Minn. Stat. § 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
State of Minnesota,
Hubert H. Humphrey III, Attorney General, Robert A. Stanich, Thomas R. Ragatz, John Docherty, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Boyd A. Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)
John E. Mack, Mack & Daby P.L.L.P., 26 Main Street, Post Office Box 302, New London, MN 56273 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.
Appellant Gumecindo Garza challenges his convictions, arguing he was promised immunity for a statement he gave seven days after his arrest, the evidence was insufficient to prove that he conspired to sell a controlled substance, failure to disclose the identity of the confidential reliable informant prejudiced his case, and he was entitled to a sentencing departure. We affirm.
The following facts were stipulated to at trial and are not in dispute. On October 11, 1996, officers executed a search warrant at Garza's residence. The warrant was based, in part, on information provided by a confidential reliable informant. While executing the warrant, officers discovered a pair of blue jeans and recovered five plastic bags containing over 17 grams of cocaine from the pockets. In Garza's storage room, officers recovered two containers holding over 140 grams of cocaine. The officers also recovered $4,100 in cash, a scale, and a jar of inositol, which is a substance used to cut cocaine. After Garza was read his Miranda rights, he admitted to the officers that the cocaine they discovered was his. Upon further questioning, Garza told the officers there was cocaine in the storage room but stated he was holding this cocaine for another person. Garza admitted he knew there was over $3,000 in cash in the house.
On October 18, 1996, while in the county jail, Garza told police officers he was willing to cooperate with them in exchange for a reduced sentence or a reduced charge. The officers informed Garza that anything he told them would not be used against him. Garza then agreed to supply the officers with names and addresses of the person(s) who were supplying the cocaine, identify the sources, make phone calls, and make a controlled purchase. Garza gave the officers the first name of his supplier, but never made a controlled purchase. The officers never were able to identify the supplier.
Based on the stipulated facts, not on the statement given one week later, the court found Garza guilty on both counts. The court then committed Garza to the Commissioner of Corrections for 81 months. This appeal followed.
Garza argues the trial court erred in its application of State v. Gault, 551 N.W.2d 719, 723 (Minn. App. 1996) (prohibiting use of evidence directly or indirectly obtained as result of statements made under promise of immunity), review granted (Minn. Feb. 27, 1997), appeal dismissed (Minn. Feb. 27, 1997). Even though the trial court granted Garza's motion to suppress his statement taken on October, 18, 1996, he nevertheless claims that the state cannot show that the statement he made on that date did not affect the trial court's decision.
It is true that the state has an affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony. Id. (quoting Kastigar v. United States, 406 U.S. 441, 460, 92 S. Ct. 1653, 1665 (1972)). In this case the state has met its burden.
The trial court found Garza guilty based on the following stipulated facts: (1) the officers found over 25 grams of cocaine at Garza's residence; (2) the officers found $4,100 in cash; (3) they found a substance used to cut cocaine; (4) they found a scale; (5) Garza admitted that some of the cocaine was his; and (6) he admitted that he was holding the rest of the cocaine for someone else. Garza admitted to these facts the day he was arrested, which was seven days before he made the additional statement to the police. The court's ruling was based on facts wholly unrelated to the statement Garza made on October 18, 1996.
2. When this court reviews claims based on sufficiency of the evidence, it must determine, based on the facts in the record and any reasonable inferences that could be drawn, whether it was reasonable to find the defendant guilty of the charged offense. State v. Race, 383 N.W.2d 656, 661 (Minn. 1986).
Garza argues the evidence was insufficient to support his conviction for conspiracy to sell a controlled substance. Minn. Stat. § 152.096, subd. 1 provides: "Any person who conspires to commit any act prohibited by this chapter * * * is guilty of a felony." Conspiracy requires a criminal agreement, plus an overt act by any one of the conspirators to carry out that agreement. State v. Jenkins, 411 N.W.2d 504, 508 (Minn. App. 1987). A formal agreement is not required; rather conspiracy may be inferred from various facts in the record. Id.
Garza was charged with conspiring to sell one or more mixtures containing ten or more grams of cocaine. Minn. Stat. § 152.021 subd. 1(1); Minn. Stat. § 152.096 subd. 1. "Sell" means to possess with intent to distribute or dispose of to another. Minn. Stat. § 152.01, subd. 15a(1), (3) (1996). Evidence tending to show intent to sell includes the amount of cocaine possessed by the defendant. State v. White, 332 N.W.2d 910, 912 (Minn. 1983) (holding intent to sell proven by large amount of marijuana possessed by defendant); State v. Collard, 414 N.W.2d 733, 736 (Minn. App. 1987) (calling quantity of drugs seized "primary consideration" in determining intent), review denied (Minn. Jan. 15, 1988).
Despite Garza's argument, we conclude there was sufficient evidence for the trial court to find that he conspired to sell and distribute the drugs. The large amount of drugs found in Garza's possession suggests that the goal was distribution. Officers recovered over 150 grams of cocaine. Additional evidence included $4,100 in cash, a scale, and a substance that is used to cut cocaine. We therefore conclude there was sufficient evidence for the trial court to find that Garza conspired to sell and distribute the drugs.
3. This court reviews a trial court's decision to disclose an informant's identity under an abuse of discretion standard. State v. Martinez, 270 N.W.2d 121, 122 (Minn. 1978).
Garza claims the trial court erred in failing to disclose the identity of the confidential reliable informant or, in the alternative, to conduct an in-camera hearing. He claimed the confidential reliable informant's identity was critical to his case. At trial, Garza's defense was entrapment. An informant's identity must be disclosed for purposes of establishing an entrapment defense if the defendant has made a prima facie case. State v. Solheim, 477 N.W.2d 785, 787 (Minn. App. 1991). Moreover, courts are not required to conduct an in-camera hearing based on speculation by the defendant that the informant's testimony "might" be helpful. Syrovatka v. State, 278 N.W.2d 558, 562 (Minn. 1979). A defendant must explain precisely what the informant will testify to and how that testimony will be relevant to the case. Id. Garza has failed to meet this burden.
Garza advances theories in support of his position that the confidential reliable informant is the same individual who gave him the cocaine. Garza states: "We know that the informant was present during the commission of one of the crimes charged" based on the fact that the confidential reliable informant described the drugs to the officers. Garza also admits, however, "[w]e do not know one way or the other whether he was a witness to the transaction or part of the transaction." Furthermore, the record shows that the officers knew the identity of the confidential reliable informant but did not know for whom Garza claims he was holding the cocaine.
Garza also claims he was not given an opportunity to submit evidence to explain the testimony that he thought the informant would give and how this testimony would be relevant to his guilt or innocence. The trial court, however, did give Garza an opportunity to submit evidence and reargue the issue upon an appropriate motion. Garza failed to present additional information and did not attempt to reargue the issue.
We conclude that the trial court did not abuse its discretion in refusing to disclose the identity of the confidential reliable informant or in not holding a hearing.
4. A trial court has broad discretion in imposing sentences and this court, as a general rule, will not interfere with the exercise of that discretion. State v. Kindem, 313 N.W.2d 6, 7-8 (Minn. 1981).
Garza claims that his sentence must be stayed pursuant to Minn. Stat. §§ 152.152 (1996) and 152.18 (1996). Minn. Stat. § 152.152 states, "the court may stay imposition or execution of the sentence only as provided in this section." (Emphasis added.) Minn. Stat. § 152.18 dictates the circumstances when a court may discharge a defendant and dismiss the proceedings. The use of the word "may" indicates that the act to be performed is permissive. Minn. Stat. § 645.44, subd. 15 (1996). Based on our strict standard of review, the trial court was well within its discretion in denying the request for a stay.
Even if Garza was able to point to grounds that would justify a departure, this court ordinarily will not interfere with a sentence that falls within the presumptive range. State v. Back, 341 N.W.2d 273, 275 (Minn. 1983). The trial court in this case denied Garza's request for a stayed sentence and committed him to the commissioner of corrections for 81 months. This falls within the presumptive range.