Co-conspirator’s Statement Made Unwittingly to Police Informant is not Testimonial under Crawford.

State v. Brist, Minn.Ct.App., 6/6/2011.  The state charged Ms. Brist with six counts of controlled substance crimes from a series of methamphetamine deals.  An informant would meet Ms. Brist and her boyfriend, Mr. Garcia, at a local store.  Ms. Brist sent the informant into the men’s room to do the deal with Mr. Garcia.  The two men then retired to the informant’s car for the actual sale.

The informant recorded his conversations with Mr. Garcia, which the state then played to the jury.  The informant did not testify.  The trial court admitted the recording  as a statement of a co-conspirator made in furtherance of the conspiracy.  Rule 801(d)(2)(E).  Ms. Brist said that admitting the recording violated her Confrontation rights under Crawford.  She said that the  recording was an interrogation by a police informant and was thus “testimonial”.  The appellate court rejects this argument, citing a slew of federal circuit decisions – 2nd, 3rd, 4th, 6th, 7th, 10th & 11th – that have reached the opposite conclusion. 

The trial court imposed an executed sentence and also ordered Ms. Brist to participate in chemical dependency treatment while incarcerated, and to reside in a halfway house while on supervised release.  On appeal the state agreed that the trial court did not have the authority to impose these conditions.