State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2072

State of Minnesota,
Respondent,

vs.

Andrew Gary Jennissen,
Appellant.

Filed October 21, 2019
Affirmed
Peterson, Judge*

Carlton County District Court
File No. 09-CR-18-728

Keith Ellison, Attorney General, Edwin W. Stockmeyer, Assistant Attorney General, St.
Paul, Minnesota; and

Lauri A. Ketola, Carlton County Attorney, Carlton, Minnesota (for respondent)

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

Considered and decided by Johnson, Presiding Judge; Connolly, Judge; and
Peterson, Judge.

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

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U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from his convictions for first- and third-degree controlled-substance
crimes, appellant argues that the district court erred by denying his motion for a new trial
because the state failed to disclose exculpatory evidence. We affirm.
FACTS
In April 2018, respondent State of Minnesota charged appellant Andrew Gary
Jennissen with one count of first-degree sale of methamphetamine and one count of third-
degree possession of methamphetam ine. At trial, the state presented evidence that , in
February 2018, C.P. began working as a “cooperating informant” (CI) for the Cloquet
Police Department (CPD).
While working as a CI for the CPD in April 2018, C.P. performed four “controlled
buys of methamphetamine from . . . Jennissen .” In each of the contro lled buys, C.P.
arranged to purchase methamphetamine from Jennissen. Law enforcement then t ook a
statement from C.P., searched his person to ensure that he did not possess any contraband
before meeting Jennissen, outfitted him with a recording device, photographed the cash to
be used in the transaction, and then gave that cash to C.P. After each controlled buy, C.P.
gave the methamphetamine and any cash left over from the transaction to law enforcement.
The methamphetamine that C.P. purchased from Jenni ssen was always packaged .
In the first controlled buy , C.P. received methamphetamine packaged in a plastic baggie
with a purple-colored female silhouette. In the other three controlled buys, C.P. received
methamphetamine that was packaged in small , yellow baggies. The total weight of the

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methamphetamine that C.P. purchased from Jennissen in the four controlled buys was
approximately 20.201 grams.
On April 16, 2018, law enforcement executed a search warrant f or Jennissen and
the house where he was residing. The search of Jennissen’s person revealed 17.53 grams
of methamphetamine, a digital scale, and some small , yellow baggies. In the house, law
enforcement discovered a number of baggies that matched the baggies that C.P. received
from Jennissen in the controlled buys. Law enforcement did not find any of the cash that
was used in the controlled buys.
At trial, C.P. testified that he received “monetary compensation” for his work as a
CI and that one charge against him for possession of a controlled substance, one charge of
possession of drug paraphernalia , and two charges against him for possession of a
hypodermic needle were dismissed because of his work as a CI. C.P. also testified that, as
a result of being stopped by police on two separate occasions during February 2018, he
was going to be charged with separate counts for possession of methamphetamine . But,
“because of [his] cooperation with law enforcement,” he was not charged with these
offenses.
A jury found Jennissen guilty of the charged offenses. Before sentencing, Jennissen
moved for a new trial under Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194 (1963),
claiming that the state failed to disclose that, on June 4, 2018, C.P. was involved in a traffic
stop and was not charged for any conduct discovered during the stop. In an evidentiary
hearing, Fond du Lac Police Officer Nils Hansen testified that C.P. was stopped and
arrested for driving with a suspended license, but C.P. was not cited for that offense because

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he was cooperative with law e nforcement in the “investigation of the possession of
methamphetamine of [T.W.],” who was a passenger in C.P.’s vehicle when it was stopped.
Hansen also testified that officers discovered drugs in C.P.’s girlfriend’s purse during the
stop, but she was not cited for a fifth-degree controlled-substance offense.
The district court concluded that there “is little doubt that the June 4th traffic stop
information should have been disclosed to [Jennissen].” But the district court also found
that Jennissen “fail[ed] to make a showing that the June 4th incident is material as required
by Brady, or that there is a reasonable probability that the June 4th evidence would have
resulted in the jury reaching a not guilty verdict.” The district court, therefore, denied
Jennissen’s motion for a new trial. Jennissen was sentenced, and this appeal follows.
D E C I S I O N
The state has an affirmative duty in criminal cases to disclose evidence that is
favorable and material to the defense. Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97; State v.
Williams, 593 N.W.2d 227, 234 (Minn. 1999). To constitute a Brady violation, the
following three requirements must be established:
(1) the evidence must be favorable to the defendant because it
would have been either exculpatory or impeaching;
(2) the evidence must have been suppressed by the prosecution,
intentionally or otherwise; and
(3) the evidence must be material—in other words, the absence
of the evidence must have caused the prejudice to the
defendant.

Zornes v. State, 903 N.W.2d 411, 417 (Minn. 2017) (quotation omitted). “Because a Brady
materiality analysis involves a mixed question of law and fact, [appellate courts] review a
district court’s materiality determination de novo.” Id. (quotation omitted).

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Jennissen argues that the state’s failure to disclose information about the June 4,
2018 traffic stop involving C.P. constituted a Brady violation. His appeal concerns only
the third element of the Brady analysis—materiality.1 “Evidence is material under Brady
if there is a reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. A reasonable probability is one that is
sufficient to undermine confidence in the outcome.” Campbell v. State, 916 N.W.2d 502,
511 (Minn. 2018) (quotations and citations omitted). The remedy for a Brady violation is
a new trial. Zornes, 903 N.W.2d at 419. But a new trial is not required “simply because a
defendant uncovers previously undisclosed evidence that would have been possibly useful
to the defendant but is unlikely to have changed the verdict.” Id. (quotation omitted).
The district court found that “before trial, the state produced substantial discovery
to [Jennissen] regarding [C.P.’s] contact with law enforcement during the time he worked
as a confidential informant,” and that C.P. “was impeached through testimony about
several felony drug cases that were either not charged or dismissed as a result of his
cooperation with law enforcement involving purchasing controlled substances from
[Jennissen].” The court then stated that, as result, the “June 4th incident, which involved
relatively more minor driving conduct,” would have “[a]t most,” been “cumulative of the
evidence that was produced at trial that imp eached” C.P. Thus, the court concluded that
Jennissen “failed to produce any material evidence to show that the jury would have

1 There is no dispute that the inform ation about the June 4 stop was not disclosed to
Jennissen, and the state does not challenge the district court’s conclusion that
“[i]nformation about any favor that [C.P.] might have received from law enforcement, or
his involvement with law enforcement is arguably impeachment material.”

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reached a not guilty verdict had the June 4th incident been disclosed, and has failed to show
any prejudice as a result of the state’s discovery violation.”
Jennissen argues that the district court’s decision is erroneous because the June 4
evidence “showed that C.P. had additional and on -going reasons to impress officials with
his testimony.” (Emphasis omitted.) Jennissen contends that because “C.P.’s reliability
was key to the state’s case,” the “absence” of the June 4 evidence at trial “is sufficient to
undermine confidence in the jury’s verdict.”2 We are not persuaded.
The United States Supreme Court has held that the cumulative effect of withheld
impeachment evidence can be insufficient to undermine confidence in the jury’s verdict.
Turner v. United States, 137 S. Ct. 1885, 1894-95 (2017) (concluding that “in the context
of this trial, with respect to these witnesses, the cumulative effect of the withheld evidence
is insufficient to undermine confidence in the jury’s verdict”). But when the nondisclosed
evidence “could have si gnificantly impeached the state’s key witness,” a defendant has
suffered prejudice. State v. Hunt, 615 N.W.2d 294, 301 (Minn. 2000).
In State v. Miller, the supreme court held that no Brady violation occurred when the
state failed to provide the defendant wi th complete copies of a witness’ s criminal history.
754 N.W.2d 686, 706 (Minn. 2008). The undisclosed evidence would have revealed that

2 As the state notes, Jennissen’s Brady claim is relevant o nly to the conviction on count
one for distribution of methamphetamine and does not affect his conviction on count two
for possession of methamphetamine because th e evidence proving the possession offense
did not depend on the jury’s assessment of C.P.’s credibility. Rather the evidence proving
that offense depended on the testimony of the law-enforcement officer who found the 17.53
grams of methamphetamine on Jenniss en’s person. See Minn. Stat. § 152.023, subd.
2(a)(1) (2016) (stating that a person who unlawfully possess es ten or more grams of
methamphetamine is guilty of third-degree possession of a controlled substance).

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the witness had been convicted of four felonies. Id. The supreme court held that the state
suppressed the evidence and that the evidence was exculpatory. Id. But the supreme court
reasoned that the evidence was n ot material because the witness’ s credibility nonetheless
was “successfully impeached at trial.” Id. The supreme court pointed out that, during trial,
the witness “admitted to lying to the police and to being unreliable because he was high on
methamphetamines when the events took place.” Id.
Here, C.P. was obviously the state’s key witness, and evidence that the June 4
incident did not result in any charges against either C.P. or his girlfriend is impeachment
evidence. But the jury heard testimony that C.P. was working as a CI for the CPD and that,
in exchange for his services, one pending charge for possession of a controlled substance,
one pending charge for possession of drug paraphernalia , and two pending charges for
possession of a hypodermic needle were dismissed. C.P. also acknowledged at trial that ,
as a result of being stopped on two separate occasions during February 2018, he was going
to be charged with separate counts of possession of m ethamphetamine, but he ultimately
was not charged “because of [his] cooperation with law enforcement.” The jury also heard
testimony that C.P. received “monetary compensation” from the CPD for his work as a CI.
As a result, the jury was well aware that C .P. was receiving a benefit from working with
law enforcement, and evidence of the June 4 incident was simply cumulative impeachment
evidence. Because C.P. was impeached at trial with a plethora of evidence that he had
received substantial benefit s for wo rking as a CI for the CPD, evidence of the June 4
incident was merely cumulative impeachment evidence that was immaterial to the outcome
of the trial. See Turner, 137 S. Ct. at 1895 (concluding that where the record shows that

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the undisclosed impeachment evidence was “largely cumulative of impeachment evidence
petitioners already had and used at trial,” the “effect of the withheld evidence is insufficient
to undermine confidence in the jury’s verdict”); see also State v. Brown, 815 N.W.2d 609,
622 (Minn. 2 012) (concluding that although a plea deal between a state’s witness and
another county attorney’s office constituted impeachment evidence, the undisclosed
impeachment evidence was not material where the witness “was impeached with five
felony convictions that were all disclosed on the record and [with] his plea agreement with
the Hennepin County Attorney’s Office that was more favorable than the plea agreement
reached with the other county attorney’s office”); Miller, 754 N.W.2d at 706 (holding that
undisclosed impeachment evidence was not material because the witness’s credibility was
“successfully impeached at trial”).
Also, the supreme court has determined that the “likelihood of prejudice is
decreased” where “ testimony of the witness sought to be impe ached by nondisclosed
evidence was not the only damning evidence against defendant.” Hunt, 615 N.W.2d at 301
(quotation omitted). C.P.’s testimony was not the only damning evidence against
Jennissen. Investigator Darrin Berg of the CPD testified that he was present at the four
controlled buys involving C.P. and Jennissen, and he explained the procedure followed by
law enforcement when conducting a controlled buy. In addition, audio recordings of each
controlled buy, Facebook Messenger posts between C.P. and Jennissen in which C.P. set
up the controlled buys, and photographs of the buy money given to C.P. by law
enforcement were admitted into evidence. Although none of the buy money was recovered
during the search of Jennissen’s person and residence, the search did reveal 17.53 grams

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of methamphetamine , a digital scale , and small baggies of the same type used in the
controlled buys. In light of all the evidence produced by the state at trial and the cumulative
effect of the undisclosed June 4 evidence, the June 4 evidence was not material because it
was not sufficient to undermine confidence in the outcome of Jennissen’s trial.
Accordingly, Jennissen is not entitled to a new trial.
Affirmed.