Opinion
No. A05-1614.
Filed February 27, 2007.
Appeal from the District Court, Hennepin County, File No. 04081220.
Lori Swanson, Attorney General, and Mike Freeman, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, (for respondent).
Herbert Louis Carter, (pro se appellant)
Considered and decided by Ross, Presiding Judge; Klaphake, Judge; and Worke, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2006).
UNPUBLISHED OPINION
Herbert Carter appeals pro se from a conviction for soliciting and promoting prostitution. Carter argues that a search warrant authorizing the search of his residence was not supported by probable cause and contained material misrepresentations or omissions. He maintains that the district court abused its discretion by admitting evidence that his sister had threatened a testifying witness. He also argues that the district court improperly permitted expert testimony about the prostitution business and by admitting suggestive photographs of Carter without proper notice. We affirm.
FACTS
In December 2004, Minneapolis police sought a warrant authorizing the search of Herbert Carter's car and residence for evidence of prostitution. Officer Darren Blauert, a six-year veteran assigned to target prostitution and illegal narcotics, swore to the following in his supporting affidavit. A confidential informant told Blauert that Carter was running a prostitution ring from his residence, which was a duplex, and that some of the prostitutes were juveniles. The informant told Blauert that Carter placed a weekly advertisement in a local newspaper's escort section. The advertisements were entitled "Pink Panties, Kami Tami — Both 19!," and listed two local phone numbers to arrange meetings at Carter's residence allegedly for prostitution. The informant also told Blauert that Carter would sometimes drive prostitutes to clients in his 1995 Cadillac, and he gave the vehicle's license plate number. The informant reported that the prostitutes often used a cellular phone provided by Carter, and he gave Blauert the phone number. The informant gave Blauert the first names, race, and physical descriptions of two prostitutes — one juvenile and one adult — who worked from Carter's residence. The informant told Blauert that Carter receives money from the prostitution. He also told Blauert that Carter was extensively involved in identity theft and forgery, which was consistent with Blauert's knowledge of Carter's criminal history.
Blauert attempted to corroborate the informant's information. He drove to the address and confirmed that it is a duplex. He saw a 1995 Cadillac with the license plate as described, parked at the residence. He confirmed that Carter is the car's registered owner and that the address on his state identification matched the informant's report. He saw Carter leave the home. Blauert also determined that Carter was the registered subscriber to the cellular phone number reported by the informant. Blauert checked several recent newspaper issues and found the advertisement and local phone numbers in the escort section as described by the informant. Blauert had conducted prior prostitution investigations in which police discovered advertisements in the same periodical's escort section.
Blauert applied for an anticipatory search warrant that would allow officers to execute the warrant only after an undercover officer called one of the advertised numbers, arranged a meeting at the residence, and was offered sex in exchange for money. The district court issued the warrant.
Two days later, an undercover officer called one of the advertised numbers and spoke to a woman who described herself and another woman's physical appearance. The woman told the officer that an "appointment" would cost $120 and that he should drive to an address and call the number again. The address was Carter's.
The undercover officer wore a hidden microphone to transmit any conversations and to alert awaiting officers when the warrant's final triggering event occurred. He had $500 in "buy money" to pay for any offered sex transaction. A.S., a 16-year-old girl who introduced herself as "Kansas," answered the door and invited the officer into the residence. She took him upstairs to a bedroom, where he met Alisha Anderson. Anderson, who is Carter's sister, introduced herself as "Toya" and collected the agreed upon $120 from the officer as a "service fee."
A.S. offered the officer a "hand job" for an additional $40, and she offered to remove her clothes. The officer excused himself to go to the bathroom, where he gave the signal to execute the search warrant. As the police entered the residence, Carter fled to a rear stairway and ran out the back door. Blauert saw Carter drop a single $100 bill, which matched the serial number of the buy money that the undercover officer had paid to Anderson. Police searched Carter and found an additional $1,510 in cash. Police also searched Carter's residence and car, seizing three $20 bills that also matched the recorded buy money, a cellular phone with the number provided by the informant, condoms, the title to Carter's 1995 Cadillac, two of Carter's driver's licenses (one indicating the same address as the place of the arrest and search), mailings addressed to Carter at that same residence, and photographs of multiple women in sexually provocative poses, some with Carter, that were displayed on a bedroom dresser.
The state charged Carter with one count of solicitation, inducement, and promotion of prostitution. Carter moved the district court to order the return of the seized money, his cellular telephone, and his car, alleging that the search warrant was defective because Blauert's affidavit failed to establish the veracity and basis of knowledge of the confidential informant. Carter also alleged that Blauert made a material misrepresentation in the affidavit by stating that an undercover operation had already taken place when he applied for the warrant.
The district court denied the motion. The court concluded that Blauert sufficiently corroborated the informant's information to establish probable cause for the judge to issue the search warrant. The court also found the triggering event that provided the basis to execute the warrant explicit, clear, and narrowly drawn. A jury found Carter guilty, and the district court sentenced him to 158 months' imprisonment. This appeal follows.
DECISION I
Carter first contends that the district court erred by finding that probable cause supported the search warrant because Blauert's affidavit falsely described the location of Carter's residence, the use of the cellular phone, and the status of the undercover operation. Carter also argues that the district court erred by not suppressing evidence seized during the search because Blauert failed to adequately investigate and corroborate the informant's information. Carter seems to argue that because his driver's license specified his address as the lower half of the duplex, the warrant seeking to search the upper unit was invalid because Blauert did not thoroughly verify Carter's actual residence. These arguments are not compelling.
When reviewing a district court's finding of probable cause to issue a search warrant, we determine whether the court had a substantial basis to conclude that probable cause existed. State v. Carter, 697 N.W.2d 199, 205 (Minn. 2005). We afford the district court's probable cause determination great deference. State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995). A substantial basis exists when the issuing judge makes a practical, commonsense decision, based on the totality of the circumstances, that a fair probability exists that evidence of a crime will be found in the specified place. Id. Carter's challenge does not overcome our deference to the district court.
Carter first points to three statements in Blauert's affidavit that he claims were false and, when excised, strip the warrant of probable cause. Although we normally presume the validity of an affidavit supporting an otherwise valid search warrant, "this presumption is overcome when the affidavit is shown to be the product of deliberate falsehood or reckless disregard for the truth." State v. McGrath, 706 N.W.2d 532, 540 (Minn.App. 2005) (citing Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684 (1978)), review denied (Minn. Feb. 22, 2006). The defendant has the burden of showing by a preponderance of the evidence that the affiant included a false statement in the affidavit knowingly or with reckless disregard for the truth. Id. Innocent or negligent misrepresentations do not invalidate a search warrant. Id. We review a challenged affidavit's components as a coherent whole rather than in isolation, and we will not engage in a hypertechnical examination of the affidavit. State v. Wiley, 366 N.W.2d 265, 268 (Minn. 1985); State v. Kahn, 555 N.W.2d 15, 18 (Minn.App. 1996). Based on this review, it is clear to us that Carter's three allegations do not affect the probable cause determination.
Carter first claims that Blauert falsely averred that Carter resided in the upper unit of the target residence because his driver's license indicates that he resides in the lower unit. Blauert's affidavit did not specify whether the license check indicated Carter's residence to be the upper or lower unit. And the statement in the affidavit that identified Carter's residence as the upper unit was attributed to the informant. Carter has shown that the affidavit's statement regarding his address is somewhat in error, but he has not demonstrated that the mistake arose from anything more than an innocent or negligent misrepresentation, which will not invalidate a search warrant. Carter next claims that the affidavit stated that the cellular phone the informant told Blauert about was used by the prostitutes, but the officer verified only that Carter was the registered subscriber for the cellular phone. Viewing the affidavit as a whole, the statement regarding the cellular phone refers to the information provided by the informant and does not amount to a deliberate misrepresentation by the affiant. Carter last claims that the affidavit falsely stated that an undercover operation had already been conducted when it had not. The statement allegedly implying that an undercover operation had already taken place reasonably refers to the triggering event to execute the warrant. The two immediately preceding paragraphs in the affidavit discuss the undercover operation that the "affiant plans to conduct." (Emphasis added.) We conclude that Carter has not established that any of the highlighted statements were intentional or reckless misrepresentations, and that only a hypertechnical examination of the affidavit would support Carter's contentions.
Carter's challenge that Blauert failed to corroborate the informant's information is also unpersuasive. When an affidavit attributes hearsay information to a confidential informant, the informant's basis of knowledge and his veracity are factors the district court should consider in assessing probable cause. Zanter, 535 N.W.2d at 633. Because Blauert's affidavit failed to provide any information regarding these two factors, we must determine whether the district court had a sufficient basis to conclude that the police adequately corroborated the informant's basis of knowledge and veracity.
An informant's basis of knowledge may be established indirectly through self-verifying details that permit an inference that the informant's information is reliable. State v. Cook, 610 N.W.2d 664, 668 (Minn.App. 2000), review denied (Minn. July 25, 2000). We therefore consider the quantity and quality of detail in the informant's report and whether police independently verified important details. Id. A confidential informant's veracity can be established by police corroboration of the information, and the informant is presumably more reliable if he voluntarily reports. State v. Ross, 676 N.W.2d 301, 304 (Minn.App. 2004). Independent corroboration of even minor details will enhance credibility of an informant's information, Wiley, 366 N.W.2d at 269, and may even support a finding of probable cause. State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999). But the information corroborated must include more than easily obtainable facts, such as the suspect's address and his ownership of a car. State v. Albrecht, 465 N.W.2d 107, 109 (Minn.App. 1991).
The informant's information was sufficiently reliable here. He voluntarily met with Blauert and gave him detailed information on the prostitution operations at Carter's residence, a cellular phone number that Blauert verified belonged to Carter, and Carter's criminal history, which Blauert confirmed as accurate. These details provide a sufficient basis to trust the unconfirmed information. See United States v. Solomon, 432 F.3d 824, 828 (8th Cir. 2005) (noting that if some information from informant is shown to be reliable by independent corroboration, it is fair to infer that other uncorroborated information provided is also reliable). The information was not so lacking in support to require reversing the district court's probable cause determination. Rather, the informant is presumed reliable based on his voluntary presentation, and his credibility is supported by the level of detail provided and the corroboration by Blauert concerning the verifiable facts. This established both the basis of knowledge and veracity of the confidential informant and, therefore, provided the district court with a substantial basis for finding probable cause to issue the warrant.
II
Carter next contends that the district court erred by denying his request for a mistrial because the court allowed the state to ask C.C., a recanting 15-year-old juvenile witness to the prostitution operation at Carter's residence, whether she had been threatened. C.C., who was present when police executed the search warrant, allegedly gave police details about the prostitution operation, including the amount charged for sex and how appointments were made. But at trial, she denied knowledge and recanted her inculpatory statements. The prosecutor had previously disclosed to Carter's counsel that C.C. believed that Carter's sister had threatened her.
Our review of the record conflicts with Carter's allegation that the prosecutor directly asked C.C. whether Carter's sister had threatened her. The prosecutor instead asked, with the court's permission and without objection, an open-ended question as to whether anyone had threatened her. C.C. answered, "Herbert Carter's sister, Alisha." She then insisted that the threat had not affected her testimony. On cross-examination, C.C. repeated that the threat did not affect her testimony and that it came only from Carter's sister, not from Carter. Carter moved for a mistrial the next day, arguing that the jury would prejudicially infer that C.C. had been threatened at his request or on his behalf. The court denied the motion.
When appealing an evidentiary ruling, the appellant has the burden of establishing that the district court abused its discretion in a manner that prejudiced the appellant. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). And when no objection to the evidence has been made, an appellant must meet the heavy burden of showing plain error that affected his substantial rights. Bernhardt v. State, 684 N.W.2d 465, 475 (Minn. 2004). Evidence that a witness has been threatened must be excluded if its probative value is substantially outweighed by the possibility of unfair prejudice, confusion, or misleading of the jury. State v. Vance, 714 N.W.2d 428, 441 (Minn. 2006). We find no error in the district court's decision to deny Carter's mistrial request.
Evidence of Anderson's threat was relevant. The prosecutor had a good-faith basis to ask the open-ended question to address the radical discrepancy between C.C.'s exculpatory testimony and her prior inculpatory statements to the police. And the witness plainly stated that the threat had no impact on her testimony and that Carter was not involved. C.C. also put the threat in context during cross-examination, attributing it to an unrelated incident between her father and her former boyfriend, who is Anderson's son. The testimony regarding the threat was brief, and its context was not unduly prejudicial. See id. (concluding that threat evidence was not unduly prejudicial when evidence was not important focus of direct examination, testimony was isolated, and evidence was admitted only with respect to certain witnesses). We conclude that the district court did not commit plain error by admitting the testimony and that the court acted within its discretion when it denied Carter's request for a mistrial.
III
Carter next argues that the district court erred by permitting a police sergeant to testify as an expert witness on juvenile prostitution operations because his testimony exceeded the facts and because the subject matter was inappropriate for expert testimony. The district court has broad discretion to admit expert testimony, and we will not reverse its rulings on foundation, remoteness, or relevancy of the evidence unless it clearly abused its discretion. State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999). To be properly admitted, expert testimony must assist the jury to understand the evidence and must enhance the jury's ability to reach conclusions about matters that are not within its experience. State v. DeShay, 669 N.W.2d 878, 887-88 (Minn. 2003). We hold that the district court did not abuse its discretion by admitting the challenged expert testimony.
The police sergeant testified about an organized prostitution ring's operations, hierarchy, recruitment, and fee arrangements. He explained about the use of a "service fee" and a separate "tip" and partial payment to a person designated as the "bottom," who acts as a conduit to the pimp. This mirrored the financial arrangement the undercover officer testified as having occurred in Carter's home between the officer, Carter's sister, and the juvenile prostitute. And these are matters that are presumably not within the average juror's common experience or knowledge. The expert testimony was especially pertinent to help the jury assess Carter's argument that the $100 he received from Anderson as part of the $120 the officer paid for the "appointment" had nothing to do with prostitution. The expert testimony would tend to help the jury, and the district court acted well within its discretion to admit it.
IV
Carter last argues that various photographs introduced at trial, some showing him dressed as a pimp in brightly colored, high-gloss suits and a white "derby hat" or holding money while posturing with women in provocative poses, were irrelevant and prejudicial and constituted improper character evidence for which the state failed to give a Spreigl notice before seeking its admission. We find that these arguments lack merit.
We first address the challenge concerning lack of notice of the alleged Spreigl evidence. Spreigl evidence is evidence of another crime, wrong, or bad act that is not admissible to prove the character of a person to show action in conformity with the character, but may be admissible for other purposes, such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." State v. McLeod, 705 N.W.2d 776, 787 (Minn. 2005) (quoting Minn. R. Evid. 404(b)). Before the state may admit Spreigl evidence it must give notice of its intent to introduce the evidence. State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006) (listing notice as one of five requirements). The admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996). But even if the district court erred by admitting evidence, the appellant must establish that the error was prejudicial by showing a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. Amos, 658 N.W.2d at 203; State v. Post, 512 N.W.2d 99, 102 n. 2 (Minn. 1994).
We need not resolve whether the contested photographs constitute Spreigl evidence. Even if they do, the district court properly admitted them into evidence despite the lack of a formal notice by the state. The purpose of the notice requirement is to give the defendant an opportunity to prepare for trial and to avoid surprise from unexpected evidence of prior offenses. State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995). Here, the photographs were listed on the search warrant return, and the state provided Carter with a discovery notice four months before trial that it intended to introduce the search evidence at trial. The photographs were also noted in the complaint. Shortly before trial, Carter's counsel twice reviewed all of the state's exhibits, including the photographs. Carter had sufficient notice that the state would introduce the photographs at trial and adequate time to prepare a challenge to the evidence. See State v. Thomas, 360 N.W.2d 458, 459 (Minn.App. 1985) (rejecting defendant's argument that state violated Spreigl's notice requirement when prior misconduct evidence was mentioned in complaint and defendant was therefore aware of it), review denied (Minn. Apr. 12, 1985).
Carter's relevancy challenge is without basis. The admission of photographs during trial rests within the sound discretion of the district court. State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994). The district court acts within its discretion when it admits photographs if the photographs depict something that a trial witness may describe and if they are relevant. Id. at 564-65. The photographs here tended to show Carter's knowledge of the prostitution ring operating out of his residence, and knowledge that he was receiving profits from promoting prostitution of a juvenile is an element of the offense charged. See Minn.Stat. § 609.322, subd. 1(3) (2004) (including element that the person know or have reason to know he received profits from prostituting or promoting prostitution of juvenile). Many of the posed photographs were taken in Carter's home and were displayed on a dresser in the bedroom where A.S. offered the officer sexual contact for money. The audacious photographs depicting Carter as a flamboyant pimp were doubtlessly prejudicial to Carter's defense that he is not a pimp, but they were not unfairly prejudicial. Because the photographs were relevant and because their probative value outweighs their potential for unfair prejudice, the district court did not abuse its discretion by admitting them.