*1 appointing authority ly contrary to the governor office at the time the Const,
vacancy actually occurs. See Minn. VI, §
art. 8. This absurd result further
compels me to conclude that the date of ap- is the date the notice of
appointment
pointment secretary filed with the
state. short, appears majority it interpretation ap-
strains to reach its
pointment. plain meaning
term, coupled precedent with the force of Amdahl,
in Marbury and leads to the con- appointment
clusion that an is made when governor completes the last act neces-
sary filing to the function: with the secre-
tary appointment. of state a notice of For reason, respectfully part.
this I dissent in Minnesota, Respondent,
STATE of LITZAU, Petitioner,
Kevin Richard
Appellant.
No. C3-00-2099.
Supreme Court of Minnesota.
Aug. *3 General, Johnson,
, Certified Student Caia Paul, Kandiyohi Attorney, Boyd St. Beccue Wilmar, County Attorney, Respondent. OPINION ANDERSON, A., Russell Justice. Richard Litzau was Appellant Kevin *4 substance crime convicted of controlled possessing for metham- degree the first phetamine with intent to sell violation 8(b) 152.021, 1(1), § subds. Minn.Stat. (2000), and sentenced to 134 months appeal, appeals the court оf prison. On by panel majority affirmed the conviction resentencing. but remanded for Conclud- ing that the cumulative effect of evidentia- trial, appellant ry rulings deprived of a fair we reverse and remand for new trial. informant, an at Based on a from approximately p.m. February on 1:30 placed police Atwater Victoria, parked which 1984 Crown residence, specified under surveillance.1 a approximately p.m., appellant At 8:15 ar- in a Buick rived at the residence blue Appellant into the Vic- Regal. got Crown toria, engine started the and then went later, into the residence. A few minutes appellant left the residence and drove away in the Crown Victoria. police stopped appellant, followed him, permission his to search and obtained Stuart, Defender, John M. State Public anywhere in the vehicle. At about that Russett, Steven P. Assistant State Public time, police the Atwater chief arrived with
Defender, Minneapolis, Appellant. for Max, partner his a nareot- canine certified Hatch, Attorney police canine. chief Mike Minnesota Gener- ics-detection As al, Galus, vehicle, Atttorney began walking E. Max around John Assistant 22, 2000, p.m. February thought appellant 1. At around 1 toria and that he would be police informant told the Atwater chief that picking up day. the vehicle sometime that about 30 minutes earlier had the informаnt pos- appellant seen informant had not personally methamphetamine observed in the session of the controlled substance. housing air Vic- cleaner Crown statement, prosecutor the vehicle’s told the drugs alerted to under Max 22, 2001, in the air cleaner drugs February and then to that the Atwater hood opened. tip. In- housing police when the hood was chief “received He received police housing, air found a suspecting [appellant] side the cleaner information pos bags bag eight with inside. plastic sessing pursuant smaller controlled substances and white substance bags All contained a he commenced with [surveil * * positive methamphetamine.2 that tested lance] and, following was arrested Appellant During direct examination of the trial’s his Miranda warning, rights invoked witness, police chief, first the Atwater and to counsel. silence prosecutor through leading elicited ques- listed some- registration A vehicle check tions chief had registered than as the one other “tip indicating suspicion received a Victoria; but, a copy owner of the Crown [appellant] possessed controlled sub- title, during an in- of the vehicle’s found cross-examination, stances.” On defense search, ventory indicated that the informant counsel elicited had ob- in December purchased the vehicle methamphetamine in the air served clean- change An indicated that oil sticker about a half before reporting er hour this *5 recently, vehicle had been serviced and police. the examination to On direct that the investigation further revealed air officer, arresting prosecutor the elicited 6, January was 2000 and changed filter on appellant stopping identify- that after and 4, inspected February on 2000. On nei- him, ing arresting officer “explained the manager did the who ther occasion station [appellant] that had a reliable we source plastic bags in serviced the vehicle observe has told that he was carrying— that us cleaner. the air * * transporting his car drugs by complaint Apрellant charged was police arresting and the Both chief first-degree with controlled substance ap- officer made unsolicited references to possession for intent crime with sell. rights exercise of his to silence pellant’s appellant’s pretrial court denied The trial counsel. evidence for the state and Other of request compel disclosure the infor- a testimony drug expert included from on identity appellant’s granted mant’s but mo- operation dealers and drug of testimo- preclude testimony about the con- tion ny from the house where the the owner of tip, of finding tents the informant’s the Crown police first observed Victoria. jury risk would consider the con- that that the had This witness testified vehicle of tents substantive evidence p.m. from or driveway in the 4:30 5 been great.” “too guilt 21, day until February 2000 the next trial, vehicle, up the morning appellant picked the court On revis when anyone tamper not hear ruling pertaining ited its earlier to the that she did see or tip, driveway. Ap- it it in the indicating contents of the informant’s with while was who testified pellant state allowed to elicit called two witnesses would be 21, February a.m. on testimony tip suggest “that a was received that from about 8 22, February [appellant] possession p.m. of a 2000 until 5 ing that had about * * n .” In 2000, appellant was in Litchfield. opening controlled substance bags eight weighing and the a total 2. A forensic сhemist later determined individual up to containing grams. 27.9 and 58.5 add was a mixture metham- 58.5 While substance 86.4, grams, testimony trial was that the total phetamine weighing with the 86.5 weight bag grams. large containing grams of substance was 86.5 27.9 182 transport- court, police that objection appellant from ed to without
The trial
counsel,
argues
in his
The state
ing drugs
car.
permissive-in-
a
gave
any
is not entitled to
relief
Following
jury.
to the
instruction
ference
not offered for
where
deliberations,
found
asserted, appellant
the truth of the matter
first-degree
substance
controlled
guilty of
instruction,
limiting
for
failed to ask
a
appeals
appeal, the court
On
crime.
concerning
details
were
additional
decision,
2-1
by a
the conviction
affirmed
counsel,
error,
if
elicited
defense
that evidentia-
appellant’s claims
rejecting
prejudicial.
not
any, was
him
trial.
denied
a fair
ry rulings
cases,
criminal
evidence
I.
officer
arresting
investigating
or
re
Evidentiary
are commit
rulings
explaining why
a
for purposes
ceived
trial
discretion and will
court’s
ted to
police conducted surveillance
a clear abuse of
reversed absent
not be
Nevertheless,
hearsay.
have said a
“[w]e
Bjork,
v.
610 N.W.2d
discretion. State
number of times that ‘a
officer testi
632,
“Evidentiary errors
636
not,
fying
in a criminal
under the
case
any
if
reasonable
reversal
‘there is
warrant
investigation
guise
explaining
[the]
how
different
the rеsult would have been
doubt
defendant,
hearsay
focused on
relate
state
”
”
admitted.’
had the evidence not been
Williams,
of others.’
525 N.W.2d
ments
731,
Grayson,
N.W.2d
736
v.
State
Cermak,
(quoting
at 544
v.
State
(Minn.1996) (quoting
Naylor,
State
243,
(Minn.1985));
see also
N.W.2d
(Minn.1991)).
gen
As
N.W.2d
Hardy,
24-25
rule,
object
where a
fails to
eral
defendant
(“[E]ven
(Minn.1984)
elicitation,
a limited
trial, the defendant
particular
error at
nonhearsay purposes,
general
testi
*6
right
to
to have forfeited his
is deemed
mony
tip
that a
received
led
had been
appeal;
error
alleged
have the
reviewed
prints
compared
being
to defendant’s
with
however,
may
appellate
a
obtain
defendant
print
unjusti
the latent
would have been
plain
from
errors аffect
review and relief
potential
fied
this case
the
of
because
rights if those errors had
ing substantial
improper
the evidence
for an
being used
of
depriving
the effect of
the defendant
a purpose outweighed
proba
limited
very
its
Williams,
v.
fair trial. State
value.”); 4
B. Mueller
Christopher
tive
&
538, 544
Kirkpatrick,
Laird C.
Federal Evidence
(2d
387,
ed.1994);
§
2
at 87
Charles T.
Appellant
initially contends that
McCormick,
McCormick
Evidence
hearsay testimony
of
relat
the admission
(John
249,
eds.,
Strong
§
at 104
et al.
W.
infor
ing the contents of the confidential
ed.1992).3
4th
tip was
error where the
mant’s
reversible
tip
allowed
elicit that
the
a
“Hearsay
state was
to
is evidence of declar-
report-
prove
a
whо
out-of-court
to
came from “reliable source”
ant’s
statement
the
249,
McCormick,
may
supra, §
2
3. Out-of-court statements
be admitted to
of misuse.
good
103-04.
probable
the
state of mind and
show
However,
subsequent
person
apparently
conduct of the
who
one
wide-
faith
area
spread abuse
should be noted.
criminal
statements. When the out-of-court
heard the
cases,
investigating
arresting
an
or
officer
impermissible hearsay
as-
statements have
put
position
not be
should
in the false
permissible nonhearsay
pect well as a
as-
as
seeming just
upon
happened
to have
the
pect,
generally been admit-
the evidence has
scene;
explanа-
he should be allowed some
limiting
ted
a
unless the need
with
instruction
presence
His
tion of his
and conduct.
testi-
by
danger
outweighed
is
the
for the evidence
mony
“upon
that he acted
information re-
truth what is asserted
the statement.”
officers and elicited
additional details
(2d
65,
Reyes,
tip
18 F.3d
about
United States
the
on cross-examination. The
801(c).
Cir.1994);
see also Minn. R. Evid.
trial court ruled on
motion
hearsay
preclude
that it
“principal
vice” of
is
limine to
the
tip.
substance
deprives
opponent
opportunity Ordinarily,
party
a
need not renew an
objection to the admission
Reyes,
to cross-examine the declarant.
of evidence to
cases,
preserve a claim
аppeal
In criminal
of error for
F.3d at 69.
denial of
follow-
ing
ruling
on a motion in limine.
right
challenge
defendant’s
Minn.
de-
103(a)
R.
advisory
Evid.
committee’s note
clarant’s statements
cross-examination
(stating that a motion in
preclude
limine
implicates constitutional concerns.
Ohio
operates
evidence
Roberts,
56, 63,
timely objection
as
448 U.S.
100 S.Ct.
(1980).
obviates the requirement for further
L.Ed.2d 597
If,
objection).
however, excluded evidence
with
agree
We
tes
at trial
offered
because the court has
timony
to the effect that
had
changed its initial ruling,
objection
received a
from a “reliable source” who
should
renewed at trial.
be
Jack B.
suspected
pos
said that
Margaret
Bergеr,
&
A.
Wein-
Weinstein
sessing and “was carrying transporting
—
103.11(2)(b)(ii),
§
stein’s Federal Evidence
drugs”
hearsay.
in his car was inadmissible
(Joseph
ed.,
at 103-20.1-.3
M. McLaughlin
may
Even relevant evidence
be excluded
ed.2002).
2d
The record reflects some
probative
substantially
“if its
value is
out
confusion as
the intent of the trial
weighed by
danger
preju
of unfair
concerning
court’s comments
the infor-
dice.”
R.
Minn.
Evid. 403. There was no
trial;
if,
beginning
mant’s
at the
but
reason for the officers’
about
asserts,
state
trial
court was
substance of the informant’s conversation
merely explaining its earlier definitive rul-
pointed
which
directly
appellant’s guilt
ing, appellant preserved
ap-
the issue for
of the crime for which he
on trial.
peal, although
practice
the better
would
background
Context and
can be estab
objection
have been
renew
at trial.
lished,
established,
properly
and are
with
It
hearsay
is true that
evidence
be
out the admission of the confidential infor
admitted to rebut “initiatives
launched
hearsay
mant’s
declaration.4
defendant,”
Reyes,
18 F.3d at
but
*7
The state asserts that error in the
here the substance of the confidential in-
the
if
tip,
tip preceded appellant’s attempt
admission of
substance of the
formant’s
any,
appellant
was waived where
failed to
in a
way
impression
to refute
limited
the
object to the direct examination of the
made
information.
ceived,”
effect,
informant,
may
or words to that
should be
about his contact with an
and
Nevertheless,
sufficient.
cases abound in
leading up
describe the events
to a defen-
arrest,
which the officer is allowed to relate histor-
testimony
dant's
but the officer's
must
case, replete
aspects
ical
of the
with hear-
spoke
be
to the fact that
limited
he
to an
say
complaints
statements in the form of
disclosing
informant without
the substance of
reports,
ground
and
on the
that he was
Williams,
that conversation.” United States v.
give
upon
entitled to
the
which
information
1048,
(7th Cir.1998) (citing
133 F.3d
1052
he acted.
need for
the evidence is
Lovelace,
650,
United States v.
123 F.3d
652
slight,
great.
the likelihood of misuse
(7th Cir.1997));
Reyes,
United States v.
18
249,
(footnotes omitted), quoted
§
Id.
at 104
70; see,
Walker,
e.g.,
F.3d at
United States v.
Hardy,
in State v.
4. A
officer
reconstruct tire
184 witness; (2) a any evi- is whether the in- state claims material “ to testimony formant’s will be material the harmless. Tf the dentiary error was (3) evi- guilt; issue of whether the state’s unat actually surely rendered verdict (4) suspect; dence and whether the in- is error, error to the the is harm tributable ” testimony entrap- disclose might formant’s doubt.’ beyond a State v. less reasonable Ford, 611, ment. v. 322 State N.W.2d 614 (Minn.1997) Juarez, 286, 292 572 N.W.2d (Minn.1982). Jones, 903, v. 556 N.W.2d (quoting State case, (Minn.1996)). In this the sub 910 eye the When informant is an tip crime, went to the stance informant’s the an in camera hearing witness to at whether appropriate critical issue trial: is determine whether “there a probability is reasonable that the inform drugs in possessed the found knowingly er’s is a fair deter necessary to tip the car. The state used informant’s his guilt mination of or 3 Wein- innocence.” crime, referring the to tie 510.07(5), Berger, supra, § stein at & 510- tip in re opening the substance of the 17, State, quoted Syrovatka in v. 278 marks, eliciting tip of on the substance (Minn.1979). 558, “All that N.W.2d is officers, ultimately of examination two justify an in inquiry needed to camera a arguing credibility of informant a showing inquiry minimal but basis and the of the information to the reliability than something speculation by more mere closing in argument. Where the evi the defendant that examination of the in an having impact dence was aimed at might helpful.” formant be State v. verdict, say we cannot the vеrdict Moore, 101, 438 N.W.2d surely to the error. unattributable informant is merely Where the transmit ter of an information rather than active admitting The error in participant in or material witness tip substance the informant’s was com crime, however, generally disclosure is pounded by the re denial required, Houle, quest for disclosure of the informant. The (Minn.1977), speculation mere legitimate protecting state has a interest the informant have framed the defen identity persons provide who infor itself, not, by dant does warrant disclosure. to law mation enforcement. Roviaro Ford, case, See 322 N.W.2d at In this States, 59-60, United 353 U.S. S.Ct. prominent view role the sub (1957). 623, 1 L.Ed.2d Where stance of informant’s took identity of an informant’s is rel disclosure trial, the failure to afford at least helpful defense, evant and to the or is inquiry camera exacerbated the error in cause, essential to fair determination of a admitting the substance state’s withhold privilege the infor first instance.5 identity give way. mant’s at 60- must Id. *8 II. In considering request disclosure informant, identity an the trial Appellant challenges also (1) expert
court testimony, considers whether informant admission of references motion, pellant's appellant’s represented 5. The trial court denied motion for the state to the identity disclosure the informant's on court that the chief had information grounds appellant planned that had not that made a suffi- to harm whoever showing cient disclosure lead to on him. that would “snitched" This information was any testimony by testimony or other evidence material to confirmed neither nor live affi- davit, rely the defense. a memorandum of law sub- and the trial In court did not this opposition denying ap- mitted to the trial court to information motion.
185
vehicle, and
rights,
drugs
constitutional
newer
often hide
to the exercise
his
places
obscure
such as in the air cleaner.
inference instruction.
permissive
and
expert
suggested
also
that it was not
testimony
expert opinion
The admission
drug
uncommon for
dealers to
to a
consent
broad discretion of the trial
is within the
expert’s
search of their vehicles. The
tes-
Ritt,
N.W.2d 802, 810
v.
599
сourt. State
timony
beyond
went well
that which was
denied,
1165,
(Minn.1999), cert.
528 U.S.
by
ruling
allowed
the trial court’s
and was
1184,
(2000);
rule,
instructions
jury
that the defendant
from two isolated facts:
from other
inferred
may be
ticular fact
methamphetamine
and that
was the driver
facts,
should be avoid-
proved,
if
particular
body of the vehicle.8
concealed in the
212,
was
Olson,
215
N.W.2d
482
ed. State
to an intrusion
amounted
The instruction
un-
‘“are
instructions
Such
process because
jury’s
deliberative
inject argu-
they tеnd
in that
desirable
in this case that
effectively
jury
told the
it
charge
lengthen
judge’s
ment into the
”
evi-
there was sufficient
judge thought
(quoting
Id.
Manual
unnecessarily.’
it
undisputed
for a conviction. It was
dence
Jury Instructions
Model Criminal
for
the driver and
(1989 ed.)).7
was
Circuit,
in-
Such
48
Ninth
in the
concealed
methamphetamine influence the
improperly
also
structions
only
The
real issue
body of the vehicle.
particular facts
by isolating
jury
only
knew that the vehi-
whether
particular step
logic
by giving
but also
in-
The
methamphetamine.
cle contained
of the state.”
legal imprimatur
“the official
jury on some
struction also focused the
Collier,
Use Pre-
Improper
Charles
facts,
“Permis-
rather than all the facts.
Adju-
Law
Reсent Criminal
sumptions in
**
*
(1986).
permit
juries to
sive inferences
423,
dication,
L.Rev.
38 Stan.
myriad
facts which
assessing
avoid
R.
specific
unique.”
cases
Charles
given make
permissive instruction
Nesson,
Permis-
Reasonable Doubt and
jury to infer know-
allowed the
in this case
proof beyond a reasonable
possession
at-
from
call this to counsel’s
bench conference
tention,
the defendant was the driver or
obviating
risk of retrial.
doubt that
thereby
passenger automobile and
in control of a
are also
instructions
present
7. Permissive-inference
methamphetamine was
in the
rational connec-
unnecessary
beyond
"[i]f
you
a rea-
automobile.
If
so find
presented
doubt,
in-
and facts
tion between facts
you may,
re-
but are not
sonable
to,
sense and
from common
knowingly
ferred is derived
quired
the defendant
find that
normally be left to
experience, the matter can
methamphetamine.
possessed
upon general
instruc-
jury’s judgment
patterned after
This instruction was
10A
Olson,
(quoting
Ass'n,
at 215
Judges
tions.”
Minnesota Prac-
Minn. Dist.
Jury
Criminal,
Guides,
Instructions
Manual Model Criminal
Jury
Instruction
tice—
Circuit,
ed.)).
(1989
per-
which,
turn,
ed.1999)
A
(4th
the Ninth
CRIMJIG 20.56
may also be im-
(2000).
instruction
§
missive-inference
152.028
was based on Minn.Stat.
a balanced instruction
proper
alleviating
if "it was not
provision
was aimed at
This
bearing on the
relevant factors
on the various
prosecution’s
proof in constructive
burden of
disputed posses-
jury's
of the
determination
рossession
involving
occu-
situations
several
singled
one which
but rather was
passenger
sion issue
pants of a residence or
automobile
factor, one
unfairly emphasized one
out and
are found.
in which controlled substances
evidence, bearing
Laws,
Leavenworth,
piece
circumstantial
Drugs,
Philip
Illegal
New
determination,
thereby suggesting to
Recently
on that
An Examination
Five
and Justice:
opinion
Statutes,
that factor
jury that in the court’s
16 Wm. Mitchell
Enacted Minnesota
Nevertheless,
greater importance
than other relevant
(1990).
was of
we
L.Rev.
Olson,
cases,
482 N.W.2d at
factors.”
we have
have said in a number of
"
responsibility
separation
‘primary
under the
as fol-
trial cоurt instructed
8. The
powers
regulation of evi-
doctrine for the
lows:
ap-
dentiary
and matters of trial and
matters
”
Lindsey,
pellate procedure.’
it has been
determining whether or not
Olson,
(Minn.2001) (quoting
N.W.2d
proven
doubt that
beyond a reasonable
"Moreover,
215).
one of the
knowing possession of
482 N.W.2d at
defendant was in
primary
functions of this court is to
you
all
or core
methamphetamine,
should consider
allows,
receives
ensure that each criminal defendant
presented. The law
the evidence
Olson,
knowing
Reversed and safety safety afraid for and the his/her nothing There family. in his/her MEYER, J., having been a member allegation. Although record to rebut this argument at the time of and of this court finding there no trial court relative to submission, part no in the took safety, I affirm the the informant’s would consideration or decision of this case. appeals’ holding court of the trial about “legitimately court was concerned GILBERT, part (concurring Justice safety.” the informant’s The threat to the part). dissenting safety informant’s was a factor over- I concur that it was error to admit the trial and not shadowed the court’s decision expert by majority as testimony cited simply ig- that this court should factor about well Chief Schmidt’s nore, espеcially light ex- attorney, appellant’s request but past tensive criminal record.1 hold that these errors were harm- would errors, alleged remaining less. As to the trial majority acknowledges that the all, they were not errors at were either factors correctly court considered the four counsel, brought defense or were determining outlined in Ford in whether appeal. at trial or on waived and forfeited However, necessary. disclosure was Therefore, respectfully I dissent to the facts majority glosses significant then over opinion. balance of the materiality of the informant’s relating to the informant majority stage support sets the information. While the fact hаve been a material witness to holding by reversing the natural order its in the actually methamphetamine trial. things occurred at there burglary conviction. 1. The trial court was also aware of prior substance convictions two controlled *11 Ford, vehicle, required. the infor- State 322 N.W.2d appellant’s air cleaner of (Minn.1982). Appellant simply argues immaterial to the testimony was mant’s The informant’s he a fair trial guilt. appeal ultimate issue of that was denied solely explain the ability used hinged statement was because his defense on his stop appellant explanation surveillance the provide plausible some —issues identity informant’s appealed. The never methamphetamine in his presence of the appellant voluntarily immaterial since was in only “evidence” the record vehicle. that the the search enabled consented to explanation appellant’s support this was prove its gather the evidence state to framed, that he was somehow assertion testimony. It the informant’s case without all; it was but this was not evidence at voluntary appellant’s con- only was after speculation. mere officers, help with the police that the sent merely the The informant told plastic bag dog, discovered trained about the what the informant observed it, bags inside of con- with several smaller partici- drugs. car аnd did not He/she grams of metham- taining a total of 86.5 pate any in the crime nor offer evidence $9,000, approximately worth phetamine what the had knowledge about appellant’s air cleaner of hidden inside the any, placing if in played, or role he disputed. evidence is vehicle. None of this drugs in the air cleaner. The facts of discovery methamphet- of the After the Ford, in this case are similar to the facts amine, only remaining in the case issue conclusory supplied where the informant appellant knowingly pos- became whether police leading information to the to sur- methamphetamine. As to this is- sessed ultimately gathering to the veillance sue, nоthing informant adds because independent of evidence from the infor- vehicle, address, had designated at the tip mant’s used to convict defendant being used for traffick- drugs in it and was Ford, charged of the offense. See drugs. in At the omnibus hear- ing these N.W.2d at 613-14. While it is true that testified the informant ing, Chief Schmidt the informant did witness the metham- possession in had not seen phetamine in car on the date “prominent role” drugs. Contrary to arrested, appellant was the state did not testimony majority assumes that this rely testimony on the informant’s in es- played, nothing the informant’s added tablishing appellant’s guilt, as in Ford. pos- appellant knowingly about whether 322 N.W.2d in drugs found his car. sessed any fur- reasonably trial court concluded Although appellant this case asserted any proba- ther would not be of placed that someone else must have tive value. vehicle, methamphetamine in his no offer proof indicating anybody was made
The informant was a mere transmitter had access to vehicle dur- else information, than par- rather an active ing question. the time There was noth- ticipant to the material witness and/or record ing to indicate name Accordingly, crime. the informant’s suspect any evidence man- state’s did not have to be disclosed. any or that of the Ford factors were Houle, ner facts, implicated. these the trial court On speculation There was at best merе by failing did not abuse its discretion ei- appel- informant framed have lant, require of the infor- testimony by appel- but there was no ther disclosure identity to hold an in camera any support lant or other evidence to this mant’s or speculation, meaning hearing. disclosure was not the content argue allowing cannot now admittedly hearsay to the regard With prejudicial. argument of the infor- of the This the contents testimony of *12 object to not appellant any precedent, failed to not based on does tip, mant’s the is at trial. A defendant under particular any error articulate workable rule of law this object facts, to the admission practice does not nеgates who these the better appeal right the to such evidence waives objection an making recommendation of to admission, if the evidence should even objec- help judge remind the of either an Moorman, State v. have been admitted. prior Many of ruling. tion or of its these (Minn.1993). The 505 N.W.2d quality legal repre- the issues relate to ruling final on this issue did trial court’s appellant that the received from sentation introduce the details not allow the state to While an ineffective assis- his counsel. tip. majority The focus- of the informant’s merit, may tance of counsel claim have ruling initial es on the trial court’s that claim is not before us. informant would testimony concerning the tо establish majority then ventures tipa was re- limited to the fact that
be inquiry to when an in camera new law as that “the record reflects some ceived and any would be held. This is done without of the trial as to the intent confusion supported authority by cite to infor- concerning comments court’s * * that “it seems to us that mere conclusion trial beginning at the mant’s at an in camera the failure to afford least object attorney did not Appellant’s in admitting exacerbated the error inquiry trial, morning ruling the trial court’s tip in the first in- the substance of the object opening state- did not state’s explana- no majority gives stance.” The ment, object to Chief and did not this have exacerbated tiоn as to how testimony about what the infor- Schmidt’s should be used the error or what standard Instead, appellant’s counsel mant said. when to use by deciding the trial court Chief Schmidt proceeded to cross-examine hearing request when the is camera of the informant’s to the exact nature as If there was speculation. on mere based hearsay objection of the state tip over the error, of an that occurred any exacerbation practice “the better pursue rather than threats, with appellant’s alleged because of * * * trial,” objection to renew rewarded. which the now Appellant’s majority recommends. upon a detailed cross- counsel embarked simply dismiss majority should not disputed statement examination it “was con- threat because alleged perfectly it clear what exact make affi- testimony live nor by firmed neither by not of the informant’s was nature state done This offer was davit.” but only repeating going this information proof analysis compliance with the offer of Therefore, tip. into more detail about State, Santiago recently reiterated we understanding full jury left with a Ap- 441-43 said. exactly what the informant contention the put even into pellant did not Contrary alleged threat. legitimacy of the that some of Chief Schmidt’s It is true asserts, nev- we have majority to what the hearsay; howev- testimony may havе been require proof would held that an offer er er, and in- knowingly counsel in this testimony” or an “affidavit” “live in- á tentionally cross-examined witness that effect is any suggestion to context and it is in the record and sert this information at 442- precedent. See id. contrary to our now this same Appellant in error. argues was admitted majority incorrectly con-
Finally, plain for the trial
cludes that it was error permissive inference of give
court to This instruction
possession instruction. Appellant failed on a statute. based instruction, thereby object to this giving him this
requiring to show plain
instruction was error. While we dis- permis- this sort of
cussed concerns about *13 Olson, in State v.
sive inference instruction (Minn.1992), 215-16 we and remanded for new trial
reversed the instruction was not a case because one and failed to inform the
balanced required
that it was not to infer that the knowingly possessed drugs.
defendant Here,
Id. at 216. the trial court’s instruc- balanced, explicitly telling
tion was allows,
jury that law but does not “[t]he knowing possession
require, you to find ” * * * jury “may, that the but [is] to, required find that the defendant
knowingly possessed methamphetamine.” added). facts,
(Emphasis Under these
instruction was neither erroneous nor did rights.
it affect substantial reasons,
For I af- foregoing would
firm conviction. Minnesota, Respondent,
STATE of Marlyn TAYLOR, Appellant.
Robert
No. C9-01-741.
Supreme Court of Minnesota.
Aug.