State of Minnesota, Respondent, vs. Jorge Luis Exposito, 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This opinion will be unpublished and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

A03-90

 

State of Minnesota,

Respondent,

 

vs.

 

Jorge Luis Exposito,

Appellant.

 

Filed June 8, 2004

Affirmed

Kalitowski, Judge

 

Becker County District Court

File No. K8-00-1535

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Julia E. Anderson, Assistant Attorneys General, 445 Minnesota Street, Suite 1400, St. Paul, MN 55101-2131; and

 

Joseph A. Evans, Becker County Attorney, Lincoln Professional Center, P.O. Box 476, Detroit Lakes, MN 56502-0476 (for respondent)

 

William Gatton, 270 Grain Exchange North, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant challenges his conviction of first-degree controlled substance crime, arguing that the district court erred by not warning him of the dangers of joint representation, by admitting evidence seized in the course of his arrest, and by failing to effectively remedy the state's failure to disclose that a witness was a confidential reliable informant.  We affirm.

D E C I S I O N

I.

            Appellant Jorge Luis Exposito argues that he was denied effective assistance of counsel because his defense attorney represented both him and codefendant Elio Infante at a joint trial.  Where the same attorney represents codefendants, the district court has an affirmative duty under Minn. Const. art. 1, § 6 and the U. S. Const. amend. VI to warn the defendants of the potential dangers of dual representation.  State v. Olsen, 258 N.W.2d 898, 906-07 (Minn. 1977); Minn. R. Crim. P. 17.03, subd. 5. 

            Minn. R. Crim. P. 17.03, subd. 5(1) requires that the district court give this warning on the record and allow each defendant an opportunity to question the district court regarding the consequences of dual representation.  The rule also requires that the defendant state on the record that (1) the district court advised him of the right to effective representation; (2) the defendant understands the defense counsel's possible conflict of interest and the dangers of such a conflict; (3) the defendant has discussed the matter with defense counsel or outside counsel; and (4) the defendant voluntarily waives the Sixth Amendment protections.   Minn. R. Crim. P. 17.03, subd. 5(2).   

            Failure to follow the above procedure is not per se reversible error.  Rather, the state has the burden of demonstrating beyond a reasonable doubt that a prejudicial conflict of interest did not exist.  Olsen, 258 N.W.2d at 907-08.  Here, it is undisputed that the district court failed to provide the required warnings.

            Appellant contends that the state cannot prove the joint representation did not prejudice him because he was prejudiced by his defense attorney's cross-examination of Michael Minderman, the individual whom the state alleged bought cocaine from appellant and codefendant Infante.  We disagree.  Appellant claims he was prejudiced when defense counsel attempted to elicit testimony from Minderman that appellant had given him the package of cocaine and Infante was "just kind of there" contending such testimony attempted to show that he played an active role while Infante played a minor role in the drug transaction. But the record shows that other questions of Minderman had the effect of emphasizing Infante's role.  And, importantly, a thorough review of defense counsel's cross-examination of Minderman indicates that defense counsel was attempting to impeach Minderman with prior inconsistent statements; he was not attempting to transfer blame from Infante to appellant or vice versa.  Therefore, we conclude that appellant was not prejudiced by defense counsel's cross-examination of Minderman.

            Appellant also argues that he was prejudiced because defense counsel was precluded, because of the dual representation, from pursuing a favorable plea bargain for him.  Appellant claims that he was more likely than Infante to receive a favorable plea bargain because, unlike Infante, he did not have a prior criminal record.  But appellant testified at trial that he and Infante were innocent, and there is no indication in the record that the state considered offering appellant a plea bargain or that appellant desired or pursued one.  Ultimately, appellant's allegations of conflict fail to provide even "informed speculation" that appellant was prejudiced.  See Olsen, 258 N.W.2d at 908 n.17 (concluding that a conviction can stand only where the court can find no basis in the record for an informed speculation that appellant's rights were prejudicially affected by joint representation).  Rather, the record shows, and appellant conceded at oral argument, that appellant and Infante did not have any antagonistic defenses or interests.  Neither appellant nor Infante attempted to place blame on the other; instead, they both repeatedly and vehemently argued that they were innocent and claimed that they were looking at vehicles for appellant to purchase at the time of their arrest. 

            In addition, the large amount of cash found on appellant at the time of his arrest, and the testimony of Minderman, the confidential reliable informant William Moore, and law enforcement personnel provide strong evidence of appellant's guilt.  See Mercer v. State, 290 N.W.2d 623, 626 (Minn. 1980) (finding no prejudicial conflict of interest where there was strong evidence of guilt).  Specifically, Moore and Minderman's testimony indicated that appellant and Infante were both actively involved in several drug transactions.  Therefore, while the district court erred by not informing appellant of the dangers of dual representation and getting his waiver on the record, we conclude that the state met its burden in establishing beyond a reasonable doubt that appellant was not prejudiced by this error. 

II.

            Appellant also argues that officers did not have probable cause to arrest him and therefore, the search of appellant was unconstitutional.  Whether there is probable cause for an arrest depends on findings of fact that are reviewed for clear error, but it is ultimately a question of law to be reviewed de novo.  State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).  Both the United States and the Minnesota constitutions protect citizens from unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10.  Where police officers have probable cause to arrest, they may properly conduct a search incident to arrest, even if the search occurs before the formal arrest.  In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997).  Probable cause to arrest exists where a person of ordinary care and prudence would have a strong and honest suspicion that a crime had been committed, based on objective facts.  Horner, 617 N.W.2d at 795. 

            Although appellant does not dispute that the initial stop of the vehicle was valid because Infante was speeding, he argues that law enforcement officials did not have probable cause to arrest him after the stop.  Appellant contends that the information given by Moore did not establish probable cause because Moore was not a credible or reliable informant.  Whether the information provided by a confidential informant is sufficient to establish probable cause is determined by examining the totality of the circumstances, particularly "the credibility and veracity of the informant."  State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999).  If a case is close, the lack of a warrant may weigh against finding probable cause.  State v. Cook, 610 N.W.2d 664, 667 (Minn. App. 2000), review denied (Minn. July 25, 2000). 

            The reliability of a confidential informant is determined, in part, by examining the circumstances surrounding the informant in light of several nonexclusive factors, including:  (1) whether an informant has given reliable information in the past; (2) whether information provided is corroborated by the police; and (3) whether an informant voluntarily offers information.  State v. Ward, 580 N.W.2d 67, 71 (Minn. App. 1998).  An informant's reliability is not enhanced if the informant merely gives information that is easily obtained.   State v. Albrecht, 465 N.W.2d 107, 109 (Minn. App. 1991).      

            But contrary to appellant's argument, law enforcement officials sufficiently corroborated information given by Moore.  Specifically, consistent with Moore's information, law enforcement officials observed that appellant and Infante arrived at the house under surveillance at approximately 12:20 p.m., they were of Hispanic descent, and they drove a white vehicle.  And Agent Patrick Johnston testified at the omnibus hearing that some of the earlier information provided by Moore was corroborated by prior intelligence or other individuals.  Appellant contends that law enforcement officials only corroborated details that were entirely innocuous.  But "[t]he independent corroboration of even innocent details of an informant's tip may support a finding of probable cause."  Munson, 594 N.W.2d at 136 (citations omitted).

            Appellant also contends that law enforcement officials did not show the underlying basis of Moore's knowledge.  We disagree.  Information obtained from an informant must show a basis for knowledge.  Cook, 610 N.W.2d at 668.  This basis of knowledge may be shown directly, by firsthand information, such as when an informant states that he purchased drugs from a suspect or saw a suspect selling drugs to another, or indirectly by self-verifying details that allow an inference that the information was gained in a reliable way and is not merely based on a suspect's general reputation or on a casual rumor circulating in the criminal underworld.  Id.  Assessment of an informant's basis of knowledge involves consideration of the quality and quantity of detail in the informant's report and whether police independently verified important details of the informant's report.  Id.  

            Here, Agent Johnston testified that while his report did not indicate whether the informant had personally overheard conversations between Minderman and appellant or personally observed any transaction, it stated that the informant had firsthand knowledge.  Specifically, the report stated that the informant had personal knowledge of appellant and Infante delivering cocaine on at least two prior occasions.    Further, as found important in Munson and Cook, Moore gave information related to the future conduct of appellant and Infante, including detailed information regarding when they were expected to arrive and what type of vehicle they would be driving.  Munson, 594 N.W.2d at 136-37; Cook, 610 N.W.2d at 669; see State v. Ross, 676 N.W.2d 301, 305 (Minn. App. 2004) (concluding that probable cause existed based on informant's tip where information predicted future behavior, specifically that the defendant would appear at a specified address at a specified time in a described vehicle).  On this record, we conclude that the information provided by Moore and corroborated by law enforcement officials provided probable cause to arrest appellant. 

            In addition, appellant's evasive answers to the arresting officer's questions, particularly when combined with Moore's corroborated information, confirms that probable cause existed to arrest appellant.  And therefore, contrary to appellant's argument, the pat-down search of appellant prior to his arrest was valid, and the district court did not err in admitting evidence seized in this search.  See In re Welfare of G.M., 560 N.W.2d at 695 (concluding that where police officers have probable cause to arrest, they may properly conduct a search incident to arrest, even if the search occurs before the formal arrest). 

III.

Appellant also argues that the district court erred by denying his motion for a mistrial because the state failed to disclose that Moore was the confidential reliable informant, an eyewitness to the alleged drug sale, and had reported that appellant previously engaged in drug sales.  In general, the district court is in the best position to determine what harm is caused by discovery violations and whether such harm can be eliminated or alleviated.  State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979).  The district court has wide discretion with respect to discovery matters and will not be reversed unless it clearly abuses that discretion.  State v. Freeman, 531 N.W.2d 190, 197-98 (Minn. 1995).  But even if the district court abuses its discretion, this court should not reverse if there is no reasonable probability that, without the error, the result of the trial would have been different.  Id. at 198.

            Minn. R. Crim. P. 9.01, subd. 1, requires the state to disclose all witnesses and statements to defense counsel.  The state has an ongoing obligation to provide defense counsel access to files and inform defense counsel of additions to the files.  State v. Kaiser, 486 N.W.2d 384, 387 (Minn. 1992).  But the state may withhold disclosure of an informant witness by filing a written certificate saying disclosure may subject the witness or others to physical harm or coercion.  Minn. R. Crim. P. 9.01, subd. 3(2).  Here, the state did not file such a certificate and concedes on appeal that it violated Minn. R. Crim. P. 9.01 by failing to disclose that Moore was the informant, but argues that the error was harmless.

            In determining the appropriate sanction for a discovery violation, courts consider:  (1) the reason that timely disclosure was not made; (2) the extent of the prejudice; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.  Lindsey, 284 N.W.2d at 373.  Courts have awarded new trials when the failure to comply with the rules was intentional or the result of inadvertence.  See State v. Schwantes, 314 N.W.2d 243, 245 (Minn. 1982) 

            Here, respondent asserts that the prosecutor believed he was entitled to withhold the information in order to honor Moore's desire to remain anonymous.  While his belief was erroneous, we conclude that the prosecutor's failure to disclose was not an attempt to gain a tactical advantage over appellant by withholding information. 

            Appellant cites Kaiser and other cases for the proposition that he is entitled to a new trial because of the state's nondisclosure.  But Kaiser and the other cases are distinguishable.  In Kaiser, the court concluded that the prosecution's failure to comply with the discovery rules was clear where the prosecutor intentionally withheld a victim's statement admitting that she was unsure who had assaulted her, secured the victim's signature on a second affidavit knowingly contradicting her early affidavit, told one witness "to keep her mouth shut," failed to provide the victim's forwarding address to impede the defendant's discovery, and falsely told the jury that the victim had consistently stated that defendant had assaulted her.  Kaiser, 486 N.W.2d at 387.  The other cases cited by appellant also involved extreme examples of prosecutorial misconduct and/or actual prejudice. 

But the discovery violation here did not prejudice appellant in light of the remedial measures taken by the district court.  Following appellant's discovery of the violation, appellant moved for mistrial, or in the alternative, to strike Moore's testimony.  While the district court denied these motions, it ordered Agent Johnston to be examined outside the presence of the jury regarding his conversations, notes, and reports relating to Moore and what compensation was paid to Moore in exchange for the information.  The district court also ordered the state to produce every document concerning Moore, including the cooperating individual agreement.  In addition, the district court allowed appellant to further cross-examine Moore and Agent Johnston to impeach them with the new information.

We conclude that the district court's remedial actions alleviated any prejudice to appellant caused by the state's failure to disclose all information and that the district court did not abuse its discretion in denying appellant's motions for a mistrial or to strike Moore's testimony from the record.

            Affirmed.