This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-846

 

State of Minnesota,
Respondent,

vs.

Mario Gonzalez,
Appellant.

 

Filed June 1, 2004

Affirmed

Wright, Judge

 

Lyon County District Court

File No. K7-01-1110

 

 

John M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN† 55414 (for appellant)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Timothy C. Rank, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN† 55101; and

 

Kathy Keena, Lyon County Attorney, Lyon County Courthouse, 607 West Main Street, Marshall, MN† 56258 (for respondent)

 

 

††††††††††† Considered and decided by Wright, Presiding Judge; Schumacher, Judge; and Willis, Judge.

U N P U B L I S H E D† O P I N I O N

 

WRIGHT, Judge

††††††††††† Appellant challenges his conviction of first-degree controlled-substance offense, arguing that (1) the district court erred in denying his motion to disclose the identity of the confidential informant because this information was necessary to present his entrapment defense, (2) the district court erred in admitting for impeachment appellantís six prior convictions, and (3) the prosecutor committed prejudicial misconduct during closing argument.[1]† We affirm.

FACTS

 

In late February 2001, Scott Storm, a friend of appellant Mario Gonzalez, introduced Gonzalez to a confidential informant (CI) at a bar in Marshall.† At the end of the evening, the CI drove Gonzalez and Storm home.† After the trip, the CI contacted Officer Dan Louwagie, a member of the local drug task force, because Gonzalez and Storm had discussed methamphetamine during the ride home.†

The CI and Gonzalez began spending time together.† Officer Louwagie arranged for the CI to introduce Gonzalez to Special Agent Brian Marquart on March 9, 2001, at the same bar.† Agent Marquart was equipped with a recording device, and Officer Louwagie served on the surveillance team.† After Gonzalez and Agent Marquart discussed the price, Agent Marquart offered to buy methamphetamine from Gonzalez.† Gonzalez, who did not have any methamphetamine at that time, promised to obtain some and conduct the sale an hour later.† Although the sale did not occur that night, Agent Marquart gave Gonzalez his phone number and discussed buying methamphetamine at a later date.† The CI, who was not present during many of the conversations between Agent Marquart and Gonzalez, did not have additional contact with law enforcement other than receiving payment of $160 in April.

Shortly before April 3, 2001, the phone number from Gonzalezís apartment appeared on Agent Marquartís caller identification.† Agent Marquart called Gonzalez on April 3, and, in a recorded conversation, asked if Gonzalez wanted to do some business.† They negotiated a price of $1,000 for one ounce of methamphetamine and agreed on the location and time for the sale.† Agent Marquart again wore surveillance equipment when they met in front of Gonzalezís apartment.† After Gonzalez entered Agent Marquartís car, the two men drove behind the apartment building where the methamphetamine transaction took place.† They also planned an additional sale of four ounces to Agent Marquart at a later date.† The substance that Gonzalez sold on April 3, 2001, was analyzed by the Bureau of Criminal Apprehension and identified as 27.6 grams of methamphetamine.

Gonzalez attempted to contact Agent Marquart on April 11, leaving a message and his phone number on Agent Marquartís caller identification.† This phone call also was recorded.† Agent Marquart returned the call and in a recorded conversation on April l6, they arranged a sale of four ounces of methamphetamine to take place two days later.† When Agent Marquart contacted Gonzalez on April 18, Gonzalez advised that he had the four ounces, but he was nervous about selling such a large amount to Agent Marquart.† The sale did not take place.†

Gonzalez was charged with one count of first-degree controlled-substance crime, a violation of Minn. Stat. ß 152.021, subd. 1(1) (2000).† Gonzalez moved for disclosure of the identity of the CI to support an entrapment defense, arguing that the CI induced him to sell drugs by offering him sexual favors.† The district court denied the motion.† After Gonzalez renewed the motion and attached his affidavit, the district court ordered an in camera interview of the CI to determine whether disclosure was warranted.† Following the in camera interview, the district court again denied the motion, finding no basis to disclose the identity of the CI.

At trial, a recording of the April 3 sale was played.† Officer Louwagie and Agent Marquart testified, but the state did not call the CI as a witness.† Gonzalez testified at trial and admitted discussing with Agent Marquart a sale of four ounces of methamphetamine.† Gonzalez also testified in support of his entrapment defense.† The jury found Gonzalez guilty of first-degree controlled-substance crime.† Gonzalez moved for judgment of acquittal or a new trial, which the district court denied.† This appeal followed.

D E C I S I O N

 

I.

 

Whether to order disclosure of an informantís identity is a decision that rests within the district courtís discretion, which will not be disturbed absent an abuse of discretion.† See State v. Martinez, 270 N.W.2d 121, 122 (Minn. 1978); see also U.S. v. Crenshaw, 359 F.3d 977, 1004 (8th Cir. 2004).†

The state has a legitimate interest in protecting the identity of informants.† Roviaro v. United States, 353 U.S. 53, 59-60, 77 S. Ct. 623, 627 (1957); State v. Litzau,650 N.W.2d 177, 184 (Minn. 2002).† ďWhere the disclosure of an informantís identity is relevant and helpful to the defense, or is essential to a fair determination of a cause, the stateís privilege to withhold the informantís identity must give way.Ē† Litzau, 650 N.W.2d at 184.† Courts consider the following factors when deciding whether disclosure of the informantís identity is warranted: (1) whether the informant is a material witness; (2) whether the informantís testimony will be material to the issue of guilt; (3) whether the testimony of officers is suspect; and (4) whether the informantís testimony might disclose entrapment.† Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979).† The defendant bears the burden of establishing by the defendantís testimony or other evidence a reasonable probability that the informantís testimony is necessary to receive a fair trial.† State v. Solheim, 477 N.W.2d 785, 787 (Minn. App. 1991)

††††††††††† Gonzalez contends that, because knowledge of the CIís identity was necessary to present his entrapment defense, the district court erred in denying the motion to compel disclosure of the CIís identity.† Finding that Gonzalez made the minimum showing necessary for a prima facie case of entrapment, the district court conducted an in camera interview with the CI.[2]† Following the in camera interview, the district court found ďno basis to conclude that disclosure of the confidential informantís name and identity is required.Ē††††††

ď[W]hen an informant is a mere transmitter of information and not an active participant so as to be a competent witness to the crime itself, the informantís name need not be disclosed.Ē State v. Villalon, 305 Minn. 547, 549, 234 N.W.2d 189, 191, (Minn. 1975).† The district court found that the CI was not a material witness.† Both the in camera interview and trial records support this finding.† The CI was absent during many of the preliminary discussions between Gonzalez and Agent Marquart about the availability and price of the methamphetamine.† Moreover, the CI was neither an eyewitness to nor a participant in the drug sale on April 3, 2001.† The evidence establishes that the CI was hired solely to introduce Gonzalez to Agent Marquart.† This introduction took place on March 9.† Neither Officer Louwagie nor Agent Marquart had any contact with the CI after March 9, by phone or in person, except when Officer Louwagie paid the CI $160 for her work.†

The district court found that the informantís testimony was not material to the issue of guilt, given the CIís absence during the drug transaction.† The district court also found that the CIís testimony would not be helpful to Gonzalez in overcoming any element of the crime charged.† From our review, it is clear that the CIís in camera testimony supports the district courtís conclusion that the CI was neither a material witness nor able to supply testimony that is material to the issue of guilt.

The district court also found that, because neither the testimony of Officer Louwagie nor Agent Marquart was suspect, this factor also did not support disclosure.† The district courtís findings as to this factor are also supported by the record.

The crux of Gonzalezís argument rests on the district courtís analysis of whether the informantís testimony would disclose evidence of entrapment.† Based on the in camera interview, the district court found that, rather than supporting the defense of entrapment, the CIís testimony would have supported the stateís claim that Gonzalez was predisposed to participate in the drug transaction.† We agree.

ďThe defense of entrapment has two necessary elements:† [i]nducement by the state and the accusedís predisposition to criminal conduct.Ē† In re Welfare of G.D.,473 N.W.2d 878, 883 (Minn. App. 1991).† The defendant carries the burden of raising the issue of entrapment by a ďfair preponderance of the evidence--either through cross-examination of the stateís witnesses or through defense testimony--that the government induced the commission of the crime.Ē† Id. (quoting State v. Vaughn, 361 N.W.2d 54, 57 (Minn. 1985)).† Entrapment exists when the police ďlure[] the accused into committing an offense which he otherwise would not have committed and had no intention of committing.Ē† State v. Poague, 245 Minn. 438, 443, 72 N.W.2d 620, 625 (1955).† The defendant is required to produce evidence of persuasion, badgering, or pressure by the state to establish inducement.† See G.D., 473 N.W.2d at 883.† If a person is willing and prepared to commit the crime, it is not a defense to claim that the stateís agent provided a favorable opportunity.† See Poague, 245 Minn. at 443, 72 N.W.2d at 625.

Once the defendant has made an adequate showing of government inducement, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime.† State v. Grilli, 304 Minn. 80, 96, 230 N.W.2d 445, 456 (1975).† Predisposition may be established by (1) the defendantís active solicitation to commit the crime, (2) the defendantís prior criminal convictions, (3) the defendantís prior criminal activity that did not result in a conviction, or (4) the defendantís criminal reputation.† Id. at 89, 230 N.W.2d at 452.† A defendantís ready response to the governmentís solicitation of the crime is an ďadequate meansĒ to establish predisposition.† State v. Olkon, 299 N.W.2d 89, 108 (Minn. 1980).

Here, the record fails to establish that the CIís testimony might disclose entrapment.† See Syrovtka, 278 N.W.2d at 562.† There is no evidence that the CI was hired for any purpose other than introducing Gonzalez to Agent Marquart.† The scope of the CIís work ceased after the March 9 introduction.† Neither the in camera testimony nor the trial testimony of any witness other than Gonzalez supports Gonzalezís claim that the CI pressured Gonzalez to sell methamphetamine to Agent Marquart.† Moreover, any actions of the CI after March 9 were on her own accord and beyond the influence of law enforcement.† The CIís payment was not based on whether Gonzalez sold methamphetamine to a government agent.† Rather, the CI was compensated for introducing Gonzalez to Agent Marquart, an event that occurred nearly one month before Gonzalez committed the offense.†

Even if Gonzalez had been able to establish government inducement, we conclude, after reviewing the transcript of the in camera interview, that the stateís burden to prove Gonzalezís predisposition to commit the sale of methamphetamine would have been bolstered by the CIís testimony and evidence of Gonzalezís prior convictions.†

Thus, we conclude that the district court did not err in denying Gonzalezís motion for disclosure of the CIís identity.

II.

Evidentiary rulings rest within the district courtís discretion and will not be disturbed in the absence of a clear abuse of discretion.† State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).† Evidence of a witnessís prior convictions is admissible if the crime is a felony and the district court determines that the probative value of admitting this evidence outweighs its prejudicial effect.† Minn. R. Evid. 609(a)(1).† ď[I]mpeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony.Ē† State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (quoting St. Paul v. DiBucci, 304 Minn. 97, 100, 229 N.W.2d 507, 508 (1975)).

In analyzing whether the probative value of a defendantís prior conviction outweighs its prejudicial effect, courts consider the following factors: (1) the impeachment value of the prior crime, (2) the date of the conviction and the defendantís subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of the defendantís testimony, and (5) the centrality of the credibility issue.† State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978); see also Ihnot, 575 N.W.2d at 586 (reaffirming application of the Jones factors to determine whether probative value outweighs prejudicial effect).†

Gonzalez argues that the district court erred in admitting Gonzalezís six prior convictions into evidence for impeachment without considering the Jones factors.† The district court found admissible Gonzalezís felony convictions of (1) assault of a police officer in 1994, (2) theft in 1996, (3) shooting into an occupied dwelling in 1996, (4) unlawful possession of a firearm in 1998, (5) fleeing a police officer in 1998, and (6) fifth-degree controlled-substance crime in 2000.† The district court denied the stateís motion to admit Gonzalezís conviction of second-degree burglary in 1989, ruling it inadmissible due to staleness.† The record does not indicate whether the district court analyzed the Jones factors before rendering its evidentiary ruling.

If the evidence of conviction could have been admitted after a proper application of the Jones factors, the district courtís failure to make explicit findings as to these factors is harmless error.† State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).† As to each of the prior convictions, an application of the Jones factors supports the district courtís determination that the probative value outweighs the prejudicial effect.† Although the crimes did not directly involve dishonesty, they nevertheless are probative of Gonzalezís credibility and assisted the jury in assessing his truthfulness.† See State v. Ross, 491 N.W.2d 658, 660 (Minn. 1992) (finding burglary conviction admissible under 609(a)(1) even though not a crime of dishonesty); State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979) (holding prior felony convictions not crimes of dishonesty are nevertheless probative of credibility).† The convictions were all within 10 years before the charged offense and establish a pattern of criminal conduct committed every two years that is probative of Gonzalezís trustworthiness.† See State v. Lund, 474 N.W.2d 169, 172-73 (Minn. App. 1991) (addressing issue of staleness conviction); see also Ihnot, 575 N.W.2d at 586 (ď[A] defendantís history of lawlessness and convictions enhances the probative value of even a stale conviction.Ē).†

The lack of similarity between five of the prior crimes and the current offense minimized the prejudicial effect of their admission.† See Id. at 586-87.† The only similar conviction admitted was the fifth-degree controlled-substance crime in 2000.† Because Gonzalez raised an entrapment defense, the 2000 controlled-substance crime was otherwise admissible to show Gonzalezís predisposition to commit the charged offense.† See United States v. Crump, 934 F.2d 947, 954 (8th Cir. 1991) (recognizing that courts have repeatedly held prior bad-act evidence is admissible to show defendantís predisposition in entrapment defense); Grilli, 230 N.W.2d at 451 (entrapment defense subjects defense to probing inquiry into his predisposition to commit the charged offense).†

Gonzalezís testimony was critical to his entrapment defense.† But because the admission of the prior convictions did not prevent Gonzalez from testifying as to his entrapment defense, application of the fourth Jones factor is now moot.† See State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (where impeachment evidence would prevent defendant from testifying and defendantís testimony is important, court may exclude prior convictions).†

Also because of the entrapment defense, Gonzalezís credibility was central to this case.† His prior convictions were probative of his credibility, thereby weighing in favor of their admission.† See Ihnot, 575 N.W.2d at 587 (where credibility is a central issue, fifth Jones factor is satisfied).† Based on our application of the Jones factors, we conclude that the district court did not err in admitting for impeachment the six prior convictions.

III.

††††††††††† When a defendant fails to preserve an objection to prosecutorial misconduct at trial, the issue is waived on appeal, and we review only for plain error.† State v. Johnson, 672 N.W.2d 235, 239-40 (Minn. App. 2003), review denied (Minn. Mar. 16, 2004); State v. Yang, 627 N.W.2d 666, 678 (Minn. App. 2001), review denied (Minn. July 24, 2001).† Notwithstanding the failure to object, we will reverse the conviction when the misconduct is ďunduly prejudicial.Ē† State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

Gonzalez challenges for the first time on appeal the stateís use of the impeachment evidence in closing arguments.† Gonzalez asserts that the state improperly used the prior convictions in closing argument to show that Gonzalez was a ďbad person.Ē† We disagree.† ďThe prosecutor and the defense have considerable latitude in closing argument, for neither is required to make a colorless argument.Ē† State v. Jensen, 308 Minn. 377, 380, 242 N.W.2d 109, 111 (1976).† The state simply recited the facts as established by testimony regarding the prior convictions.† The district court subsequently instructed the jury as to the proper use of these prior convictions during jury deliberations, and we presume that the jury followed these instructions.† State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998). †Because the record does not support a finding of prosecutorial misconduct, we need not address whether the prosecutorís actions ďplayed a substantial part in influencing the jury to convict.Ē† State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

Affirmed.



[1]† During oral argument, appellant withdrew his claim that the state failed to disclose evidence favorable to his entrapment defense.

[2]The district court initially denied Gonzalezís motion to disclose the CIís identity without conducting an in camera interview because Gonzalez failed to make a prima facie case of entrapment.† After Gonzalez moved for reconsideration and submitted an affidavit in support of his motion, the district court granted the in camera interview to determine whether disclosure was warranted.†