State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0922

State of Minnesota,
Respondent,

vs.

Daniel Brian Keith,
Appellant.

Filed April 3, 2017
Affirmed
Reilly, Judge

Anoka County District Court
File No. 02-CR-15-2026

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Kelsey R. Kelley, Assistant County
Attorney, Anoka, Minnesota (for respondent)

Kassius O. Benson, Madelyn Adams, Kassius Benson Law, P.A., Minneapolis, Minnesota
(for appellant)

Considered and decided by Reilly, Pr esiding Judge; Hooten, Judge; and Smith,
Tracy M., Judge.

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U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant challenges his controlled-substa nce convictions, arguing that (1) the
district court violated his Confrontation Clause rights by admitti ng into evidence text
messages received by a confidential-informant during a controlled drug buy and redacted
audio recordings of the drug buy, when the c onfidential-informant did not testify at trial,
(2) his trial counsel’s assistance was ineffective, and (3) the cumulative effect of the errors
deprived him of a fair trial. We affirm.
FACTS
On two separate occasions in the fall of 2014, confidential-informant K.M. assisted
the Anoka-Hennepin Narcotics and Violent Crimes Task Force (the Task Force) by making
controlled drug buys in the City of Coon Rapids, Minnesota.
The first incident occurred on September 23, 2014, when K.M. arranged to purchase
methamphetamine from appellant Daniel Brian Keith. Through a series of text messages,
K.M. agreed to meet appellant at his home in Coon Rapids to purchase methamphetamine.
Detective Matt Lund, a member of the Task Force and the lead agent on the case, personally
observed three incoming text message responses on K.M.’s phone regarding the sale, and
the state introduced photographs of these text messages at trial. Prior to the controlled drug
buy, agents of the Task Force searched K.M. and provided her with $260 in cash and an
audio recording device. K.M. drove to appe llant’s home in her own vehicle. Appellant
stepped out of his home and got into K.M.’s vehicle. Lund monitored K.M. through the
recording device and Detective Gerald Gnerre, who was positioned in an unmarked vehicle

3
60 to 90 feet from appellant’s home, personally watched the meeting. After the exchange,
agents met with K.M. for a post-buy meeting and recovered a bag containing a substance
that was later identified as 3.184 grams of methamphetamine.
The second controlled drug buy took place on October 7, 2014, at appellant’s home.
Agents provided K.M. with $585 in fu nds to purchase a la rger quantity of
methamphetamine and again fitted her with an audio recording device to monitor the
exchange. Agent Christopher McCall saw K.M. enter appellant’s home for a short period
of time. At the post-buy meeting, agents r ecovered two bags containing a substance that
was later identified as 8.430 grams of methamphetamine.
Based on the evidence obtained from the controlled drug buys, agents obtained a
search warrant for appellant’s home and exec uted a daytime knock-and-announce search
warrant on October 14. As they approached the house, agents noticed a surveillance
camera hidden in a potted plant by the front door. Agents knocked on the door, identified
themselves as police officers, and ordered appellant to come to the door. When appellant
did not comply, agents entered the home and found appellant inside a locked bathroom,
standing over a flushing toilet. A medium-size scale sat next to the toilet. Agents placed
appellant under arrest and conducted a search of his home. The sear ch uncovered credit
cards and prepaid cards, several of which were not in appellant’s name; a clear plastic
baggy containing a green plant-like material; a glass bubble pipe with white residue on the
inside; a clear plastic baggy containing “white shards of a hard substance” later identified
as 1.541 grams of methamphetamine; a glass bottle containing 35.889 grams of
diphenhydramine, a non-narcotic ingredient known as Benadryl and codeine; a prescription

4
pill bottle containing alprazolam, a schedule four controlled substance; and a prescription
bottle containing 13.415 grams of methadone, prescribed to another individual.
The state charged appellant by criminal co mplaint with: (1) first-degree controlled
substance crime (sale of ten grams or more , on more than one occasion, for the period
between September 23, 2014 and October 7, 2014); (2) first-degree controlled substance
crime (sale/prior conviction of mixture of a total weight of ten grams or more, on more
than one occasion, for the pe riod between September 23, 2014 and October 7, 2014);
(3) second-degree controlled substance crime (possession of a mixture of a total weight of
six grams or more containing methamphetami ne, for the period between September 23,
2014 and October 14, 2014); (4) second -degree controlled substance crime
(possession/prior conviction of a mixture of a total weight of six grams or more containing
methamphetamine, for the period between September 23, 2014 and October 14, 2014); and
(5) fifth-degree controlled subs tance crime (possession/prior conviction of one or more
mixtures containing a controlled substance classified in schedules I, II, III, or IV, including
codeine, alprazolam, and/or methadone, on October 14, 2014).
The matter came on for a six-day jury trial from January 11-19, 2016. The district
court determined that the state failed to prop erly disclose the terms of the confidential-
informant agreement be tween the Task Force and K.M. in violation of its disclosure
obligations under Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963), and
barred the state from calling K.M. as a witness. The state presented its case through the
testimony of a forensic laborat ory employee and multiple poli ce officers who testified to
their personal observations of the controlled drug buys and the subsequent search of

5
appellant’s home. The jury convicted appellant on all charges. The district court imposed
a 144-month prison sentence for the first-degr ee controlled substance crime (sale/prior
conviction of mixture of a total weight of te n grams or more, on more than one occasion,
for the period between September 23, 2014 a nd October 7, 2014), but did not adjudicate
the remaining offenses.
This appeal follows.
D E C I S I O N
I. Appellant’s Confrontation Clause rights were not violated when the district
court admitted text messages and redact ed audio recordings into evidence
because any error resulting from the district court’s admission of the
contested evidence was harmless beyond a reasonable doubt.
Appellant argues the district court viol ated his Sixth Ame ndment Confrontation
Clause rights by admitting into evidence text messages and redacted audio recordings of
the controlled drug buys when the confidential-informant was not present to testify. See
U.S. Const. amend. VI; Minn. Const. art. I, § 6. “A violation of the Confrontation Clause
occurs when the accused is not afforded the right to confront the witnesses against him.”
Hawes v. State, 826 N.W.2d 775, 786 (Minn. 2013). Whether the admission of evidence
violates a criminal defendant’s Sixth Amendments rights is a question of law subject to de
novo review. Id.
While the district court precluded K.M. fr om testifying, it permitted the state to
introduce text messages and audio recordings of the controlled drug buys and transcripts
of the recordings. The audio recordings an d transcripts contained statements made by

6
agents of the Task Force and someone identified as “B.” K.M.’s statements were redacted.1
Appellant argues that admission of this eviden ce violated his Confrontation Clause rights
because K.M.’s out-of-court statements could be implied through the text messages and
the audio recordings.
To determine whether the statements were admissible, we first consider whether the
statements were testimonial in nature. See Davis v. Washington , 547 U.S. 813, 840, 126
S. Ct. 2266, 2284 (2006) (noti ng that a reviewing court must first consider whether the
evidence at issue is testimonial). A district court “violates the Confrontation Clause when
it admits testimony that inescapably implies a nontestifying witness’s testimonial hearsay
statement.” State v. Swaney, 787 N.W.2d 541, 554 (Minn. 2010). When the state fails to
advance “any other non-truth purpose for introducing the questions and no other relevant,
non-truth purpose appears to apply, we conclude that the que stions were offered to prove
the truth of the matter asserted.” Id. at 553. Appellant characterizes the evidence as
testimonial hearsay statements offered to pr ove the truth of the matter asserted, namely,
that K.M. arranged controlled drug buys with appellant. The state argues the text messages
and audio recordings were not offered for the truth of the matter asserted, but were instead

1 The text messages stated: “I’ll see if I can wo rk it out so we can meet at same place and
time cause her money would help. Relax. It’s all good.”; “One now and if I run there I
can grab one more.”; and “How long?” During the first c ontrolled buy, B’s statements
were: “Hello . . . [inaudible] . . . I’m coming . . . Well ya. It’s the same stuff . . . [inaudible]
can’t be doing this . . . Ya . . . Okay . . . Are you gonna . . . oh that’s [inaudible].” During
the second controlled buy, B’s statements were: “Oh, Jesus Christ! You scared the sh-t
outta me! . . . It’s everything I got . . . And John never called me . . . [inaudible] anything
today? . . . Ok . . . Alright. Sorry about that. I was just headin’ out there and then . . . I
gotta change my notifications now ‘cause it’s [inaudible] . . . or whatever.”

7
presented to the jury in an effort to provide insight into the process of conducting a
controlled drug buy. See, e.g., id. at 552 (“[A]dmission of testimonial statements does not
implicate the Confrontation Clause if the stat ements are not offered to prove the truth of
the matter asserted.”); State v. Tovar , 605 N.W.2d 717, 726 (M inn. 2000) (determining
defendant’s Confrontation Clause rights were not infringed where police officer’s
statements during custodial interview were offered to provide context to defendant’s
responses). For the purposes of this appeal , we assume, without concluding that the
statements were testimonial in nature.
This assumption does not end our inquiry. Violations of the Confrontation Clause
are subject to a harmless-error analysis and “reversal is not required if the error was
harmless beyond a reasonable doubt.” Swaney, 787 N.W.2d at 555.
In order to deem a Confrontation Clause error harmless beyond
a reasonable doubt, [the reviewing court] must determine that
the guilty verdict actually rende red was surely unattributable
to the error. When determining whether the jury’s verdict was
surely unattributable to an error, [the reviewing court]
examine[s] the record as a whole. In doing so, [the reviewing
court] consider[s] the manner in which the evidence was
presented, whether the evid ence was highly persuasive,
whether it was used in closing argument, and whether it was
effectively countered by the defense.
State v. Wright, 726 N.W.2d 464, 476 (M inn. 2007) (quotations omitted). Here, each of
the four factors weighs in favor of a harmless-error determination.
First, the manner in which the state presented the eviden ce did not create a
reasonable likelihood that the admission of this evidence substantially affected the verdict.
The evidence was presented through Detective L und’s testimony. References to the text

8
messages and the audio recordings were relatively brief and did not represent a substantial
portion of his testimony. Lund described the general process of conducting a controlled
drug buy and outlined the Task Force’s pr ocedures for working with a confidential-
informant. He did not testify as to the content of the audio recordings or identify appellant
as the voice on the recordings.
The second factor requires us to cons ider whether the evidence was highly
persuasive. Lund’s testimony was not the sole evidence presented regarding appellant’s
controlled substance crimes. Several police officers testified to their personal observations
of the controlled drug buys or their participation in executing the search warrant. A lab
technician testified that he performed a drug test on the drugs purchased through the
controlled drug buys, as well as the drugs fo und in appellant’s home, and confirmed the
presence of methamphetamine. The text me ssages and audio recordings were not highly
persuasive, in light of the strong evidence presented through the officers’ testimony, which
supported the jury’s verdict.
Third, to the extent the state referenced the text messages and audio recordings in
summation, such references were brief. Th e prosecutor began his closing argument by
reviewing the agents’ testimony of the c ontrolled drug buy operations, describing the
agents’ meetings with the confidential- informant, and reviewing their personal
observations of K.M.’s meetings with appellan t. The prosecutor then referenced the text
messages and audio recordings and stated that the evidence “corroborate[s] the testimony
given by officers.” The remainder of the state’s closing argument focused on the search of
appellant’s home and the fruits of that search . Although the prosecutor referenced the

9
contested evidence in closing, the references were cursory, covering only several pages of
a 24-page transcript. The prosecutor did not emphasize or dwell on the evidence in closing.
The fourth factor considers whether the defense effectively countered the evidence.
The defense did not ask Detective Lund any questions about the text messages or the audio
recordings on cross-examination. During a brief recross-examination, however, the
defense asked Lund if he knew “who the other person [was] on the other end of the tape,”
and Lund admitted that he did not. The defense also attemp ted to discredit the evidence
during closing argument, arguing that the stat e failed to present ev idence linking the text
messages in K.M.’s phone to appellant.
Lastly, we note that the st rength of other evidence of the defendant’s guilt is an
important factor in a Confro ntation Clause analysis. Hawes, 826 N.W.2d at 786. Here,
other evidence sufficiently establishes appellant’s guilt. Agents with firsthand knowledge
provided testimony of the cont rolled drug buys, while other agents testified that they
uncovered drugs and drug paraphernalia during the subsequent search of appellant’s home.
This evidence sufficiently established appellant’s guilt, notwithstanding the text messages
and audio recordings. We ther efore conclude that any poten tial violation of appellant’s
right to confrontation was harmless beyond a reasonable doubt and appellant is not entitled
to a new trial.
II. Appellant received effective assistance of counsel.
We next turn to appellant’s ineffective-assistance-of-counsel challenge. A criminal
defendant has a constitutional right to th e effective assistance of counsel. Fort v. State ,
861 N.W.2d 674, 677 (Minn. 2015). We anal yze an ineffective-a ssistance-of-counsel

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claim under the two-prong test articulated by the United States Supreme Court in Strickland
v. Washington. Nissalke v. State, 861 N.W.2d 88, 94 (Minn. 2015) (citing Strickland, 466
U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Appellant must demonstrate that
his counsel’s performance “fell below an objective standard of reasonableness, and that a
reasonable probability exists that the outcome would have been different but for counsel’s
errors.” State v. Rhodes , 657 N.W.2d 823, 842 (Minn. 2003) (quotation and citations
omitted). A reviewing court need not address both parts of the Strickland test if one is
determinative. Hawes, 826 N.W.2d at 783. Here, appellant fails on both Strickland prongs.
Under the deficiency prong, appellant must show by a preponderance of the
evidence that his counsel’s performance “fell below an objective standard of
reasonableness.” State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted).
Minnesota reviewing courts assume an attorney’s performance meets this standard “when
he provides his client with the representation of an attorney exercising the customary skills
and diligence that a reasonably compet ent attorney would perform under the
circumstances.” Id. (quotations omitted). The first prong is thus “necessarily linked to the
practice and expectations of the legal community.” Padilla v. Kentucky , 559 U.S. 356,
366, 130 S. Ct. 1473, 1482 (2010) (“The proper measure of attorney performance remains
simply reasonableness under prevailing professional norms.”).
Appellant argues his trial counsel failed to adequately object to portions of Lund’s
direct testimony. The record does not support this claim. Defense counsel raised several
objections to the state’s evidence, and the district court admitted the evidence over defense
counsel’s objections. Moreover, “[d]ecisions a bout objections at trial are matters of trial

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strategy,” Leake v. State , 737 N.W.2d 531, 542 (Minn. 2007), and we afford great
deference to an attorney’s strategic litigation decisions, see Rhodes, 657 N.W.2d at 845
(concluding that an ineffec tive-assistance-of-counsel clai m fails when an attorney’s
conduct falls within the ra nge of reasonable pr ofessional assistance). Because the
ineffective-assistance challenge relates to trial strategy, appellant’s claim necessarily fails.
See Carridine v. State , 867 N.W.2d 488, 494 (Minn. 2015 ) (“[A]ppellate courts do not
review an attorney’s trial strategy for competence.”).
Appellant’s claim also fails under the second Strickland prong, which requires
appellant to show by a preponderance of the evidence that but for his counsel’s errors, the
outcome of the proceedings would have been different. Strickland, 466 U.S. at 687, 694,
104 S. Ct. at 2068. “A r easonable probability is a probab ility sufficient to undermine
confidence in the outcome.” Patterson v. State , 670 N.W.2d 439, 442 (Minn. 2003)
(quoting Strickland, 466 U.S. at 694, 104 S. Ct. 2052 ). Appellant has not identified any
facts creating a reasonable probability that th e outcome of the tria l would have been
different if his counsel had employed differe nt trial strategies, and the totality of the
evidence supports the jury’s verdict. See Rhodes , 657 N.W.2d at 842 (noting that a
reviewing court considers the totality of the evidence when performing an analysis of the
second Strickland prong).
We therefore conclude that appellant’s ineffective-assistance-of-counsel claim fails
because appellant has neither demonstrated th at his counsel’s performance fell below an

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objective standard of reasonableness nor has he established that he was prejudiced by his
counsel’s representation. Consequently, appellant is not entitled to relief.2
Affirmed.

2 Appellant also seeks a new trial on the grou nd that the cumulative e ffect of the errors
deprived him of a fair trial. See State v. Valentine , 787 N.W.2d 630, 642 (Minn. App.
2010) (recognizing that the cumulative effect of errors may warrant reversal of conviction
and entitle defendant to a new trial), review denied (Minn. Nov. 16, 2010). We determine
that he is not entitled to relief on this basis.