State of Minnesota, Respondent, vs. Troy Michael Payton, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-02-1379

 

 

State of Minnesota,

Respondent,

 

vs.

 

Troy Michael Payton,

Appellant.

 

 

Filed July 22, 2003

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. 00056501

 

John Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant Troy Michael Payton challenges his conviction of felon in possession of a firearm.  Appellant contends a new trial is required, because the district court abused its discretion by allowing a police officer to testify to the contents of an informant's tip.  Because the error in admitting the evidence was harmless, we affirm.

FACTS

 

            The facts surrounding appellant's arrest are addressed in detail in State v. Payton, No. C6-01-65 (Minn. App. Nov. 27, 2001), and will not be repeated here.  Following his arrest, appellant was charged with one count of felon in possession of a firearm in violation of Minn. Stat. § 624.713 (1998).  Appellant was convicted of the felon-in-possession charge, but, because the jury was exposed to prejudicial testimony, the conviction was reversed, and the matter was remanded to the district court.  Id. 

            Appellant's theory on remand was that the informant, M.P., had set up appellant.  Appellant called Detective Chris Omodt, the deputy who contacted Minneapolis police officer Don Bautista, to testify at the second trial.  Omodt testified that he had worked with M.P. for about ten years, that M.P. used an alias, had a lengthy criminal record, and had been in jail many times.  The deputy testified that he had given M.P. money in exchange for information 12-15 times since.  And M.P. has also bartered information in exchange for more lenient sentencing.

            Omodt testified that on June 26, 2000, M.P. called him from the corner of 26th and Nicollet, in Minneapolis, and told him a person named "Troy" could be found nearby carrying a gun.  M.P. gave a description of the suspect, which was relayed by Omodt to Bautista.  When asked by appellant's counsel whether M.P. was frightened, Omodt responded "That's correct."  But the record does not indicate whether appellant was the cause of this fear.  Omodt also testified that he gave M.P. $200 just days after appellant's arrest. 

            During cross-examination, the state asked Omodt to elaborate on what M.P. had told him.  Over appellant's clear objection, Omodt testified that M.P. had called Omodt from a drug-treatment facility, stating that appellant had asked for a ride home.  According to Omodt's testimony, M.P. was

scared of Payton. * * * [M.P.] said Payton [had] a handgun in his possession.  And he was afraid that he would get stopped with Payton in the vehicle * * *.  And then get jammed up on a case involving a felon in possession. 

 

            The district court allowed the prosecutor to question Omodt about his conversation with M.P., concluding that appellant opened the door to this line of questioning.  Appellant did not renew his objection or request a curative jury instruction.  The jury returned a guilty verdict.  This appeal followed. 

D E C I S I O N

 

            The only issue raised on appeal is whether the district court committed reversible error by allowing Omodt to testify as to the contents of his conversation with the informant.  The district court has considerable discretion when making evidentiary rulings and will not be reversed unless that discretion is abused.  State v. Bjork, 610 N.W.2d 632, 636 (Minn. 2000).  If the district court erred in admitting evidence, we determine whether there is a reasonable possibility that the improperly admitted evidence significantly affected the outcome.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  The error is prejudicial if there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence.  Id. 

            In criminal cases, law enforcement officers may testify that they received a tip in order to explain why they were conducting surveillance.  State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002).  But it is well settled that law-enforcement officers are not permitted to relay hearsay statements under the guise of explaining how the investigation came to focus on a particular person.  Id. (citing State v. Williams, 525 N.W.2d 538, 544 (Minn. 1990)). 

            Of critical importance is whether the hearsay evidence goes to the central issue of the case: the defendant's guilt or innocence.  Id. at 183.  For example, in Litzau, the supreme court ordered a new trial in part because the jury was exposed to hearsay evidence that went to the central issue of whether the defendant possessed drugs when a police officer testified that a confidential reliable informant told him that the defendant was transporting drugs in his car.  Id. at 184.  The supreme court also held in Williams that a police officer's testimony that an informant told the officer that the defendant was working as a drug courier and that the appellant was carrying crack cocaine contributed to the court's decision to order a new trial.  Williams, 525 N.W.2d at 545.  Similarly, a district court abused its discretion by allowing an officer to tell the jury that an informant told him the defendant planned to rob a convenience store.  State v. Ford, 322 N.W.2d 611, 615 (Minn. 1982).

            Here, the district court allowed hearsay evidence to get to the jury.  Omodt testified that the informant, M.P., was scared.  Omodt's testimony also disclosed that appellant was allegedly at a drug-treatment center, a fact both irrelevant and damaging.  Most importantly, the jury also learned through this hearsay evidence that appellant was in possession of a gun.  Based on this record we conclude that the district court abused its discretion. 

The state argues that appellant failed to object to the admission of this testimony and opened the door to this evidence by seeking to undermine the informant's credibility during his direct examination of Omodt.  The state's argument, however, is not in accord with the facts.  Contrary to the state's contention, appellant did object to the hearsay testimony.  In fact, the district court initially sustained appellant's objection before concluding that appellant had opened the door to the line of questioning concerning the content of the informant's tip. 

The state also contends that appellant opened the door to this line of questioning by seeking to discredit M.P.  A defendant cannot legitimately complain about the state eliciting information from a witness when the defendant elicited similar information during his examination.  See State v. Cermak, 365 N.W.2d 243, 247-48 (Minn. 1985) (stating where a defendant tried to cast doubt on the police methods used during a child-sexual-abuse investigation and suggested that the children were coached into making false statements, the state was allowed to introduce hearsay evidence in order to provide additional information to the jury about the investigation); State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (holding where a defendant questions witnesses about their gang affiliations, the state is allowed to question a defendant about his affiliations), review denied (Minn. Sept. 20, 1995); Marshall v. State, 395 N.W.2d 362, 366 (Minn. App. 1986) (holding where a defendant brings up past convictions in order to establish his credibility, he cannot later claim the district court erred in allowing the convictions into evidence),  review denied (Minn. Dec 17, 1986). 

While the record presents conflicting evidence as to whether M.P. was frightened of appellant, or worried about a potential arrest for felon in possession of a firearm, or both, appellant's inquiry at trial as to whether M.P. was frightened goes to M.P.'s state of mind and has no bearing on the contents of the tip itself.  Put more directly, appellant never opened the door to allowing the state to question Omodt about the actual content of the informant's tip. 

A police officer can testify about the existence of an informant's tip simply to show why the officer was investigating a particular suspect, but the state may not use such evidence to prove a defendant's guilt.  State v. Purdy,278 Minn. 133, 147, 153 N.W.2d 254, 263 (1967).  But allowing Omodt to testify that M.P. was frightened of appellant or of a felon-in-possession charge and that appellant had a gun was error because the district court improperly allowed the state to disclose the contents of the tip. 

We turn next to the issue of whether the improper admission of this testimony was harmless error.  "[A]ppellate courts must look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict."  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (citation omitted).  In completing a harmless-error-impact analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather what effect the error had on the jury's verdict.  State v. King, 622 N.W.2d 800, 811 (Minn. 2001).  In particular, we ask "whether the jury's verdict is ‘surely unattributable' to [the error]."  Id. (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

During the state's cross-examination, Omodt testified that M.P. provided a description of appellant and that M.P. was frightened.  But while the jury may have been unclear as to whether the informant was frightened of appellant or the possibility of a felon-in-possession charge, in either case this information adds little to what the jury already knew.  The jury already knew Bautista had been given a description of the suspect and that appellant met that description.  The jury learned that M.P. was frightened for undisclosed reasons.  The jury also knew that M.P. was at a treatment facility, but the record is not entirely clear that appellant was also enrolled in the program.  Omodt was improperly allowed to testify that M.P. told him a man named "Troy" possessed a gun.  But the impact of this testimony is offset by the fact that Bautista saw appellant holding a gun.  The officer also saw appellant place the gun in the location from which the police ultimately seized it.  Given these facts, and that appellant was in possession of the gun when he was arrested, we conclude that the admission of the contents of the informant's tip was harmless error. 

Affirmed.