State of Minnesota, Respondent, vs. Roy Michael Duchene, Appellant.

State of Minnesota, Respondent, vs. Roy Michael Duchene, Appellant. A06-278, Court of Appeals Unpublished, May 15, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-278

 

State of Minnesota,

Respondent,

 

vs.

 

Roy Michael Duchene,

Appellant.

 

Filed May 15, 2007

Affirmed Worke, Judge

 

Kanabec County District Court

File No. K1-04-445

 

Lori Swanson, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy R. Brosnahan, Kanabec County Attorney, 18 North Vine Street, Suite 202, Mora, MN 55051 (for respondent)

 

John M. Stuart, State Public Defender, Susanne M. Senecal-Hill, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge 

            On appeal from convictions of aiding and abetting first-degree manufacture of methamphetamine, first-degree possession of methamphetamine, and possession of a short-barreled shotgun, appellant argues that (1) the search warrant lacked probable cause because of material misrepresentations of fact in the warrant application; (2) the district court abused its discretion by denying appellant's motion for a mistrial made after the prosecutor failed to disclose information to the defense; and (3) the district court abused its discretion by allowing the police expert witness to testify regarding the hazards of methamphetamine manufacture and what constituted circumstantial evidence of manufacturing.  We affirm.

 D E C I S I O N

Search-Warrant Application                          

            Appellant Roy Michael Duchene argues that the district court erred in determining that the search-warrant application contained no reckless or intentional material misrepresentations of fact and that there was probable cause to issue the warrant.  The state argues that appellant waived this argument by failing to raise the issue in the district court.  But the alleged misrepresentations in the search-warrant application were raised during the omnibus hearing.  Therefore, we may consider appellant's argument.

            On appeal from a pretrial order on a motion to suppress evidence, "we independently review the facts and determine, as a matter of law, whether the district court erred in its ruling."  State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006).  "The district court's factual findings are reviewed under the clearly erroneous standard, but we review the district court's legal determinations de novo."  Id.

            Although we normally presume the validity of an affidavit supporting an otherwise valid search warrant, "this presumption is overcome when the affidavit is shown to be the product of deliberate falsehood or reckless disregard for the truth."  State v. McGrath, 706 N.W.2d 532, 540 (Minn. App. 2005), review denied (Minn. Feb. 22, 2006).  The defendant has the burden of showing by a preponderance of the evidence that the affiant included a false statement in the affidavit knowingly or with reckless disregard for the truth.  Id.  "Innocent or negligent misrepresentations will not invalidate a search warrant." Id.  We review a challenged affidavit's components as a coherent whole rather than in isolation, and we will not engage in a hypertechnical examination of the affidavit.  State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985); State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996).

            Here, officers went to appellant's property to arrest another individual.  Appellant told the officers that the person they were looking for was not there.  An officer told appellant that the police had received information that methamphetamine was being manufactured on his property.  Appellant broke into a sweat and denied that methamphetamine was being manufactured there.  An officer asked appellant if he could look around, and appellant told the officer to "go ahead."  After noting nothing out of the ordinary in the garage, the officer smelled a strong, pungent orderone that he associated with methamphetamine labscoming from a utility trailer.  The officer observed vats of solution in partially open lockers in the trailer.  The officer told appellant that he found items that led him to believe that it was a methamphetamine lab.  Appellant agreed that it looked like a methamphetamine lab and asked the officers for 24 hours to clean it out.  Appellant was detained, and the officers asked to continue their search.  Appellant refused to consent to a further search.  An officer told appellant that he was going to apply for a search warrant, to which appellant replied: "I'm f****d."   

            When the police returned with a search warrant, they found a sawed-off shotgun and several items associated with the manufacture of methamphetamine.  In appellant's home officers found items associated with the use and distribution of methamphetamine.  Samples of the liquids found were sent to the Bureau of Criminal Apprehension and tested positive for methamphetamine. 

            Appellant argues that the search warrant was invalid because the warrant application includes a material misrepresentation that the officer "observed two to three mason jars, partially filled with a liquid and a toluene container" in the trailer.  Appellant contends that during the omnibus hearing, the defense established that the officer did not see liquid in the jars or a toluene container.  But during the hearing, when asked whether all he really saw were empty jars, the officer responded that he was sure that there was liquid in the jars, but as it turned out there was not. 

            Appellant has not met his burden of showing by a preponderance of the evidence that the search-warrant application included a false statement made knowingly or with reckless disregard.  The officer testified that he was sure that he saw liquid in the jars, and the district court believed his testimony.  See State v. Kramer,668 N.W.2d 32, 38 (Minn. App. 2003) (recognizing that the district court, as the fact-finder, is in the best position to evaluate the credibility of witnesses and is "the sole judge of credibility"), review denied (Minn. Nov. 18, 2003).  Therefore, because appellant failed to show that the search-warrant application included a deliberate or reckless misrepresentation, the affidavit was valid. 

            Appellant argues that without the challenged statement in the search-warrant application, the remaining allegations do not establish probable cause to search his property.  We have already determined that appellant failed to show that the officer deliberately or recklessly made a misrepresentation of fact; therefore, we do not need to determine whether there was probable cause to issue the search warrant without that statement.  Further, appellant concedes that the officer's statement regarding the liquid in the containers was critical for a probable-cause determination.  Thus, because the officer's statement was not a material misrepresentation and because appellant concedes that the statement helps give rise to probable cause, the search warrant was valid and the district court did not err in denying appellant's motion to suppress.              

Prosecutor's Failure to Disclose

Appellant argues that the district court abused its discretion when it denied his motion for a mistrial based on the state's failure to disclose.  This court reviews the denial of a motion for a mistrial for abuse of discretion.   State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003).   The district court should deny a motion for a mistrial "unless there is a reasonable probability that the outcome of the trial would be different if the event that prompted the motion had not occurred."  State v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006) (quotation omitted).   

A prosecutor is required to "provide defense counsel with the substance of any oral statements which relate to the case."  Minn. R. Crim. P. 9.01, subd. 1(2).  "[District] courts have broad discretion in imposing sanctions for violations of the discovery rules."  State v. Patterson, 587 N.W.2d 45, 50 (Minn. 1998).   "A [district] court's determination [of a remedy for a discovery violation] should be reversed on appeal only when the prosecutor's misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that [the] defendant's right to a fair trial was denied."  State v. Scanlon, 719 N.W.2d 674, 685 (Minn. 2006) (quotation omitted).  "Any discovery-related misconduct on the part of the state is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error." Id. (quotation omitted).  In determining sanctions for discovery violations, this court considers: "(1) the reason why the disclosure was not made; (2) the extent of the prejudice . . . ; (3) the feasibility of rectifying that prejudice with a continuance; and (4) any other relevant factors."  Id.

            Here, officers searched a trailer on appellant's property where another individual, B.U., resided.  An officer had spoken with B.U. and believed that he displayed behavior of someone under the influence of a controlled substance.  But nothing of evidentiary value was found in B.U.'s trailer.  Appellant moved for a mistrial because the state failed to disclose that officers searched B.U.'s trailer and did not find anything in it.  Appellant argued that his case was prejudiced because the state's failure to disclose undermined his trial strategy, which was to allude to B.U. being the party manufacturing methamphetamine.  Appellant's attorney also argued that his credibility was damaged because in his opening statement he stated that appellant was charged without the officers searching B.U.'s trailer.   

            The state conceded that the search of B.U.'s trailer was not included in the police reports and that the issue came up when the prosecutor asked the officers if the trailer had been searched.  The state asserted that the information was not reported to appellant's attorney because it was not exculpatory and assured the court that it did not intentionally fail to disclose the information.  The district court denied appellant's motion for a mistrial, but gave a jury instruction regarding the state's failure to disclose.  Appellant's attorney prepared the jury instruction, which stated:

                        [I]n every criminal case, the state has the obligation to tell the defense what evidence it intends to introduce at trial.  In this case . . . Sheriff Schulz testified that he searched a particular location of [appellant's] property.  This information was not provided to the defense prior to Sheriff Schulz's testimony.  Thus, defense counsel was not aware until Sheriff Schulz testified that he performed this particular search.           

 

There is not a reasonable probability that the outcome of the trial would have been different if the state had disclosed that B.U.'s trailer was searched.  First, the state's failure to disclose was inadvertent.  Second, appellant was not prejudiced because the statement was not exculpatory.  Additionally, the jury heard that B.U. lived on appellant's property and that an officer believed that B.U. was under the influence of a controlled substance.  The jury also heard that the trailer where many of the items associated with methamphetamine manufacture were found was near B.U.'s trailer and that anybody could access that trailer.  Finally, there is more than sufficient evidence for the jury to have convicted appellant, including the methamphetamine lab that was on his property; methamphetamine and items associated with methamphetamine distribution and use were found in appellant's home; appellant appeared nervous when the officers questioned him, he asked the officers for time to clean up the lab, and told the officers that he was "f****d" when they told him they were applying for a search warrant.  Finally, the district court rectified any prejudice by instructing the jury.  Appellant claims that the jury instruction was inadequate, but appellant's attorney wrote the instruction.  And we presume that the jury followed the district court's instructions.  State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).  Therefore, the district court did not abuse its discretion in denying appellant's motion for a mistrial.

Expert Testimony

            Appellant argues that the district court abused its discretion by permitting the officer who dismantled the methamphetamine lab to testify as an expert witness beyond the bounds permissible for an expert.  Appellant did not object to the officer's testimony.  When evidence is admitted without objection, this court reviews the district court's decision for plain error.   State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); Minn. R Crim. P. 31.02.   Under this standard, appellant must establish error that was plain and that affected substantial rights.  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  An appellant "bears a heavy burden of persuasion to show that the error was prejudicial and affected the outcome of the case." Bernhardt v. State, 684 N.W.2d 465, 475 (Minn. 2004) (quotation omitted). 

Appellant contends that the district court should not have permitted the officer to testify about the hazards of methamphetamine manufacture and what constituted circumstantial evidence of manufacturing.  Expert testimony is admissible if it will assist the jury in understanding the evidence or determining a fact in issue.  State v. Ritt, 599 N.W.2d 802, 811 (Minn. 1999); Minn. R. Evid. 702.  To be properly admitted, expert testimony must enhance the jury's ability to reach conclusions about matters that are not within its experience.  State v. DeShay, 669 N.W.2d 878, 888 (Minn. 2003).   "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."  Minn. R. Evid. 704.  But in general, expert opinions involving legal analysis or mixed questions of fact and law are not admissible.  State v. Saldana, 324 N.W.2d 227, 230 (Minn. 1982).

Here, the officer, a certified clandestine-laboratory technician trained in the investigation and dismantling of methamphetamine labs, testified about the manufacturing process.  The officer described the three primary steps in manufacturing methamphetamine, the items used in each step, where these items are found, the availability of commonly used solvents, and the fumes and odors produced by the process.  The officer also explained the dismantling process, including the dangers associated with dismantling, how evidence is gathered, the hazardous nature of the chemicals and the waste produced, and disposal of the waste.  The officer also testified regarding what he considered circumstantial evidence of methamphetamine manufacturing, stating that common household items found with manufacturing equipment and/or a finished product is indicative of a methamphetamine lab. 

Appellant has not shown that admitting the officer's testimony was plain error that was prejudicial and affected the outcome of the case.  The officer's testimony assisted the jury to understand the evidence and was properly admitted because the officer did not offer a legal analysis.  The testimony was especially helpful because appellant argued that the officers failed to find several necessary components for manufacturing.  But the officer explained that the manufacturing process is commonly conducted in several different places to avoid detection.  Additionally, because methamphetamine is manufactured using commonly used household products and cold/allergy medication, the mere presence of these items may not lead an average person to believe that they are being used to manufacture methamphetamine.  Therefore, the testimony regarding circumstantial evidence was helpful for the jury to understand that seemingly "innocent" items can be used to manufacture methamphetamine.  The district court did not commit plain error in permitting the officer's expert testimony.

            Affirmed.