State of Minnesota, Respondent, vs. Walter Jay Combes, Appellant (A04-2044), Kathleen Susanne Black, Appellant (A04-2047).

State of Minnesota, Respondent, vs. Walter Jay Combes, Appellant (A04-2044), Kathleen Susanne Black, Appellant (A04-2047). A04-2044, A04-2047, Court of Appeals Unpublished, January 17, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2044

A04-2047

 

State of Minnesota,
Respondent,
 
vs.
 
Walter Jay Combes,

Appellant (A04-2044),

 

Kathleen Susanne Black,

Appellant (A04-2047).

 

 

Filed January 17, 2006

Affirmed

Wright, Judge

 

Meeker County District Court

File Nos. K1-03-843, K8-03-841

 

 

Mike Hatch, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Michael J. Thompson, Meeker County Attorney, Meeker County Courthouse, 325 North Sibley Avenue, Litchfield, MN  55355 (for respondent)

 

John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414; and

 

Melissa Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN   55121 (for appellant Combes)

 

Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant Black)

 

 

            Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellants challenge their convictions of conspiracy and attempt to manufacture methamphetamine, arguing that (1) there was no probable cause to support the search warrant for their residence; (2) the prosecutor committed prejudicial misconduct by (a) calling a witness solely to impeach him with an otherwise inadmissible hearsay statement, (b) urging the jury to use a statement introduced for impeachment as substantive evidence, and (c) making statements about "taking responsibility" to the jury; and (3) the evidence was insufficient to support their convictions.  We affirm.

FACTS

On November 17, 2003, appellants Kathleen Black and Walter Combes visited four stores in Willmar for the purpose of purchasing pseudoephedrine products.  With their friend, Bonita Ertl, the three entered stores individually or in a pair, each purchasing two or three boxes of cold or allergy medication containing pseudoephedrine.  They then returned to their red pickup truck in the parking lot before traveling together to another store.

Loss-prevention employees at Target noticed Black, Combes, and Ertl, and notified the local drug task force. Task-force officers arrived in the area and began observing the red pickup truck.  A local police officer stopped the truck for an illegal turn, identified the occupants as Combes, Black, Ertl, and a minor child, and released them with a warning.  Task-force officers followed the truck to a residence in Watkins shared by Black and Combes and observed the three adults enter the house.

Task-force agent Brian Cruze had received information earlier about Black and Combes that suggested their involvement in manufacturing methamphetamine.  After joining the task-force team observing the couple that day, Agent Cruze returned to Willmar and obtained a search warrant for the residence.  Agent Cruze and other officers executed the search warrant at the Black-Combes residence on the evening of November 17.

At the time of the search, Black, Combes, and Leslie Bollin, an acquaintance,   were present at the residence.  Officers recovered a vial containing .2 grams of methamphetamine from Black.  Bollin admitted that he had been using methamphetamine at the Black-Combes residence that afternoon.   

            The search also yielded more than 1,000 pseudoephedrine pills along with large quantities of blister packs used to store the pills.  Many of the blister packs were empty, but at least 26 still contained pseudoephedrine pills.  In addition, officers recovered a jar containing several hundred pseudoephedrine pills.  Along with pseudoephedrine, police recovered a lithium battery package and a receipt indicating that the battery pack was  purchased on November 17. Police seized solvents and other chemicals used in methamphetamine manufacture, as well as a liquid propane gas tank that had been altered in a manner consistent with use for manufacturing methamphetamine.  Another tank tested positive for the presence of anhydrous ammonia, a chemical used to manufacture methamphetamine.

            Black and Combes were charged with first-degree conspiracy and attempt to manufacture methamphetamine, a violation of Minn. Stat. §§ 152.021, subds. 2(a), 3(a), .096, subd. 1 (2002).  Black also was charged with fifth-degree possession of methamphetamine, a violation of Minn. Stat. § 152.025, subds. 2(1), 3(a) (2002). 

Black and Combes moved to suppress evidence obtained from the search of their residence for lack of probable cause.  After a hearing, the district court denied the motions.  The matter proceeded to a joint trial, and a jury convicted Combes of conspiracy and attempted manufacture of methamphetamine.  Black was convicted of conspiracy and attempted manufacture of methamphetamine, and possession of methamphetamine.  These appeals followed.

D E C I S I O N

I.

            Black and Combes argue that the district court erred by not suppressing evidence obtained during the search of their home because there was no probable cause for the search.  Probable cause exists if an affidavit sets forth competent evidence sufficient to lead a reasonably prudent person to believe that evidence of a crime will be found at the location to be searched.  State v. Bagley, 286 Minn. 180, 192, 175 N.W.2d 448, 456 (1970). 

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [or her], including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. 

 

State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332 (1983)). 

We review the district court's determination of probable cause to issue a search warrant to ascertain whether there is a substantial basis to conclude that probable cause exists.  State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999).  In determining whether a warrant is supported by probable cause, we do not review the district court's decision de novo.  Id. at 787.  Rather, we give great deference to the issuing court's probable-cause determination.  State v. Rochefort, 631 N.W.2d 802, 804 (Minn. 2001); State v. McCloskey, 453 N.W.2d 700, 703 (Minn. 1990).

Here, an affidavit from Agent Cruze accompanied the search-warrant application.  The search-warrant affidavit established that in 1999 police began receiving information suggesting that Black and Combes manufactured methamphetamine at their residence.  A confidential informant advised police in December 2002 that Combes was supplying methamphetamine to another individual.  Police received an anonymous tip in January 2003 describing strange odors emanating from the residence.  In May 2003, another confidential informant advised police that Black and Combes had admitted making methamphetamine at their residence.  This informant also corroborated the first informant's statement about Combes supplying another individual with methamphetamine.  Finally, the search-warrant affidavit described the multiple purchases of pseudoephedrine that Black and Combes made on November 17.  

Black and Combes argue that the district court erred in finding probable cause because much of the information in the search-warrant application was stale, there was no nexus between the residence and the alleged criminal activity, and the reliability of the informants could not be determined from the information in the search-warrant application.  None of these arguments is supported by the record.

When considered in its totality, the information in the search-warrant application was not stale.  To prevail over a claim of staleness, there must be proof of facts "so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time."  State v. Souto, 578 N.W.2d 744, 750 (Minn. 1988) (quoting Sgro v. United States, 287 U.S. 206, 210, 53 S. Ct. 138, 140 (1932)).  Any staleness in the background information provided by the confidential informants was cured by the observations of Black and Combes purchasing large quantities of pseudoephedrine at four different stores on the day that the search warrant was issued. 

The search-warrant application also established a sufficient nexus between the Combes-Black residence and methamphetamine manufacture.  Minnesota courts require "a direct connection, or nexus, between the alleged crime and the particular place to be searched, particularly in cases involving the search of a residence for evidence of drug activity."  Id. at 747-48.  And "there must be specific facts to establish a direct connection between the alleged criminal activity and the site to be searched."  Id. at 749.  Here, information from confidential informants, an anonymous tip, and police observation of Black and Combes returning home with large quantities of methamphetamine precursors provided the issuing judge with specific facts establishing a direct connection between the alleged criminal activity and the residence.

Finally, the warrant application discussed the reliability of both informants, noting that information provided by one informant led to an earlier arrest and that information provided by the other informant soon would result in charges against seven individuals for controlled substance crimes.  Such information is precisely the type that the Minnesota Supreme Court has acknowledged can be used to establish the reliability of confidential informants.  Wiley, 366 N.W.2d at 269 n.1.  Accordingly, the district court did not err when it found probable cause for the search.

II.

            Black and Combes argue that the prosecutor engaged in several types of misconduct that resulted in an unfair trial.   But neither Black nor Combes objected to the prosecutor's conduct at trial.  We review unobjected-to error under the plain-error standard and may correct such error if it implicates the fairness and the integrity of the judicial proceedings.  Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  The plain-error standard is met only when the error is plain and affects a defendant's substantial rights by affecting the outcome of the case.  Griller, 583 N.W.2d at 740-41.

A.

            First, Black and Combes argue that the prosecutor called Bollin as a rebuttal witness solely for the purpose of impeaching Bollin with an inadmissible hearsay statement that he gave to Agent Cruze during the execution of the search warrant.  A party may not introduce hearsay, which is otherwise inadmissible, under the guise of impeachment because of the risk that the jury, even if properly instructed, will consider the prior statement as substantive evidence. Oliver v. State, 502 N.W.2d 775, 777-78 (Minn. 1993); State v. Dexter, 269 N.W.2d 721, 721-22 (Minn. 1978).

            Our review of the record establishes that there was no prosecutorial misconduct here.  On the day of the search, Bollin told Agent Cruze that Combes had asked Bollin about the availability of anhydrous ammonia and that Combes had provided Bollin with methamphetamine.  At trial, the prosecutor made a good-faith effort to offer, through Bollin, testimony consistent with that statement.  The prosecutor offered Bollin use-immunity and provided Bollin a transcript of the statement to refresh his recollection.  Despite these efforts, Bollin had difficulty reading the statement, and he could not remember what he said to Agent Cruze because Bollin had been under the influence of methamphetamine at the time.  At the end of the direct examination, Bollin denied that Combes had inquired about anhydrous ammonia or given him methamphetamine.  The prosecutor subsequently called Agent Cruze to testify about the contents of Bollin's prior statement.  This series of events establishes that the prosecutor did not call Bollin solely for impeachment.  Thus, appellants' claim of prosecutorial misconduct on this ground fails.

B.

            Second, Black and Combes argue that, during closing argument, the prosecutor impermissibly asked jurors to use an out-of-court statement made by Ertl as substantive evidence even though it was introduced at trial solely for impeachment purposes.  Ertl testified that she purchased nine or ten packages of pseudoephedrine for her personal use and stored them at the Black-Combes residence for her convenience.  As an impeachment witness, Agent Cruze testified that Ertl previously told him that she bought 14 or 15 packages of pseudoephedrine, that Combes paid for the pseudoephedrine, and that the medication was not for her personal use. 

The prosecutor made two references to Ertl's out-of-court statement during closing argument.  First, he compared Ertl's trial testimony with her statement to Agent Cruze and asked the jury, "Are you going to believe her or not?"  This was a permissible use of impeachment testimony and cannot be construed as prosecutorial misconduct.  Later, however, the prosecutor impermissibly characterized Ertl's out-of-court statement about the number of boxes she purchased as substantive evidence of how much was purchased.  While erroneous, this reference was so fleeting as to be harmless.  See Minn. R. Crim. P. 31.02 (stating that any error which does not affect substantive rights shall be disregarded).  As such, the error does not offer a basis for reversal.

C.

Third, Black and Combes challenge the prosecutor's statements during his opening and closing arguments about "taking responsibility."  In reviewing a prosecutor's statements, we examine the arguments "as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence."  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).  A prosecutor may talk about accountability, "in order to help persuade the jury not to return a verdict based on sympathy for the defendant, but the prosecutor should not emphasize accountability to such an extent as to divert the jury's attention from its true role of deciding whether the state has met its burden of proving defendant guilty beyond a reasonable doubt."  State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985).

Examining the prosecutor's opening and closing arguments as a whole, there were a total of three brief references to "taking responsibility" in more than fifteen pages of argument.  Along with these statements about responsibility, the prosecutor also reminded the jury that it was important to listen to the judge about how to apply the law to the facts.  Compared with the prosecutor's arguments in Montjoy, where the supreme court found no prosecutorial misconduct, the statements here were much more innocuous.  In Montjoy, the prosecutor referred to a "rule of accountability" and the jurors' role in maintaining the integrity of the entire justice system.  Id. at 108-09.  The brief references in this case about "taking responsibility for your actions" were insufficient even to establish a theme and did not distract the jury from its role.  Our review of the record establishes that the statements about "taking responsibility" do not rise to the level of prosecutorial misconduct or plain error.

III.

Black and Combes were convicted of conspiracy and attempt to manufacture methamphetamine.  They challenge the sufficiency of the evidence related to the criminal-agreement and intent elements of those offenses.

In considering a claim of insufficient evidence, our review is limited to an 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 evidence supporting the verdict 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, could reasonably conclude that the defendant was guilty of the charged offense.  Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004).

When a conviction is based on circumstantial evidence, the sufficiency of that evidence warrants particular scrutiny.  State v. Bolstad, 686 N.W.2d 531, 539 (Minn. 2004).  A conviction is supported by circumstantial evidence when the evidence as a whole excludes all reasonable inferences except the guilt of the defendant.  State v. Olhausen, 681 N.W.2d 21, 26 (Minn. 2004).

The essential elements of conspiracy are "(1) an agreement with another to commit a crime, and (2) an overt act in furtherance of the conspiracy."  State v. Olkon, 299 N.W.2d 89, 104 (Minn. 1980).  The essential elements of attempt are "(1) an intent to commit a crime, and (2) a substantial step taken toward the crime's commission."  Id.  There is sufficient circumstantial evidence to prove each element of conspiracy and attempt.  Black and Combes jointly occupied the residence in Watkins where large quantities of pseudoephedrine, equipment consistent with methamphetamine manufacture, and certain precursor chemicals were found.  Black and Combes went together to Willmar to purchase pseudoephedrine, although they entered the stores separately.  This evidence, in combination with Agent Cruze's testimony that methamphetamine production generally is a group activity, is sufficient to support the jury's finding of a criminal agreement and intent to manufacture methamphetamine.  This same evidence, particularly the discovery by police of a 500-day supply of pseudoephedrine that already had been removed from its packaging, also supports the conclusion that Black and Combes had not only engaged in an overt act in furtherance of their conspiracy, but had taken a substantial step toward completing the crime of manufacture.

Black and Combes presented evidence that the pseudoephedrine supply was for personal use to treat their allergies and that the many chemicals and blister packs in the house were used for craft projects.  But the jury was free to reject the credibility of testimony offered by defense witnesses, including Combes and Ertl, regarding the defense theory.  See State v. Blanche, 696 N.W.2d 351, 374 (Minn. 2005) ("Witness credibility determinations are strictly the domain of the jury.").  Deferring to the jury's credibility determinations, as we must, there is sufficient evidence to support the convictions.

Affirmed.