This opinion will be unpublished and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
State of Minnesota,
Taft Lee Johnson,
Stearns County District Court
File No. K5-04-528
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Janelle P. Kendall,
John M. Stuart, State Public Defender, Leslie J. Rosenberg,
Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.
Appellant challenges his conviction for sale of crack cocaine on the grounds that the government’s involvement in the drug transaction was so outrageous as to constitute a violation of his right to due process secured by the federal and state constitutions and that the evidence was not sufficient to support the jury’s verdict. We affirm.
The district court convicted appellant Taft Lee Johnson of a third-degree controlled-substance crime, in violation of Minn. Stat. § 152.023, subds. 1(1) (2002). The conviction stemmed from the alleged sale by appellant of crack cocaine to Morris Royston, a paid confidential informant.
Joseph Steve, a
January 2004, Royston informed Steve that an individual Royston knew only as
“John,” could sell Royston crack cocaine.
Royston agreed to coordinate a controlled buy with “John,” and Steve agreed
to pay Royston $50 if the buy was successful.
Royston then contacted “John,” indicating that he was interested in
purchasing crack cocaine, and would pay $100 for it. The two agreed to meet in
To prepare for the controlled buy, Steve photocopied five $20 bills in order to track the serial numbers, and searched Royston to ensure that he did not possess contraband prior to the controlled buy. Steve then drove Royston to the location of the buy to further ensure Royston did not possess contraband before the controlled buy. Before meeting with “John,” Steve gave Royston an electronic listening device that allowed for audio surveillance.
Upon arriving at the buy location, Royston called “John” to confirm the time and location of the buy. During one of the calls, “John” indicated that he would arrive in a white Cadillac. In the final call, “John” directed Royston to meet him in a more secluded spot, between two garages. When Royston went between the garages, Steve lost sight of Royston and did not see the buy. However, Steve heard the entire transaction over the listening device and testified that Royston only left the more visible public location at “John’s” request.
At trial, Royston identified the appellant as the individual in the white Cadillac from whom Royston purchased the crack cocaine. Investigator Andrew Ochs of the Sherburne County Sheriff’s Department assisted Steve as a member of the surveillance team. Ochs testified that from the audio surveillance he could hear Royston approach “John” to make the buy. Ochs further testified that he slowly drove past the buy site, that the only vehicle between the garages was a white Cadillac, that Royston was speaking to the only individual in that vehicle, that he wrote down the license plate number, but that he was unable to see the person in the car clearly enough to identify him.
After Royston completed the buy, he alerted the surveillance team and promptly returned to Steve’s car. Upon returning to the car, Royston handed Steve a baggie containing a white substance, which later analysis determined to consist of .2 grams of crack cocaine. Once Steve obtained the drugs, he immediately searched Royston to ensure that Royston did not possess additional contraband.
After the buy,
Ochs stayed in the vicinity of the white Cadillac, hoping to identify the
driver when the vehicle left the buy site.
Over the audio surveillance device Ochs heard Royston state that the
white Cadillac was pulling away from the buy site, heading toward Seventh Street where Ochs positioned
his vehicle. Subsequently, Ochs saw a
white Cadillac pull out onto
Steve decided not to make an immediate arrest of the seller. At trial, Steve explained that he made this decision because of Ochs’s and Royston’s positive identification of appellant as the seller and because he wished to safeguard ongoing investigations involving Royston as a confidential informant. The jury convicted and the court sentenced appellant to 53 months, the maximum presumptive sentence. This appeal followed.
The first issue is whether law enforcement violated appellant’s due-process rights during the controlled buy. Appellant asserts that the actions by the police were so outrageous as to infringe on his constitutional right to due process.
At the outset, we
note that the state objects to this issue on the ground that appellant failed
to raise it at trial. Generally, a
reviewing court “will not decide issues which were not raised before the
district court.” Roby v. State, 547 N.W.2d 354, 357 (
issue was not properly raised in the district court, appellant’s counsel did
make two separate references on the trial record regarding police over-involvement
in his client’s crime. Also, the factual
details regarding Royston’s work as a paid informant are set forth in the
record and both parties extensively briefed the issue of due process and law
enforcement involvement in the drug buy.
Thus, we will consider the issue.
“After accepting all factual findings by the district court that are not
clearly erroneous, the ultimate question for this court is whether the charge
at issue violated due process, which is a legal question reviewed de
novo.” State v. Fitzpatrick, 690 N.W.2d 387, 390 (
governmental conduct can violate due process.
This court has applied a four-factor analysis to evaluate this due-process defense. See State v. James, 484 N.W.2d 799, 802 (Minn. App. 1992) (quoting People v. Isaacson, 378 N.E.2d 78, 83 (N.Y. 1978)), review denied (Minn. June 30, 1992). The factors are:
1) Whether the police manufactured a crime which 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 defendant’s reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation, or exorbitant gain, or by persistent solicitation in the fac[e] of unwillingness; and
4) Whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.
The conduct of law enforcement, and not of the defendant, is the focus of the first factor. James, 484 N.W.2d at 802. Mere involvement by the police in ongoing criminal matters does not rise to the level of manufacturing a crime. See id. (conducting a “reverse sting” in front of a known crack house in a neighborhood replete with drug-trafficking not manufacturing a crime where undercover officer waited to be approached by defendant for drug sale). Law enforcement’s conduct in this case does not violate this factor.
Use of a
confidential informant does not violate the second factor. In Fitzpatrick, this court held that
compliance checks for sale of alcohol to underage individuals, even where
certain establishments were targeted, were not repugnant to a sense of justice
where the underage informant wore a cap identifying him as a member of the
compliance squad. 690 N.W.2d at 391.
Although the Fitzpatrick court
determined that the conduct of law enforcement was “improper,” the conduct failed
to rise to the level necessary to invoke the due-process defense.
The final factor is demonstrated by an overriding police desire for a conviction of any individual. James,484 N.W.2d at 802-03. Where the purpose of the police activity is to secure public safety and prevent future crimes, and is not targeted at a specific individual, the fourth factor is not met. Id. at 802; cf. Isaacson, 378 N.E.2d at 80-84 (overriding desire for conviction violates due process where police were solely interested in arresting a specific defendant and leaned heavily on informant to bring that defendant into their jurisdiction). Moreover, where the goal is simply to reduce drug-trafficking, the fourth factor under Isaacson cannot be shown. See, e.g., James, 484 N.W.2d at 802 (noting that the police motive was to rid the area of street-trafficking).
the record indicates that Steve and the Central Minnesota Gang Strike Force
were investigating ongoing drug-trafficking in
The second issue is whether
the testimony of a paid police informant was legally sufficient to support the
jury’s guilty verdict. In considering a
claim challenging the sufficiency of the evidence, the court’s “review on
appeal is limited to a painstaking analysis of the record to determine whether
the evidence, when viewed in a light most favorable to the conviction, was
sufficient to permit the jurors to reach the verdict which they did.” State
v. Webb, 440 N.W.2d 426, 430 (
contends that there was insufficient evidence to sustain his conviction because
the in-court identification of appellant by a paid police informant, who
admitted to using drugs while working with law enforcement, was not
corroborated. Appellant urges that this
court impose a corroboration requirement on informant testimony much like the
statutory requirement of corroboration for accomplice testimony. See
We note, however,
that neither the state legislature nor the Minnesota Supreme Court has extended
the corroboration requirement to informant testimony. In any event, circumstantial evidence may be
used for such corroboration. Cf. State v. Bowles, 530 N.W.2d 521, 532
In the case
before us we do not need to reach the issue of whether a drug-purchasing
informant’s testimony is inherently inadequate.
The record here contains circumstantial evidence corroborating Morris
Royston’s testimony. He was searched
before and after the buy; the results of the search were consistent with his
testimony. He wore a listening device. Both Steve and Ochs testified to witnessing
various parts of the controlled buy, as well as having audio surveillance of
the entire buy. Steve had visual contact
with Royston immediately before and immediately after the buy. Ochs watched Royston while he was engaged in
conversation with the driver of the white Cadillac and then identified
appellant as the driver of that vehicle.
Moreover, identification is a question of fact for the jury to
determine. State v. Otten, 292
Although appellant raises a due-process claim under both the state and federal constitutions,
appellant fails to distinguish between the two claims. Therefore, the following analysis disposes of
both. Moreover, we note that
historically the Minnesota Supreme Court has interpreted the due-process clause
of the state constitution substantially the same as the due-process clause of
the federal constitution. See
is important to distinguish this due-process defense from entrapment. While the due-process defense focuses on the
nature of police conduct, James, 484
N.W.2d at 802, the focal point of entrapment is the defendant’s subjective
predisposition to commit the crime, State
v. Grilli, 304