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State v. Litzau

August 30, 2002



Cumulative effect of erroneous admission of testimony relating out-of-court statements of confidential informant implicating criminal defendant in drug trafficking, drug dealer profile evidence, references to criminal defendant's invocation of his constitutional rights, and submission of a permissive inference instruction deprived criminal defendant of a fair trial.

Reversed and remanded for a new trial.

The opinion of the court was delivered by: Anderson, Russell A., Justice.

Anderson, Russell A., J. Concurring in part, dissenting in part, Gilbert, J. Took no part, Meyer, J.

Heard, considered, and decided by the court en banc.


Appellant Kevin Richard Litzau was convicted of controlled substance crime in the first degree for possessing methamphetamine with intent to sell in violation of Minn. Stat. § 152.021, subds. 1(1), 3(b) (2000), and sentenced to 134 months in prison. On appeal, the court of appeals affirmed the conviction by panel majority but remanded for resentencing. Concluding that the cumulative effect of evidentiary rulings deprived appellant of a fair trial, we reverse and remand for new trial.

Based on a tip from an informant, at approximately 1:30 p.m. on February 22, 2000, Atwater police placed appellant's 1984 Crown Victoria, which was parked at a specified residence, under surveillance.*fn1 At approximately 8:15 p.m., appellant arrived at the residence in a blue Buick Regal. Appellant got into the Crown Victoria, started the engine and then went into the residence. A few minutes later, appellant left the residence and drove away in the Crown Victoria.

The police followed appellant, stopped him, and obtained his permission to search anywhere in the vehicle. At about that time, the Atwater police chief arrived with his canine partner Max, a certified narcotics-detection canine. As the police chief began walking Max around the vehicle, Max alerted to drugs under the vehicle's hood and then to drugs in the air cleaner housing when the hood was opened. Inside the air cleaner housing, police found a plastic bag with eight smaller bags inside. All of the bags contained a white substance that tested positive for methamphetamine.*fn2 Appellant was arrested and, following a Miranda warning, invoked his rights to silence and to counsel.

A vehicle registration check listed someone other than appellant as the registered owner of the Crown Victoria; but, a copy of the vehicle's title, found during an inventory search, indicated that appellant purchased the vehicle in December 1999. An oil change sticker indicated that the vehicle had been serviced recently, and further investigation revealed that the air filter was changed on January 6, 2000 and inspected on February 4, 2000. On neither occasion did the station manager who serviced the vehicle observe plastic bags in the air cleaner.

Appellant was charged by complaint with first-degree controlled substance crime for possession with intent to sell. The trial court denied appellant's pretrial request to compel disclosure of the informant's identity but granted appellant's motion to preclude testimony about the contents of the informant's tip, finding the risk that the jury would consider the contents as substantive evidence of appellant's guilt "too great."

On the morning of trial, the court revisited its earlier ruling pertaining to the contents of the informant's tip, indicating that the state would be allowed to elicit testimony "that a tip was received suggesting that [appellant] had possession of a controlled substance * * *." In opening statement, the prosecutor told the jury that on February 22, 2001, the Atwater police chief "received a tip. He received information suspecting [appellant] of possessing controlled substances and pursuant to that tip he commenced with [surveillance] * * *."

During direct examination of the trial's first witness, the Atwater police chief, the prosecutor elicited through leading questions testimony that the police chief had received a "tip indicating the suspicion that [appellant] possessed controlled substances." On cross-examination, defense counsel elicited that the informant had observed methamphetamine in the air cleaner about a half hour before reporting this to the police. On direct examination of the arresting officer, the prosecutor elicited that after stopping appellant and identifying him, the arresting officer "explained to [appellant] that we had a reliable source that has told us that he was carrying - transporting drugs in his car * * *." Both the police chief and the arresting officer made unsolicited references to appellant's exercise of his rights to silence and counsel. Other evidence for the state included testimony from a drug expert on the operation of drug dealers and testimony from the owner of the house where the police first observed the Crown Victoria. This witness testified that the vehicle had been in the driveway from 4:30 or 5 p.m. on February 21, 2000 until the next day when appellant picked up the vehicle, and that she did not see or hear anyone tamper with it while it was in the driveway. Appellant called two witnesses who testified that from about 8 a.m. on February 21, 2000 until about 5 p.m. on February 22, 2000, appellant was in Litchfield.

The trial court, without objection from appellant's counsel, gave a permissive-inference instruction to the jury. Following deliberations, the jury found appellant guilty of first-degree controlled substance crime. On appeal, the court of appeals affirmed the conviction by a 2-1 decision, ...

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