State of Minnesota, Respondent, vs. Paul Davis, 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This opinion will be unpublished and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

C8-03-380

 

State of Minnesota,

Respondent,

 

vs.

 

Paul Davis,

Appellant.

 

Filed October 21, 2003 Affirmed Randall, Judge

 

Olmsted County District Court

File No.  K6-01-1383

 

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414  (for appellant)

 

Mike Hatch, State Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street SE, Rochester, MN  55904 (for respondent)

 

            Considered and decided by, Hudson, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

On appeal from a conviction for third-degree controlled-substance offense, appellant argues (1) that the trial court erred by instructing the jury on appellant's right not to testify without first obtaining his consent on the record; and (2) that testimony of the paid informant, who had a lengthy criminal record, was insufficient to support the conviction without some corroboration of her identification of appellant as the seller.  We affirm.

FACTS

            On October 4, 2000, a confidential informant (the informant) for the Rochester Police Department, spoke with Officer Seidel about conducting a controlled purchase of cocaine.  The controlled buy was to be conducted at 1813 First Avenue Southwest, in Rochester.  The residence belonged to Thomas and Wendy Hyde, and was targeted because Officer Seidel believed there was heavy drug trafficking at that address.  To assist in the controlled buy, Officer Seidel enlisted the help of Officer Kaase, who is also a narcotics investigator with the Rochester Police Department.

            The process of the controlled buy began with Officer Seidel searching the informant to ensure that she did not have any money or drugs on her person.  The informant was then given $100 to be used as the buy money, and a transmitting device was placed on her body.  In order to conduct the appropriate surveillance of the buy, Officer Kaase set up his vehicle in an area just north and east of the Hyde residence.  Officer Kaase's vehicle was in such a position that he had a good vantage point of the front door of the residence, and a video camera was set-up on a tripod in the vehicle.  In addition, Officer Kaase used an audio-recorder to tape-record the transmission from the transmitting device worn by the informant. 

            At approximately 9:45 p.m., the informant entered the Hyde residence.  Because Thomas Hyde was the "intended target," the informant asked Hyde for $100 worth of drugs.  Hyde responded that he did not have anything, but stated, "PD I got a sale."  PD then gave the informant two pieces of cocaine wrapped in tin foil and placed them in a plastic bag.  The informant commented to PD that she did not like the fact that the cocaine was wrapped in tin foil, but PD assured her that she would not be disappointed.  The informant then told PD thanks, and left the residence.  

            After making the purchase, the informant walked to a nearby hotel where Officer Seidel was waiting in the parking lot.  From his vantage point, Officer Seidel was able to observe the informant entering and leaving the Hyde residence.  The informant handed the drugs to Officer Seidel, and he removed the transmitter.  Before she left, Officer Seidel searched the informant again for drugs or money.  No drugs or money were found.  The informant was paid $20 for her participation in the controlled purchase.  Appellant was subsequently charged with one count of controlled substance crime in the third-degree, pursuant to Minn. Stat. § 152.023, subds. 1(1) and 3(a) (2000). 

            At trial, the informant identified appellant as "PD," the man she purchased the drugs from on October 4, 2000.  The informant admitted at trial that she had used drugs in the past, and that in the fall of 2000, she used cocaine "every day and as much as [she] could."  Additionally, the informant admitted that in 2000 she was charged with two felony offenses in Olmsted County, theft by false representation and forgery.  The informant testified that she reached a plea agreement with the state wherein she agreed to plead guilty to the felony charges and work as an informant for the Rochester Police Department.  In exchange for her guilty pleas, the state agreed not to recommend a prison sentence. 

            Appellant waived the right to testify, and at the end of trial, the district court discussed with counsel the use of CRIMJIG 3.17 for the final jury instructions.  This jury instruction states in part, "[t]he defendant has the right not to testify.  This right is guaranteed by the federal and state constitutions.  You should not draw any inference from the fact that the defendant has not testified in the case."  When asked if either party had any objections to the instructions, counsel for appellant replied "none from the defense."  Shortly thereafter, a record was made of appellant's waiver of his right to testify.  But no record was made of appellant's specific consent to the instruction on his failure to testify.  The jury found appellant guilty of the third-degree controlled substance crime.  This appeal followed.                        

D E C I S I O N

I.

            Appellant argues that the district court committed reversible error by commenting on appellant's failure to testify without his consent on the record.  It is settled that a district court errs by giving the jury instruction on a defendant's right not to testify without first obtaining the defendant's permission on the record.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002).  But, when a defendant does not object to the instruction, three factors must be satisfied before this court will review the giving of the instruction.  Id.  The factors
are:  (1) there must have been error; (2) that was plain; and (3) that affected substantial rights.  Id. (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).

            Appellant argues, and respondent concedes, that the first two factors are satisfied.  The district court gave the jury instruction regarding appellant's right not to testify without first obtaining appellant's permission on the record.  This constitutes plain error.  See id.  But, in order to show prejudice, appellant bears the heavy burden of showing that substantial rights have been affected.  Id. (citing Griller, 583 N.W.2d at 741).  Substantial rights are affected "when there is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury's verdict."  Id.

            Appellant argues that where the credibility of the state's witness is the central issue, and the defendant does not take the stand to deny the allegations and testimony, the no-adverse-inference instructions can have the effect of highlighting this failure for the jury.  In support of his contention, appellant cites State v. Duncan, 608 N.W.2d 551 (Minn. App. 2000).  In Duncan, the trial court instructed the jury on the existence of the defendant's right not to testify without first obtaining the defendant's consent on the record.  Duncan, 608 N.W.2d at 558.  The court noted that "in light of the fact that the central issue in the case was the credibility of the girls' statements, the jury instructions may have had the deleterious effect of emphasizing [the defendant's] failure to take the witness stand and deny the allegations."  Id.  But, the court stated that this error, by itself, was not reversible error.  Id.  Although the court ultimately reversed because of the cumulative effect of the errors, the court emphasized that each error was harmless when considered individually.  Id.

            This case is similar to Duncan in that the central issue is the credibility of the police informant.  However, unlike Duncan, the record here does not demonstrate a substantial number of errors committed by the district court.  Although the district court committed plain error by giving the jury instruction without first obtaining the defendant's permission on the record, the Minnesota Supreme Court has consistently held that this alone is not usually reversible error.  Darris, 648 N.W.2d at 240-41; State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); State v. Rosen, 280 Minn. 550, 550-51, 158 N.W.2d 202 (1968) (per curiam).  We conclude this error, unobjected to after fair notice to appellant's attorney, did not affect appellant's substantial rights.  We find a new trial on this issue is not mandated.

II.

            Appellant contends that the evidence presented at trial was insufficient to support his conviction for the controlled substance crime in the third-degree. In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume the jury believed the state's witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

            Appellant argues that similar to accomplice testimony, the testimony of a paid informant, particularly one who is a drug addict, should require corroboration.  We understand the logic of the argument, but present law is otherwise.  Caselaw indicates that the fact that the informant was a drug addict and was paid for her participation in the controlled buy, does not automatically discredit her testimony.  For example, in State v. Triplett, 435 N.W.2d 38 (Minn. 1989), the defendant appealed his first-degree murder conviction alleging that the evidence was insufficient to support the jury's verdict.  Triplett, 435 N.W.2d at 44.  The court stated that the case hinged on whether it was proper for the jury to believe the testimony of the key witness.  Id. Although impeachment evidence was introduced that the witness had used drugs, lied to police, and forged checks, the court stated that the jury presumably took these incidents into account and was not precluded from believing her testimony because of her past misconduct.  Id. at 44-45.  The court affirmed the defendant's conviction, holding that the witness's testimony, along with the additional evidence, supported the jury's verdict.  Id. at 45. 

            Similar to Triplett, the present case hinges upon the informant's testimony.  We do note there is not as much evidence supporting her testimony as was available in Triplett and the issue is close.  But Minnesota law does not require that a police informant's testimony be corroborated in the same manner as accomplice testimony.  Corroboration for the informer is important and helpful, but as of this date is not a mandated essential.  In addition, this record does indicate some corroboration.  The testimony of the police officers and the tapes of the buy support the informant's testimony.  Both Officer's Kaase and Seidel testified that they observed the informant enter the Hyde residence, as well as listened to the events occurring inside the residence through the audio transmission.  Also, the officers observed the informant leave the residence and walk to Officer Seidel's vehicle at the hotel parking lot.  Officer Seidel testified that he searched the informant before and after the controlled buy, and, when the informant returned from the residence, she handed him the cocaine she had purchased with the $100 previously given to her by Seidel.

            In addition, to Officer Seidel's testimony, Officer Kaase testified that he heard the statement "PD customer" through the transmitting device.  He testified that he heard various comments concerning the purchase through the device, and when the purchase was finished, he heard the informant thanking PD.  Finally, the video and audiotapes corroborate the testimony.  The videotape shows the informant entering the residence, and the audiotape, although somewhat distorted, refers to an individual named "PD."  The jury was presented all the evidence and heard the testimony of the various individuals.  Weighing the credibility of witnesses is the exclusive function of the jury.  The jury apparently found the testimony of the respondent's witnesses to be credible.  We conclude the evidence is sufficient to support appellant's conviction.

            Affirmed.