State of Minnesota, Appellant, vs. Kimber Casey Dundas, Respondent.

This opinion will be unpublished and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

A03-2

State of Minnesota,

Appellant,

vs.

Kimber Casey Dundas,

Respondent.

Filed August 12, 2003

Affirmed in part, reversed in part, remanded

Lansing, Judge

Scott County District Court

File No. 2001-04622

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

Patrick J. Ciliberto, Scott County Attorney, Michael J. Groh, Assistant County Attorney, Government Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for appellant)

Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., Suite 140, 2499 Rice Street, Roseville, MN  55113-3724 (for respondent)

            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this pretrial appeal from a discovery order in a possession-of-methamphetamine prosecution, the state alleges two reversible procedural errors:  first, that the district court judge impermissibly ordered disclosure of information on alleged confidential informants, which had been denied by a previous judge, and, second, that disclosure was ordered without an in camera review.  We conclude that the district court acted within its discretion in reopening the omnibus hearing to consider a new disclosure motion, but prematurely issued the disclosure order without an in camera hearing to balance the importance of the information to the defense against the state's interest in withholding the identity of the confidential informant.  We therefore remand to the district court to conduct an in camera review.

            Acting on a tip from a confidential reliable informant, agents of the Southwest Metro Drug Task Force and an officer from the Shakopee Police Department obtained a narcotics search warrant for Room 160 of the Shakopee Park Inn & Suites.  When police executed the search warrant, they found three chunks of an off-white substance in a ziplock bag on a bed in the hotel room.  The chunks weighed 101 grams and tested positive for methamphetamine.

Kimber Dundas, who was in the room, was arrested and charged with first-degree controlled substance crime.  Two other individuals, Lori Aretz and Kurt Anderson, had entered the room with Dundas but left before police executed the warrant.

            In a recorded statement, Dundas told police that she had flown from California to Minnesota that day.  She said that she had brought methamphetamine with her from California "to party with" and that she was going to give it away to friends.  The police also interviewed Aretz, who said she met Dundas at the hotel after Anderson picked Dundas up at the airport.  Aretz said she saw the methamphetamine before she and Anderson left the room to shoot pool in another part of the hotel.  Anderson provided a statement saying that he had picked Dundas up at the airport and took her to the hotel room. He said that he had observed Dundas holding the package of drugs and watched her and Aretz weighing the drugs.

During discovery, Dundas served notice of intent to rely on an entrapment defense and requested disclosure of the identities of all confidential reliable informants, the details of any payment or promises made to them, information on any prior testimony, evidence of any psychiatric treatment, and any evidence of their use of controlled substances.  The district court judge ordered an in camera review, listed the contents of the file, advised defense counsel that the information would not assist the defense, and returned the file to the state.

            Following the appointment of a new public defender to represent Dundas, the defense brought a motion before a second district court judge for disclosure of any promises of payment, benefit, immunity, leniency, or other inducements made specifically to Aretz or Anderson; any record of payment made to Aretz or Anderson, any information about their prior testimony, and their complete BCA record and criminal history.

The state opposed the motion, contending that Dundas had failed to establish the need for disclosure, that Dundas failed to establish a basis for an entrapment defense, that the state did not intend to call Aretz or Anderson as witnesses, and that Dundas's motion sought to relitigate a request that had previously been denied.  The district court agreed with the state that Dundas had not established a prima facie case of entrapment but determined that the requested information was relevant to witness credibility and motivation and ordered disclosure of all requested information.  The state appeals from that order.

D E C I S I O N

To prevail in a pretrial appeal the state is generally required to show that the district court clearly erred and that the error will have a critical impact on the proceedings.  State v. Joon Kyu Kim, 398 N.W.2d 544, 550-51 (Minn. 1987).  The pretrial appeal of a discovery order, however, does not require the threshold proof of critical impact.  State v. Cain, 427 N.W.2d 5, 9-10 (Minn. App. 1988).  The district court has considerable discretion in granting or denying a discovery request, but if a legal issue is embedded in the exercise of discretion, its determination is subject to de novo review.  See, e.g., State v. Renneke, 563 N.W.2d 335, 337 (Minn. App. 1997) (applying de novo review to statutory component of district court's decision to release police officer's personnel file).  Because the issue of whether the court erred in reopening the omnibus hearing turns on the application of a court rule, our review on that issue is de novo.

I

            The state relies on Minn. R. Crim. P. 11 for its contention that the second district court judge did not have the authority to reopen the omnibus hearing to consider the disclosure motion of Dundas's new public defender.  According to rule 11, the omnibus hearing is intended to dispose of all issues prior to trial, and "except in extraordinary circumstances" the district court judge "will adhere to the findings and determinations" of the judge who presided at the omnibus hearing.  Minn. R. Crim. P. 11 cmt.  For two reasons we reject the state's argument that reopening the omnibus hearing violated rule 11.

First, Dundas's disclosure motion is not a challenge raised at trial to earlier omnibus hearing findings, but rather a request to reopen the omnibus hearing during the discovery process.  See, e.g., State v. Montjoy, 366 N.W.2d 103, 107 (Minn. 1985) (distinguishing between motion to reopen omnibus hearing during trial and motion to reopen before trial).  To fulfill its essential purpose, an omnibus hearing is necessarily informal.  See State v. Needham, 488 N.W.2d 294, 296 (Minn. 1992) (discussing how omnibus hearing is conducted in practice).  Consistent with public policy favoring the correction of errors at the trial level, the supreme court has recognized the validity of motions to reopen an omnibus hearing.  See Montjoy, 366 N.W.2d at 107-08 (holding that prosecutor properly moved for clarification and reopening omnibus order).  Thus, even though the rules of criminal procedure do not specifically authorize motions to reopen omnibus hearings, the district court retains inherent authority to grant reconsideration when necessary.  State v. Papadakis, 643 N.W.2d 349, 356-57 (Minn. App. 2002). 

Second, the precise discovery request made of the second judgeinformation relating to specifically identified individualsis not the same as that made of the first judgenamely, the identity of previously undisclosed CRI's.  Therefore, the state's second discovery request raised a new issue before the district court.  The state has provided no authority that would preclude the district court from considering a new discovery request.  The fact that a second judge presided over the reopened omnibus hearing does not limit the court's inherent power to grant relief.  See Montjoy, 366 N.W.2d at 107(noting that reopened hearing was held before a different judge).  Thus, we conclude that the district court did not err in reopening the omnibus hearing to consider the second disclosure motion.

II

In the second disclosure order the district court ordered the state to disclose records or evidence of past payments or future promises of payment to Aretz or Anderson for their services as controlled-substance-offense informants, records or evidence of promises of past or future immunity or leniency for their services as CRI's, information relating to any proceeding in which they testified as CRI's, and the BCA's criminal history for Aretz and Anderson.  The state contends that the district court erred in ordering broad discovery of the CRI activity without first conducting an in camera review of the information requested.

The government generally enjoys a privilege to withhold the identity of persons who furnish information to law enforcement officers.  Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627 (1957).  When the disclosure of an informant's identity is relevant and helpful to the defense or is necessary for a fair determination of the issues, "the state's privilege to withhold the informant's identity must give way."  State v. Litzau, 650 N.W.2d 177, 184 (Minn. 2002).  In Roviaro, the United States Supreme Court discussed the policy implications and enunciated a balancing test for determining whether nondisclosure was erroneous :

The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. 

Id., 353 U.S. at 62, 77 S. Ct.at 628-29.

            Applying the balancing test to the facts of this case is impeded by the absence of a determination on whether Aretz and Anderson are confidential reliable informants.  The disclosure order requires information that either establishes or refutes their CRI status.  But it also requires significant additional information that may or may not be relevant to this prosecution.  To issue an order that forces broad disclosure without first applying the balancing factors circumvents the weighing of the competing interests and distorts the balancing process.  Therefore, an in camera review is necessary to determine Aretz and Anderson's role in Dundas's prosecution.  It is in the course of this determination that the district court may properly consider whether the broad scope of the ordered disclosure is necessary or proper.

The factors that the court may consider in determining whether disclosure is necessary in order to ensure a fair trial include:  (1) whether an informant is a material witness; (2) whether the informant's testimony will be material to the issue of guilt; (3) whether the testimony of the law enforcement officer is suspect; and (4) whether the informant's testimony might disclose entrapment.  Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979).  To determine whether an informant is a material witness, the supreme court in Syrovatka adopted the analysis set forth by Judge Weinstein, which states that even if an informer is an eyewitness to a crime, the judge should "order disclosure only if he finds on the basis of an in camera showing * * * that there is a reasonable probability that the informer's testimony is necessary to a fair determination of guilt or innocence."  Id. (emphasis omitted) (quoting 2 Weinstein's Evidence, United States Rules § 510 at 510-40).

Aretz and Anderson apparently rented the motel room in which the controlled substance was discovered and acknowledged seeing the methamphetamine.  In making its in camera inquiry, the court should consider the presence of any other witnesses to the crime charged and whether Aretz's and Anderson's testimony would be helpful to the defendant in rebutting the state's proof of an element of the crime.  See, e.g., United States v. Givens, 712 F.2d 1298, 1302 (8th Cir. 1983) (holding that no disclosure was required when CRI only provided information on defendant's whereabouts but not about the substantive offense). 

If the district court finds that Aretz and Anderson are material witnesses whose testimony is necessary to a fair determination of the defendant's guilt or innocence, it may order appropriate discovery tailored to enable the defendant to prepare a full defense. 

            Affirmed in part, reversed in part, and remanded.