may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
James Douglas Kiewel,
Filed January 19, 1999
Hennepin County District Court
File No. 96060443
Michael A. Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Foley, Judge.[*]
James Douglas Kiewel appeals his conviction of first-degree possession of a controlled substance, claiming that the evidence was insufficient to support the conviction and that the district court erred in refusing to give the federal jury instruction on the weight to be given an informant's testimony. We affirm.
Under police supervision, the CI went to Kiewel's house wearing a body wire. While the police listened, Kiewel told the CI that Kiewel could sell him marijuana and offered him a sample. When the CI left Kiewel's house, he handed a bag of marijuana to the police.
Several weeks later, again while the police listened, Kiewel told the CI that he was unable to sell the CI marijuana after all because his sources had been arrested. Kiewel also said that he had $5,000, that he anticipated another $2,000 from previous drug deals, and that he was interested in buying eight ounces of cocaine.
A week later, Kiewel told the CI that he had the money and was still interested in buying cocaine. The CI reported to the police that Kiewel was ready to make a deal, but the CI was unsure whether Kiewel wanted cocaine or marijuana. The CI called Kiewel from a telephone that was tapped by the police. During the recorded phone conversation, Kiewel stated that he had a friend who was interested in "the alternative" (which the CI testified meant marijuana) and he could "use about twenty" (which the CI testified meant twenty pounds). The CI answered that he already had access to the cocaine. Kiewel said, "Well, either way, which - how soon can things be worked out for either alternative?" The CI asked if he wanted to meet so they could talk about it and suggested a time and place. Kiewel responded, "Yah, that sounds good and I'll be prepared, too, just in case I decide - you know," which the CI testified meant that Kiewel had the money ready.
When they met at a bar, the CI again was wearing a body wire. The CI told Kiewel he had eight ounces of cocaine to sell for $8,000. Kiewel said he had only $6,500 and telephoned someone in an unsuccessful attempt to raise the balance. He then asked whether the CI would "front" him the drugs with Kiewel's promise to pay $1,500 later. The CI told him that he had to approve the proposed arrangement with the person holding the cocaine.
The CI met with police officers, who were stationed about a block away from the bar. The officers told the CI to proceed with the sale and gave him eight ounces of cocaine. They directed the CI to return to the bar, leave the cocaine in his pickup truck, and ask Kiewel to complete the transaction outside.
The police officers watched the two men leave the bar and enter the CI's truck. The CI pulled out the bag and said, "This is it." Kiewel counted out 65 one-hundred-dollar bills and handed them to the CI, who gave Kiewel the cocaine. Kiewel took out a chunk of cocaine and remarked, "It looks a little cut." A sudden "chirp" from the siren on a nearby police car made Kiewel nervous. He told the CI he was going to get into his car and when he drove past the CI's truck, he wanted the CI to throw the cocaine into his car through an open window. The CI responded, "No, Jim, I'm not doing that. I say it's your s--t now, you take it." At this point, the police approached the truck and arrested Kiewel.
As the officers removed the two men from the truck, the money and the drugs were on the seat between them. The bag containing the drugs then fell to the floor.
At trial, the CI testified against Kiewel. Defense counsel requested the federal jury instruction concerning an informant's testimony. The district court refused, concluding that the standard credibility instruction was adequate and that the informant's credibility was "fair game" for closing argument. After receiving instructions, including those on the defense of entrapment and the credibility of witnesses, the jury convicted Kiewel. This appeal followed.
A. Evidence showing possession. To convict a defendant of possession of a controlled substance, the state must prove that the defendant "consciously possessed, either physically or constructively, the substance and that [the] defendant had actual knowledge of the nature of the substance." State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975). To establish constructive possession, the state must show: (1) that the police found the substance in a place under the defendant's exclusive control to which other people did not normally have access; or (2) if the police found it in a place to which others have access, a strong probability exists (inferable from other evidence) that the defendant was at the time consciously exercising dominion and control over it. Id. at 105, 226 N.W.2d at 611.
Kiewel contends that the evidence is insufficient to show he physically possessed cocaine because, he claims, at the time of arrest the cocaine was on the floor of the pickup truck. But the CI testified that he handed the cocaine to Kiewel and Kiewel handed him the money. This alone is sufficient to support a conviction based on physical possession. Further, Kiewel's remark that the cocaine appeared to be "cut" suggests that he physically possessed the drug because he was able to inspect it closely.
Kiewel also claims there is no evidence that he constructively possessed the cocaine because (1) he did not have exclusive control over the pickup truck; (2) he did not exercise dominion and control over the cocaine, which was on the truck's floor; and (3) he intended to leave the drugs with the CI. Because we find that the evidence supports a conclusion that Kiewel physically possessed the cocaine, it is not necessary to address constructive possession. Nevertheless, we note that Kiewel's argument regarding this issue is without merit. The fact that Kiewel handed over $6,500 for the cocaine establishes an overwhelming inference that he constructively possessed the drugs. Kiewel's request that the CI throw the cocaine into Kiewel's car as he drove past is further evidence from which the jury could infer that Kiewel consciously exercised dominion and control over the cocaine.
B. Evidence of Kiewel's predisposition to commit a crime. The district court instructed the jury on the entrapment defense, which the jury implicitly rejected by finding Kiewel guilty. Kiewel maintains that the government failed to show beyond a reasonable doubt that he was predisposed to commit a crime.
A successful entrapment defense requires a two-part showing: first, the defendant must show that the government induced the crime; then, the government must fail to show beyond a reasonable doubt that the defendant was predisposed to commit the crime. State v. Grilli, 304 Minn. 80, 89, 230 N.W.2d 445, 452, 456 (1975).
The government may establish predisposition by: (1) the defendant's active solicitation to commit the crime; (2) the defendant's prior criminal convictions; (3) the defendant's prior criminal activity not resulting in conviction; (4) the defendant's criminal reputation; and (5) any other adequate means. Id. at 89, 230 N.W.2d at 452. Evidence that the defendant readily acquiesced to the government's solicitation of a crime constitutes "other adequate means." State. v. Olkon, 299 N.W.2d 89, 108 (Minn. 1980) (noting cases where courts have found predisposition proved by evidence that accused readily responded to solicitation of crime by the state).
Kiewel argues that there was no evidence that he had a criminal background, that he actively solicited the CI, or that he readily acquiesced to the government's solicitation. We disagree. The CI testified that he had drug dealings with Kiewel for more than four years, sometimes selling him as much as a quarter-pound of cocaine. This evidence shows that Kiewel was an active participant in the drug trade before the police became involved. Furthermore, it was Kiewel who initially proposed to the CI the purchase of cocaine. Nothing indicates that he at any time refused to become involved in this drug transaction. Based on this evidence, the jury could find beyond a reasonable doubt that Kiewel would have bought and possessed the cocaine without government inducement; the police simply afforded him an opportunity to do so. See State v. Poague, 245 Minn. 438, 443, 72 N.W.2d 620, 625 (1955) (stating it is generally not unlawful to provide person with opportunity where there is reason to believe person is willing to commit crime).
2. Jury Instruction. Kiewel asserts that the federal jury instruction regarding an informant's testimony was necessary to inform the jury it should consider whether the CI's self-interest affected his testimony. Kiewel contends that because the state's entire case rested on the CI's testimony, the district court's refusal to give the federal instruction is reversible error.
A party is entitled to an instruction if there is evidence to support it, but the court need not give a requested instruction if the court determines that its charge contains the substance of the request. State v. Persitz, 518 N.W.2d 843, 848 (Minn. 1994). Refusal to give a requested instruction rests within the district court's discretion; no error results unless abuse of discretion is shown. Id.
The federal informant instruction cautions the jury to weigh
[t]he testimony of an informant, someone who provides evidence against someone else for money, or to escape punishment for [his] own misdeeds or crimes, or for other personal reason or advantage, * * * with greater care than the testimony of a witness who is not so motivated.
1 Edward J. Devitt et al., Federal Jury Practice & Instructions § 15.02 (4th ed. 1992).
The district court instructed the jury here to take into account a witness's interest in the case and relationship to the parties; his opportunity or ability to remember and tell the facts; his demeanor; his sincerity; the reasonableness or impeachment of the witness's testimony in light of all the evidence; and any other factors bearing on believability and weight. The court told the jurors to rely on their judgment and common sense in determining the believability and weight to give a witness's testimony.
The facts that defense counsel elicited on cross-examination of the CI and argued in closing detailed the CI's involvement with the government in this prosecution and his motivation for testifying. The jury was aware that it should view his testimony with caution, which is the sole purpose of the federal informant instruction. See U.S. v. Williams, 59 F.3d 1180, 1184 (11th Cir. 1995) (stating that sole function of informant instruction is to make jury aware that confidential informant's testimony is to be viewed with caution).
The general instructions regarding a witness's interest and impeachment of a witness's testimony, together with the cross-examination and closing argument, adequately dealt with the issue of the CI's credibility and his self-interest. The district court's refusal to give the federal informant instruction was, therefore, not an abuse of discretion. We also note that the state's case did not rest entirely on the CI's testimony; testimony of the police officers and the recording of the telephone conversation between Kiewel and the CI corroborated a substantial portion of the CI's testimony.
3. Pro Se Arguments. We have carefully reviewed Kiewel's pro se arguments and find them to be without merit.
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.