This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1970

 

State of Minnesota,
Respondent,

vs.

Taft Lee Johnson,
Appellant.

 

Filed November 29, 2005

Affirmed

Minge, Judge

 

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, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, Room 448, Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

 

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

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, 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.

FACTS

 

            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. 

            Investigator Joseph Steve, a St. Cloud patrol sergeant working with the Central Minnesota Gang Strike Force, contacted Morris Royston in 2002, requesting his assistance as a confidential informant for drug-trafficking investigations in Stearns County.   Royston agreed, and by the time of appellant’s trial, Royston had successfully completed 12 controlled buys for Steve.  Law enforcement paid Royston $50 per successful buy.  In his trial testimony, Royston admitted to using crack cocaine during the two years he assisted Steve as a confidential informant.  Royston also admitted having a prior conviction in Hennepin County for a third-degree controlled substance crime.

            In 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 St. Cloud.  Royston suggested a public location that would be accessible for visual surveillance by law enforcement.  Though the call was electronically monitored by the police, they did not confirm the identity of the person to whom Royston spoke or the name in which the phone number was listed.

            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 Seventh Street, heading towards him.  Ochs testified that as the white Cadillac passed his car the two vehicles were approximately 10 feet apart, traveling about 5 m.p.h., and that he recognized the appellant as the driver, someone with whom Ochs had “numerous contact[s].”  Ochs further testified that the appellant waved at him when his car passed, and had a surprised look on his face.

            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.

D E C I S I O N

 

I.

 

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.[1] 

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 (Minn. 1996).  The court in its discretion, however, may review such issues in the interests of justice, and if the parties to the appeal would not be unfairly surprised.  Id.; see Garza v. State, 632 N.W.2d 633, 637 (Minn. 2001).  In addition, constitutional rights “can be asserted on appeal when the interests of justice require consideration of such issues, when the parties have had adequate time to brief such issues, and when such issues are implied in the lower court.”  Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982).  Finally, if the court determines that the case merits review in the interests of justice, “[t]he scope of review afforded may be affected by whether proper steps have been taken to preserve issues for review on appeal, . . . .”  Minn. R. Civ. App. P. 103.04.

Although this 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 (Minn. App. 2004).

Outrageous governmental conduct can violate due process.  Hampton v. United States, 425 U.S. 484, 488-90, 96 S. Ct. 1646, 1649-50 (1976); United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637, 1643 (1973).  Minnesota first recognized this due-process defense in State v. Morris, 272 N.W.2d 35 (Minn. 1978).  “[T]he concept of fundamental fairness inherent in the due-process requirement will prevent conviction of even a predisposed defendant if the conduct of the government in participating in or inducing the commission of the crime is sufficiently outrageous.”   Morris, 272 N.W.2d at 36. 

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.

 

Id.

            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.  Id. 

            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).

            Here, the record indicates that Steve and the Central Minnesota Gang Strike Force were investigating ongoing drug-trafficking in Stearns County.  The officers did not specifically target the appellant.  Rather, they waited for their confidential informant to alert them to the activity of the drug dealers.  Appellant did not produce evidence which would support the contention that appellant was reluctant to enter into the illicit drug sale.  The record is likewise devoid of any reference to police coercion in securing appellant’s involvement in the crime, or other repugnant behavior by law enforcement.  The record fails to substantiate a violation of the Isaacson factors, and we reject the due-process defense.[2]

II.

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 (Minn. 1989).  This includes an analysis of both the facts presented and the inferences the jury could reasonably draw from those facts.  State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000).  Moreover, since “weighing the credibility of witnesses is the exclusive function of the jury,” State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980), the court should assume that the jury believed the state’s witnesses and disbelieved contrary evidence, State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  “The dispositive consideration . . . is not whether reasonable doubt existed, but whether there was sufficient evidence for a jury to reasonably conclude that no reasonable doubt existed.”  State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).

Appellant 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 Minn. Stat. § 634.04 (2004).  Appellant argues that such a requirement should be imposed because of the inherently suspicious and potentially self-serving nature of informant testimony.  State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989).  Appellant cites a number of cases from other jurisdictions that discuss such a requirement, and presents policy reasons why this state should adopt such a rule.  See United States v. Wiseman, 25 F.3d 862, 863 (9thCir. 1994); see also State v. Johnson, 627 N.W.2d 753, 762-65 (Neb. 2001); People v. Perkins, 186 N.E.2d 330, 332 (Ill. 1962); People v. Bazemore, 182 N.E.2d 649, 651 (Ill. 1962). 

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 (Minn. 1995) (“Corroborating evidence is sufficient to convict if it reinforces the truth of the accomplice’s testimony and points to the defendant’s guilt in some substantial degree.”).  Circumstantial evidence is viewed in the light most favorable to the verdict.  Id.

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 Minn. 493, 494, 195 N.W.2d 590, 591 (1972).  The jury had the opportunity to evaluate Royston’s credibility in light of both his prior conviction and admitted drug use.  Because there is sufficient circumstantial evidence to meet any corroboration requirement, we conclude there is ample evidence to support the verdict.

            Affirmed.