State of Minnesota, Respondent, vs. Russell Lynn Norton, 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This opinion will be unpublished and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

A03-1417

 

State of Minnesota,

Respondent,

 

vs.

 

Russell Lynn Norton,

Appellant.

 

Filed August 31, 2004

Affirmed Gordon W. Shumaker, Judge

 

St. Louis County District Court

File No. 02600927

 

 

Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Government Center, 100 North 5th Avenue W., #501, Duluth, MN 55802 (for respondent)

 

John M. 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 Anderson, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

Appellant challenges his conviction for failure to register as a predatory offender, arguing that the district court abused its discretion in allowing the state to use in rebuttal appellant's unrecorded statements, which were taken in violation of the Scales requirement.  Appellant also argues that his violation was only technical in nature and, therefore, the district court should have granted his request for a downward departure.  We affirm.

FACTS

Appellant Russell Norton was convicted of fourth-degree criminal sexual conduct in 1992.  In 1997, Norton signed a Sex Offender Notification and Registration Form that requires him to register his address under Minnesota's Predatory Offender Law.  After his release from prison, Norton was supervised by probation officers that monitor sex-offenders' whereabouts in the community.  As part of his probation, Norton was required to provide his probation officers with his current address.  

            On April 27, 2002, probation officer Kimberly Radloff attempted to visit Norton at 317 W. 24th Ave. N., #2, Duluth, the address Norton had registered at that time.  Norton was not there and the apartment appeared to be vacant.  Later that day, Norton called Radloff and informed her that he had moved to 320 N. 21st Ave. W., #2., also in Duluth.  Radloff went to the new address and had Norton fill out a change of address form.  On May 1, Radloff attempted to find Norton at his new address and was unable to do so.  On May 7, 2002, a second probation officer, Alice Carroll, spoke with Norton who said that he was still living at the 320 N. 21st address.  On May 21, a Notice of Alleged Violation was mailed to Norton at this address. The notice was returned without a forwarding address.  While probation officers were aware that Norton sometimes stayed at his girlfriend's residence, Norton never registered this address with them.

A third probation officer, Polly Johnston, tried to find Norton at his registered address on April 29, May 5, and May 28, 2002, but was unable to locate him on any of these occasions.  On May 28, Johnston found Norton at his girlfriend's residence, served Norton with the Notice of Alleged Violation, and reminded him that he was to appear in court the following day.  The next day, Norton failed to appear for court and a warrant was issued.  Between  May 29 and June 20, probation officers again tried to find Norton at his registered address but were unable to do so.  Norton called Alice Carroll during this time period but never mentioned registering a new address. 

At trial, the owner of the building at 320 N. 21st, Norton's registered address, testified that he did not know Norton and had never rented an apartment to him.  The former occupant of apartment number two at that address, Judy Bellamy, testified that Norton was living with her in that apartment until May 30, 2002, the date on which she moved out.  Andrew Sodder, who rented the apartment after Bellamy moved out, testified that he did not know Norton and had never lived with him.

Norton testified that after Judy Bellamy moved out, he moved into a downstairs apartment in the same building that was occupied by Ruby Richards.  Richards testified that she did not know Norton and that he had not lived with her. 

On June 10, 2002, Agent Paul Gherardi of the Minnesota Bureau of Criminal Apprehension went to Norton's registered address looking for Norton but was unable to find him.  After learning from probation officers that Norton might be found at his girlfriend's residence, Gherardi arrested Norton there on June 20.  Gherardi testified that Norton's name was on the mailbox and that Norton's clothes were inside his girlfriend's house.  

On cross-examination, Norton was asked if he had told Agent Gherardi that he was living at his girlfriend's during the month of June.   He denied making this statement.  In order to impeach Norton, the state offered rebuttal testimony by Gherardi, who testified that when Gherardi arrested him Norton said that he had been living at his girlfriend's for the past month because he had been evicted from his former apartment.  Norton was handcuffed and in custody at the time he made these statements and had not been given a Miranda warning.  Norton objected to the introduction of Gherardi's rebuttal testimony on the grounds that it was in violation of the Scales recording requirement.  The district court ruled that these statements would be inadmissible for use in the prosecution's case-in-chief.  At trial, the district court did not rule on the objection to the introduction of these statements for impeachment purposes.

The district court found Norton guilty of violating the predatory offender registration requirements of Minn. Stat. § 243.166, subd. 3(b) (2000), after concluding that Norton had failed to properly register between June 1 and June 20, 2002.  On June 30, 2003, Norton was sentenced to 22 months after the district court declined to grant his motion for a downward departure.  This appeal follows.  

D E C I S I O N

I.

 

Norton first argues that the district court erred in admitting Norton's unrecorded, in-custody statements as rebuttal testimony.  The Minnesota Supreme Court has held that all custodial interrogation and questioning must be electronically recorded "where feasible" and must be recorded when the questioning occurs at "a place of detention."  State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).  Failure to record such interrogation or questioning results in the suppression of the statements at trial.  Id.  Custodial statements inadmissible due to a Scales violation may, however, "be used to impeach a defendant's inconsistent trial testimony even though it cannot be used in the prosecution's case-in-chief."  State v. Coleman, 560 N.W.2d 717, 721 (Minn. App. 1997).  But such a statement may be used for impeachment purposes only if it is voluntary.  State v. Slowinski, 450 N.W.2d 107, 111 (Minn. 1990) 

Norton first argues that Coleman is internally inconsistent because the court in Coleman determined that statements taken in violation of Scales that are used for impeachment purposes "may be considered by the jury for all purposes." Coleman, 560 N.W.2d at 721.  But Norton's case was tried before the district court, not a jury, and, there is no evidence in the record that the district court used Norton's statements for substantive purposes. 

Norton next argues that the supreme court has determined that otherwise inadmissible statements will be admissible for impeachment purposes so long as the statements are voluntary and the violations alleged "relate only to procedural safeguards that are ‘not themselves rights protected by the Constitution,' but are instead measures designed to ensure that constitutional rights are protected."   Michigan v. Harvey, 494 U.S. 344, 351, 110 S. Ct 1176, 1181 (1990) (quoting Michigan v. Tucker, 417 U.S. 433, 444, 94 S. Ct. 2357, 2364 (1974)).  Norton argues that Scales requirements are not only procedural safeguards but are also requirements that ensure that evidence admitted at trial is reliable.  Norton asserts that the Scales requirement is, therefore, more than a prophylactic requirement because it is necessary to ensure the reliability of "the most damning evidence against a criminal defendant."

We disagree.  Norton provides no support for the proposition that the Scales recordingrequirement is more than a procedural safeguard, as required by Harvey.  Further, under Scales, Coleman, and Harvey, only involuntary statements or statements made in violation of a constitutionally protected right are prohibited for all purposes.  The same is not true of statements obtained in violation of Scales.  Under Coleman,such statements may be used for impeachment purposes, regardless of how "damning" they are.  Coleman, 560 N.W.2d at 721.  Because there is no evidence that Norton's statements to Gherardi were involuntary or coerced, they are admissible for impeachment purposes under Coleman.

Norton next urges this court to follow a decision by the Alaska Court of Appeals.  In Bright v. State, the Alaska court upheld a district court's ruling that unrecorded statements made in violation of the state's custodial-interrogation recording requirements were inadmissible for impeachment purposes.  826 P.2d 765, 774 (Alaska Ct. App. 1992).  But, Bright is distinguishable from this case.  The Alaska Supreme Court has determined that the Due Process Clause of the Alaska State Constitution requires that all custodial interrogation be recorded.  Stephan v. State, 711 P.2d 1156, 1160 (Alaska 1985).  This is not the case in Minnesota.  In Scales, the Minnesota Supreme Court exercised its supervisory powers when it determined that custodial interrogation must be recorded.  Scales, 518 N.W.2d at 592.  The court declined to determine whether the Due Process Clause of the Minnesota Constitution requires such recording.  Id.  And while Norton argues that the Bright court's reasoning is persuasive, it is not the law in Minnesota.  This court determined in Coleman that an unrecorded statement may be used for impeachment purposes.  Coleman, 560 N.W.2d at 721.

Finally, Norton asks that this court consider Agent Gherardi's "blatant disregard for the Scales requirement."  But this is not a case where Scales was "blatantly" disregarded.   When Norton gave the statement at issue, he was in custody, outside his girlfriend's house.  Norton was therefore not at a "place of detention," as required by Scales.  It is also uncertain if recording Norton's statements would have been feasible.  See Scales, 518 N.W.2d at 592 (holding that statements must be recorded when "feasible").  Because there is no evidence showing that Agent Gherardi's blatantly disregarded the Scales requirement, this argument is without merit.

Because Coleman allows a statement taken in violation of Scales to be used for impeachment purposes, the district court did not err in admitting Norton's unrecorded statements.

II.

Norton next argues that if the admission of his unrecorded statement by the district court was error, it was not harmless error.  When a statement is admitted in violation of Scales, this court must reverse unless the error was harmless.  Id. at 593.  An error is harmless only if the verdict is "surely not attributable to the error."  State v. Stewart, 643 N.W2d 281, 295 (Minn. 2002). 

Here, even if Norton's unrecorded statements were inadmissible for impeachment purposes, there is other substantial evidence in the record showing that between June 1 and June 20, 2002, Norton was not living at the address he had registered with probation.  Norton himself testified that he was not living there during that time period.  The owner of the building, his former roommate, and Ruby Richards, the woman whose apartment he claimed he shared after moving to a second apartment within the building, all testified that Norton was not living there during June.  And, although Norton argues that Richards is lying, when credibility observations are at issue, this court will give deference to the primary observations and trustworthiness assessments made by the district court.  State v. Aviles-Alvarez, 561 N.W.2d 523, 527 (Minn. App. 1997), review denied (Minn. June 11, 1997).  The district court heard testimony from both Norton and Richards and determined that Richards' testimony was more credible.  In light of this evidence, any error in admitting Norton's unrecorded statements was harmless.

III.

Norton argues that the district court erred in denying Norton's motion for a downward durational departure because his offense was not as serious as the typical failure to register offense.  Departures from presumptive sentences are reviewed under an abuse of discretion standard, but there must be "substantial and compelling circumstances" in the record to justify a departure.  Rairdon v. State, 557 N.W.2d 318, 326 (Minn. 1996) (citations omitted).  Only in a "rare" case will a reviewing court reverse the district court's imposition of the presumptive sentence.  State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981). 

Norton claims that his offense was less serious than the typical failure to register because he actually "exceeded the requirements of the registration statute" by not only registering his address but also by notifying his probation officers that he often spent time at a second residence, his girlfriend's.  But Minn. Stat. § 243.166, subd. 3(b) (2000), requires that an offender register a "primary address" at least five days before the offender starts living at the new address.  Between June 1 and June 20, 2002, Norton's primary address was registered as 320 N. 21st Ave. W., #2, Duluth.  Norton was not living at this address during that time period.  Norton was, therefore, typically and clearly in violation of the registration requirement during this period.  Because there are no substantial or compelling facts justifying a downward departure, the trial court did not err in denying Norton's motion for a downward durational departure.

Affirmed.