Opinion
No. A03-1316.
Filed September 28, 2004.
Appeal from the District Court, Kandiyohi County, File No. K800278.
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, and Boyd Beccue, Kandiyohi County Attorney, (for respondent)
John M. Stuart, Minnesota Public Defender, Sharon E. Jacks, Assistant Public Defender, (for appellant)
Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Kevin Richard Litzau argues that (1) because the identity of the confidential informant who provided the tip leading to his arrest and conviction was not revealed, he could not mount a proper defense and, therefore, was denied a fair trial; and (2) the admission of testimony about the content of the tip was prejudicial error, which entitles him to a new trial. Because we conclude that the district court did not err in refusing to release the identity of the informant, and that the jury's verdict is surely unattributable to testimony about the content of the tip, we affirm.
FACTS
On February 22, 2000, Atwater Police Chief Reed Schmidt received a tip from an informant indicating that the informant saw methamphetamine in the air cleaner of Litzau's car, a 1984 Crown Victoria, and that Litzau would be picking up the car sometime that day. Based on this information, the police placed Litzau's car under surveillance.
Later that evening, Litzau arrived in a different car and drove away in the Crown Victoria. Officer Jason Abbott followed Litzau and eventually stopped him. Abbott asked Litzau if he could search the car, and Litzau consented to a search.
Chief Schmidt arrived soon after with a dog that reacted to something in the air cleaner of Litzau's car. The police found small plastic bags of a rock-type substance in the air cleaner. Litzau told Abbott that he did not know that the bags were in the air cleaner. Litzau was arrested. Laboratory tests later determined that the bags contained 86.5 grams of methamphetamine. Litzau was charged with, and convicted of, one count of first-degree controlled-substance crime.
On appeal, Litzau claimed prejudicial error in the admission of testimony that the informant told the police that Litzau was transporting controlled substances in his car and argued that the trial court erred in not requiring the prosecution to disclose the identity of the informant. Litzau also claimed that he was deprived of a fair trial because (1) the trial court admitted expert testimony about possession with intent to sell; (2) a witness briefly referred to appellant's invocation of his Miranda rights; and (3) the trial court instructed the jury that it could infer appellant's knowing possession of methamphetamine from the fact that he was the driver and in control of the vehicle in which the methamphetamine was discovered.
This court affirmed appellant's conviction, and the supreme court later granted review. See State v. Litzau, No. C3-00-2099, (Minn.App. Nov. 20, 2001), review granted (Minn. Jan. 29, 2002). In affirming appellant's conviction, this court held that the trial court properly exercised its discretion in withholding the identity of the informant, that appellant waived his right to complain about testimony concerning the specific details of the informant's tip, and that any error in the admission of such evidence was, in any event, harmless.
The Minnesota Supreme Court reversed the decision of this court and remanded the case to the district court for a new trial. See State v. Litzau, 650 N.W.2d 177, 187 (Minn. 2002). The supreme court held that the cumulative effect of the admission of hearsay testimony relating to the substance of the confidential informant's tip, drug-dealer-profile evidence, unsolicited references to appellant's invocation of his rights to silence and counsel, and submission of a permissive-inference instruction to the jury deprived appellant of a fair trial. Id.
On remand, appellant again moved for disclosure of the informant's identity. The district court conducted an in camera hearing with the informant and denied the motion for disclosure upon concluding that the informant could not provide any exculpatory evidence and that disclosing the informant's identity would jeopardize the informant's safety.
The district court also ruled that the officers could testify that they acted based "on information received," but the officers could not discuss the substance of the informant's tip in any way.
After a jury trial, appellant was found guilty and sentenced to a 98-month prison term to run consecutively to a prior sentence. This appeal followed.
DECISION
Identity of Confidential Informant
On remand, appellant moved to compel disclosure of the informant's identity. The district court conducted an in camera inquiry of the informant and denied the motion to compel disclosure. In denying the motion, the district court found that the informant's in camera testimony was credible and that the informant could not provide any exculpatory evidence. The court concluded that the informant was not a material witness for the defendant and that the informant's safety would be jeopardized by disclosure of the informant's identity.
Appellant argues that had he known who the informant was, he could possibly have mounted a defense based on the allegation that the informant framed him. He contends that the court's refusal to compel disclosure of the informant's identity prevented him from mounting this defense, and that he was therefore deprived of a fair trial.
Whether to require the state to disclose an informant's identity is within the trial court's discretion. State v. Martinez, 270 N.W.2d 121, 122 (Minn. 1978). On appeal, this court will review the court's sealed record to determine whether the court abused its discretion in not disclosing the informant's identity. See e.g. State v. Brunes 373 N.W.2d 381, 385-86 (Minn.App. 1985) (reviewing sealed transcript from in camera hearing to determine whether trial court erred in not disclosing informant's identity), review denied (Minn. Oct. 11, 1985).
Courts have held that an informant's identity should be disclosed when the informant is an active participant in the offense charged or a material witness to the offense charged. See Roviaro v. United States, 353 U.S. 53, 60-64, 77 S. Ct. 623, 628-29 (1957) (finding both active participation and material witness to charged offense contribute to disclosure of informant's identity); State v. Werber, 301 Minn. 1, 8-10, 221 N.W.2d 146, 150-51 (1974) (discussing active participation in charged offense). But "when an informant is a mere transmitter of information and not an active participant so as to be a competent witness to the crime itself, the informant's name need not be disclosed." State v. Villalon, 305 Minn. 547, 549, 234 N.W.2d 189, 191 (1975) (citation omitted). This court has also held that "the state has a strong interest in protecting the identity of informants in the drug world." State v. Smith, 448 N.W.2d 550, 556 (Minn.App. 1989), review denied (Minn. Dec. 29, 1989).
Nothing in the transcript of the in camera hearing indicates that the informant was an active participant in the offense charged or a material witness to the offense charged; the informant was a mere transmitter of information, and the transcript supports the district court's conclusion that disclosure of the informant's identity would jeopardize the informant's safety. We find no abuse of the district court's discretion in denying appellant's motion to compel disclosure of the informant's identity.
Testimony relating to the content of the tip
Appellant argues that he should be granted a new trial because the testimony of three officers involved in his arrest revealed the content of the informant's tip, as opposed to the existence of the tip.
A trial court has discretion to admit evidence that police received a tip that led them to place a particular person or location under surveillance. State v. Ford, 322 N.W.2d 611, 615 (Minn. 1982). But "a police officer testifying in a criminal case may not, under the guise of explaining how [the] investigation focused on defendant, relate hearsay statements of others." State v. Williams, 525 N.W.2d 538, 544 (Minn. 1994) (citations omitted). Evidence that there was a tip may be admitted to explain the police conduct, but the content of the tip should not generally be admitted if the risk that the jury would consider the content as substantive evidence of the defendant's guilt is significant. Ford, 322 N.W.2d at 615.
The trial court specifically ruled that the content of the tip was not admissible. Appellant claims that, despite this ruling, three officers revealed the content of the tip in their testimony. Appellant cites the following portions of Chief Schmidt's and Officer Shawn Boyer's direct testimony.
Schmidt testified:
Q: Now while the officers were maintaining surveillance were you monitoring or being kept informed of what was happening?
A: Correct. We were in radio communications the whole time as far as any activity and everything that was going on.
Q: Were your officers aware of a — the description of the defendant or what he looked like?
A: Yes, they were. We had received a sheet, a release sheet, on — on Mr. Litzau and — when he was released from —
Q: And then what did you — Was there a photo in there?
A: Yes, there was.
Q: And that was distributed to your officers?
A: Yes, it was.
Boyer testified:
Q: And, Officer, had you also been made aware of, by a photograph, of the description of the defendant?
A: Yes.
Q: So you knew what he looked like and you knew what the car looked like?
A: Yes.
. . .
Q: Why don't you describe, please, what happened when the defendant arrived at the Crown Vic?
A: Okay. I was — I stayed in my location, and I could see the defendant come up in a blue Regal. He pulled into the driveway. I observed — I observed him get out of his vehicle, which I identified him from the picture as being Mr. Litzau. He then went to the tan Crown Victoria, started the engine, and then he went into the house. A short time later he came out of the house, got into the tan Crown Vic, and left the residence.
Appellant argues that Schmidt's testimony that he began surveillance of the car based on a tip that he received about appellant and that all officers involved in the case were given photographs of appellant and Boyer's reference to the photograph imply that the tip indicated that appellant had an illegal substance in his car. But neither officer's testimony reveals anything more than that a tip led them to place appellant's car under surveillance. The fact that the officers had photographs of appellant implies nothing more than that the tip involved appellant, which is information that may be revealed to the jury. The testimony does not reveal the content of the tip under the guise of explaining how the investigation focused on appellant's car.
Appellant also argues that Officer Abbott's testimony revealed the content of the tip. Abbott testified:
Q: Were you on duty specifically in the afternoon, or do you recall when? How did that occur?
A: I was called in that evening.
Q: Once you were called in, Officer, what happened?
A: I was informed that there was a tip about a vehicle that had some drugs in it.
Q: And then what did you do?
A: Waited until the suspect we were waiting for to come and pick up the vehicle.
Abbott's testimony reveals that the tip indicated that there were drugs in a vehicle. The testimony also reveals that the police had a suspect, but it does not indicate whether the tip identified the suspect.
Abbott's testimony about the substance of the tip should not have been admitted, but an error in admitting evidence does not automatically result in reversal of a conviction and a new trial. See State v. Juarez, 572 N.W.2d 286, 291 (Minn. 1997). The conviction may stand so long as the admission of the evidence was harmless beyond a reasonable doubt. Id. "If the verdict rendered is `surely unattributable' to the error, then the error is harmless beyond a reasonable doubt and the conviction stands." Id. at 292.
The only information presented to the jury by Abbott's testimony about the content of the tip was that the police had received a tip that there were some drugs in a vehicle. But it was undisputed at trial that police found drugs in appellant's car. The defense theory of the case was that appellant did not know that the drugs were in the car and had not placed them there. In light of the undisputed evidence that drugs were actually found in appellant's car, the jury's verdict is surely unattributable to Abbott's testimony that the police had received a tip that there were some drugs in a vehicle. Therefore, any error in admitting the evidence was harmless beyond a reasonable doubt.