This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Jermaine Sean Brown,




Filed July 25, 2006


Halbrooks, Judge

Dissenting, Minge, Judge



Blue Earth County District Court

File No. CR-04-2704



Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Ross Arneson, Blue Earth County Attorney, Christopher J. Rovney, Assistant County Attorney, 410 South 5th Street, P.O. Box 3129, Mankato, MN 56002-3129 (for respondent)


John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant alleges a number of errors in his trial, which culminated in a conviction of aiding and abetting a conspiracy to commit a second-degree controlled-substance crime.  First, appellant alleges ineffective assistance of counsel on the part of his trial counsel because his counsel failed to challenge for cause or use a peremptory strike on an individual who initially admitted to being prejudiced against African Americans.  Second, appellant contends that the charge of aiding and abetting a conspiracy is not a viable charge in Minnesota.  Third, appellant claims that the district court abused its discretion by not disclosing the identity of the informant and producing the audiotapes made during the controlled drug buys.  Finally, appellant contends that the district court abused its discretion by allowing a police officer to testify to inadmissible hearsay statements.  Because failing to object to the inclusion of an individual on appellant’s jury was not ineffective assistance of counsel, because aiding and abetting a conspiracy is a viable charge in Minnesota, and because the district court did not abuse its discretion by not requiring disclosure of the identity of the informant and by allowing the police officer’s testimony, we affirm.


            Law enforcement agencies in the Mankato area worked together on a series of controlled drug buys commencing on August 27, 2004.  The officers used a confidential reliable informant (CRI) to effectuate the controlled buys because the CRI had been approached by a woman, Penny Kelly, to purchase crack cocaine. 

            On August 27, 2004, the date of the first buy, the officers gave the CRI money to purchase an 8-ball of crack cocaine.  (During each buy, the CRI was wired with a listening device so that law-enforcement agents were able to monitor what was said in the CRI’s presence.)  The CRI picked up Kelly and went to Jerome Slack’s apartment.  The CRI met with Slack and inquired about purchasing an 8-ball of crack cocaine, and Slack contacted the source of his drugs.  Then Slack, the CRI, and Kelly left Slack’s apartment and went to Burger King, where Slack was dropped off at his vehicle.  He told the CRI and Kelly to meet him at his apartment.  Slack got into his vehicle and drove to another apartment building, where officers saw him enter the building.

            Shortly thereafter, Slack left the building and began exiting the parking lot.  As he did so, a red Pontiac Grand Prix entered the parking lot and stopped next to Slack’s vehicle.  The Grand Prix was registered to Maria Esquivel, appellant Jermaine Brown’s live-in girlfriend.  Slack then re-entered the building.  A law-enforcement officer also entered the building to determine what Slack was doing and reported that Slack had entered apartment number five, previously identified as appellant’s apartment.  After Slack left the building, he returned to his apartment and delivered the crack cocaine to the CRI.

            After the first buy, the officers believed that appellant and Esquivel were Slack’s sources and wanted to make a purchase directly from them.  But that was not possible because after the first controlled buy, appellant and Esquivel changed residences.  As a result, the police needed Slack’s assistance.  On September 1, 2004, the CRI made two controlled buys, both times using Slack.  The first time, the CRI was given money and instructed to purchase two 8-balls of crack cocaine.  Again, the CRI went to Slack’s apartment and both the CRI and Slack then drove to a Spur gas station.  Slack then continued driving. 

Officers saw Slack pull up to Esquivel’s Grand Prix, which was driven by a black male, who was subsequently identified as appellant.  Officer Rittmiller observed Slack reach out his car window toward the Grand Prix, but did not see appellant’s actions.  After that interaction, Slack drove to another building, parked, and entered.  Appellant left Slack, drove to the Spur station to get gas, and then returned to the building that Slack had entered.  A short time later, Slack returned directly to the Spur station and delivered the crack cocaine to the CRI. 

Following that controlled buy, an officer went to the building that Slack had entered and, after inquiring about a “For Rent” sign in the window, learned that appellant and Esquivel had just moved into the upstairs apartment.  Later that evening, the CRI engaged in the third controlled buy.  The police instructed the CRI to purchase another 8-ball of crack cocaine.  The CRI telephoned Slack and agreed to meet him at the Spur station.  Slack then drove from the Spur station to appellant’s residence.  Slack subsequently returned to the Spur station and delivered crack cocaine to the CRI. 

On September 3, 2004, the police executed a search warrant at appellant’s and Esquivel’s residence.  The officers seized a digital scale that had a white residue on it, plastic baggies, and Esquivel’s purse, which contained three one-hundred-dollar bills that had been used in the controlled buys. 

Appellant moved to compel the state to disclose the CRI’s identity and to disclose the audiotapes that were made during the three controlled buys.  The district court denied those motions, finding that the CRI was not a material witness to the crime, was not an eyewitness to the crime, and had no personal knowledge of either Slack’s or appellant’s activities.  Thus, the state was not compelled to disclose the CRI’s identity; and, because the identity could be gleaned from the audiotapes, the district court did not compel the state to produce the tapes.

During trial, appellant’s counsel objected frequently during Rittmiller’s testimony.  Appellant alleged that the officer was testifying to things that he did not have personal knowledge of and that his testimony contained inadmissible hearsay statements.  The district court had previously ruled that the officer could not testify about actual statements made by the CRI or Slack that were obtained from the listening device, but did allow the officer to testify about what transpired during the investigation and controlled buys.  The jury convicted appellant of aiding and abetting a conspiracy to commit a second-degree controlled-substance crime, and the district court imposed the presumptive sentence.  This appeal follows.



            Appellant alleges that his trial counsel was ineffective because he failed to challenge for cause or, in the alternative, peremptorily strike an individual on his petit jury based on racial bias or prejudice.  Because a claim of ineffective assistance of counsel involves a mixed question of law and fact, our standard of review is de novo.  State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citing Strickland v. Washington, 466 U.S. 688, 698, 104 S. Ct. 2052, 2070 (1984)).

The defendant must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 


Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). 

A.        Challenge for cause 

A juror may be challenged for cause by either party upon the following grounds: 1. The existence of a state of mind on the part of the juror, in reference to the case or to either party, which satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the party challenging. 


Minn. R. Crim. P. 26.02, subd. 5(1).  In order to challenge a juror for cause, the motion “may be oral and shall state the grounds on which it is based.”  Id., subd. 5(2).

            “In an appeal based on juror bias, an appellant must show that the challenged juror was subject to challenge for cause, that actual prejudice resulted from the failure to dismiss, and that appropriate objection was made by appellant.”  State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983).  Thus, it is appellant’s burden to prove actual bias.  This court has stated that not challenging a juror at the time of voir dire, but only asserting the claim of bias after a conviction, may be fatal to a claim of juror bias.  State v. Blais, 379 N.W.2d 236, 238 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986).

            1.         Subject to challenge for cause

            In State v. Logan, a case that appellant heavily relies on, the supreme court stated that the failure to use a peremptory strike after the district court denied a challenge for cause presents the question of whether appellant could complain about the individual’s presence on the jury.  535 N.W.2d 320, 324 (Minn. 1995).  But the supreme court did not answer the question because those were not the facts before it, as Logan had no peremptory strikes remaining at the time of his challenge for cause.  Id.  Logan’s attorney challenged a potential juror’s statement that he would give a police officer’s testimony more weight than other witnesses’ testimony.  Id. at 322.  The district court allowed the prosecutor an opportunity to rehabilitate the juror before ruling on the challenge, and following further questioning, the defense attorney renewed his challenge for cause.  Id. at 323.  The district court denied the challenge.  Id.

            The supreme court stated that

if the members of a petit jury are selected on improper criteria or if a biased juror is improperly allowed to sit in judgment of a criminal defendant and the issue is properly raised and preserved, the error has undermined the basic structural integrity of the criminal tribunal itself, and is not amenable to the harmless-error review.


Id. at 324 (emphasis added) (quotation omitted).  Thus, the supreme court reversed and remanded on this issue.  Id. at 325.

            Logan is distinguishable from this case, which presents a different question: whether it is ineffective assistance of counsel to not challenge or object to the presence of an individual on a petit jury after that individual has admitted to a certain level of prejudice toward members of the defendant’s race.

            But Logan provides some guidance.  The supreme court stated that “[i]f a prospective juror during voir dire admits to this ‘state of mind’ described in the rule, then the juror should be excused, unless, of course, the prospective juror is ‘rehabilitated.’”  Id. at 323.  Thus, we must look at what the juror stated during voir dire. 

The Court (C): Do any of you have a personal belief or moral philosophy that would make it difficult for you to perform this duty as a juror? 


. . . .


The Juror (J): Yes, I’m a—hate to admit it but I am prejudice to blacks.


C: All right, and do you feel that that is—ah—make you feel that you [are] unable to be fair and impartial in this matter?


J: In this matter I don’t think it would.  No, I don’t think it would.


C: Well, but—


J: But I am being truthful, I am prejudice from past experiences.


C: Okay, well you understand that the defendant is black?


J: Right, that is why I want to get it out there.


Following that interaction between the district court and the juror, the defense attorney questioned the juror on his admitted prejudice toward African-Americans.  The attorney essentially asked the juror to elaborate on his prejudice:

J: Right, like I said personally to him I wouldn’t have no problems with it I don’t think, but I’d have no reason for it.  Just getting out of the military I ran—you know back them days there always seemed to be quite a few squabbles.  My daughter dates a black man.  She’s 23 years of age, she knows I disapprove of it, but I can’t do nothing about it.  So I have no problems with that.  She can do what she want you know, she’s of age.


Attorney (A): Do you—ah—do you have your daughter and your—and her fiancé over to your home ever?


J: No.  I told her right from the beginning I did not want any black people at—on my place for the simple fact that from the dealings from [my] past, my past experiences with them—I got along good with them when I was in the service and then when it came time to watch my back well it they just didn’t seem to do it.


. . . .


A: Okay, so this is all primarily speaking from your experiences in the military?


J: Yup.


A: What sort of experiences did you have that caused you to develop this—ah—prejudice as you call it?


J: Ah, a lot—it seemed like—one on one everybody seemed to get along together and I think that if anybody has been in the military knows the same thing, when you have a bunch of either group whites or blacks together it seemed like they turned.  You know they didn’t want nothing to do with the white guy or the white guy didn’t want nothing to do with the black guy at the time so—


A: So as it stands now—um—you’re basically indicating that you to the extent possible would just as soon disassociate yourself from having any contact with any blacks?


J: Any personal contact, yes[.]


On this record alone, the juror would be subject to a challenge for cause.  But the analysis does not end there; we must consider the issue of rehabilitation.

            “[R]ehabilitation takes the form of the prospective juror stating unequivocally that he/she will follow the trial court’s instructions and will fairly evaluate the evidence.”  Logan, 535 N.W.2d at 323.  Appellant’s trial counsel inquired as to whether the juror believed that he could be impartial despite his prejudices, and the juror continued:

J: I’m saying I myself know that I can be fair to anybody that—there’s—like I don’t have to socialize with anybody else so I know I can be fair to—with Mr. Brown—Brown, I can be fair to him on it, whether he was white or black it would make no difference to me on that.  I mean would bring prejudice into this—into being a jury—being a juror on it—I don’t think I would.


(Emphasis added.)


            Later, the defense attorney returned to this juror and continued questioning him on this issue:

A: [Y]ou won’t normally associate with African-Americans if you can at all avoid it, is that generally correct?


J: That is correct, yes.


A: And you wouldn’t let your daughter’s fiancé into your home?


J: No, it’s my home.  She knows how I feel about that—a mixed relations you know.  I don’t agree with that all.


A: Okay.


. . . .


A: [Y]ou indicate that you somehow think that you can be fair, but why given your experience and your feelings about blacks do you think that you’ll be able to put that aside when you are doing an analysis of whether the State has met its burden of proof?


J: Well, basically we are not—I—I assume he was con—ah—accused of giving drugs is that what—what the charge is?


A: Well the actual charge is aid and abet conspiracy.


J: Well—well—we’ll be looking at that, not whether he his black or white.  I—I’d personally would be listening to that part.


A: Okay.


J: As far as it black or white—like [I] said the racism—ah—I think I would deal that out.


(Emphasis added.)  There was no challenge to this juror following this exchange.

2.         Actual prejudice

            Appellant speculates that because of the juror’s statements during voir dire, the juror must have cast his vote out of prejudice against him.  But appellant relies on nothing more than a guilty verdict in asserting prejudice.  The juror stated that he could be fair and that he would not consider appellant’s race in his deliberations.  As this court has stated, it is difficult to succeed on a claim of actual juror bias that is raised only after conviction.  Blais, 379 N.W.2d at 238.  In this case, we conclude that appellant has not met his burden of proving actual prejudice.

3.         Proper objection

It is undisputed that no objection to the inclusion of this individual on appellant’s jury was made.  But because the district court would not have been required to grant a challenge for cause and because appellant has not shown actual prejudice, we cannot say that appellant’s trial counsel’s representation fell below an objective standard of reasonableness for failing to challenge the juror for cause.

B.        Peremptory strike

Appellant also alleges that it was ineffective assistance of counsel for his trial counsel to fail to use a peremptory strike on the juror.  Appellant does not fully brief this issue, as he focuses his attention on the challenge-for-cause issue. 

It is appellant’s burden to prove that his counsel’s representation was unreasonable, and he has not shown that the failure to use a peremptory strike was anything other than trial strategy.  See Dunn v. State, 499 N.W.2d 37, 38 (Minn. 1993) (stating that if “[the] record affords no basis for second-guessing the experienced public defender’s jury selection tactics as mistaken or improvident[,] representation should be found effective”) (quotation omitted)).  It is certainly possible that appellant’s counsel’s decision not to use a peremptory strike in this case was a matter of trial strategy.  Appellant has failed to carry his burden of showing that the failure to use a peremptory strike was not merely trial strategy.  Therefore, we conclude that his trial counsel’s representation was not ineffective.


There is no Minnesota case addressing whether a defendant can be charged and convicted of aiding and abetting a conspiracy, but that charge is recognized in the federal system.  See United States v. Galiffa, 734 F.2d 306, 310 (7th Cir. 1984) (acknowledging the crime of aiding and abetting a conspiracy).  Professor LaFave has stated, as cited in Galiffa, that “the Supreme Court, although it has not explicitly ruled on this issue, would decide that a person can be guilty of aiding and abetting a conspiracy when the person commits an act designed to further the conspiracy.”  734 F.2d at 309.  The key requirement is that the abettor must know of the conspiracy’s existence.  Id. at 309-10.

            The example used in Galiffa states:

If a plan was organized to sell narcotics, and an act was taken with the knowledge that the act would further the object of the conspiracy, however, the substantive crime which was the object of the conspiracy was not achieved nor was an attempt ever made, one could say that the crime to conspire to deliver narcotics was committed and that a person, who attempted to aid and abet the furtherance of that conspiracy should be criminally liable.  Without this charge, the person could not be held criminally liable although his conduct and evil intent are the same regardless of whether the object is achieved or even attempted.


734 F.2d at 310 n.7 (quotation omitted).


            “Whoever conspires with another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy” is guilty of conspiracy.  Minn. Stat. § 609.175, subd. 2 (2004).  “‘Conspiracy requires a collective criminal agreement to commit a crime and an overt act in furtherance of the agreement.’”  In re D.W.O., 594 N.W.2d 207, 210 (Minn. App. 1999) (quoting State v. Evans, 347 N.W.2d 813, 817 (Minn. App. 1984), review denied (Minn. July 26, 1984)). 

            By its very nature, a conspiracy requires two or more people:  “Whoever conspires with another . . . .”  Minn. Stat. § 609.175, subd. 2 (emphasis added).  In the state’s closing argument, the prosecutor asserted that the conspiracy consisted of the CRI, Slack, and appellant.  But toward the end of his closing, the prosecutor stated that “there are several people who could be involved, Maria Esquivel, obviously benefited from the crime, so she was involved in the conspiracy.”   

Law enforcement, acting in their official capacity, cannot be a party to a conspiracy, because an officer does not have the requisite intent to commit the substantive crime.  See 2Wayne R. LaFave, Substantive Criminal Law § 12.2(a), p. 268 (2d ed. 2003) (stating that all parties to a conspiracy must possess criminal intent in order to form a conspiracy).  Thus, the CRI in this case cannot be a party to the conspiracy because the CRI lacked the intent to buy or sell narcotics. 

The possible conspirators remaining are Slack, Esquivel, and appellant.  But the state charged appellant with aiding and abetting a conspiracy, not actually conspiring.  An abettor to the conspiracy is not also a conspirator.  Despite the state’s argument that appellant was a conspirator as well as an abettor, the charges eliminate appellant as a party to the conspiracy.

Thus, Slack and Esquivel remain.  The evidence supports the state’s assertion that Esquivel was Slack’s co-conspirator.  The red Pontiac Grand Prix that was seen or used in conjunction with two of the three controlled buys is registered to Esquivel and three of the one-hundred-dollar bills used during the controlled buys and recovered during the search were found in Esquivel’s purse.  Furthermore, Esquivel was arrested with appellant and charged as a result of these offenses (although it is not clear from the record if or what Esquivel was convicted of). 

It is reasonable on this record to believe that Esquivel and Slack were co-conspirators and that appellant aided and abetted the conspiracy by allowing them to use his apartment to conduct the sales.  Therefore, the charge of aiding and abetting a conspiracy to commit a second-degree controlled-substance crime is viable in this case.

Appellant also contends that there was insufficient evidence of a conspiracy to sustain the conviction.  “The conspiracy need not be, and seldom is, established by direct proof.  The existence of the conspiracy may be inferred from other proven facts and circumstances.  It may be proved by circumstantial evidence.”  State v. Thompson, 273 Minn. 1, 16, 139 N.W.2d 490, 503 (1966) (citation omitted). 

“[A] conviction based entirely on circumstantial evidence merits stricter scrutiny than convictions based in part on direct evidence.”  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  “While it warrants stricter scrutiny, circumstantial evidence is entitled to the same weight as direct evidence.”  State v. Bauer, 598 N.W.2d 352, 370 (Minn. 1999).  The circumstantial evidence must “form a complete chain which, in light of the evidence as a whole, leads so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt.”  Jones, 516 N.W.2d at 549.  A jury, however, is typically in the best position to evaluate circumstantial evidence, and its verdict is entitled to due deference.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).

Here, as noted, Esquivel’s vehicle was used in connection with two of the controlled buys.  During the first controlled buy, Slack was in the parking lot of appellant and Esquivel’s apartment building when Esquivel’s vehicle pulled up.  The occupant of the vehicle and Slack subsequently entered the apartment building.  Slack then exited the building, drove to the CRI, and delivered crack cocaine.  Prior to the second controlled buy, Slack pulled his vehicle next to Esquivel’s vehicle, which was driven by appellant, and an officer saw Slack reach out of his window toward Esquivel’s vehicle.  In addition, during the execution of the search warrant, the officers found in Esquivel’s purse, three one-hundred-dollar bills that were used in the controlled buys.  Thus, this evidence supports the jury’s verdict that a conspiracy existed.


            We review the district court’s refusal to order the disclosure of the identity of a CRI under an abuse-of-discretion standard.  See State v. Brunes, 373 N.W.2d 381, 384 (Minn. App. 1985) (stating that revelation of an informant’s identity may be called for at the trial court’s discretion), review denied (Minn. Oct. 11, 1985).  The state has the privilege of protecting an informer’s identity in order to protect “the public interest in effective law enforcement.”  Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627 (1957).  This is especially true in the drug world.  State v. Smith, 448 N.W.2d 550, 556 (Minn. App. 1989).  But the privilege is not absolute.  Roviaro, 353 U.S. at 60, 77 S. Ct. at 627.  If “the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.”  Id. at 60-61, 77 S. Ct. at 628.

            If the informant is an eyewitness to the crime, the state may be required to disclose his identity, but if the informant is a participant in the crime, the state may not have to disclose the identity.  Syrovatka v. State, 278 N.W.2d 558, 561-62 (Minn. 1979) (stating that “if he was merely a participant in the crime, but not a witness, the courts would protect his identity”).  Courts have applied a balancing test to determine when disclosure is required, depending on the particular circumstances of the case.  Id. at 561-62.  The factors to be considered are “whether the informant was a material witness; whether the informer’s testimony will be material to the issue of guilt; whether the state’s evidence is suspect; and whether the informant’s testimony might disclose entrapment.”  State v. Ford, 322 N.W.2d 611, 614 (Minn. 1982).  It is the defendant’s burden to show that disclosure is necessary.  Id.

A.        Material witness

            Following an in camera review of the evidence, the district court here determined that the CRI was not a material witness.  The district court’s rationale was that the CRI only provided the money to purchase the drugs, never had personal contact with appellant, and had no personal knowledge of where Slack went when he purchased the drugs. 

If “the informant is merely a transmitter of information rather than an active participant in or material witness to the crime” disclosure is generally unnecessary.  State v. Litzau, 650 N.W.2d 177, 184 (Minn. 2002).  Here, the CRI was literally a transmitter of information.  The CRI was wired with a listening device, by which the CRI transmitted information to the police, without having any personal knowledge of Slack or appellant’s actions.  Therefore, we conclude that the CRI was not a material witness.

B.        Material to issue of guilt

Because the CRI was not a witness to the drug purchases and did not make the purchases himself, his testimony is not material to the issue of guilt.  The actual observers of the offenses, both by sight and by sound, were the law-enforcement officers, not the CRI.

C.        Whether state’s evidence is suspect

            Appellant does not allege that the police officers were lying or that the evidence is suspect, and the record does not suggest that the state’s evidence was suspect.

D.        Entrapment

            Similarly, appellant is not alleging that revelation of the identity of the CRI would reveal entrapment, especially considering the fact that the CRI did not actually purchase the drugs from appellant.  Therefore, the district court did not abuse its discretion by protecting the identity of the CRI.

E.        Audiotapes

Appellant alleges that the district court abused its discretion by not ordering that the audiotapes be produced because they contained information about which the officers testified during trial.  This, appellant asserts, constitutes a discovery violation on the part of the state.  But the state did not commit a discovery violation, as appellant moved the district court to compel discovery and the district court denied the motion.  Because the audiotapes would likely reveal the identity of the CRI, and because disclosure of the CRI’s identity was not required, we conclude that the district court did not abuse its discretion by not compelling production of the audiotapes.


            “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).  If the district court has abused its discretion in admitting the evidence, the reviewing court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.”  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  “[I]f there is a reasonable possibility that the verdict might have been more favorable to the defendant” without the evidence, then the error is prejudicial.  Id.  In completing a “harmless error impact” analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].”  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

            Appellant contends that the district court abused its discretion by admitting hearsay statements through Officer Rittmiller’s testimony.  But appellant does not specify with any particularity which statements he is objecting to.  During trial, appellant objected to the officer’s testimony as being outside his personal knowledge and as hearsay.  The state contends that the statements at issue either are not hearsay—because the officer only testified to the general background of the investigation and the statements qualify as co-conspirator statements—or were properly admitted under the unavailable-declarant exception.

A.        Investigation background

In criminal cases, evidence that an arresting or investigating officer received a tip for purposes of explaining why the police conducted surveillance is not hearsay.  Nevertheless, [w]e have said a number of times that a police officer testifying in a criminal case may not, under the guise of explaining how [the] investigation focused on defendant, relate hearsay statements of others. 


Litzau, 650 N.W.2d at 182 (quotations omitted).

Officer Rittmiller generally testified to the reason the investigation began, how the investigation was conducted, and why it focused on appellant.  While there are portions of his testimony, as analyzed below, that fall outside of these parameters, the majority of the officer’s testimony was proper under Litzau.  Therefore, the district court did not abuse its discretion by admitting Officer Rittmiller’s testimony as to the general nature and background of the investigation.

B.        Co-conspirator statements 

Minn. R. Evid. 801(d)(2)(E) provides that statements made by a defendant’s co-conspirator are not hearsay.  The state argues that the portion of Officer Rittmiller’s testimony concerning Slack is admissible under this rule.  But because the state charged appellant with aiding and abetting a conspiracy, he is precluded from being a party to the conspiracy.  Therefore, Slack and appellant are not co-conspirators, and Slack’s statements are not admissible under this exception. 

C.        Unavailable declarant

            The rule of evidence governing unavailable declarants states that a declarant is unavailable in situations where the declarant “testifies to a lack of memory of the subject matter of the declarant’s statement.”  Minn. R. Evid. 804(a)(3).  If the declarant is unavailable, there are a number of exceptions that his testimony may fall into, including statements against interest.  That exception includes “[a] statement which was at the time of its making . . . so far tended to subject the declarant to civil or criminal liability, . . . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.”  Minn. R. Evid. 804(b)(3).

            Appellant lists a number of facts that Officer Rittmiller testified to that he alleges are inadmissible hearsay: the CRI contacting Slack about buying crack cocaine; Slack telling the CRI that he needed to drive to his source; Slack telling the CRI to meet him back at his apartment; Slack giving the crack cocaine to the CRI; Slack and the CRI arranging to meet at the Spur station; and Slack telling the CRI that appellant and his girlfriend had moved from their previous residence. 

The state argues that the facts testified to by Officer Rittmiller were properly admitted because Slack, who could have testified to the facts, claimed not to remember anything about that time of his life as a result of heavy drug use.  As a result, Slack was unavailable as a witness.

            Slack’s statements regarding his drug purchases from appellant fit into the exception provided in this rule, in that Slack’s statements subject him to criminal prosecution.  Therefore, we conclude that the statements were admissible under the statement-against-interest exception to the hearsay rule.  The district court did not abuse its discretion in admitting this testimony.


MINGE, Judge (dissenting)

            I respectfully dissent.  First, I would hold that appellant, who is black, received ineffective assistance of counsel in connection with jury selection.  The juror in question stated that he disliked blacks so much that, among other things, he would not allow his daughter’s fiancée to enter his home even though he had never met the man.  Given this juror’s admitted prejudice, substantially more was necessary to rehabilitate him than is shown in the record.  See State v. Witherspoon, 919 P.2d 99 (Wash. 1996); People v. Rodriguez, 524 N.Y.S.2d 422 (1988); People v. Raupe, 389 N.W.2d 449, 452 (Mich. App. 1986).  It would have been error for the district court to not remove this juror for cause had an objection been made.  Given this juror’s prejudice, the failure to object or to use a preemptory challenge constituted ineffective assistance of counsel.  Although I agree with the majority that generally actual prejudice to an accused should be shown to succeed in a case of inadequate counsel, in a case of racial prejudice against a group that includes the accused, actual prejudice should be assumed, and the harmless error analysis is not appropriate.  See State v. Logan, 535 N.W.2d 320, 323-24 (Minn. 1995).  Based on the record, I would find actual prejudice as a function of the admitted racial prejudice of this candidate for a jury.   

            Additionally, proof of the conspiracy element of this case is flawed.  The crime with which appellant is charged is aiding and abetting a conspiracy.  The prosecution has the burden of proving each element of the crime beyond a reasonable doubt.  The existence of a conspiracy in this case was not established by the prosecution.  The absence of proof is indicated by necessity that this court speculate on the identity of the conspirators.  The CRI as an agent of the state cannot be a conspirator.  I agree with the majority that Slack was an active participant in the purchase of drugs by the CRI.  However, the circumstantial evidence recited by the majority to identify Ms. Esquivel as a co-conspirator is not adequate.  Our supreme court has stated that to establish that a person is a co-conspirator, circumstantial evidence must “form a complete chain which, in light of the evidence as a whole, lead so directly to the guilt of the accused as to exclude, beyond a reasonable doubt, any reasonable inference other than guilt.”  State v. Hatfield, 639 N.W.2d 372, 376 (Minn. 2002) (quoting State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989)).  Applying the Hatfield standard and comparing the facts in Hatfield with the matter before us, I conclude that the evidence in our case does not support finding Esquivel to be a conspirator.  One can easily provide innocent explanations for Esquivel driving a car, renting an apartment, and having the marked currency. 

            I would reverse both for ineffective assistance of counsel and for insufficiency of the evidence of conspiracy.