This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Daphine Denise Walker,
Filed January 14, 2003
St. Louis County District Court
File No. K0-00-600479
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Alan L. Mitchell, St. Louis County Attorney, 100 North Fifth Avenue West, Room 501, Duluth, MN 55802-1298 (for respondent)
Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
Appellant challenges her conviction of controlled substance crime in the third degree, arguing that police conduct violated due process of law. Because the evidence does not support appellant’s due process claim of outrageous police conduct, we affirm.
On 29 January 2000, Robert Jackley, a paid confidential informant for the Duluth Police Department, told the police that appellant Daphine Walker was selling crack cocaine. Jackley called appellant from the police station and arranged to meet her. The police placed a covert listening device on Jackley and followed him to the meeting place. Appellant arrived, met with Jackley, and sold him crack cocaine for $50. The police monitored the transaction from an unmarked police car. They arrested appellant later because they feared that an immediate arrest would have jeopardized ongoing investigations.
Jackley began working as a confidential informant in 1995. He initially lied about his identity because he was an immigrant and his visa had expired. The police eventually learned his true identity and continued to use him as an informant. In his testimony, Jackley admitted that while he was employed as an informant, he used drugs and entered a drug treatment program, that he committed fraud in connection with receiving public assistance, and that he did not report his earnings to the IRS.
In May 2000, the police arrested appellant for the January incident and charged her with controlled substance crime in the third degree in violation of Minn. Stat. § 152.023, subd. 1(1) (1998). Appellant waived her right to a jury trial; after a bench trial, the district court convicted her of the charged offense. Appellant challenges the conviction, arguing that the conduct by the police and Jackley was so outrageous that it violated her constitutional right to due process of law.
D E C I S I O N
The due process clauses of the United States and Minnesota Constitutions require that a criminal defendant be treated with fundamental fairness. State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992). The concept of fundamental fairness prevents conviction if police participation in or inducement of a crime is sufficiently outrageous. State v. Morris, 272 N.W.2d 35, 36 (Minn. 1978); see also United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 1643 (1973) (recognizing that police conduct may become so outrageous that due process principles would bar conviction). This due process defense will succeed in rare cases only. Morris, 272 N.W.2d at 36; see also Hampton v. United States, 425 U.S. 484, 495 n.7, 96 S. Ct. 1646, 1653 n.7 (Powell, J., concurring) (plurality opinion) (“[p]olice overinvolvement in crime would have to reach a demonstrable level of outrageousness before it could bar conviction”); State v. James, 484 N.W.2d 799, 801 (Minn. App. 1992) (overinvolvement by police is especially difficult to show in narcotics prosecutions), review denied (Minn. 30 June 1992).
We have applied the following factors when determining if police involvement reaches a demonstrable level of outrageousness:
(1) whether the police manufactured a crime [that] otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity[;]
(2) whether the police themselves engaged in criminal or improper conduct repugnant to a sense of justice[;]
(3) whether the defendant’s reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the fact of unwillingness[; and]
(4) whether the record reveals simply a desire to obtain a conviction with no [indication] that the police motive is to prevent further crime or protect the populace.
James, 484 N.W.2d at 802 (quoting People v. Isaacson, 378 N.E.2d 78, 83 (N.Y. 1978)).
Appellant does not address the third factor, but argues that the application of the other factors to her case merits reversal. First, appellant contends that the police did not involve themselves in ongoing criminal activity. But an officer testified that Jackley told the police that “[appellant] was selling crack cocaine.” Appellant testified that she provided Jackley with a phone number, that she knew he intended to call her to purchase drugs, that she drove herself to the meeting place, and that she willingly sold Jackley crack cocaine. Thus, the police did not manufacture the crime.
Appellant next argues that the behavior of both the police and Jackley was repugnant to a sense of justice. Specifically, she claims that the financial arrangement between Jackley and the police “encouraged the informant to do whatever was necessary to secure a conviction.” There is nothing in the record, however, indicating that Jackley’s compensation was contingent on securing a conviction. In fact, Jackley testified that the police “fully paid” his housing, transportation, and food expenses. Appellant also argues that using Jackley as an informant was outrageous because he lied at trial and “lied repeatedly during his tenure as an informant.” But questions regarding Jackley’s credibility were for the district court to determine. See State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990) (weight and credibility of individual witnesses is for factfinder to determine).
Finally, appellant argues that the police were motivated only to obtain a conviction and were not concerned about protecting the public. There is evidence, however, that appellant’s arrest was only part of a larger investigation into drug trafficking in the Duluth area. In fact, an officer testified that Jackley was at the police station on the day of the offense to help the police conduct controlled buys. Moreover, we have held that a prosecution for even a small, personal-use drug purchase supports the additional purpose of reducing drug traffic in the surrounding area. See James, 484 N.W.2d at 802-03. The police did not arrest appellant solely for the purpose of obtaining a conviction.
We conclude that the conduct of the police was not outrageous and did not violate due process of law.
 Respondent contends that appellant waived her due process defense by not raising it before trial. See Minn. R. Crim. P. 10.01 (requiring defenses and objections to be raised before trial to avoid waiver). But appellant effectively raised the defense in her pretrial motion to dismiss when she argued that the conduct of Jackley and “anyone who could call him a reliable informant” was “so egregious as to support dismissal of the charge.” Although the district court did not expressly address the issue, it implicitly rejected the due process defense when it denied the motion.