "If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."  Minn. R. Evid. 702.  "The qualifications of the expert need not stem from formal training and may include any knowledge, skill, or experience that would provide the background necessary for a meaningful opinion on the subject."  Id. comm. cmt. 

The deputy testified that during his twenty-three years in law enforcement he has seen glass pipes before and that, in his experience, glass pipes are "used for smoking drugs."  The deputy also testified that the hollowed-out pen had a plastic item inserted in it and the pen was discolored, which led him to believe "that it was used as a pipe."  The deputy described the brass pipe as "a one hitter pipe used for smoking either marijuana or other drugs."  The deputy's lengthy career in law enforcement, and his experience in investigating drug-related crimes, provide a base of knowledge and experience sufficient to support opinion testimony on whether the items were pipes used for smoking drugs.  See State v. Carillo, 623 N.W.2d 922, 927-28 (Minn. App. 2001) (stating, "we have afforded substantial discretion to trial courts in permitting expert testimony of police officers testifying about matters within the ambit of their law enforcement expertise"), review denied (Minn. June 19, 2001).  The district court did not err in permitting the deputy to testify that the seized items are customarily used for smoking drugs.

Fifth, Quimby argues that there was no foundation for the deputy's testimony that "[s]tarting fluid is commonly used in the manufacture of methamphetamine."  The deputy may testify based on his experience, but he was not qualified as an expert in methamphetamine manufacturing.  Identical testimony was provided, however, by a Rochester police sergeant who did have special training in the methods used to manufacture methamphetamine.  The sergeant testified that he is the supervisor in charge of the Rochester Narcotic Vice Unit, that he has received special training on the manufacture of methamphetamine and the procedures for dismantling methamphetamine labs, and that he is a certified "clandestine lab tech."  Because the sergeant was qualified to testify to the use of starter fluid in methamphetamine manufacture, the deputy's testimony on the use of starter fluid would not constitute plain error even if the testimony exceeded his knowledge base.

Sixth, Quimby argues that the sergeant's testimony about the dangerous conditions present in a methamphetamine lab was unfairly prejudicial because the testimony was irrelevant and "frightening" to the jury.  The sergeant testified that safety equipment and safety personnel were present when the police investigated the garage because the chemicals used to manufacture methamphetamine are carcinogenic and volatile when combined.  He also testified that he had to wear a protective "Nomex suit" when he entered the garage, which is a plastic, fire-resistant, non-breathable suit that chemicals cannot penetrate.  Evidence is relevant, and therefore admissible, if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action" more or less "probable than it would be without the evidence."  Minn. R. Evid. 401.  "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. . . ."  Minn. R. Evid. 403. 

The challenged evidence is marginally relevant to provide background for the sequence of events and the procedures the police used to gather evidence.  But even if the evidence was not relevant, Quimby has not established prejudice.  His defense theory did not dispute the methamphetamine manufacturing but disputed that he was the person manufacturing it.  Furthermore, the testimony on these procedures was not lengthy.  It took up five pages of a 286-page transcript, and there is no evidence that the testimony frightened the jury.

Finally, Quimby argues that it was plain error for the district court to allow the jury to hear the sound portion of a videotape police made of their search of the interior of the garage without giving the jury a transcript to follow.  Relying on State v. Olkon, 299 N.W.2d 89 (Minn. 1980), Quimby argues that the jury must receive a transcript to follow when videotapes are played at trial.  Olkon does not support this argument; it stands instead for the proposition that transcripts may be provided to the jury to clarify inaudible portions of the tapes or to identify speakers.  Id. at 103.  In this case, only two police officers speak during the brief videotape and the narrative is audible.  The use of transcripts under these circumstances is not required and no error occurred.

II

Effective assistance of counsel in a criminal proceeding is an integral component of the right to a fair trial, guaranteed by the Sixth Amendment.  State v. Brocks, 587 N.W.2d 37, 42 (Minn. 1998).  Generally, a claim of ineffective assistance of counsel should be raised in a postconviction petition for relief, rather than on direct appeal, so a reviewing court has a full record to consider the reasons an attorney chose or avoided a particular course of action.  See Robinson v. State, 567 N.W.2d 491, 494 n.3 (Minn. 1997); Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997). 

The two-prong standard for demonstrating ineffective assistance of counsel requires the defendant to show that defense counsel's performance was deficient and that the deficient performance prejudiced the defense.  See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).  A defense counsel's performance is deficient if it falls below an objective standard of reasonableness.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999).  Matters of trial strategy will not be reviewed for competence.  Id.

Quimby argues that he was denied his constitutional right to effective assistance of counsel at trial because his public defender failed to raise objections to a "series of evidentiary errors" at trial.  He believes his public defender was unable to provide effective assistance because the public defender's office is not adequately funded and, consequently, his attorney's caseload was too "heavy" to allow adequate representation at his trial. 

Quimby has failed to establish that any evidentiary errors occurred at his trial.  His attorney may have been economical in making objections, but Quimby has not shown that this economy resulted in any information being presented to the jury that the jury should not have received or that was prejudicial to his defense.  Deciding against frequent and unavailing objections is a matter of trial strategy that may benefit the person represented.  See State v. Schneider, 597 N.W.2d 889, 894 (Minn. 1999)  (deciding whether to object at trial is a tactical choice, which is left to the discretion of counsel).

Quimby has also failed to provide any factual basis for his claim that he was poorly represented because the public defender's office is not adequately funded and that his public defender is overworked.  In addition to the absence of any evidence that he was poorly represented, Quimby relies only on a discussion the public defender had with the district court at a pretrial hearing on scheduling.  During the discussion, the district court commented that the public defender was going to have a busy week on the week of Quimby's trial because he had two misdemeanor files and a felony file already scheduled for trial.  This exchange does not constitute "substantial evidence of serious problems throughout the indigent defense system."  Kennedy v. Carlson, 544 N.W.2d 1, 6-7 (Minn. 1996) (stating, "[i]n those cases where courts have found a constitutional violation due to systemic underfunding, the plaintiffs showed substantial evidence of serious problems throughout the indigent defense system"); see also State v. Peart, 621 So. 2d 780, 783 (La. 1993) (finding ineffective assistance of counsel based on evidence drawn from statistics of public defender's case-load during seven-month period); Hatten v. State, 561 So. 2d 562, 565 (Fla. 1990) (excessive backlog of appellate filings in public defender's office amounted to ineffective assistance of counsel).  The comment of the judge about four or five projected trials does not provide a sufficient basis for a claim of systemic ineffective representation.

In a pro se supplemental brief, Quimby states that he was denied effective assistance of counsel because his attorney failed to call two witnesses to testify on his behalf but does not indicate what testimony the witnesses would have provided or how it might have changed the outcome of the trial.  He also states that his attorney neglected to investigate but does not say what his attorney failed to investigate.  Finally he claims that his attorney incorrectly advised him not to testify.  The record contains a full advisory and personal waiver of Quimby's right to testify in his own defense.  Quimby made an informed waiver of his right to testify, and his remaining claims lack a factual basis for review.

Affirmed.

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