                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0654

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                              Demetrious Limel Parker,
                                    Appellant.

                               Filed February 16, 2016
                                       Affirmed
                                    Stauber, Judge

                           Hennepin County District Court
                             File No. 27-CR-14-25125

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

      Considered and decided by Stauber, Presiding Judge; Reilly, Judge; and

Klaphake, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

STAUBER, Judge

       Appellant challenges his conviction of possession of a firearm by an ineligible

person, arguing that the prosecutor committed reversible error by eliciting testimony

about the substance of a confidential reliable informant’s (CRI) tip and that the district

court abused its discretion by not ordering the disclosure of the CRI’s identity or

examining the CRI in camera. Because the prosecutorial misconduct did not prejudice

appellant, and because appellant did not establish a basis for disclosure of the CRI’s

identity or an in camera inquiry of the CRI, we affirm.

                                          FACTS

       In August 2014, law enforcement obtained a search warrant for a Minneapolis

house based on information from a CRI that a person known as “Meechi” possessed a .45

caliber handgun at the residence. The CRI positively identified appellant Demetrious

Limel Parker as “Meechi.” Parker has a second-degree burglary conviction that prohibits

him from possessing firearms.

       During the execution of the search warrant, law enforcement discovered a Taurus

.45 caliber pistol with a magazine containing eight rounds under a mattress in an upstairs

bedroom. Detective Andrew Suerth recorded an interview with Parker at the house

shortly after the search warrant was executed. In the interview, Parker said that he had

been staying at the residence for a couple nights and admitted that he handled the

handgun and was storing it for a friend; he also said that it did not belong to the owner of

the residence. He stated the gun was a .45 caliber, and he believed it was loaded.


                                              2
       Prior to trial, Parker moved the district court to compel disclosure of the CRI’s

identity or alternatively to conduct an in camera hearing to determine whether the CRI’s

identity should be revealed. The district court denied Parker’s motion. On the morning

of trial, the prosecutor raised the issue of how much information from the CRI’s tip

would be admissible, stating “it’s my understanding [the] defense is not objecting to the

information that the officer had a [CRI] and that’s how he had the defendant’s name and

address. . .” Defense counsel responded that he had “no objection to the officer

indicating that a warrant was obtained based on information from an informant,” and only

objected to the jury knowing Parker was wanted on a felony warrant for a probation

violation.

       At trial, Suerth testified that a CRI told him sometime in early August a person

known as “Meechi” possessed a firearm and provided information regarding “Meechi’s”

location, later identifying Parker as “Meechi.” Suerth stated that “[w]ithin 72 hours of

applying for the warrant, the [CRI] had seen [Parker] with a handgun inside of [the

residence searched].” After this testimony, the jury was played a recording and provided

a transcript of Suerth’s initial interview with Parker.

       Parker testified in his defense. At trial, he denied ever seeing, handling, or moving

the handgun. He stated that he “was just making up a story” during the initial interview

to protect the owner of the house and her son, claiming that his first instinct was to take

the blame and that it was lucky guess the handgun was a loaded .45.




                                              3
       During closing arguments, the prosecutor stated that “the information also

included [Parker] having a gun in early August” near the residence. The prosecutor

continued, saying:

                     Well, just keeping in mind that the CRI said the
              defendant had the gun in [the residence], that the defendant
              later admitted to having the gun. The CRI's info, the
              information given, Meechi living in this address has a gun. All
              those things turned out to be true. And it wasn't just a
              coincidence that he gave this address and gave this name and
              pointed officers in that direction and this defendant, first night
              he's ever stayed at this house, happened to be sleeping on a gun.

The jury found Parker guilty. This appeal follows.

                                      DECISION

I.     Testimony about the CRI’s statements

       Parker first argues that the prosecutor committed misconduct by eliciting

testimony regarding what the CRI told Suerth. Because Parker did not object at trial, we

review the allegation of prosecutorial misconduct under a modified plain-error standard.

State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Under this standard, the appellant

must first show that there was error and that the error was plain. State v. Martin, 773

N.W.2d 89, 104 (Minn. 2009). If the appellant makes such a showing, the burden shifts

to the state to show that the appellant was not prejudiced by the error. Id. If the state

cannot show that the plain error did not affect the appellant’s substantial rights, we then

assess “whether the error should be addressed to ensure fairness and the integrity of the

judicial proceedings.” Ramey, 721 N.W.2d at 302. The primary concern in addressing




                                              4
prosecutorial misconduct is whether the alleged misconduct deprived the defendant of his

right to a fair trial. State v. Jones, 753 N.W.2d 677, 686 (Minn. 2008).

       “An error is ‘plain’ if it is clear or obvious.” Id. A prosecutor’s conduct

constitutes plain error when it “contravenes case law, a rule, or a standard of conduct.”

Id. It is plain error for a prosecutor to intentionally elicit inadmissible testimony. State v.

Ray, 659 N.W.2d 736, 744 (Minn. 2003). Therefore, we must first determine whether the

testimony regarding the CRI’s statements was admissible. Testimony that law

enforcement received a tip, for the purposes of explaining their actions, is not

inadmissible hearsay. State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002). But a law

enforcement officer “testifying in a criminal case may not, under the guise of explaining

how the investigation focused on defendant, relate hearsay statements of others.” Id.

(quotation omitted). Therefore, Suerth’s statements regarding the substance of the CRI’s

statements constitute inadmissible hearsay, and the prosecutor’s elicitation of such

statements was plain error.

       Because there was plain error, the burden shifts to the state to show that the error

did not prejudice Parker. Martin, 773 N.W.2d at 104. We consider three factors in

determining prejudice: (1) the strength of the evidence against the defendant; (2) the

pervasiveness of the misconduct; and (3) whether the defendant had the opportunity to

rebut the inadmissible testimony. Jones, 753 N.W.2d at 692-93.

       First, the evidence against Parker is strong. Parker suggests that the jury simply

had to decide whether Parker was truthful in his initial statement to Suerth or if he was

truthful at trial when he claimed he accepted responsibility for the handgun because he


                                              5
did not want the owner of the house to be “in trouble.” But even without the CRI’s

statements or Parker’s initial admission, there is evidence Parker possessed the handgun:

it was found under the mattress in the room where Parker had been staying and where he

was sleeping when the warrant was executed.

       Moreover, the jury surely found Parker’s trial testimony not credible. It is

unlikely that a person who is ineligible to possess a firearm would “take the blame” for a

handgun found in a house where he sometimes sleeps but does not reside. There is no

indication that the owner of the home was ineligible to possess a firearm such that Parker

needed to protect the owner. Parker’s explanation that it was a “lucky guess” that he

knew the model of the handgun and that it was loaded was not persuasive given the

relevant circumstances.

       Second, we consider the pervasiveness of the misconduct. The prosecutor stated

in his opening remarks that a police officer “had information that [Parker], who you have

heard is prohibited, had a firearm.” During trial, the prosecutor elicited testimony from

Suerth about the substance and timing of information he received from the CRI. And in

closing arguments, the prosecutor provided a basis for the CRI’s credibility. Because the

prosecutor mentioned the substance of the tip during multiple stages of trial, the

misconduct was pervasive. But the prosecutor also relied on other arguments; the

substance of the tip was not the primary focus. Additionally, unlike caselaw where a

conviction was reversed for misconduct regarding hearsay evidence, there was no

specific pretrial ruling on the admissibility of the substance of the tip. See, e.g., Ray, 659

N.W.2d at 744-45 (concluding that the prosecutor committed misconduct when he


                                              6
repeatedly tried to elicit testimony about the substance of a tip that had previously been

ruled inadmissible); Litzau, 650 N.W.2d at 184 (concluding that the cumulative effect of

multiple errors, including the prosecutor eliciting hearsay testimony about the substance

of a tip and referring to the hearsay in closing arguments, warranted a new trial).

Therefore, we cannot conclude that the pervasiveness of the misconduct warrants a new

trial.

         Third, Parker asserts he had no opportunity to rebut the misconduct. But, prior to

trial, the prosecutor raised the issue of admissibility of information from the CRI, stating

that he “wanted to be sure concerning what objections the defense may make as to how

much of that information would be brought before the jury.” Parker only objected to

reference of his outstanding felony warrant, and did not object to “information provided

by the officer executing the warrant.” Parker failed to utilize this opportunity to argue

that the substance of the tip was hearsay.1

         Based on the totality of the factors, we cannot conclude that testimony about the

substance of the tip had a significant effect on the verdict. Therefore, Parker’s substantial



1
  Parker also argues that he did not have the opportunity to rebut the CRI’s testimony
because he could not cross-examine the CRI. This essentially implicates the
Confrontation Clause of the Sixth Amendment, which “guarantees the accused the right
to confront the witnesses against him.” State v. Tscheu, 758 N.W.2d 849, 864 (Minn.
2008). Unobjected-to Confrontation Clause violations are reviewed under the plain error
standard. State v. Caulfield, 722 N.W.2d 304, 311 (Minn. 2006). Like unobjected-to
prosecutorial misconduct, an unobjected-to Confrontation Clause violation must affect
“substantial rights” before relief is granted, meaning that the error must affect the
outcome of the case. Tscheu, 758 N.W.2d at 864. Because the balance of the factors
shows that the inadmissible testimony did not affect the verdict, Parker is not entitled to a
new trial based on a Confrontation Clause violation.

                                              7
rights were not affected and a new trial is not required. See, e.g., State v. Prtine, 784

N.W.2d 303, 315 (Minn. 2010) (concluding that hearsay testimony did not have a

significant impact on the verdict).

II.    Disclosure of the CRI’s identity

       Parker argues that the district court erred by not ordering the disclosure of the

CRI’s identity or, alternatively, by not conducting an in camera investigation of the CRI.

It is the defendant’s burden to establish the need for disclosure. State v. Ford, 322

N.W.2d 611, 614 (Minn. 1982). We review the district court’s decision regarding

disclosure of a CRI’s identity for an abuse of discretion. State v. Rambahal, 751 N.W.2d

84, 90 (Minn. 2008). The state has the privilege to withhold the identity of a CRI

because of its interest in protecting those who furnish information to the police. Id. But

disclosure of a CRI’s identity is required when it “is relevant and helpful to the defense of

an accused, or is essential to a fair determination of a cause.” Id. (quotation omitted). A

request for disclosure is considered on a case-by-case analysis focused on fundamental

fairness, balancing the need to protect the flow of information and the need to prepare a

defense. Id. The district court considers four nonexclusive factors in assessing the need

for disclosure: (1) whether the CRI is a material witness; (2) whether the CRI’s testimony

is material to the issue of guilt; (3) whether law enforcement’s testimony is suspect; and

(4) whether the CRI’s testimony might expose entrapment. Id. The overarching concern

in applying these factors is “whether disclosing the informant’s identity would be helpful

to the defense in overcoming an element of the charge.” Id. at 92.




                                              8
       Parker asserts that the CRI is a material witness because the fact that the CRI

observed Parker with the handgun is highly probative of the fact that Parker

constructively possessed the handgun. The district court found that although only the

CRI observed Parker actually possess the handgun, the state would rely on Parker’s own

admission. Parker was charged based on the handgun being under his mattress and his

admissions, not solely the CRI’s observations. Thus, the CRI was not a material witness.

Likewise, because the handgun was found under a mattress in Parker’s room and Parker

admitted he was holding the handgun for a friend, the CRI’s statements about seeing

Parker with the handgun prior to the search warrant are confirmatory but not strictly

material to the issue of guilt. As discussed above, we cannot conclude that Parker would

not have been convicted without the CRI’s statements. Moreover, Parker does not assert

that the officer’s testimony was suspect or that there was entrapment. Therefore, the

factors weigh against disclosing the CRI’s identity. There is no other indication that the

informant’s identity could help Parker overcome any element of ineligible possession of a

firearm. Because the district court considered the necessary factors and the CRI’s

testimony was likely not material, the district court did not abuse its discretion by

refusing to order the disclosure of the CRI’s identity.

       Parker also contends that the district court should have conducted an in camera

hearing to determine whether the CRI’s identity should be disclosed. The defendant

bears the burden to show the need to examine a CRI in camera. State v. Wessels, 424

N.W.2d 572, 574 (Minn. App. 1988), review denied (Minn. July 6, 1988). “All that is

needed to justify an in camera inquiry is a minimal showing of a basis for inquiry but


                                              9
something more than mere speculation by the defendant that examination of the

informant might be helpful.” State v. Moore, 438 N.W.2d 101, 106 (Minn. 1989). Parker

provides no reasoning as to how an in camera examination would aid his defense.

Therefore, the district court did not abuse its discretion by not conducting such an

inquiry.

       Affirmed.




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