Opinion
No. C3-02-51.
Filed January 7, 2003.
Appeal from the District Court, Clay County, File No. K40159.
Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, and Lisa Borgen, Clay County Attorney, (for respondent)
Barry Voss, Voss Hickman, P.A., (for appellant)
Considered and decided by Peterson, Presiding Judge, Willis, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
This is an appeal from a conviction of and sentence for conspiracy to commit first-degree controlled-substance crime. Appellant Ramiro Gonzalez Alaniz argues that the trial court abused its discretion in ruling that he could not testify at trial about an alleged error in translation and by imposing a double upward departure at sentencing. Because we conclude that the error at trial was harmless but that the sentencing departure was an abuse of discretion, we affirm in part, reverse in part, and remand for imposition of the presumptive sentence.
FACTS
Appellant Ramiro Gonzalez Alaniz was charged with conspiracy to commit first-degree controlled-substance crime in violation of Minn. Stat. §§ 152.021, subd. 1(1), .096 (2000). The complaint alleged that on January 8, 2001, appellant conspired with Renae Garza, Ryan Lewis, and Alfredo Esquivel to sell more than ten grams of methamphetamine to an undercover officer, Derek Hill.
Officer Hill, a special agent with the North Dakota Bureau of Criminal Investigation, testified that he went to the mobile home of a police informant, Bobbi Sistad, in Moorhead that morning. There he met Garza, introduced to him as "Joe," who asked Hill if he was interested in buying some methamphetamine. Garza told Hill that he had 1 1/2 ounces of methamphetamine to sell. Hill, whom Sistad had introduced to Garza as a possible drug buyer, agreed that he probably could buy the methamphetamine for resale. The two agreed that Hill would return in the afternoon with the money for the purchase and for an additional pound of methamphetamine Garza also offered for sale.
Hill testified that, when he returned to Sistad's mobile home, Garza appeared very nervous. Garza made a phone call, speaking in Spanish. Phone records obtained by police showed that this call was placed to appellant's cell phone. Garza then made another phone call, this time to the residence of Alfredo Esquivel, another of the alleged conspirators. Garza told Hill that the pound of methamphetamine was on its way. When it did not arrive, Garza and Sistad left, driving a white pickup truck, to see why the delivery was taking so long. The surveillance officer could hear, by means of a wire worn by Hill, Garza's statement that they were "going to Ramiro's." At some point in this process, Garza made another phone call to appellant's cell phone.
When Garza and Sistad returned, Garza explained that one of "his guys" needed to find someone to watch appellant's children. (The state presented evidence that appellant had young children.) The three sat in the trailer waiting for the delivery. Someone called Garza, who told Hill, "That's my guy." Hill could see the caller's number on the cell phone Garza was using. It was the number police identified as appellant's cell phone. The phone records also showed that someone using appellant's cell phone called Garza twice in this time frame.
A small blue Honda eventually pulled up to the mobile home. Esquivel testified that this car belonged to appellant, and police confirmed that appellant was the registered owner. After the delivery was made and Garza and Hill completed the deal, Garza was arrested.
Sistad testified that, as soon as Garza was arrested, her phone started ringing. The phone call came from appellant's cell phone number. Shortly after, the blue Honda returned, driven by Ryan Lewis. It was followed closely by a blue pickup truck occupied by appellant and Alfredo Esquivel. Police arrested all three men. A cell phone, labeled "Ramiro's," was sitting on the seat next to appellant.
Alfredo Esquivel testified that he had been asked to store a pound of methamphetamine at his house. But when Garza arranged the deal with Hill, they repackaged the drugs at appellant's house in appellant's presence.
The state sought to introduce a transcript of a telephone call in Spanish between appellant and Garza that had been recorded by the jail where Garza was in custody following his arrest. The trial court overruled the defense objections to the transcript. The transcript, as read at trial, included the following comment by Garza, "The dude should say that and then we'll get rid of that chaquita [sic]." The translator who had translated the tape and was also serving as the interpreter for the trial explained to the court that the word Garza used was not "chaquita," but "chaqueta," a word that she had left in Spanish because it had so many meanings.
There is no word "chaquita" in Spanish. The word "chiquita" means "little girl."
The prosecutor offered to stipulate to the different meanings of "chaqueta." The trial court, however, ultimately ruled that the stipulation arrived at by the parties would not be admitted. Although the defense had rested, the trial court indicated that it would allow the defense to reopen its case so that appellant, who had indicated he wanted to testify about the reason he had gone to Sistad's trailer, could take the stand. The court allowed a recess for appellant to discuss with his attorney whether he should testify. Appellant, who volunteered to the court that Garza had used "chaqueta" to mean "problem," ultimately decided not to testify.
The jury found appellant guilty of conspiracy to commit first-degree controlled-substance crime. The trial court sentenced appellant to 172 months, a double upward departure, relying primarily on the "major controlled substance offense" aggravating factor.
DECISION I.
Appellant argues that the trial court abused its discretion in ruling that he could not testify about the meaning of the word "chaqueta," as used by Renae Garza in the taped phone call between Garza and appellant. Appellant argues that this ruling in effect prevented him from testifying on his own behalf, thus violating his right to due process.
The trial court has broad discretion in deciding questions regarding the admissibility of evidence, and its decision will not be reversed absent an abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). A criminal defendant has a due-process right to testify in his own defense. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993). A defendant's right to present evidence, however, is limited by the rules of evidence. See generally State v. Bjork, 610 N.W.2d 632, 636 (Minn. 2000).
In State v. Zeimet, 348 N.W.2d 338, 341 (Minn. 1984), the supreme court held that two lay witnesses were properly allowed to testify
that when the victims' mother said she "killed" her children she meant that she was morally responsible in the sense that she had left the children alone in the house.
Id. The court noted that it was a "difficult question" whether testimony about "the intended meaning of another in the words he speaks" should be allowed. Id. (quoting 3 D. Louisell C. Mueller, Federal Evidence § 376, at 625-26 (1979)). But the court concluded that, because both witnesses knew the speaker well and both heard her say the word "killed," they were properly allowed to give their opinion. Id. at 341-42.
Appellant knew Garza well, as a co-conspirator in a family drug operation, as well as a relation by marriage of appellant's brother. Moreover, appellant's conversation with Garza was replete with slang expressions, at least judging by its English translation. Appellant was not being asked to testify as an expert on the Spanish language or to explain the meaning of some technical or formal terminology that might call for expert testimony. Moreover, the fact that Garza was not available to testify to his intended meaning does not make appellant incompetent to testify on the meaning of their conversation or render his testimony irrelevant. The state was offering the telephone-call transcript as much for appellant's understanding of Garza's words as for their intended meaning itself.
A trial court's erroneous exclusion of defense evidence does not require reversal if the appellate court is satisfied beyond a reasonable doubt that, assuming the evidence had been admitted and its damaging potential fully realized, the average jury would have reached the same result. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994). Here, assuming that a reasonable jury heard appellant's testimony and believed that "chaqueta" was used to mean "problem," it would undoubtedly have reached the same result.
We reach this conclusion in part because the state's evidence against appellant was overwhelming. The circumstantial evidence thoroughly established appellant's involvement in the sale of cocaine to Hill. The state presented evidence that appellant communicated with Garza during the deal, that he owned two of the vehicles used in the delivery, that his house was used as a place to repackage the methamphetamine, that his cell phone was used in the operation, and that he was arrested with two of the participants outside the site of the deal almost immediately after it occurred. The testimony of both of the state's witnesses who were "insiders" to the conspiracy — the informant Bobbi Sistad and Alfredo Esquivel — fully established appellant's involvement in the sale.
The "chaquita" mispronunciation was left uncorrected in the eyes of the jury. But, even assuming the jury inferred that Garza and appellant were planning to do away with Sistad, that plan would have been cumulative, although highly dramatic, evidence of the conspiracy. Moreover, the prosecutor never suggested such a meaning in his closing argument.
The record does not support appellant's argument that the court's ruling on this issue violated his right to testify in his own defense. Appellant indicated a desire to testify and introduce documents, including a defense investigator's summary, concerning other issues. The court ruled those documents inadmissible. The record indicates that that ruling prompted appellant's on-the-record decision not to testify.
As appellant points out in his reply brief, a ruling need not preclude all the testimony a defendant could possibly offer in order to effectively deny his right to testify in his defense. See Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711 (1987) (indicating that a rule of evidence may not be applied to exclude material portions of the testimony, while permitting the defendant to take the stand). But the trial court's ruling on the "chaqueta" issue would have precluded only an apparently small part of appellant's testimony. We conclude that that ruling did not violate appellant's right to testify in his defense.
II.
Appellant argues that the trial court abused its discretion in imposing a double durational departure from the 86-month presumptive sentence. This issue largely involves the "major controlled substance offense" aggravating factor in the sentencing guidelines. See Minn. Sent. Guidelines II.D.2.b.(5).
The trial court has discretion to impose an upward departure if there are aggravating circumstances. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989). This court will reverse a sentencing departure only if there is a clear abuse of discretion. State v. Esler, 553 N.W.2d 61, 63 (Minn.App. 1996), review denied (Minn. Oct. 15, 1996).
In order for the "major controlled substance offense" aggravating factor to apply, the court must find that at least two of the circumstances listed are present. Minn. Sent. Guidelines II.D.2.b.(5). The first factor cited by the trial court, the sale of drugs "in quantities substantially larger than for personal use," is largely undisputed. Police seized 472.4 grams of methamphetamine following the controlled buy and discovery of an additional amount in one of the vehicles. This was described at trial as a "huge amount," at least for the Fargo-Moorhead area, and was far more than the amount typically possessed for personal use. But the state concedes that there is no evidence appellant used his position or status to facilitate the offense, as the trial court found. That leaves the "high degree of sophistication or planning" and appellant's alleged "high position in the drug distribution hierarchy," the other circumstances cited by the trial court, to supply the necessary second circumstance. See Minn. Sent. Guidelines II.D.2.b.(5)(e), (f).
The evidence at trial showed that Garza bragged of changing cell phones often to avoid detection, that he and the others used several vehicles and at least three residences, that they had access to "huge amounts" of methamphetamine from a family operation in California, and that they were very careful to conceal aspects of the operation from the buyer, Hill. On the other hand, they did not use sham businesses, employ pagers, use juveniles to deliver drugs, or create customer-identification numbers, as did the operation in State v. Kujak, 639 N.W.2d 878, 883 (Minn.App. 2002) (holding these facts supported upward departure on racketeering offense involving drug-dealing operation), review denied (Minn. Mar. 25, 2002). The drug operation was apparently family-run, and Garza agreed to sell a large quantity of drugs to Hill, a man he had just met, at a time when Garza was apparently under the influence of methamphetamine.
Garza's behavior included things like handing Hill the gun and telling Hill to shoot him if he thought Garza was ripping him off, and showing Hill appellant's phone number on the cell phone and saying, "That's my guy." Although the presence of a distant source of methamphetamines in California might be a sign of sophistication, this was a family operation exhibiting some signs of amateurism. Moreover, the state, which had two "insiders" within the operation available as witnesses at trial, presented minimal evidence concerning the planning or modes of operation involved in the conspiracy. Cf. State v. McIntosh, 641 N.W.2d 3, 10 (Minn. 2002) (holding that finding on factor (c), manufacture of drugs for use by other parties, had to be supported by evidence of sale of manufactured drugs).
The evidence that appellant held a high position in the drug hierarchy is even more speculative. The evidence, while establishing that appellant was thoroughly involved in the operation, with his cars, home, and cell phone in heavy use, does not show what position he held in it. Instead, while it paints a convincing picture of Renae Garza in the role of a drug kingpin, it leaves appellant's role less clear. There is no indication that appellant was directing Garza's activities. In fact, all the evidence was to the contrary. Garza boasted to Officer Hill that "he [was] the main man in the area" for methamphetamine and described it as "his operation." Sistad testified that Garza, not appellant, brought the drugs from California.
McIntosh described as "speculation" a conclusion that, because the defendant made several purchases of drugs in Chicago and supervised three people, he was in a "high position" in the hierarchy. Id. The evidence here that appellant occupied a "high position" is even less convincing.
The trial court cited three other departure factors: the presence of multiple victims or multiple incidents per victim, the possession of a gun by Garza, and the participation of three or more persons in the offense.
It is not clear whom the trial court counted as victims of the drug conspiracy, which in this case resulted only in a controlled buy by one undercover officer. The state concedes that this was not a proper aggravating factor. Moreover, appellant did not possess a gun during the offense, and there is no evidence that he was aware that Garza possessed a gun. See generally State v. Watts, 413 N.W.2d 192, 194 (Minn.App. 1987) (holding that double upward departure was supported, despite defendant's claim that he was a passive participant, in part because he was aware a gun was involved and force might be used); cf. State v. Graham, 410 N.W.2d 395, 397 (Minn.App. 1987) (holding that Watts's co-defendant's sentence could be enhanced based on aggravating factors caused by acts of accomplices), review denied (Minn. Sept. 30, 1987).
The guidelines allow a departure when a group of three or more persons participates in the crime. Minn. Sent. Guidelines II.D.2.b.(10). In many drug cases, however, this factor will largely duplicate the "major controlled substance offense" factor, because in most cases in which there is a high degree of sophistication or planning or a drug hierarchy in which a defendant could hold a high position, there will be at least three persons involved. Cf. State v. Hough, 585 N.W.2d 393, 397 (Minn. 1998) (noting participation of three or more persons was a valid grounds to depart for second-degree assault). We conclude that the participation of more than three conspirators cannot support the departure in this case where the state has failed to establish the "major controlled substance offense" factor.
Because the double departure is not supported by aggravating circumstances, we reverse the sentence and remand for imposition of the presumptive 86-month sentence.