State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0780

State of Minnesota,
Respondent,

vs.

Connie Marie Robinson,
Appellant.

Filed June 12, 2023
Reversed and remanded
Ross, Judge

Hennepin County District Court
File No. 27-CR-21-8857

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Assistant County Attorney,
Minneapolis, Minnesota (for respondent)

Frederick J. Goetz, Goetz & Eckland P.A., Minneapolis, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
ROSS, Judge
The state charged Connie Robinson with first-degree controlled substance sale after
officers pulled over the car in which she was a passenger and discovered nine pounds of
cocaine strapped to the car’s undercarriage. The jury heard testimony from officers that
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they had received “information” that Robinson was traveling from Minnesota to Texas to
purchase narcotics and bringing the narcotics back to Minnesota, and that when Robinson
possessed narcotics she would sell them from a hotel room. Robinson could not challenge
the source of this information—a nontestifying informant whose identity the state did not
disclose. The jury found Robinson guilty, and the district court convicted her. Robinson
appeals, arguing that admitting the “information” testimony violated her right to confront
her accusers. She also raises two other evidentiary issues. We need not address Robinson’s
other challenges because we conclude that allowing the officers’ testimony about
“information” they received violated her confrontation right and that the violation was not
harmless. We therefore reverse the conviction and remand for a new trial.
FACTS
According to the record and factual statements in the parties’ motion papers in the
district court, a confidential informant told Minneapolis police that Connie Robinson was
a prominent cocaine dealer in the Twin Cities and that she made frequent trips from
Minnesota to Texas and back, transporting drugs. The informant told Officer Jeffrey
Werner that Robinson would soon be making another Texas drug run, and the informant
gave the officer Robinson’s cell phone number. Officer Werner used that information to
successfully apply for a search warrant allowing police to track Robinson’s movements.
The tracking data showed that, in May 2021, Robinson was close to an Enterprise car -
rental office where Robinson’s friend rented an SUV. Police monitoring the tracking data
and surveilling the roadways saw that Robinson rode in the SUV to Texas and back to
Minnesota within a three-day span. Police stopped the SUV when it reached Bloomington.
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Officers seized the SUV and its occupants— Robinson in the passenger seat and a
man (whom we call James in the interest of privacy) in the driver’s seat. Officers searched
inside the SUV and found caffeine pills, a can of air freshener, a purse, and a suitcase
containing men’s clothing. In the suitcase, officers found $3,600 in cash stuffed inside a
man’s shoe. Officers also searched the SUV’s undercarriage. There they found nearly nine
pounds of uncut cocaine, which police estimated could be worth about $500,0 00. Officers
later searched Robinson’s home, where they found a revolver, ammunition, and two
automated cash counters. The state charged Robinson with first-degree controlled
substance possession with intent to sell and second-degree controlled substance possession.
The state agreed to dismiss the second-degree charge before trial.
Before trial, Robinson moved in limine to exclude any hearsay statements that the
confidential informant made to police, arguing that the statements would violate her
Confrontation Clause rights. The prosecutor told the district court that the state intended to
offer testimony indicating only that police had information that Robinson was under a
narcotics investigation and that she was traveling to Texas. Based on the prosecutor’s
representation, the district court denied Robinson’s motion.
At trial, the prosecutor drew witness testimony that instead provided incriminating
details about the information the informant had revealed to police. The prosecutor
foreshadowed the testimony during opening statements to the jury:
Now, over the course of this trial you will hear from several
people, including Officer Jeffrey Werner, the lead investigator
on this case. Officer Werner will tell you that he’s been
involved in hundreds of narcotics investigations. And back in
May of 2021, he was actively investigating the defendant for
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drugs. Officer Werner will tell you that he was aware that the
defendant was going to be traveling down to Texas to pick up
drugs.
Robinson objected and moved for a mistrial. The district court overruled Robinson’s
objection and denied the motion, believing that the statement complied with its ruling in
limine.
Officer Werner testified accordingly, saying, “I had information that Ms. Robinson
was traveling from Minnesota to Texas and then returning with suspected narcotics.”
(Emphasis added.) Officer Werner also testified to explain why he did not investigate
Robinson’s home for drugs, disclosing that police had “information . . . as part of [the]
investigation . . . that when Ms. Robinson would be in possession of narcotics that she
would have a hotel room where she would possibly distribute the narcotics from until they
were gone.” Two other officers testified about the “information” that Officer Werner knew.
During closing arguments, the prosecutor again referenced the information. She
countered potential speculation that Robinson was unaware that cocaine was attached
under the car, remarking, “So there’s two people involved in the stop, right, the defendant
and [James]. Evidence on the defendant. Officers suspected she was going to Texas to pick
up narcotics.” The prosecutor also explained why officers did not suspect that Robinson
was selling drugs out of her home, repeating, “[Officers] had information and suspected
[Robinson] was selling out of a hotel room.”
The jury found Robinson guilty of first-degree controlled substance sale. The
district court convicted her and sentenced her to 65 months in prison. Robinson appeals.
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DECISION
Robinson identifies three alleged evidentiary errors to contest her conviction, but
we address only one. She argues that allowing testimony that revealed details of what the
informant told police violated her rights under the Confrontation Clause. Although we
typically review evidentiary challenges to determine only whether the district court abused
its discretion by admitting the evidence, we review de novo whether the admission of
evidence violated Robinson’s constitutional right to confront witnesses against her . See
State v. Sutter, 959 N.W.2d 760, 764 (Minn. 2021). We will not reverse a conviction based
on a Confrontation Clause violation if the violation is harmless beyond a reasonable doubt.
Id. at 768. Our de novo review leads us to conclude that the testimony here violated
Robinson’s confrontation right and that the violation was not harmless beyond a reasonable
doubt.
We first consider whether a violation occurred. The Confrontation Clauses of both
the United States and Minnesota Constitutions ensure that a defendant has a right to
confront the witnesses against her. U.S. Const. amen d. VI; Minn. Const. art. I, § 6 . An
appellant makes a successful Confrontation Clause challenge if she establishes that the
challenged statement was testimonial, the statement was admitted for the truth of the matter
asserted, and the defendant could not cross-examine the out-of-court declarant. Andersen
v. State, 830 N.W.2d 1, 9 (Minn. 2013) (citing Crawford v. Washington, 541 U.S. 36, 59
& n.9 (2004)). Without dispute, the confidential informant was the out-of-court declarant
and was unavailable to testify. We therefore consider only whether the challenged
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statements were testimonial and whether the statements were admitted for the truth of the
matter asserted.
We easily conclude that the informant’s statements to police, which the prosecutor
and police repeated at trial, were testimonial. Statements “made under circumstances which
would lead an objective witness reasonably to believe that the statement would be available
for use at a later trial” fall within the class of testimonial statements. Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 310 (2009). A confidential informant reporting criminal
activity to a police officer meets this definition. See, e.g., United States v. Lopez-Medina,
596 F.3d 716, 730 (10th Cir. 2010) (“A confidential informant ’s statements to a law
enforcement officer are clearly testimonial.”); United States v. Cromer, 389 F.3d 662, 675
(6th Cir. 2004) (concluding confidential informant’s statements are testimonial because
“[t]ips provided by confidential informants are knowingly and purposely made to
authorities, accuse someone of a crime, and often are used against the accused at trial”).
The statements by the informant to police here—that Robinson carried drugs from Texas
to Minnesota and that she customarily sells the drugs from a hotel room—were therefore
testimonial.
We also easily conclude that the state offered the informant’s testimonial statements
for the truth of the matters asserted in the statements. The state supreme court reasoned that
an informant’s statements were inadmissible hearsay when no other reason existed for “the
officers’ testimony about the substance of the informant’s conversation which pointed
directly to appellant’s guilt of the crime for which he was on trial.” State v. Litzau, 650
N.W.2d 177, 183 (Minn. 2002). It is true that the prosecutor here had provided an
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appropriate reason to admit a generalized version of the informant’s information and that
this reason was not to suggest the truth of the matter in the statements. Specifically, the
general information that Robinson was th e subject of a narcotics investigation and that
police knew she was traveling from Texas would have adequately explained the officers’
“presence and conduct” related to why they were monitoring Robinson and why they
stopped her car in Bloomington. See id. at 182 n.3. But the incriminating details the officers
revealed through their testimony and that the prosecutor echoed during her closing
argument were not so limited. That police had “information” that Robinson was carrying
drugs back from Texas and that she commonly sold drugs from a hotel room was
unnecessary to explain why police initiated the encounter. And any plausible doubt that the
testimony was offered for the truth of the matter asserted evaporated with the prosecutor’s
reliance on the testimony during her closing argument. She suggested that the fact that
“[o]fficers suspected she was going to Texas to pick up narcotics” was a fact the jury could
rely on to find that the drugs were Robinson’s rather than merely her traveling
companion’s. And the prosecutor intimated that the fact that officers “had information and
suspected she was selling out of a hotel room” was a fact the jury could rely on to allay any
doubts they might have from the absence of drugs in Robinson’s home. The hearsay
statements were plainly offered for the truth of the matters asserted in them to help the jury
find that Robinson possessed the cocaine and that she intended to sell it. We repeat the
admonition that “a police officer testifying in a criminal case may not, under the guise of
explaining how [the] investigation focused on defendant, relate hearsay statements of
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others.” Id. at 182 (quotations omitted). The statements violated Robinson’s confrontation
right.
The only remaining question is whether this violation of Robinson’s right to
confront witnesses was harmless beyond a reasonable doubt. We will conclude that a
violation of a defendant’s right to confrontation is harmless beyond a reasonable doubt
only if we are satisfied that the guilty verdict was “surely unattributable” to the
confrontation-right violation. State v. Wright, 726 N.W.2d 464, 476 (Minn. 2007)
(quotation omitted). In evaluating whether the surely unattributable standard is satisfied,
we consider “the manner in which the evidence was presented, whether the evidence was
highly persuasive, whether it was used in closing argument, and whether it was effectively
countered by the defense.” Id. (quotation omitted). Each of these factors leads us to
conclude that the verdict was not surely unattributable to the violation.
The prosecutor made the “information” a focal point of the state’s case. “Where the
evidence was aimed at having an impact on the verdict, we cannot say that the verdict was
surely unattributable to the error.” Litzau, 650 N.W.2d at 184. The prosecutor referenced
the evidence during her opening statement, elicited testimony about it from three of the
state’s nine witnesses, and emphasized it during her closing argument and rebuttal as a
reason to find Robinson guilty. The prosecutor presented the evidence in a manner that
suggested the verdict could depend on it.
The prosecutor’s pretrial argument opposing Robinson’s motion to suppress
evidence highlights the persuasive value the state assigned to the evidence that Robinson
was under investigation for narcotics and that she was traveling to Texas:
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[B]oth of those facts, I think, are extremely probative. In this
case, Ms. Robinson – we have her phone pings drawing to
Texas, but when she was pulled over it was a rental car not in
her name, there are no DNA, no fingerprints, [James] was
driving, and so it’s very probative to have those two very
general facts come in in this case to give the jury context, again,
just that she was under a narcotics investigation and that she
was going to Texas.

The prosecutor’s representations characterizing even the limited evidence’s importance to
prove Robinson’s guilt informs us that the prosecutor’s use of the evidence that exceeded
the properly limited scope of the hearsay testimony was highly persuasive.
And finally, Robinson did not effectively counter the evidence the officers gained
from the informant and relayed during the trial. Because the district court’s pretrial ruling
had limited the evidence to the manner the prosecutor had represented she intended to
present it, Robinson had no need to prepare evidence to counter the improper Crawford
testimony that officers knew she would be carrying drugs from Texas and that she
commonly sold drugs from a hotel room. That she did not effectively counter the evidence
supports our conclusion that the verdict is not surely unattributable to the violation of
Robinson’s Confrontation Clause rights.
Because the trial was administered in a manner that violated Robinson’s right to
confront witnesses and the violation was not harmless, we reverse the conviction without
addressing the other trial issues Robinson raises. And we remand for a new trial.
Reversed and remanded.