Opinion
No. C3-00-2099.
Filed November 20, 2001
Appeal from the District Court, Kandiyohi County, File No. K800278.
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, Caia Johnson, Certified Student Attorney, and
Boyd Beccue, Kandiyohi County Attorney, (for respondent)
John M. Stuart, Minnesota Public Defender, Steven P. Russett, Assistant Public Defender, (for appellant)
Considered and decided by Hanson, Presiding Judge, Toussaint, Chief Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Kevin Litzau challenges his conviction of controlled substance crime in the first degree alleging the district court erred by failing to require disclosure of the identity of an informant, abused its discretion in several evidentiary rulings and erred by giving the permissive-inference-of-possession jury instruction. He also challenges his sentence as based on an erroneous criminal history score. Because maintaining the confidentiality of the informant was not error, any errors in evidentiary rulings were harmless beyond a reasonable doubt and the district court did not err by giving the permissive-inference instruction, we affirm the conviction. Because the court erred in sentencing, we vacate the sentence and remand for resentencing.
FACTS
On February 22, 2000, Atwater Police Chief Reed Schmidt received a tip from a confidential reliable informant indicating that Litzau had drugs in the air cleaner of his 1984 Crown Victoria, which was parked in his brother and sister-in-law's driveway. Based on this, the police placed Litzau's car under surveillance.
Later that evening Litzau arrived at his brother's home in a different car, but drove off in the Crown Victoria. The police followed Litzau and stopped him. Officer Jason Abbott explained to Litzau that the police had received information from a reliable source that he was transporting drugs in his car and obtained Litzau's permission to search any part of his vehicle. Max, a drug-detecting dog, was brought to the scene and "indicated" on the vehicle's front wheel well and front grill. When the hood of the car was opened, Max jumped onto the engine and scratched the air cleaner.
Inside the air cleaner the police found a plastic bag which contained nine baggies filled with a white substance. Litzau denied knowledge of the bags. Litzau was arrested. Laboratory tests showed that the bags contained 86.5 grams of methamphetamine.
During an inventory search of the car, police discovered a Valvoline Rapid Oil Change sticker indicating that the car had recently been serviced. Valvoline's records showed that Litzau's air cleaner was replaced on January 6, 2000, and the car was serviced again on February 4, 2000. The service station's manager testified that he did not observe any bags containing narcotics in the air filter on either occasion.
Litzau, who was on supervised release and participating in the Challenge Incarceration Program, was charged with one count of first-degree controlled substance crime in violation of Minn. Stat. § 152.021, subd. 1(1) (possession with intent to sell). The district court denied Litzau's motion to suppress evidence based on a challenge to the stop and Litzau does not appeal that decision. The district court denied Litzau's request to compel disclosure of the informant's identity but granted his motion to limit testimony regarding the informant to the fact that a tip was received and to exclude all testimony regarding the contents of the tip. The district court granted the state's motion to qualify Agent Enrique Vazquez as an expert witness to give opinion testimony on controlled substances, including issues relevant to the possession and sale of controlled substances, quantities of controlled substances, and items commonly found in a suspect's possession that would be indicative of the intent to sell rather than personal use.
Just before trial, the district court indicated that the basis of the tip, limited to Litzau's suspected possession of controlled substances, was admissible. At trial, without objection, the content of the tip was disclosed to the jury and witnesses made two references to Litzau's having exercised his right to remain silent. The district court, without objection from Litzau's counsel, gave a permissive-inference instruction to the jury. The jury found Litzau guilty. The parties agree that the district court used the wrong criminal history when it calculated and imposed a 134-month sentence consecutive to the sentence Litzau was serving at the time of this crime. This appeal followed.
DECISION
A ruling on an evidentiary issue by the district court will not be overturned absent a clear abuse of discretion. State v. Bjork, 610 N.W.2d 632, 636 (Minn. 2000). "Appellate courts largely defer to the trial court's exercise of discretion in evidentiary matters and will not lightly overturn a trial court's evidentiary ruling." State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).
1. Contents of the Informant's Tip
Litzau argues that the district court committed reversible error by admitting trial testimony about the content of the tip that led to his arrest.
During the direct examination of the state's first witness, Officer Schmidt, the prosecutor asked, "[D]id you receive a tip indicating the suspicion that the defendant possessed controlled substances." Officer Schmidt answered, "Yes, I did." Litzau's attorney cross-examined Officer Schmidt as follows:
Q: Chief Schimdt, this tipster had come into your office, I believe, at approximately 1:00 on February 22. Is that correct?
A: That is correct.
Q: And isn't it true that the tipster * * * had made some recent observations that he disclosed to you?
* * * *
A: Yes.
Q: Okay. And in fact the tipster had given you some information that he had observed some methamphetamine in an air cleaner. Isn't that true?
A: That is correct.
Officer Abbott then testified on direct examination that he pulled Litzau over and "explained to him that we had a reliable source that has told us that he was carrying — transporting drugs in his car and I asked him * * * if we could search his vehicle." Litzau's attorney did not object to this testimony.
A district court may, in its discretion, allow evidence that the police received a tip to explain why they placed a particular person or location under surveillance. State v. Ford, 322 N.W.2d 611, 615 (Minn. 1982). The content of an informant's tip, as opposed to the existence of the tip, is generally inadmissible because it is unnecessary to explain the police conduct. Id. More importantly, there is a risk that jurors will consider the tip's contents as substantive evidence of a defendant's guilt. Id. We agree that admission of the contents of the tip was error.
In general, the "failure to object to evidence at trial constitutes waiver of those issues on appeal." Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996). A defendant can also waive an evidentiary error by introducing the evidence himself. See Jones v. Fleishhacker, 325 N.W.2d 633, 639 (Minn. 1982) (noting that "it is clear that error in admission of evidence can be waived either by failing to make timely objection * * * or by a party introducing the evidence himself"). Under the circumstances of this case, Litzau has waived the right to appeal the introduction of evidence which he actively solicited and failed to object to at trial.
Even if we did not find waiver and chose to regard admission of this unobjected-to evidence as "plain error," we would conclude that admission of the content of the tip did not affect the outcome of the trial. State v. Griller, 583 N.W.2d 736,741 (Minn. 1998) (holding that an appellate court can reverse an error that was not objected to at trial if the error was prejudicial and affected the outcome of the case). The evidence of the tip, in this case, was used to explain the stop. There is no dispute that drugs were located in the air cleaner of Litzau's car as stated by the informant, who did not, however, provide information about Litzau's possession or intent with regard to the drugs. Litzau's possession and intent were the central issues at trial. This case is distinguishable from State v. Williams, 525 N.W.2d 538, 545 (Minn. 1994) in which admission of a "tip" that defendant was on a train, believed to be working as a drug courier, and carrying a quantity of crack cocaine, was held to be prejudicial error. In this case, the tip linked the drugs to a car and the undisputed possession of the car by Litzau linked him to the drugs. After reviewing the whole record, although we are concerned about admission of the content of the tip, we are not convinced that Litzau's guilty verdict was surely attributable to the error in admitting the contents of the tip.
2. Disclosure Of The Informant's Identity
Litzau argues that the district court should have forced the state to reveal the identity of the informant. The decision whether to require the state to disclose the identity of an informant is within the district court's discretion. State v. Martinez, 270 N.W.2d 121, 122 (Minn. 1978).
At trial, the defendant has the burden of proving the need for disclosure of the informant's identity. State v. Smith, 448 N.W.2d 550, 556 (Minn.App. 1989), review denied (Minn. Dec. 29, 1989). The supreme court has listed the following factors which courts should consider when deciding whether a confidential informant's identity should be disclosed: (1) whether the informant was a material witness; (2) whether the testimony will be material to the issue of guilt; (3) whether testimony from police officers is suspect; and (4) whether the informant's testimony might disclose entrapment. Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979). Litzau does not argue that the police officers' testimony is suspect or that he was entrapped. Applying the other two factors, the trial court concluded that Litzau did not meet his burden of proving his need for the disclosure.
Disclosure of the informant's identity is not required if the informant was merely a tipster and was neither a participant in nor a witness to the crime. State v. Marshall, 411 N.W.2d 276, 280 (Minn.App. 1987), review denied (Minn. Oct. 26, 1987). The state does not have to reveal an informant's identity "[w]hen the informant is merely a tipster who conveys information * * * ." Id.
The district court concluded that the only relevance of the informant's testimony was that the information given to the police led to surveillance of Litzau's car. Furthermore, the district court was legitimately concerned about the informant's safety. This court has recognized that "the state has a strong interest in protecting the identity of informants in the drug world." Smith, 448 N.W.2d at 556. "The trial court must weigh a defendant's interest in a fair assessment of probable cause against the state's interest in protecting the informant." Id. (citation omitted). Officer Schmidt received information that Litzau planned to "physically harm whoever 'snitched' on him." The district court did not err by failing to require disclosure of the informant's identity.
3. Admission Of Expert Testimony
An appellate court should reverse a district court's ruling regarding the admissibility of expert testimony only if the district court abused its discretion. State v. Collard, 414 N.W.2d 733, 736 (Minn.App. 1987), review denied (Minn. Jan. 15, 1988). The district court allowed Agent Enrique Vazquez to testify as an expert witness on controlled substances, specifically on issues relevant to the possession and sale of drugs. The district court qualified Agent Vazquez as an expert and found that his testimony would assist the jury. Litzau doesn't challenge Vazquez's qualifications or the fact that his testimony would assist the jury.
Agent Vazquez testified that, in his experience as a drug investigator, it is common for people to give their consent to searches. He testified that drug dealers often have multiple vehicles in their possession, fail to transfer title to vehicles, use older vehicles when carrying drugs to avoid forfeiture of a newer car and often hide drugs in obscure places in their cars. He testified about the usual quantities possessed for personal use as opposed to quantities kept for sale.
There was evidence in this case that although Litzau bought the subject vehicle in December, he had not yet transferred title at the time of his arrest.
Litzau contends that Agent Vazquez's testimony constitutes inadmissible character evidence implying that Litzau fit "the profile" of a drug courier. Williams, 525 N.W.2d at 548 (Minn. 1994) (holding that evidence that a defendant fits a drug courier profile is inadmissible.) Litzau's reliance on Williams is misplaced. Agent Vazquez did not testify that Litzau fit the profile of a drug dealer or courier. Williams does not hold that all testimony by police officers as to techniques employed by drug dealers or couriers is always inadmissible at trial. Id. Intent to sell drugs is usually proved circumstantially. State v. White, 332 N.W.2d 910, 912 (Minn. 1983). "Evidence tending to show such intent includes evidence as to the large quantity of drugs possessed, evidence as to the manner of packaging, and other evidence." Id. Agent Vazquez's testimony falls within the range of admissible evidence. The district court did not abuse its discretion by admitting Agent Vazquez's expert testimony.
4. References To The Appellant's Exercise Of Constitutional Rights
"A defendant's choice to exercise his constitutional right to counsel may not be used against him at trial." State v. Juarez, 572 N.W.2d 286, 290 (Minn. 1997). This is because "most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt." State v. Roberts, 296 Minn. 347, 353, 208 N.W.2d 744, 747 (1973) (quoting Walker v. United States, 404 F.2d 900, 903 (5th Cir. 1968)).
Litzau asserts that the admission of two statements related to his right to remain silent and a request for counsel constitute prejudicial error. He does not argue that the erroneous admission of these statements alone constitute reversible error in this case, but argues that this error, combined with other alleged errors, denied him a fair trial.
During the state's case in chief, the prosecutor asked Chief Schmidt what happened after the drugs were seized from Litzau. In response he said: "he was read his rights and he wished to talk to a lawyer so we did not talk to him any longer * * * ." During defense counsel's cross-examination of Officer Abbott, Abbott was asked whether Litzau requested that the police dust for fingerprints. Officer Abbott replied no, but Litzau's attorney asked the same question two more times. On the third request, Officer Abbott responded:
I think I would have remembered that. He wasn't saying anything when we got to the [police department] because I had read him his Miranda rights and he stated that he did not want to speak to us.
The state argues that Litzau should not be able to claim prejudice based on the comment elicited by his attorney during cross-examination. See State v. Skinner, 450 N.W.2d 648, 652 (Minn.App. 1990) (noting that defense counsel opened the door to questioning regarding the defendant's right to remain silent and cannot now claim prejudice), review denied (Minn. Feb. 28, 1990). In Skinner,the court noted that "the introduction of otherwise objectionable evidence by the defense counsel is a distinguishable feature from other cases and does not warrant a reversal." Id.
Although we agree with appellant that the two statements were erroneously admitted, we conclude that the error was harmless beyond a reasonable doubt. When engaging in a harmless error impact analysis, the appellate court must consider the impact the error had on the verdict. Juarez, 572 N.W.2d at 291. An error is harmless if the verdict "was surely unattributable to the error." Id. at 292. The statements were admitted to explain the conduct of the police, and the statements were not directed against appellant. We caution that prosecutors have a responsibility to prepare their witnesses not to discuss a defendant's exercise of rights, but, in this case, we do not conclude that the error mandates reversal. Because we have found the other alleged errors not to be errors, or to have been non-prejudicial, we reject appellant's argument that, taken together, nonreversible errors in this case constitute reversible error.
5. Permissive Inference Instruction
District courts are allowed "considerable latitude" in the selection of language for the jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)). "This court will not reverse a conviction on the basis of an erroneous jury instruction unless consideration of the instructions as a whole reveals an abuse of discretion." State v. White, 468 N.W.2d 556, 559 (Minn.App. 1991), rev'd on other grounds, 489 N.W.2d 792 (Minn. 1992).
The district court read the following instruction to the jury:
In determining whether or not it has been proven beyond a reasonable doubt that the defendant was in knowing possession of methamphetamine, you should consider all the evidence presented. The law allows, but does not require, you to find knowing possession from proof beyond a reasonable doubt that the defendant was the driver or in control of a passenger automobile and the methamphetamine was present in the automobile. If you so find beyond a reasonable doubt, you may, but are not required to, find that the defendant knowingly possessed methamphetamine.
Litzau's attorney did not object to this instruction at trial. As a result, this court should reverse only if the instruction constitutes plain error.
The district court's jury instruction is not plainly erroneous. The instruction complies with the law. The instruction was based on Minn. Stat. § 152.028, subd. 2 (2000), which provides:
The presence of a controlled substance in a passenger automobile permits the factfinder to infer knowing possession of the controlled substance by the driver or person in control of the automobile when the controlled substance was in the automobile.
Litzau claims the instructions violated his right to due process. "Instructions that allow the trier of fact to remain free to credit or reject inferences do not violate principles of due process." State v. Williams, 324 N.W.2d 154, 160 (Minn. 1982). In this case, the district court did not instruct the jury to make a mandatory inference. The instructions, therefore, did not violate Litzau's due process rights.
Litzau also claims the use of the instruction was irrational because the drugs were not found in the passenger compartment of his car. "A permissive inference is unconstitutional 'only if, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference.'" White, 468 N.W.2d at 559-60 (quoting County Court of Ulster v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225 (1979)). Here, the jury could rationally infer that the defendant knew the drugs were in his car because Litzau is the undisputed owner of the car and was in sole control of the car when it was stopped. The permissive-inference statute is not restricted to items found in the passenger section of a passenger car. Minn. Stat. § 152.028, subd. 2. The district court clearly instructed the jury that the inference was permissible, not mandatory, and admonished the jury to consider all of the evidence in the case. Use of the permissive jury instruction was not error.
6. Sentence
Based on a criminal history score of four, the district court imposed a 134-month prison sentence, which was to be served consecutively with Litzau's existing sentence. A consecutive sentence is presumptive
[w]hen the conviction is for a crime committed by an offender serving or on supervised release, or on escape status from, an executed prison sentence.
* * * *
For each presumptive consecutive offense sentenced consecutive to another offense(s), a criminal history score of one, or the mandatory minimum for the offense, whichever is greater, shall be used in determining the presumptive duration.
Minn. Sent. Guidelines II.F. Litzau argues that since he was subject to an unexpired prison sentence at the time that he was sentenced for this offense, the district court's sentence was erroneous because it should have reduced his criminal history score to one when determining the length of his sentence. The state concedes that, since the district court imposed a consecutive sentence, Litzau's sentence should have been calculated using a criminal history score of one and agrees that the case should be remanded for a determination of the appropriate sentence.
Affirmed in part, reversed in part and remanded.
I respectfully dissent. I would reverse Litzau's conviction on either of two grounds: (1) that the tipster was a material witness whose identity should have been disclosed to Litzau; or (2) that the admission of the testimony concerning the contents of the tip was plain error that was not waived by Litzau. While I concur with the majority's assessment that the other evidentiary issues did not constitute reversible error, if this matter were to be remanded for a new trial, I would direct the district court to exclude, from the testimony of police, any references to Litzau's requests for counsel, and, from the testimony of Agent Vazquez's, the opinion that it is common for drug dealers to give consent to a search of their vehicle.
I
While the state presented clear evidence that Litzau owned the vehicle in which police found methamphetamine, the state was also required to prove beyond a reasonable doubt that Litzau knew that the methamphetamine was in the vehicle. Litzau's only real defense was that someone else placed the methamphetamine in the vehicle's air cleaner, without Litzau's participation or knowledge.
In this connection, the evidence adduced at trial concerning the location of the Crown Victoria for the days and hours prior to Litzau's arrest, and the possibility that some person other than Litzau had access to it, became crucial to the defense. Litzau testified that he left the Crown Victoria at his brother's house from February 20 until about 8:15 p.m. on February 22, when he returned to his brother's house in a different car and then drove off in the Crown Victoria. No testimony placed Litzau in the vicinity of the Crown Victoria on February 22 before 8:15 p.m. Officer Schmidt testified that the tipster visited the police department at 1 p.m. on February 22 and reported having observed drugs in the air cleaner of the Crown Victoria less than one-half hour earlier. There was no evidence as to how the tipster was able to make that observation. This observation, thus, was at a time when Litzau was not in the vicinity of the car, and had not been for at least several hours. Based on this tip, police commenced surveillance on the Crown Victoria at 1:30 p.m. on February 22, and did not see Litzau until 8:15 p.m.
Under these facts, the informant was not merely a conveyer of information, but was a material witness for the defense. While the state attempted to prove that no one but appellant had access to the Crown Victoria while it was parked at his brother's house, the informant claimed to have "observed the narcotics themselves" in the air cleaner of the car, within one-half hour before he talked to police. The informant's testimony would have countered the state's claim that no one but appellant could have put the drugs in the car. Further, the absence of any testimony concerning the circumstances under which the informant made the observation leaves open the question whether the informant observed someone else placing the drugs in the air cleaner, which likewise would be highly material.
While the state has a legitimate interest in protecting the identity of informants, particularly in drug cases, that interest in not unlimited:
Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the [district] court may require disclosure and, if the [g]overnment withholds the information, dismiss the action.
* * * *
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.
Roviaro v. United States, 353 U.S. 53, 60-61, 62 (1957).
Consistent with this balancing test, the Minnesota Supreme Court has identified several factors to be considered when determining whether to disclose an informant's identity, including
(a) [w]hether the informant was a material witness. * * *
(b) [w]hether the informer's testimony will be material to the issue of guilt.
Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979). These factors appear to have been met in this case. The success of Litzau's defense hinged on his ability to provide some plausible explanation for the presence of the drugs in his car. While the state attempted to prove that no one but Litzau had access to the car while it was parked at his brother's house, the informant's report demonstrates that the informant had access. Withholding the identity of the informant from Litzau unfairly deprived him of the ability to fully pursue his defense.
The prejudice to defendant by the refusal to compel disclosure of the informant's identity was compounded by the district court's decision to admit evidence of the contents of the informant's tip. While the jury was told that a reliable informant had said that Litzau was "carrying-transporting drugs," Litzau was denied any real opportunity to challenge the reliability of the informant without his/her identity. He was reduced to arguing a defense that was difficult to accept without some evidentiary support. When he attempted to do so, arguing to the jury that the informant might have placed the drugs in Litzau's car to get even, the prosecutor further exacerbated the situation by arguing that the informant could be anybody, including a store clerk or someone who saw the drugs while working on appellant's car.
Obviously, the prosecutor knew who the informant was. At the omnibus hearing, the state presented testimony that it had worked with this informant on two prior cases, one a drug offense. It was unfair to Litzau for the prosecutor to withhold the identity of the informant and then be allowed to speculate to the jury about who the informant might have been, especially by naming hypothetical persons who, the prosecutor knew, were not the informant.
Because reversal of the conviction is also necessary because of admission of testimony of the contents of the tip, as discussed below, such reversal cannot be avoided by a remand to the district court to conduct an in camera interrogation of the informant, as was done in Syrovatka, 278 N.W.2d at 562. However, in connection with any new trial, the state could request such an in camera hearing if it believed it could somehow demonstrate that the informant was not a material witness for the defense.
II
The majority opinion concludes that the admission of testimony concerning the contents of the tip was erroneous, but the error was waived by Litzau and, in any event, was not plain error.
Waiver
While it is true that Litzau's counsel did not specifically object to the direct examination of Officer Schmidt, and did elicit further testimony on the contents of the tip on cross-examination of Officer Schmidt, these actions of counsel, when viewed in the light of the district court's pretrial rulings, did not evidence any intent to waive objection to the contents of the tip.
Litzau's counsel clearly preserved objection to this evidence when he brought a pretrial motion in limine. In fact, the district court initially granted that motion, ruling that:
Testimony regarding the informant will be limited to the fact that a tip was received. No testimony regarding the contents of the tip is admissible. The prosecution is responsible for informing its witnesses in advance of the trial that they are not to disclose the contents of the tip to the jury.
In its memorandum, the district court explained that ruling as follows:
The [c]ourt will not admit testimony regarding the contents of the tip because the probative value is substantially outweighed by the danger of unfair prejudice. * * * The risk that the jury will consider the contents as substantive evidence of guilt is too great.
However, on the day of trial, the district court reversed this decision in a conference with counsel, which he summarized as follows:
And the court has suggested that the testimony be elicited to indicate that a tip was received suggesting that the defendant had possession of a controlled substance and then the testimony could move into the facts that occurred on the day in question to present that evidence to the jury.
As discussed below, the district court's framing of the permissible testimony actually differed from the description of the tip as testified to by Officer Schmidt at the omnibus hearing.
Given the clarity of the ruling made immediately before trial, it was not incumbent on Litzau to object when the prosecutor used the district court's suggested language in asking Officer Schmidt, "[D]id you receive a tip indicating the suspicion that the defendant possessed controlled substances?" Likewise, once the evidence on the contents of the tip was thus admitted, Litzau had little choice but to attempt to discredit the tipster, albeit a futile attempt without the identify of the informant.
Plain Error
I conclude that the admission of evidence concerning the contents of the tip was prejudicial, and thus was plain error. I do not believe that this case can be distinguished from State v. Williams, 525 N.W.2d 538, 545 (Minn. 1994), where admission in evidence of the contents of a tip that defendant was on a train and carrying a quantity of crack cocaine was held to be prejudicial error. Here, the testimony of the contents of the tip, as given at trial before the jury, similarly linked Litzau to the drugs.
Although the majority opinion interprets the testimony concerning the contents of the tip as merely linking drugs to the vehicle, not to Litzau, and states the informant did not "provide information about Litzau's possession," the actual testimony linked the drugs to Litzau, not to the vehicle. Officer Schmidt, who spoke with the tipster, answered yes to a question that described the tip as "indicating that the defendant possessed controlled substances." Officer Abbott testified that a reliable source told him that defendant "was carrying — transporting drugs in his car * * * ." All testimony before the jury concerning the tip linked the drugs to defendant and none linked the drugs to any specific vehicle, such as the 1984 Crown Victoria.
This testimony of the contents of the tip was highly persuasive on the issue of whether Litzau knowingly possessed the drugs in his car. Information that defendant was believed to have had possession of drugs, well before the drugs were found in the air cleaner of the Crown Victoria, effectively destroyed Litzau's argument that he did not know that the drugs were in the vehicle. The state's other evidence of knowledge was circumstantial and not overwhelming.
This prejudicial impact may, in fact, have been sought by the state when it made a subtle change in testimony concerning the tip. At the omnibus hearing to consider admissibility of the contents of the tip, Officer Schmidt testified to a significantly different conversation with the tipster than the one described in his trial testimony. He testified that the tipster reported observing drugs located in the air cleaner of the Crown Victoria. The court specifically asked Officer Schmidt: "What connected the defendant with the drugs?" Officer Schmidt responded: "The individual did not know if they belonged to the — to the defendant, but they knew the vehicle belonged to the defendant." Thus, the testimony at the omnibus hearing only linked the drugs to the Crown Victoria, while the testimony before the jury linked the drugs to Litzau, with the vehicle being incidental.
One must assume that the state offered this inaccurate description of the tip at trial for the very purpose of enhancing the proof of knowing possession by linking the drugs to Litzau. The state had no other evidence of knowledge, and absent the testimony concerning the contents of the tip, would have been forced to rely solely upon the permissive inference of knowing possession that arises from the fact that Litzau was the driver of the vehicle.
It is also likely that the jury considered the contents of the tip as substantive evidence of Litzau's knowledge of the presence of the drugs. There was no instruction to the jury that the tip was admitted solely to explain why police put Litzau's car under surveillance, not as substantive evidence of guilt. Cf. State v. Ford, 322 N.W.2d 611, 615 (Minn. 1982) (stating that the better practice is to caution the jury concerning the use of an informant's tip, both when it is received in evidence and in the final instructions). Such an instruction was especially important here because the tip played a prominent role in the trial, from the prosecutor's opening statement through rebuttal argument.
III
While I concur in the majority opinion's conclusion that the district court did not abuse its discretion in connection with the admission of expert testimony and the two unobjected to references by police to Litzau's requests for counsel, if the conviction were reversed and the matter remanded to the district court for a new trial, I would direct the district court to exclude, on retrial, portions of the expert testimony of Agent Vazquez and any references to Litzau's requests for counsel.
In a pretrial ruling, the district court held that Agent Vazquez could testify as an expert witness on issues relevant to the possession and sale of controlled substances, including "the quantities of controlled substances * * * which are indicative of the sale of drugs compared to personal use." This clearly is a proper subject of expert testimony. However, Agent Vazquez's testimony went beyond this authorization and was akin to testimony that Litzau fit the profile of a drug dealer. Such testimony was ruled inadmissible in Williams, 525 N.W.2d 538, 545-48 (Minn. 1994). Of particular concern is Agent Vazquez's attempt to suggest that Litzau could be considered a drug dealer because he consented to the search of his car, stating that drug dealers commonly consent to the search of their car. This imposes a catch-22 on any driver who is asked for consent — if he consents, he is profiled as a drug dealer who would commonly consent, but if he refuses to consent, he would still be profiled as a drug dealer who commonly attempts to evade the law.
Similarly, on any retrial, the district court should be directed to exclude any references to requests for counsel made by Litzau during police interrogation.