*1 Minnesota, Respondent, STATE RODRIGUEZ,
Pedro Maldono
Jr., Appellant.
No. A06-974. Court Minnesota.
Supreme
Aug. *3 handgun. amount of cocaine and a
large early morning of March In the hours police officer observed the vehi- Crookston entering cle south on Crookston 75 and followed the vehicle to Highway the south Glen McGee’s residence on side of town. The officer observed McGee carrying a small duffel léave vehicle draped it. bag jacket with over After residence, off dropping McGee *4 pulled and were over on pellant A.W. West drug Sixth Street in Crookston. A detec- the dog presence tion alerted to or close of controlled in the association substances General, Swanson, Attorney St. Lori vehicle, and interior exterior MN, Buhler, Polk Paul, A. Assistant Scott appellant was arrested. Crookston, MN, Attorney, for re- County spondent. County Deputy Randy Polk Son- Sheriff bypassed stop the traffic and met drol Ap- Hammerling, Chief
Lawrence near McGee’s resi- Deputy Brad Johnson Defender, Forte Davi Elstan pellate Public spoke and Johnson with dence. Sondrol Defender, Axelson, State Public Assistant McGee, that he had éxplained who traveled Paul, MN, appellant. for St. appellant to Texas with and A.W. When they in- the officers told McGee that had OPINION had transported that he cocaine formation ANDERSON, BARRY, G. Justice. Texas, bag retrieved a con- McGee Rodriguez, baggies of cocaine from taining Pedro Maldono smaller (Sondrol Jr., drug- to number later pleaded guilty a his bedroom closet. submit- offenses, conspiracy to the Minnesota Bureau of including ted the cocaine to related Laboratory, crime. On which Apprehension commit controlled substance Criminal his in the 15 grams asks us to reverse detected 88.6 cocaine appeal, appellant also resentencing analyzed.) remand for on McGee showed baggies sentence and a court erred the officers where .45 semi-automatic grounds the district ammunition, empty maga- concluding handgun, the that Confrontation bedroom, and the Rules of Evidence do zines were hidden his and Minnesota trials, Hershey’s syrup jug, found apply officers provide glued the sen- had been shut cut below district court declined to tencing accomplice spout, an corroboration in McGee’s kitchen. instruction, court’s and that the district waiving his being advised of and After on basis sentencing departure admitted to officers rights, McGee was possession handgun appellant’s he, Big to and A.W. had traveled appellant, affirm sentence. invalid. We Wells, Texas, pur- the intention of with 4, 2004, for McGee ex- chasing drugs Police resale.
On March
the Crookston
$12,000 to
gave appellant
Task
that he
Department
Drug
plained
learned from the
they
A.W.,
drugs
were
when
appellant
appellant’s purchase
Force that
appellant
and that
returned about
traveling from Texas Texas
stepdaughter, were
Hershey’s jug
later
the sealed
Explorer
in a
with
hours
with
to Crookston
Ford
I,
possession of a
said that al-
firearm. Count
the rele-
containing cocaine. McGee
accompanied him and
though
appel-
appeal,
conspiracy
A.W.
vant crime
this
he did not think that
trip,
lant on
A.W.
commit controlled substance crime
cocaine.
also stat-
knew
McGee
about
152.096,
§
violation of Minn.Stat.
subd.
handgun
appellant
belonged
ed that the
152.021,
1(1),
(2006),
§
Minn.Stat.
subds.
appel-
had been to Texas with
that he
3(b)
2(1),
(2002),
152.0261,
§
Minn.Stat.
lant on two
occasions. McGee indi-
609.11,
(2006),
§
subds.
and Minn.Stat.
arrangements
cated that
made
appellant
(2006).
subd. 5a
On
August
marijuana
purchase
on their
pounds
County
Polk
District Court sentenced
trip
first
Texas.
was arrested
McGee
pellant
imprisonment
months
interview
following
police.1
with
conviction,
conspiracy
reflecting
up-
departure
with
ward
based
find-
Following their interview
McGee on
court’s
morning
ings
major
March
Sondrol and
offense was
con-
appellant.
offense,
Johnson interviewed
After be-
trolled
that there
substance
were
ing
waiving
rights, ap-
advised of
participants,
three or more active
and that
pellant
admitted
he and McGee had
juvenile
was present during the commis-
Wells,
buying
Big
returned from
cocaine
offense;
sion of
imprison-
158 months
*5
explained
bought
Texas. He
that he
about
first-degree
ment for
possession
a con-
cocaine from
ounces of
some friends in
sell,
trolled substance with intent to
be
to
money
Texas with McGee’s
and that
concurrently
conspiracy
served
with the
going to
the drugs
McGee was
sell
sentence;
imprisonment
and 60
months
Appellant
share
with
profit
the
him.
said
firearm,
being
possession
a felon
of a
to
17-year-old
A.W.,
that
stepdaughter,
his
consecutively
served
to the conspiracy
had
them
accompanied
trip
on the
and that
sentence.
he brought
gun
the
back from Texas be-
On
the
appeal,
appeals
court of
conclud
said
buy
cause McGee
he would
it with
appellant’s
ed that
Sixth Amendment
proceeds
some of the
the
from
sale of the
“[bjecause
rights were violated
the district
According
cocaine.
appellant,
to
he and
court
imposed
up
sentence that
is an
pick
McGee
to
up drugs
traveled
Texas to
ward
departure
durational
pre
the
Finally,
on one
occasion.
appellant
sumptive
solely
judicial
sentence based
on
admitted that he
probably given
had
co-
ly found facts.”
Rodriguez,
State v.
No.
parties
caine to minors at
and that he had
(Minn.
A04-2192,
2005 WL
at *1
given cocaine to
A.W.
a while.”
“[o]nce
19, 2005),
(Minn.
App. July
rev. denied
Appellant and his wife consented to a
2005).
Sept.
appeals
re
court
residence,
search of their
and the officers
versed and remanded for
resentencing
marijuana
recovered
paraphernalia
with
Blakely
accordance
Washington,
ammunition.
U.S.
S.Ct.
159 L.Ed.2d
July 6,
On
appellant pleaded guilty
(2004).
Id.
to four counts of controlled substance
crime,
remand,
one count of
to
failing
affix a tax
On
trial was
stamp,
being
and one count of
a felon in held to determine the
aggra-
existence of
subsequent
In a
Deputy
interview with
January
September
Son-
of 2003. Accord-
McGee,
May
drol
ing
on
said
appellant
McGee
that he had
to
claimed to have
$6,000
given appellant only
appel-
picked
pounds
up
marijuana
on
$6,000
provided
lant
purchase
January trip
other
appellant
returned from the
drugs.
September trip
McGee also stated that his two
with
co-
almost
ounces of
prior trips
appellant
gun.
Texas
with
occurred
caine and a
time,
lengthy period
occurred over a
an
sen-
supporting
vating factors
request,
geographic
At
area of dis-
the State’s
involved
broad
tencing departure.
aggravating
ruled that
the Sixth
fac-
court
bursement.2 The other
the district
confrontation and
right
sentencing jury
Amendment
tors found
were
apply
do not
of Evidence
juveniles
Minnesota Rules
appellant
sold cocaine
sentencing trials and
McGee’s
offense,
during the
course
admissible.
police
were
statements to
group
of a
part
offense
committed as
witness, and
the sole
Sondrol was
Deputy
actively
all
persons
of three or more
who
informed of the
jury was
crime,
participated
appel-
and that
appellant pleaded
six counts to
guardian, or
parent,
legal
lant was the
objected
admis-
guilty. Appellant
juvenile
was present
caretaker of a
who
police
recorded
statement
sion of
own
during the commission
the offense. The
irrelevant;
po-
McGee’s first recorded
as
adopted
sentencing jury’s
district court
foundation, hearsay, and
on
lice statement
it had
findings and reinstated the sentence
grounds; and McGee’s second
relevance
imposed.
previously
hearsay,
rele-
police statement
recorded
appealed the district court’s
vance,
grounds. The
and confrontation
affirmed,
judgment.
appeals
The court of
objec-
appellant’s
court overruled
district
(1)
concluding that
of hear
admission
tions,
were
recordings
and the
received
light
say
ap
evidence was harmless
Finally,
court
the district
into evidence.
ad
statement
pellant’s
request
give
denied
(2)
guilty plea hearing,
missions
sentencing jury
accomplice
corrobora-
of the United
Confrontation Clauses
States
tion instruction.
*6
apply
Constitutions do not
and Minnesota
sentencing jury
aggrava-
found four
The
(3)
trials,
jury sentencing
the Minnesota
conspiracy to
appellant’s
factors for
ting
apply
jury
do
Rules of Evidence
substance crime convic-
commit controlled
(4)
trials,
sentencing
any
failing
error
aggravating factor found
tion. The first
cor
sentencing jury
accomplice
an
give
jury
appellant’s
was
by the
harmless, and
roboration instruction
major
a
controlled sub-
conspiracy was
(5)
imposition
of
sentences
consecutive
offense,
by the
supported
stance
which was
appellant’s Sixth Amend
did not violate
at
following findings:
offense involved
jury-trial right.
Rodriguez,
ment
transactions in which
separate
least three
(Minn.App
431-33
738 N.W.2d
sold,
trans-
substances were
controlled
.2007).
petition for
appellant’s
We granted
so;
ferred,
possessed with intent to do
or
review.3
an
actual
attempted or
the offense involved
of controlled substances
sale or transfer
I.
substantially larger
for
than
quantities
The
in this
presented
first
issue
use; appellant
pos-
personal
knowingly
right
of confrontation
case whether
during
a
the commission of
sessed
firearm
ap
Amendment
offense;
by
a
the Sixth
guaranteed
offense involved
trials.
planning,
degree
sophistication
plies
or
high
previously granted respondent’s motion
necessary
We
Only
findings
two
were
3.
of these
appellant’s
III
brief
to strike section
major
"a
conspiracy to
con-
for the
constitute
section
respondent’s motion
strike
deferred
offense” under Minn. Sent.
trolled substance
appeal
on the
pending consideration of
II
II.D.2.b(5).
Guidelines
Respondent’s
to strike section
merits.
motion
granted.
brief is
II
rights
a
component
that his
under
Con Clause is
core
right
contends
were violated
the ad
a
trial.
frontation Clause
trial of
mission at his
Apprendi
pleaded
defendant
McGee’s
recorded
statements.
guilty to two
second-degree pos
counts of
rights
confrontation
Whether
defendant’s
session
a firearm for an
pur
unlawful
have
“is a
of law
question
been violated
pose and one count
third-degree
unlaw
de
that we review
novo.” State War
possession
antipersonnel
ful
of an
bomb.
(Minn.2007).
same,
684, 689
469-70, 120
530 U.S.
S.Ct. 2348. Pursu
allowing
ant to a
Jersey
The Sixth Amendment of the United
New
statute
court
provides as follows:
trial
to sentence
defendant
States Constitution
“to
term imprisonment”
extended
where
prosecutions,
In all criminal
the accused
trial court finds that the crime was com
enjoy
right
shall
to a
speedy
purpose
mitted for the
intimidation
trial, by an
public
impartial jury of the
race, color, gender,
“of
handicap,
the basis
State and district wherein the crime
religion,
ethnicity,”
sexual
orientation
committed,
shall
which dis-
have been
2C:44-3(e) (West 2000),
§
Stat.
N.J.
Ann.
previously
trict shall have been
ascer-
requisite
the trial court
finding
made
law,
tained
and to
informed of
be
and enhanced the defendant’s sentence.
accusation;
nature
and cause
468-71, 120
530 U.S.
S.Ct. 2348.
against
with the
confronted
witnesses
him;
compulsory process
to have
for
Supreme
Court reversed the defen-
favor,
obtaining witnesses
and to
dant’s sentence and struck down the New
have the
Assistance
Counsel
Jersey
unconstitutional,
statute as
conclud-
defence.
“[ojther
ing that
than the fact
of a
conviction, any fact that
pen-
increases the
U.S. Const. amend. VI. The Confronta
alty for a
beyond
prescribed
crime
tion
Sixth
guar
Clause of the
Amendment
statutory maximum must be
submitted
“the right
antees
defendant
...
to be
jury,
proved beyond
a reasonable
against
confronted with
witnesses
490-92, 497,
doubt.” Id. at
him.”
S.Ct. 2348.
Id.
Noting that “the historical foundation for
*7
A.
recognition
our
principles
these
extends
analysis
Our Confrontation Clause
law,”
down centuries
the
into
common
the
is guided by the
Supreme
United States
explained
Court
that “trial by jury has
recognition
Court’s
require
fundamental and been understood to
that ‘the truth
historical
importance
right
accusation,
the
to trial
every
preferred
whether
by jury
right of
indictment,
and the
cross-examination
shape
information,
the
in Apprendi
466,
New Jersey,
v.
530 U.S.
appeal, should
by
afterwards
confirmed
2348,
120
(2000),
S.Ct.
679
prudence:
every
the
ac-
of the Unit-
that
“truth
the Constitution
mentaries on
(first
(4th
1873)).
against
al-
a
ed.
cusation”
defendant “should
States 540-41
ed
added).
by
be confirmed
the unani-
afterwards
teration
suffrage
mous
of twelve of his equals
Appren
applied
Court
Supreme
Blackstone,
neighbours,”
W.
Washington, in which
Blakely
rule in
di
England
Commentaries on
Laws of
guilty
had
to sec
pleaded
the defendant
(1769),
that “an
accusation
kidnapping involving domestic
ond-degree
any particular
which lacks
fact which
of a firearm. 542 U.S. at
violence and use
punish-
makes essential to
law
298-99,
trial court
turned to the sessed in the crucible cross- Amendment, quoting the Sixth Black- 61, examination.” at 124 541 U.S. S.Ct. “ ‘open that observation exami- stone’s 1354. The at a jury sentencing admission ... is much more con- nation witnesses trial of testimonial a statements of witness ” clearing up to the of truth.’ at ducive Id. not testify previ- who did and who has 61-62, (quoting 124 1354 3 Black- S.Ct. ously subject been cross-examination stone, Eng- Commentaries the Laws of surely constitutes the “use ex paHe (1768)). 373 land against examinations as evidence the ac- cused,” which is “the Accordingly, Supreme principal Court evil at held prohibits which the Confrontation that Confrontation Clause Clause was direct- the “admission of testimonial statements of ed.” at 124 S.Ct. Id. 1354. Because at appear who did not trial un- witness cross-examination is core of a component testify, he was less unavailable trial, right jury defendant’s we hold had had a opportunity defendant right of confrontation guaranteed 53-54, Id. 124 cross-examination.” at by applies the Sixth Amendment Court that explained S.Ct. “the sentencing trials.5 principal evil at which the Confrontation interpretation Our of Apprendi, Blakely, was directed was the civil-law Clause mode supported is our own Crawford procedure, of criminal and particularly its case law and rules of criminal procedure. parte use of ex examinations as evidence Adams, In State v. we stated that due accused,” against the that stated “[t]he process guarantees a right defendant the interpreted Sixth Amendment must be confrontation in certain pro- with this at focus mind.” Id. ceedings: S.Ct. 1354. It well recognized is that a trial judge 477, 120 In at Apprendi, 530 U.S. is not bound the same rules of evi- Blackstone, (quoting S.Ct. 2348 Com in sentencing dence as the trial in mentaries, 343), Blakely, at 542 U.S. is defendant convicted. Howev- at (quoting S.Ct. 2531 Black er, process due guarantees the defen- stone, Commentaries, 343), the Supreme at notice, dant an opportunity heard, to be emphasized right Court have a confrontation and cross-examination of “ ” every find ‘the truth accusation’ be witnesses extended sentence hear- yond trial-by- reasonable doubt. This ings. jury requirement, explained the Court “ (Minn.1980) (internal Apprendi, great ‘the bulwark [our] ” omitted). citations recognize We political civil and liberties.’ 530 U.S. at process Adams involved a Story, challenge due (quoting S.Ct. 2348 Com 54(M1). mentaries, Furthermore, rather than a at confrontation challenge and emphasized Court sentencing proceeding in Adams Crawford requires Confrontation pursuant the re was conducted to a statute that liability of testimonial statements be as- repealed.6 has since been See id. 535- interpret 5. Because we sentencing proceeding Confrontation 6. The issue in *9 Clause of the Minnesota Constitution identi- was an hearing" Adams "extended sentence cally to the (1978) Confrontation of the (repealed § Clause Unit- under Minn.Stat. 609.16 Constitution, Dukes, 1978, 1, 1980), ed States State May provided effective which (Minn.1996), N.W.2d imposition the Confrontation for the anof "extended term of Clause of the applies imprisonment” Minnesota Constitution pre- for a defendant had who jury in sentencing trials viously felony. as well. been convicted of a if to stands that the defendant wishes insofar as Adams is instructive But 36. alleged support the facts in of an Apprendi, deny before that even demonstrates by a trial aggravated altered the sentenc- sentence have Blakely, Crawford landscapes, jury judge, prosecutor Clause a or a will be ing and Confrontation the confrontation prosecution sensitive to to have the wit- required we were sentencing. testily defendants at in court in rights open of nesses the defen- presence, dant’s the defendant Furthermore, in v. Dett we held right, through will have the defense expressly, “that a defendant must man counsel, to these question witnesses. intelligently voluntarily, and knowingly, of jury to a determination right his waive Whether the defendant waives b. de sentencing an supporting facts right testify to in have these witnesses guilty- at his before his statements parture presence ques- the defendant’s and be may his hearing be used to enhance plea by tioned defense counsel. (Minn. 650-51 sentence.” right In of a the absence confrontation
2006). “that a defendant’s waiver Noting trials, sentencing would be no jury there jury a trial on the elements right to 15.01, Minn. reason for R.Crim. P. subd. knowing, intelligent, must be offense a “the require to defendant waive ” voluntary,” that there is we concluded “the right question the witnesses and differentiating be principled “no basis for in the right testify to have these witnesses trial right jury of the tween a waiver questioned presence defendant’s of an and waiver on the elements offense added). (emphasis defense counsel.” Id. jury right determination Despite the fact that the current version at sentencing factors.” Id. aggravating 15.01, P. was not in Minn. R.Crim. subd. observed, “arise rights,” 651. “Both we sentencing jury found effect when the guaran from the same Sixth Amendment fac- pellant guilty aggravating of the four holding behind our tee.” Id. The rationale tors, our conclusion that the rule informs our supports conclusion Dettman right of confronta- the Sixth Amendment jury right applies of confrontation jury trials. applies tion sentencing trials —if the Sixth Amendment jury trial sentenc B. right jury applies to a trials, ing right then the cross-examina Having right held that tion, jury component is a core guaranteed by the Sixth confrontation trials. right, applies trial jury sentencing tri applies in Amendment als, ap must next determine whether we relationship right between rights confrontation were violated pellant’s of confrontation right trial and by the admission 15.01, in Minn. P. also reflected R.Crim. trial recorded state of McGee’s provides as follows:
subd. which Confronta Crawford, the ments. Under accepts the court an admission Before prohibits tion “admission aggravated support of facts in of an of a witness who testimonial statements sentence, sworn the defendant shall be he un appear at trial unless did not by the with questioned court testify, had and the defendant available fol- ... as to the assistance of counsel opportunity had cross-examina lowing: 53-54, 1354. tion.” 541 124 S.Ct. U.S. Supreme Court stated a. has Whether defendant Crawford by police taken officers and under- “[statements been told defense counsel *10 682 interrogations ly are ... the course unattributable to the admission of statements,
testimonial under even narrow stan- McGee’s then the district 52, at 124 dard.” Id. S.Ct. 1354. The admitting court’s error in the statements on its expounded Court definition “tes- and appellant’s was harmless is sentence ex- Washington, timonial” Davis reversible Confrontation Clause plaining ... made in “[statements grounds. police interrogation ... the course are Sentencing Minnesota Guide objec- testimonial when the circumstances provide lines aggra a nonexclusive list of tively ongo- indicate that there is no ... vating justifying upward factors sentenc ing emergency, primary pur- and that the ing departures. Minn. Sent. Guidelines pose interrogation is to or establish II.D.2. first aggravating factor found prove past potentially events relevant jury was that appel prosecution.” 813, later criminal 547 U.S. conspiracy “major lant’s was a controlled 2266, S.Ct. 224 L.Ed.2d offense,” substance is defined “as (2006). police McGee’s statements to the an offense or series of offenses related May 10, on March are trafficking in controlled substances under clearly under “testimonial” this standard. circumstances more onerous than the Additionally, testify McGee did not usual offense.” Minn. Sent. Guidelines pellant’s (despite trial II.D.2.b(5). The presence of or two availability), no appellant had more of seven aggravating delineated cir opportunity cross-examine him. cumstances renders an major offense a Therefore, admission we hold that the controlled substance offense. Id. The appellant’s trial sentencing jury found appellant’s police McGee’s recorded statements vio- conspiracy to commit controlled sub rights
lated confrontation un- stance crime a major constituted con der the Amendment. Sixth trolled substance offense based on the presence C. following of the aggravating cir cumstances: the offense involved at least Our holding appellant’s con separate three transactions which con rights frontation the Sixth under Amend sold, transferred, trolled substances were ment were violated the admission of possessed so; or with intent to do police McGee’s recorded statements does offense involved an attempted or actual not end our for such inquiry, violations sale or transfer of controlled substances subject analysis.” “are to harmless error quantities substantially larger than for Ferguson, State v. 656-57 use; (Minn.2007). personal appellant knowingly pos We have stated that for a sessed a firearm during the commission Confrontation “violation to offense; and the harmless, deemed offense involved it must be harmless be high yond degree sophistication or plan reasonable doubt.” State v. Court (Minn.2005). ning, ney, over lengthy period occurred N.W.2d “An time, error beyond involved a broad geographic harmless reasonable doubt actually if the area disbursement. guilty verdict ren admit dered was ted ‘surely unattributable’ to the statement to the that he Juarez, error.” Id. at (quoting purchased approximately 16 ounces of co (Minn.1997)). N.W.2d sell, There caine for McGee and the fore, if sentencing jury’s findings infer Deputy could Sondrol’s testi aggravating factors in this mony regarding case were sure- typical drug users that *11 companied and McGee on their larger appellant than substantially quantity this Furthermore, ordinary trip use. to Texas. personal guilty plea at his appellant admitted sentencing jury’s findings of the The was commit- conspiracy hearing in aggravating four factors this case were to on January about ted from on or to the admission surely unattributable lengthy is a which or about March statements, police which McGee’s recorded time, imported the and that he period of to ad- largely were cumulative Texas, into Minnesota cocaine his police in his interview and at missions area of disburse- geographic ais broad Therefore, the hearing. admis- guilty plea jury’s Accordingly, sentencing ment. violation of sion of McGee’s statements in to appellant’s conspiracy finding that appellant’s right guaran- confrontation crime consti- controlled substance commit harm- by teed Amendment was Sixth of- major controlled substance tuted beyond less a reasonable doubt. surely unattributable fense was of McGee’s statements admission II. trial. jury sentencing pellant’s Having concluded that the Confrontation findings sentencing jury’s trials, we applies in also factors were aggravating of the other next the Minnesota consider whether unattributable to the admission surely sentencing jury in apply Rules of Evidence aggrava statements. second McGee’s jury at his sen- Appellant objected trials. jury sentencing ting factor found of McGee’s tencing trial to the admission juveniles sold cocaine appellant was that on founda- police first recorded statement Ap conspiracy. during course tion, hearsay, grounds and relevance in to the admitted his statement pellant re- to the admission McGee’s second “probably” given cocaine that he had police hearsay police corded statement drugs to given that he had to minors and argues that grounds.7 Appellant relevance while,” did and McGee A.W. in “[o]nce refusing apply in erred the district court re any information police provide jury his the rules of evidence at of cocaine garding appellant’s provision trial. aggravating factor juveniles. The third Rule of Evidence Minnesota was that the sentencing jury found 1101(a) other “[ejxcept as provides part committed as conspiracy was 1101(b), in R. Evid. Minn. provided” wise persons all or more who group of three to all actions “apply the rules of evidence crime, ap in the actively participated this the courts of in proceedings hearing guilty plea at his pellant disclosed R. Evid. Although Minn. state.” his McGee statement 1101(b)(3) of evidence that the rules states were and the seller of the cocaine Texas for ... sen apply “[p]roceedings do not Finally, sen crime. involved jury it makes no reference tencing,” appellant found that was tencing lan plain sentencing trials. Under or caretaker of a legal guardian, parent, 1101(a), rules R. guage of Minn. Evid. present during the com juvenile who trials, apply of evidence appellant conspiracy, mission exception as an are not listed police that which statement to the admitted his therefore, 1101(b). We, ac- Minn. R. Evid. A.W., 17-year-old stepdaughter, vant, acknowledges that state- objected but he now to the admission of also properly admitted. ment was police statement as irrele- his own recorded *12 ty that Minnesota of inherently untrustworthy, hold Rules Evidence is ac- “[a]n apply sentencing trials that the complice any instruction ‘must be given in ruling district court erred con- any criminal case which witness against trary.8 might reasonably defendant be consid- ” an accomplice ered to the crime.’ State v. The “[e]rroneous admission Lee, (Minn.2004) 309, 683 N.W.2d 316 not evidence does have constitutional (quoting 475, 441 Shoop, State N.W.2d implications is if harmless there is no ‘rea (Minn.1989)). 479 possibility wrongfully sonable that the ad significantly mitted evidence affected the accomplice The ” corroboration re Robinson, verdict.’ 718 State v. N.W.2d 634.04, quirement, § MinmStat. is a statu (Minn.2006) 400, Post, 407 (quoting tory protection created legislature, 99, (Minn.1994)). 512 n. 2 N.W.2d 102 For and we cannot disregard the unambiguous the same we reasons deem the Confronta language pretext statute “under the harmless, tion Clause violation we also pursuing spirit,” § [its] Minn.Stat. 645.16 conclude that there is possi no reasonable (2006). “Conviction” is defined as “[t]he bility that significant McGee’s statements process act judicially finding someone ly sentencing jury’s findings affected the (as guilty of a crime” and judgment “[t]he the four aggravating factors in case. this verdict) by jury person guilty hold, therefore, any We error on the a crime.” Black’s part Dictionary of the Law 358 district court in admitting (8th ed.2004). McGee’s recorded Minnesota statements Statutes § contravention of the Minnesota Rules of 634.04 and corresponding accomplice Evidence was harmless. corroboration requirement instruction do apply trial,
not in a jury sentencing occurs defendant has been convict III. after recognize ed. We principles un argues also that his due derlying § Minn.Stat. applicable 634.04 are process rights were violated when the dis to a sentencing jury’s findings aggrava trict court give declined to sentencing factors, ting but it is prerogative jury an accomplice corroboration instruc legislature, court, not this extend tion at his trial. Under statute accordingly. We hold that the ac (2006), § MinmStat. 634.04 conviction “[a] complice corroboration instruction require upon cannot be had testimony anof ment apply does not accomplice, sentencing unless is corroborated such trials and that other evidence as the district court tends to convict thus did defendant of the not commission of err in denying appellant’s request fense.” Because an accomplice’s credibili- accomplice corroboration instruction.9 8. We also note that R. Minn. Evid. 9. § 1101 Minnesota Statutes 634.04 and ac- 1977, adopted long companying accomplice Supreme before the corroboration in- requirement provide struction defendants Court rendered Apprendi, its decisions in 530 greater protection than did the law common 466, 2348, U.S. 120 S.Ct. 147 L.Ed.2d requirement give cautionary that courts "a Blakely, 542 U.S. 124 S.Ct. concerning weight instruction of [accom- Accordingly, L.Ed.2d a jury sen- plice] testimony.” Armstrong, State v. tencing trial is proceeding as (1960). Minn. 101 N.W.2d contemplated when Minn. R. Evid. 1101 was applicability The law common rule in adopted. jury sentencing trials is an issue that is not properly before us. Losh, (quot affirmed.” N.W.2d
IV.
McIntosh,
8);
see
ing
also
us is
final issue before
“If the reasons upward a significant on. This sentence is inadequate, but parture] improper are sentencing guide- what the departure is sufficient evidence the record there require.1 We have now held departure will be lines justify departure, involving major substance upward depar- controlled durational The 120-month See substantially aggravating factor. this crime imposed in case is ture Osborne, (Minn. N.W.2d upward depar- greater than the durational sentence, 2006) (imposing a 225-month imposed by other district courts in cases tures fact-finding jury properly found aggravating were factors that that there departure in
support Rodri- But, we have con-
guez’s sentence. also errors,
cluded there were albeit harm- errors, part process
less were reaching this result. It is possible
used upon may remand district court impose
still the same sentence notwith- errors, I
standing these and conclude that legal
if did so such a sentence would be Nevertheless, *14 I
under our decision. am remand, upon convinced dis- reimpose the
trict court would same sen- Therefore, so. light
tence or should do upward
of the district court’s substantial
departure and the errors that occurred I
during sentencing, would remand for re- light of our holding, rather
than affirm the court’s sentence.
PAGE, (concurring). Justice join
I in the concurrence Paul Justice
H. Anderson. Minnesota, Respondent,
STATE of
v. MILLER, Appellant,
Franklin Alan Miller, Alan
Franklin Petitioner-
Appellant, Minnesota, Respondent.
State of A05-2519,
Nos. A07-2195.
Supreme Court Minnesota.
Aug. 2002) sentence, which was a departure (imposing 67-month a 122-month sentence); presumptive from the upward departure 158-month which was a 24-month McIntosh, (Minn. sentence). presumptive from the 98-month