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STATE OF MINNESOTA IN SUPREME COURT A06-974 Court of Appeals Anderson, G. Barry, J. Concurring, Anderson, Paul H., and Page, JJ. Took no part, Magnuson, C.J.

State of Minnesota, Respondent, vs. Filed: August 21, 2008 Office of Appellate Courts

Pedro Maldono Rodriguez, Jr., Appellant.

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Lori Swanson, Attorney General, St. Paul, Minnesota, for respondent. Scott A. Buhler, Assistant Polk County Attorney, Crookston, Minnesota, for respondent. Lawrence Hammerling, Chief State Appellate Public Defender, St. Paul, Minnesota, for appellant. Davi Elstan Forte Axelson, Assistant State Public Defender, St. Paul, Minnesota, for appellant. ________________________ SYLLABUS 1. The right of confrontation guaranteed by the Sixth Amendment applies in

jury sentencing trials.

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2.

Although appellants confrontation rights were violated by the admission of

a witnesss out-of-court testimonial statements at appellants jury sentencing trial, the violation was harmless beyond a reasonable doubt. 3. The Minnesota Rules of Evidence apply in jury sentencing trials, but any

error under the rules in admitting a witnesss statements at appellants jury sentencing trial was harmless. 4. The accomplice corroboration instruction requirement does not apply in

jury sentencing trials. 5. The district court erred in basing its upward sentencing departure for one of

appellants convictions on conduct underlying another conviction for which appellant was sentenced, but the error was harmless. Affirmed.

OPINION ANDERSON, G. Barry, Justice. Appellant Pedro Maldono Rodriguez, Jr., pleaded guilty to a number of drugrelated offenses, including conspiracy to commit controlled substance crime. On appeal, appellant asks us to reverse his sentence and remand for resentencing on the grounds that the district court erred in concluding that the Confrontation Clause and Minnesota Rules of Evidence do not apply in jury sentencing trials, that the district court declined to provide the sentencing jury an accomplice corroboration instruction, and that the district

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courts upward sentencing departure on the basis of appellants possession of a handgun was invalid. We affirm appellants sentence. On March 4, 2004, the Crookston Police Department learned from the Drug Task Force that appellant and A.W., appellants stepdaughter, were traveling from Texas to Crookston in a Ford Explorer with a large amount of cocaine and a handgun. In the early morning hours of March 5, a Crookston police officer observed the vehicle entering Crookston from the south on Highway 75 and followed the vehicle to Glen McGees residence on the south side of town. The officer observed McGee leave the vehicle carrying a small duffel bag with a jacket draped over it. After dropping McGee off at his residence, appellant and A.W. were pulled over on West Sixth Street in Crookston. A drug detection dog alerted to the presence or close association of controlled substances in the interior and exterior of the vehicle, and appellant was arrested. Polk County Deputy Sheriff Randy Sondrol bypassed the traffic stop and met Deputy Brad Johnson near McGees residence. Sondrol and Johnson spoke with McGee, who explained that he had traveled to Texas with appellant and A.W. When the officers told McGee that they had information that he had transported cocaine from Texas, McGee retrieved a bag containing 60 smaller baggies of cocaine from his bedroom closet. (Sondrol later submitted the cocaine to the Minnesota Bureau of Criminal Apprehension Laboratory, which detected 88.6 grams of cocaine in the 15 baggies it analyzed.) McGee also showed the officers where a .45 semi-automatic handgun, ammunition, and empty magazines were hidden in his bedroom, and the officers found a Hersheys syrup jug, which had been glued shut and cut below the spout, in McGees kitchen. 3

After being advised of and waiving his rights, McGee admitted to the officers that he, appellant, and A.W. had traveled to Big Wells, Texas, with the intention of purchasing drugs for resale. McGee explained that he gave appellant $12,000 to

purchase the drugs when they were in Texas and that appellant returned about 9 hours later with the sealed Hersheys jug containing cocaine. McGee said that although A.W. accompanied him and appellant on the trip, he did not think that A.W. knew about the cocaine. McGee also stated that the handgun belonged to appellant and that he had been to Texas with appellant on two prior occasions. McGee indicated that appellant made arrangements to purchase 30 pounds of marijuana on their first trip to Texas. McGee was arrested following his interview with the police.1 Following their interview with McGee on the morning of March 5, Sondrol and Johnson interviewed appellant. After being advised of and waiving his rights, appellant admitted that he and McGee had returned from buying cocaine in Big Wells, Texas. He explained that he bought about 16 ounces of cocaine from some friends in Texas with McGees money and that McGee was going to sell the drugs and share the profit with him. Appellant said that his 17-year-old stepdaughter, A.W., had accompanied them on the trip and that he brought the gun back from Texas because McGee said he would buy it with some of the proceeds from the sale of the cocaine. According to appellant, he and
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In a subsequent interview with Deputy Sondrol on May 10, 2004, McGee said that he had given appellant only $6,000 and that appellant provided the other $6,000 to purchase the drugs. McGee also stated that his two prior trips to Texas with appellant occurred in January and September of 2003. According to McGee, appellant claimed to have picked up 30 pounds of marijuana on the January trip and appellant returned from the September trip with almost 5 ounces of cocaine and a gun.

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McGee traveled to Texas to pick up drugs on one prior occasion. Finally, appellant admitted that he had probably given cocaine to minors at parties and that he had given cocaine to A.W. "[o]nce in a while." Appellant and his wife consented to a search of their residence, and the officers recovered marijuana paraphernalia and ammunition. On July 6, 2004, appellant pleaded guilty to four counts of controlled substance crime, one count of failing to affix a tax stamp, and one count of being a felon in possession of a firearm. Count I, the relevant crime in this appeal, was conspiracy to commit controlled substance crime in violation of Minn. Stat.

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