This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






State of Minnesota,


Eric Smith,


Filed April 3, 2007


Minge, Judge


Hennepin County District Court

File No. 04074971


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


Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge

Appellant Eric Smith challenges his conviction of second-degree controlled-substance crime.  He argues that the district court committed prejudicial error by: (1) conducting an in camera examination of an undercover officer regarding information supplied by a confidential informant; (2) inadequately sanctioning the prosecution for an alleged discovery violation; (3) conducting the suppression hearing so as to give the appearance of fundamental injustice; (4) denying a discovery request for disciplinary complaints against the undercover officer; and (5) reading portions of the undercover officer’s testimony to the jury.  In his pro se brief, appellant further argues that his conviction should be reversed because there was not an adequate basis for his stop and arrest, that crucial evidence was improperly handled, that a Schwartz hearing should have been conducted regarding statements made in a posttrial letter from a juror, and that the prosecution received an unfair advantage in seeing certain records.  Because the district court did not abuse its discretion and because any error in these matters was not prejudicial, we affirm.


            In early November 2004, an undercover Minneapolis police officer received a tip from a confidential reliable informant (CRI) that appellant Eric Smith would be delivering cocaine to a location in Minneapolis.  The CRI indicated that appellant would be driving a gray or silver Cadillac, gave the license plate number of that vehicle, and indicated that appellant would be accompanied by another individual.  The CRI also indicated that appellant often carried drugs in his buttocks area.

Acting on this tip, the undercover officer set up a multiple-officer surveillance team at the designated location.  The CRI accompanied the officer and identified appellant and the other individual when they arrived in a car matching the CRI’s previous description.  The car was stopped, and appellant was arrested and frisked.  When no contraband was found, appellant was transported to the police station.

At the station, appellant was strip searched.  The undercover officer testified that he removed a cellophane bag that was protruding from appellant’s buttocks.  Other officers present during the search corroborated this testimony.  The undercover officer then placed the cellophane bag in an evidence bag and locked it in his desk overnight.  Department policy required that evidence be inventoried in the department’s evidence room or placed in a secure evidence locker after hours. 

Subsequent tests revealed that the cellophane bag contained 7.22 grams of cocaine, and appellant was charged with second-degree controlled-substance crime.  Appellant made a number of pretrial motions, including a motion to compel disclosure of the CRI’s identity, a motion to compel discovery of disciplinary complaints against the undercover officer, and a motion to suppress the evidence in this case.  The district court denied appellant’s pretrial motions, and a jury trial commenced. 

After the jury began deliberating, it asked to rehear the undercover officer’s testimony.  The judge conferred with counsel and asked the jury to narrow its request.  The judge then read the requested portions of the undercover officer’s testimony.  The jury ultimately found appellant guilty as charged. 

Following the verdict, the district court polled each juror, and all agreed that the correct verdict was guilty.  Shortly thereafter, the jury’s foreperson wrote two letters to appellant’s trial counsel questioning the verdict, and appellant brought two motions for a Schwartz hearing to try to impeach the jury verdict.  The motions were denied.  This appeal followed. 



            The first issue is whether the district court committed prejudicial error by closing the courtroom during part of the suppression hearing and conducting an in camera examination of the undercover officer.  A criminal defendant has a right to be present at every stage of the criminal proceedings.  Minn. R. Crim. P. 26.03, subd. 1(1); State v. Grey, 256 N.W.2d 74, 76 (Minn. 1977).  When a defendant is improperly denied the right to be present at a stage of the trial, reversal of a conviction is required unless the defendant’s absence “was not prejudicial beyond a reasonable doubt.”  Grey, 256 N.W.2d at 76.  In determining whether a defendant’s absence was prejudicial beyond a reasonable doubt, appellate courts must determine whether the outcome was “surely unattributable” to the absence.  State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001).

“[A] pretrial suppression hearing is an integral part of the trial to which defendant’s right to be present attaches.”  Grey, 256 N.W.2d at 77.  Therefore, when a defendant asserts his right to be present during a pretrial suppression hearing, it is usually error for a district court to deny the defendant that right.  But public trial rights are not absolute.  State v. Fageroos, 531 N.W.2d 199, 201 (Minn. 1995). 

The state has a legitimate interest in protecting the identity of confidential informants.  State v. Litzau, 650 N.W.2d 177, 184 (Minn. 2002).  If that interest is likely to be prejudiced, the district court may close the proceedings, provided that “the closure [is] no broader than necessary to protect that interest . . . .”  Fageroos, 531 N.W.2d at 201-02 (quotation omitted).  In determining whether to conduct an in camera inquiry regarding disclosure of a CRI’s identity, a district court may exclude a defendant from the proceedings.  See Litzau, 650 N.W.2d at 184. 

At the time of the suppression hearing, the issue was whether the police officers had an adequate basis to stop appellant’s vehicle and to arrest and search appellant.  The police relied on the tip that they had received from the CRI, and the district court had previously denied appellant’s requests for disclosure of the CRI’s identity.[1]  On cross-examination, appellant’s counsel asked the undercover officer questions that caused the officer to voice concerns that answering these questions would disclose the CRI’s identity.  At this point in the suppression hearing, the district court closed the courtroom and conducted an in camera examination of the undercover officer outside of appellant’s presence for the apparent purpose of determining whether the questions would compromise the CRI’s identity. 

After the in camera examination, the district court reopened the courtroom and stated, “I’m satisfied that the CRI is, in fact, a reliable confidential informant.”  Appellant objected, and he now argues that the district court “used whatever discussion occurred with [the officer] to make a factual finding on the reliability of the informant.” 

We have examined the record of the in camera proceeding.  Although the district court asked some questions that related to the reliability of the CRI, that information provided the district court with a context to determine what information would reveal the identity of the CRI and confirmed the concerns of the undercover officer.  The record further indicates that after the in camera hearing, the district court promptly reopened the proceedings.  The district court allowed appellant’s counsel to proceed with a lengthy cross-examination of the undercover officer, including several questions about the reliability of the CRI.

In response to these questions by defense counsel, the undercover officer indicated that he had worked with this particular CRI in previous narcotics investigations.  The officer further indicated that the CRI’s information had “led to narcotics cases being charged out” and the “recovery of narcotics, [and] money.”  Appellant was present during this testimony.  The district court determined that the CRI was reliable.  See State v. Ross, 676 N.W.2d 301, 304 (Minn. App. 2004) (holding that a CRI who has previously given reliable information is presumed reliable); see also State v. Wiley,366 N.W.2d 265, 269 (Minn. 1985) (holding that, more detail is preferable, but a statement that an informant “‘has been used over several years successfully’” was sufficient to permit an inference that the “informant had provided accurate information to the police in the past”). 

Based on our independent review of the entire record, we conclude (1) that the appellant was afforded ample opportunity to question the undercover officer, and appellant’s attorney actually did question the undercover officer about matters related to the CRI’s reliability; (2) that the district court did not obtain material evidence in camera that prejudiced appellant’s right to be present and confront the undercover officer on the issue of reliability of the CRI; and (3) that on this record, the district court did not err in denying appellant the right to be present during a portion of the suppression hearing.

Even if the district court did err by asking some inappropriate questions during portions of the in camera suppression hearing, we conclude that the error was not prejudicial beyond a reasonable doubt.


            The second issue is whether the district court abused its discretion by failing to strike certain evidence or grant a new trial after an alleged discovery violation by the prosecution.  Appellant argues that the state violated its discovery obligations when it failed to disclose the fact that the undercover officer had monitored a phone call between appellant and the CRI.  He argues that he was prejudiced and should have been granted a new trial. 

            When a discovery violation takes place and a district court fails to grant a new trial or strike the challenged evidence, this court reviews whether that failure “was a clear abuse of discretion.”  State v. Daniels, 332 N.W.2d 172, 179 (Minn. 1983).  But even if a violation of the discovery rules occurs, a district court does not abuse its discretion by failing to strike the evidence or denying a new trial if little or no prejudice results.  Id.  “The state’s obligations in discovery derive from the Minnesota Rules of Criminal Procedure and also from the constitutional guarantees of due process.”  State v. Hunt, 615 N.W.2d 294, 298 (Minn. 2000).  “The rules require the prosecuting attorney to allow the defense access to ‘all matters which relate to the case.’”  Id. (quoting Minn. R. Crim. P. 9.01).  Even where the evidence of a defendant’s guilt is strong, a new trial may be required to insure that the reciprocal discovery rules adopted by this court are observed by both the prosecution and the defense.  State v. Schwantes, 314 N.W.2d 243, 245 (Minn. 1982).

Appellant argues that the district court relied on the non-disclosed phone call in order to find probable cause.  But the district court explicitly stated that “independent of overhearing the [phone] conversation, I believe that there’s enough, the fact that he also overheard the conversation further bolsters the presence of probable cause to arrest him for the charge made, I think even without specifically hearing that himself, there was probable cause.”  On this record, even if the failure to disclose evidence regarding the phone call was a discovery violation, the district court found that there was probable cause independent of that evidence.  We conclude that appellant’s case was not prejudiced by the state’s failure to disclose information regarding the phone call.


The third issue is whether there was the appearance of fundamental injustice at appellant’s suppression hearing.  Before the state can imprison a defendant for criminal conduct, it must conduct a trial “that is fair and that, from a reasonably objective viewpoint, has every appearance of fairness.”  Grey, 256 N.W.2d at 77. 

Appellant argues that closing the courtroom during the suppression hearing created an atmosphere of secrecy and conspiracy.  Appellant further argues that the state’s failure to disclose the phone call that was overheard by the undercover officer also created the appearance of injustice.  We have previously addressed both claims and ruled against appellant.  Based on this record and our earlier analysis of those claims, we conclude that there was not an appearance of injustice warranting a new hearing.


The fourth issue is whether the district abused its discretion by denying appellant’s discovery request for files and data regarding disciplinary complaints against the undercover officer.  “A district court has considerable discretion in granting or denying discovery requests, and its decision will not be reversed absent a clear abuse of discretion.”  State v. Renneke, 563 N.W.2d 335, 337 (Minn. App. 1997) (quoting Erickson v. MacArthur, 414 N.W.2d 406, 407 (Minn. 1987)). 

The Government Data Practices Act addresses access to police disciplinary files and records.  See Minn. Stat. § 13.43, subd. 2(a) (2006).  The Act allows discovery of public data, including the existence of complaints against police officers.  Id., subd. 2(a) (4), (5).  With one exception, the Act does not allow discovery of the reasons for the action or the data documenting the action until there is a final disposition of the complaint.  Id.  A final disposition occurs when the agency makes a final decision regarding disciplinary action.  Id., subd. 2(b) (2006).  The exception permits “disclosure of nonpublic data” if: (1) “the data are discoverable under applicable rules (including the rules of criminal procedure);” and (2) “the benefits to the party seeking access outweigh any harm to the confidentiality interests involved.”  Renneke, 563 N.W.2d at 338 (citing Minn. Stat. § 13.03, subd. 6). 

Here, appellant moved to compel discovery of 12 disciplinary complaints that were filed against the undercover officer with the Civilian Police Review Authority (CRA).  The CRA investigates complaints against Minneapolis police officers, but it has no disciplinary authority.  When the CRA determines that a complaint has merit, it forwards the complaint to the police chief for a final decision regarding possible disciplinary action.  Thus, under the Data Practices Act, the files and specific data regarding meritorious complaints remain nonpublic data until the police chief makes a final decision. 

The district court conducted an in camera review of the 12 complaints and existing files to determine what was discoverable.  It found that the CRA had dismissed eight complaints because they lacked probable cause, dismissed one complaint for other reasons, sustained two complaints, and was still investigating one complaint that was pending before the CRA.  The district court also found that because the CRA has a policy of destroying inactive files after six years, the files and specific data regarding seven of the complaints were not available for review because of their age.  The five files available for review consisted of two complaints that the CRA dismissed for lack of probable cause, the two complaints that the CRA sustained, and the one complaint that was pending. 

The district court implicitly concluded that the two complaints dismissed for lack of probable cause were too speculative and rejected appellant’s discovery request.  It determined that the complaint still pending before the CRA was not discoverable because the undercover officer was misidentified and was not involved in that complaint.  As for the two complaints that were sustained, the police chief had not made a final decision.  Therefore, the district court applied Renneke’s two-step analysis and determined that the material contained therein was not relevant for two reasons: (1) the alleged behavior of the undercover officer in this case is not sufficiently similar to the type of behavior alleged in the complaints; and (2) the information in those files did not relate to the guilt or innocence of appellant.  Thus, the district court denied discovery.

Appellant concedes that the complaints are nonpublic data, but he asks this court to independently review the district court’s in camera determinations.  Appellant argues that the complaints may be relevant to his contention that the undercover officer “planted” or tampered with the cocaine evidence.  Appellant also argues that prior complaints may be admissible as “reverse-Spreigl” evidence to impeach the undercover officer’s credibility.[2]

In camera determinations are “subject ultimately to judicial review.”  State v. Paradee, 403 N.W.2d 640, 642 (Minn. 1987).  But discovery of prior complaints against an officer is not allowed simply because a defendant argues that they may possibly bear on the officer’s credibility.  Renneke, 563 N.W.2d at 339. 

            We have conducted an independent review of the in camera proceeding, including the five available complaint files.  Based on that review, we conclude that the two complaints dismissed for lack of probable cause are only accusations, the allegedly improper behavior here is not sufficiently similar to the five complaints, and none of the documents or complaints are helpful in determining appellant’s guilt or innocence.  We further conclude that because the complaints were not admissible as reverse-Spreigl evidence, the district court did not abuse its discretion by denying discovery of the files and data regarding the disciplinary complaints.


            The fifth issue is whether the district court abused its discretion by reading portions of the undercover officer’s testimony to the jury.  When a deliberating jury asks to rehear a portion of the trial transcript, “[t]he court, after notice to the prosecutor and defense counsel, mayhave the requested parts of the testimony read to the jury . . . .” Minn. R. Crim. P. 26.03, subd. 19(2).  We review a district court’s determination of whether to read trial testimony for an abuse of discretion.  State v. Daniels, 332 N.W.2d 172, 177 (Minn. 1983)

A district court may refuse a broad request to hear a large portion of the transcript, but the district court should attempt to narrow the jury’s request to a specific area of testimony where it is practicable.  State v. Spaulding, 296 N.W.2d 870, 878 (Minn. 1980).  The district court should also consider whether granting a jury’s request to have testimony reread would give undue prominence to particular testimony.  Daniels, 332 N.W.2d at 177.  A district court does not abuse its discretion simply by granting a jury’s request to rehear the testimony of the state’s key witness.  State v. Kinyon, 302 N.W.2d 27, 29 (Minn. 1981).

Here, the jury asked to rehear the undercover officer’s testimony.  Appellant objected to reading the entire testimony because doing so would “unfairly emphasize” the testimony, and he recommended that the district court narrow the jury’s request.  The district court asked the jury to narrow its request, and the foreperson indicated that the jury was interested in two issues: “[t]he time in the bathroom” and “how [the officer] handled the evidence in relation to the property inventory. . . . [T]he chronology of that.”  The district court then read approximately 30 pages of the officer’s testimony, a large portion of which was his cross-examination by appellant’s counsel.

Appellant argues that the district court abused its discretion by failing to consult with the parties about the specific portions of the testimony it chose to read.  But this type of consultation is not required by Minn. R. Crim. P. 26.03, subd. 19(2).  A district court may consult with the parties before choosing the portions of testimony to read, but failing to have such a consultation is not an abuse of discretion.

Appellant next argues that the district court gave the undercover officer’s testimony undue prominence and abused its discretion when the judge, and not a neutral party, read the testimony.  But rule 26.03, subd. 19(2) does not prevent a judge from reading the testimony, and it does not specifically require that a neutral party read the testimony.

Appellant also argues that the district court abused its discretion by failing to instruct the jury to consider the undercover officer’s testimony as a whole.  Appellant cites State v. Jackman, 396 N.W.2d 24, 31 (Minn. 1986), for the proposition that a district court should instruct the jury to consider the testimony as a whole and not just the portion that was reread.  While it may be desirable for a district court to give such an instruction, Jackman does not require courts to do so.  In addition, the district court carefully narrowed the testimony that it read, and it provided the jury with a balanced reading from both the direct- and cross-examination.

Finally, appellant argues that he was prejudiced by the repeat presentation of part of the undercover officer’s testimony.  But the district court narrowed the jury’s broad request to rehear that testimony.  Furthermore, the testimony the jury requested pertained mainly to appellant’s arguments, i.e., the officer did not follow evidentiary protocol, and the strip search was improper.  In addition, a large portion of the testimony that the district court read was the cross-examination of the undercover officer, which presented the testimony in a perspective most favorable to appellant.

On this record, we conclude that the district court did not abuse its discretion by reading portions of the undercover officer’s testimony to the jury.


A.  Strip Search

Appellant raises several other issues.  The first is whether the evidence obtained during the strip search should have been suppressed because appellant did not consent to the search.  “[I]ndividuals have a legitimate privacy interest [in] protecting [themselves from] searches involving intrusions beyond the body’s surface.  State v. Hardy, 577 N.W.2d 212, 215 (Minn. 1998) (quotation omitted).  An officer may search a suspect once the officer has probable cause to arrest the suspect.  In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997).

Here, the district court found that there was probable cause to arrest appellant, that he was under arrest when the strip search occurred, and that based on information from the CRI, the officer had reason to believe that appellant was hiding narcotics in his buttocks.  Based on this record, we conclude that appellant’s consent was not necessary to conduct the strip search, and the evidence obtained therein was admissible.

B.  Evidence Storage

The second issue is whether the undercover officer’s violation of a Minneapolis Police Department evidentiary policy required suppression of the evidence.  The officer violated the policy by keeping the cocaine in his desk overnight.  But the violation of a police department policy does not in itself mandate suppression.  Further, the prosecution was able to account for the whereabouts of the evidence from seizure through trial.  See State v. Johnson, 307 Minn. 501, 505, 239 N.W.2d 239, 242 (1976) (holding that where the prosecution accounts for the whereabouts of evidence from the time of its seizure to its offer at trial, the problem becomes whether to credit the testimony of the police, which is “a question [that] affects the weight of the evidence and is properly left to the factfinder”).  On this record, we conclude that the evidence was admissible.

C.  Schwartz Hearing

The next issue is whether appellant was entitled to a Schwartz hearing to determine whether there was jury misconduct.[3]  “In order to be entitled to a Schwartz hearing, a defendant must establish a prima facie case presenting sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.”  State v. Martin, 614 N.W.2d 214, 225-26 (Minn. 2000) (quotation and citation omitted).  We review a district court’s denial of a Schwartz hearing for an abuse of discretion.  Id. at 226.

After the verdict was returned, the jurors were individually polled and each agreed with the verdict.  But shortly thereafter, the jury foreperson wrote appellant’s counsel two letters.  The first stated that the juror had discovered the existence of the disciplinary complaints against the undercover officer.  The second letter stated that the foreperson felt “manipulated” by the undercover officer’s presence in the courtroom during closing arguments.  Based on these letters, appellant brought two motions for a Schwartz hearing in order to try to impeach the jury verdict.  The district court denied both motions.

The foreperson’s letters do not establish jury misconduct.  Although the foreperson was critical of the undercover officer, he wrote that “Ultimately, the jury was swayed by the testimony of [another officer], . . . the most believable of all prosecution witnesses.”  The letters reflect the foreperson’s “profound distress” regarding appellant’s conviction.  But this type of second guessing requires neither a Schwartz hearing nor a new trial, and the district court did not abuse its discretion in denying appellant’s motions for a Schwartz hearing.  See, e.g., State v. Fitzgerald, 382 N.W.2d 892, 896 (Minn. App. 1986) (after the jury was polled and all agreed with the verdict, holding that a juror’s “second thoughts about a verdict [do] not necessitate a new trial”), review denied (Apr. 24, 1986).  On this record, we conclude that the district court did not abuse its discretion by denying the motions for a Schwartz hearing. 

D.  Unfair Advantage

The last issue is whether the prosecution was given an “unfair advantage” over the defense when it inadvertently received the undercover officer’s “base file” records, including the disciplinary complaints.  Because the district court allowed appellant’s
defense counsel to review that same file, we conclude that the prosecution was not given any unfair advantage over the defense.



[1] Appellant did not challenge those denials.


[2] Spreigl evidence refers to the standard used to determine the admissibility of evidence of “another crime, wrong, or act,” separate from the charged crime.  Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).  Reverse-Spreigl evidence is “evidence of other crimes, wrongs, or bad acts” committed by an alleged “alternative perpetrator” that casts reasonable doubt on whether the defendant committed the charged crime.  State v. Jones, 678 N.W.2d 1, 16 (Minn. 2004).  Reverse-Spreigl evidence may be admissible if the defendant can show, inter alia, that the prior acts alleged are relevant and material to the defense and sufficiently similar to the incident at issue.  Id. at 16-17; State v. Robinson, 536 N.W.2d 1, 2 (Minn. 1995).


[3] This type of hearing is codified as Minn. R. Crim. P. 26.03, subd. 19(6), which outlines the methods for impeaching a jury verdict.  Although the Schwartz hearing was originally created to address jury misconduct, it has expanded to address other posttrial issues involving juries.  Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960); State v. Shoen, 578 N.W.2d 708, 715-16 (Minn. 1998).