This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Laurence Levelle Davis,
Filed July 26, 2005
District Court File No. K8-02-601268
Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public
Defender, Michael F. Cromett, Assistant State Public Defender,
Considered and decided by Randall, Presiding Judge; Kalitowski, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from his conviction of controlled-substance crime in the third degree, appellant contends that the evidence presented was insufficient to establish proof beyond a reasonable doubt, and appellant did not personally consent to the no-adverse-inference jury instruction on the record. Because we find no reversible error, we affirm.
Moss was a paid informant used by the
leaving the vehicle, Commander Wright searched Moss and found no drugs or money
on him. He then gave Moss $500 for the
drug purchase and fitted him with a wireless transmitter. Due to time constraints, Commander Wright
could not fit Moss with a digital recorder.
Moss then called
meeting at the restaurant, Moss and
D E C I S I O N
Sufficiency of the Evidence
contends that the evidence is insufficient to support the conviction because
the only evidence came from a paid informant with a criminal past, the
safeguards for a controlled buy were bypassed, and there was no corroboration
of the informant’s claims. When considering a claim of insufficient
evidence, this court’s review is limited to a careful assessment of the record
to determine whether “a jury could reasonably find the defendant guilty, given
the facts in evidence and the legitimate inferences which could be drawn from
those facts.” State v. Robinson,
604 N.W.2d 355, 365-66 (
argues that this situation is analogous to that of accomplice testimony, which
requires corroboration to sustain a conviction.
In support of his argument for this extension, appellant
cites caselaw from other jurisdictions. See
circumstantial evidence can provide the requisite corroboration in
accomplice-testimony cases. State v.
Bowles, 530 N.W.2d 521, 532 (
asserts that the failure to follow the essential safeguards of the controlled-buy
procedure and the lack of corroboration lead to the conclusion that the
informant’s testimony is not credible and is unreliable. In support of his argument, appellant maintains
that the police failed to complete a sufficient search of the informant prior
to the drug purchase. Also, the
informant went to his motel room two times before meeting with the police
rather than following the appropriate procedure, which would have been to meet
with the police immediately after the drug purchase. Further, there was a discrepancy between the
informant’s testimony regarding the approximate amount of drugs he believed the
appellant gave him and the amount actually given to the police by the informant
after the purchase. The weight and
credibility of Moss’s testimony, however, was for the jury to determine.
appellant implies that the
No-Adverse-Inference Jury Instruction
Appellant argues that the district
court abused its discretion by giving the no-adverse-inference jury instruction
without his personal consent. Ordinarily,
a district court should obtain a criminal defendant’s permission before giving 10
In light of Thompson, respondent concedes that appellant has satisfied the first two prongs of the test; the district court plainly erred by failing to ask appellant personally whether he wanted the no-adverse-inference instruction. But appellant must also show prejudice. Plain error is prejudicial when there is a reasonable likelihood that giving the instruction would have had a significant effect on the jury’s verdict. Griller, 583 N.W.2d at 741.
support of his argument that he has met the heavy burden of proof on the third Griller prong, appellant cites State v. Duncan, 608 N.W.2d 551 (Minn.
App. 2000), and State v. DeLaCruz, No.
Further, in Thompson, which was decided prior to the plain-error test articulated in Griller and Baird, the supreme court noted that “[i]t does not follow . . . that the defendant is entitled to a new trial simply because the record on appeal is silent as to whether the defendant and his attorney wanted the instruction . . . .” Thompson, 430 N.W.2d at 153. The record in this case does not reflect whether appellant and his trial attorney discussed the instruction. Appellant is not entitled to a new trial solely because the record is silent as to his wishes regarding the no-adverse-inference instruction. Because appellant has not shown that the verdict likely would have been different if the district court did not give the instruction, appellant has not shown prejudice to justify reversal.
 The issue presented in this case is almost
identical to that of two recent unpublished opinions, State v. Robinson,
No. CX-02-662, 2003 WL 42175 (