This opinion will be unpublished and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
John Wesley Buchanan, IV,
Hennepin County District Court
File No. 04006269
Mike Hatch, Attorney General, 1800 Bremer Tower,
445 Minnesota Street, St. Paul,
Amy Klobuchar, Hennepin County Attorney, Jean Elizabeth Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Melissa Victoria Sheridan, Assistant State Public Defender, 1380 Corporate Center Curve #320, Eagan, MN 55121; and
Lawrence Hammerling, Deputy State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On appeal from his conviction of and sentence for controlled substance offenses, appellant argues that the trial court (1) abused its discretion in denying his motion to disclose the identity of the informant and in admitting evidence of a gun found in his home and expert testimony that the gun was evidence of the intent to sell cocaine; and (2) erred in imposing separate sentences for his possession of crack and powder cocaine. Because the trial court did not abuse its discretion and did not err, we affirm.
Confidential Reliable Informant
Appellant John Wesley Buchanan, IV argues that the trial court abused its discretion by denying his motion for disclosure of the identity of the confidential reliable informant (CRI).
Disclosure of an informant’s identity rests within the
trial court’s discretion. State v.
Appellant first argues that because the CRI participated in and witnessed an offense that led to appellant’s prosecution, his/her testimony was essential to a fair trial. The record supports the trial court’s findings, however, that the CRI did not participate in the charged possession offenses. Although the CRI took part in a controlled drug buy, the drugs upon which the charges were based were not from the controlled drug buy. The drugs forming the basis of the charged offenses were seized when the warrant was executed, and the CRI did not take part in the execution of the warrant. Because the information supplied by the CRI was only used to obtain the search warrant, the CRI was not a witness and his/her testimony was immaterial to the issue of guilt as to those offenses. See State v. Marshall, 411 N.W.2d 276, 280 (Minn. App. 1987) (concluding trial court did not err in concluding defendant failed to show need for disclosure), review denied (Minn. Oct. 26, 1987).
Second, appellant argues that the officers relied on
false information in obtaining the search warrant. On appeal, the only information alleged to be
false within the officer’s affidavit is that the appellant’s apartment building
and apartment had a buzzer security system.
Appellant claims that the building had a buzzer system, but he had not
opted to set it up or use it. He
submitted two other affidavits stating that, on other occasions, his buzzer did
not work. Although in the warrant
affidavit, the officer referred to people entering appellant’s apartment
building and getting “buzzed up,” the specific means by which people gained
entry to appellant’s apartment is an insignificant fact that does not call all
of the other facts into question.
Third, appellant argues that the CRI was a crack-addicted prostitute. Appellant produced no corroborating evidence to support this allegation; it was mere speculation. The affiant stated that the CRI “had broad knowledge” of narcotics and drug trafficking. Furthermore, the record indicates that the officer tested the CRI’s reliability and confirmed the CRI’s information with his own surveillance. Therefore, even the establishment of the CRI as a crack addict or prostitute would not necessarily impact the informant’s credibility.
Appellant also argues that the trial court should have ordered an in camera review of the CRI to determine reliability. A defendant must make a “’minimal showing of a basis for inquiry’ that is ‘more than mere speculation’” to obtain an in camera review. State v. Smith, 448 N.W.2d 550, 556 (Minn. App. 1989) (noting that state’s interest in protecting informants in drug world is strong) (citation omitted), review denied (Minn. Dec. 29, 1989). Because appellant’s request is based on speculation and appellant’s erroneous claim that the CRI was the only witness, appellant has not satisfied the minimal showing.
Admission of Gun and Expert Testimony
Appellant argues that the trial court abused its discretion in admitting evidence that a gun was found in appellant’s home and expert testimony that the gun was evidence of possession with intent to sell cocaine. The court denied the pretrial motion to exclude the gun and testimony, but cautioned that references to the gun should be minimal. At trial, the court admitted the gun, which was found during the execution of the search warrant, and expert testimony that such a gun is “an indicator . . . of a [drug] distributor.”
The expert opined that the larger the quantity of drugs, the more likely that a firearm will be present for self-protection and protection of one’s investment. He inferred from the items seized execution of the warrant, including the large amount of cocaine, that appellant possessed the firearm for those reasons. But he clarified that, in this case, the firearm is not a necessary factor to show intent to sell due to all of the other items found.
rulings rest within the sound discretion of the trial court and will not be
reversed absent a clear abuse of discretion.
On appeal, the appellant has the burden of establishing that the trial
court abused its discretion and that appellant was thereby prejudiced.” State
v. Amos, 658 N.W.2d 201, 203 (
argues that the gun did not make his possession of drugs with intent to sell
any more or less probable. See
argues that the expert testimony was inadmissible because there was no
connection between the gun and the charged offenses. See
Appellant argues that his possession of crack and powder cocaine at the same time was part of the same behavioral incident and no separate sentence could be imposed for the fifth-degree controlled substance offense under Minn. Stat. § 609.035, subd. 1 (2004).
“If a person’s conduct constitutes more than one offense
under the laws of this state, the person may be punished for only one of the offenses
. . . .” Minn. Stat. § 609.035,
subd. 1 (2004). The defendant may not be
sentenced for two or more offenses that were committed as part of the same
behavioral incident. State v. Norregaard, 384 N.W.2d 449, 449
Appellant was sentenced concurrently for (1) first-degree possession with intent to sell 402.16 grams of powder cocaine and (2) fifth-degree possession of 2.43 grams of crack cocaine. The record reflects that the substances were distinct drugs. The powder was found in appellant’s safe; the crack was found on his person. The powder was found in a large quantity in close proximity to paraphernalia characteristic of drug sales; the small amount of crack was not found with other paraphernalia indicating the intent to sell.
Appellant argues that the motive for possession of the
two types of drugs should be considered the same because the state did not
specifically argue a different motive for possessing the crack. State
v. Reese, 446 N.W.2d 173, 180 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.