This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


State of Minnesota,


Louis Dearll Tate,

Filed February 1, 2000
Davies, Judge

Ramsey County District Court
File No. K9982666

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

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Scott G. Swanson, Assistant State Public Defender, 2829 University Ave. S.E., Suite 600, Minneapolis, MN 55414-3230 (for appellant)

Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N


Louis Dearll Tate appeals from his conviction for conspiracy to sell cocaine in violation of Minn. Stat. § 152.022, subd. 1 (1998). He argues that his right to confrontation was violated when the trial court granted the state’s motion in limine to restrict his cross-examination of the state’s primary witness. We affirm.


On the evening of July 15, 1998, a 74-year-old man walked from his home to a police station to inform St. Paul police that drug dealers had taken over his house and had been selling drugs there for about two months. The homeowner signed a consent for the police to enter his home, eject every person there, and seize any contraband. Within hours, the police raided the house and found 4.2 grams of crack cocaine.

The homeowner identified appellant and Maurice Taylor, who were both present at the time of the raid, as two of the people who had been selling drugs at his house. Appellant and Taylor were charged with conspiracy to sell drugs and were tried together. Before trial, the state received a copy of a report by appellant’s investigator, who stated that the homeowner had told him he was an alcoholic who "loved his corn whiskey." The state moved in limine to bar appellant from cross-examining the homeowner on his alcohol use except for use on the days surrounding the police raid. The court granted the state’s motion, but noted that, if evidence of the homeowner’s drinking on those relevant dates was presented, appellant would then be free to argue that the homeowner "was constantly in a fog and couldn’t remember one date for the two months involved."

The officer to whom the homeowner initially spoke on July 15 acknowledged at trial that the homeowner had an odor of alcohol on his breath at the time of his report, but the officer said he did not believe the homeowner was intoxicated. The officer also testified that the homeowner did not appear to have been drinking when, immediately after the raid, he identified appellant and Taylor as the individuals who had been selling drugs from his home. The officer further testified that when he re-interviewed the homeowner on July 17, the day after the raid, the homeowner had an odor of alcohol on his breath and appeared to be intoxicated.

The homeowner took the stand and identified appellant and Taylor as two of the people who were living at his house for at least a month before July 15 and who were selling drugs from his house. He explained that, although others were involved, he did not know their names; nor was he able to give any specific dates of drug dealing. He was, however, able to explain how the drugs were sold and the roles of appellant and Taylor in those sales.

The homeowner further admitted that he had drunk a half-pint of gin before meeting with the police on July 15. On cross-examination, appellant’s attorney asked the homeowner several times whether the gin affected his ability to communicate that day; the homeowner responded each time that he did not know how to answer. The homeowner finally testified that he did not remember the police re-interviewing him on July 17, the day after the raid.

The homeowner claimed a woman found in the house on the night of the raid was his girlfriend and that she had brought appellant and Taylor into his house to live. She was granted immunity to testify. The woman admitted living at the house from May or June 1998 until the raid. She testified that people came to the house at all hours to buy drugs from appellant and Taylor. The woman further testified that, although the homeowner "always" drank heavily and would sometimes pass out, he never drank to the point where he was not coherent.

Appellant testified in his own defense. He claimed that he just happened to be at the house on the night of the raid and that the homeowner could never have seen him pass drugs to anyone because the homeowner "was always * * * drinking" and "was never in the right state of mind to see me pass anything to anybody."

In closing arguments, the prosecutor noted that the defense had portrayed the homeowner as being in a fog and not remembering what was going on in his house, but while on the stand, the homeowner was not confused and appeared credible. Appellant’s attorney argued that the homeowner’s testimony was suspect because it was inconsistent and lacking in details. Appellant’s attorney further argued:

You’ve heard testimony from virtually every witness in this case that [the homeowner] drank heavily. On occasion, he drank to the point of intoxication, often on a daily basis. That simply impaired his ability to observe what was going on at the time.

Following deliberations, the jury convicted appellant, but acquitted Taylor.


Violation of Right to Confrontation

The Confrontation Clause guarantees a defendant the right to be confronted with the witnesses against him. U.S. Const. amend. VI. But the clause does not preclude a trial court from imposing reasonable limits on witness cross-examination based on concerns about harassment or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986).

A witness generally does not place his character in issue when he takes the stand. State v. Hawkins, 260 N.W.2d 150, 158 (Minn. 1977) (witness’s general intemperance is inadmissible unless it affected perception of events testified to). But evidence that a witness was intoxicated at the time about which he testifies is admissible because it bears on the witness’s capacity to observe and recollect the events in question. State v. Frank, 364 N.W.2d 398, 400 (Minn. 1985).

Given these principles, the trial court’s initial ruling on the state’s motion was well within her discretion. See State v. Williams, 586 N.W.2d 123, 126 (Minn. 1998) (trial court’s evidentiary rulings are discretionary). The trial court properly restricted the defense from undertaking a fishing expedition about the homeowner’s character. The court properly required the defendant to provide a basis for asking about the homeowner’s alcohol use on dates other than the dates to which the homeowner would be testifying.

Moreover, as the trial proceeded, the state and appellant both elicited abundant evidence on the homeowner’s alcohol use and the influence of alcohol on his mental condition. By the time of closing arguments, the prosecutor was referring to the homeowner as a vulnerable 74-year-old "alcoholic" and appellant’s attorney specifically argued that alcoholism affected the homeowner’s ability to remember and observe the events to which he testified. Appellant cannot argue persuasively that evidence of the homeowner’s habitual use of alcohol--and its effect on his ability to perceive the events to which he testified--was excluded; the jury learned about it through other testimony and the attorneys remarked on it. See State v. Carpenter, 459 N.W.2d 121, 127 (Minn. 1990) (citing State v. Glaze, 452 N.W.2d 655, 661 (Minn. 1990)); see also Frank, 364 N.W.2d at 400 (although defendant has right to show witness was intoxicated, "[m]ost jurors have some experience with the effects of excessive alcohol consumption and * * * will not need expert assistance" to reach some conclusions about those effects). Thus, appellant’s right to confront the witness on his use of alcohol was not violated.

Harmless Error

Even if appellant’s right to confrontation was violated, "Confrontation Clause errors are subject to harmless error analysis." State v. Pride, 528 N.W.2d 862, 867 (Minn. 1995). Although the homeowner’s testimony was crucial to the state’s case, other evidence corroborated his claim that appellant had taken over the house and was selling drugs. When considered as a whole, the homeowner’s testimony was consistent, and his identification of appellant as one of the people selling drugs out of his home was unwavering. Thus, even if his right of confrontation was violated, appellant is not entitled to a new trial.