IN COURT OF APPEALS
Keith Edward Montgomery,
Reversed and remanded
Dodge County District Court
File No. K0-02-244
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Paul J. Kiltinen, Dodge County Attorney,
John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.
S Y L L A B U S
1. When Spreigl evidence is offered, the district court must determine that there is a legitimate purpose for the evidence and must apply a rule 403 balancing test to ascertain the likely prejudicial effect of the evidence.
2. A prosecutor commits misconduct when he refers in his opening statement to the accused as a drug dealer; when on cross-examination he suggests that the accused has a duty to call a witness on his own behalf; and when on cross-examination he suggests that a principal actor in the charged crime refused to testify because he is afraid of the accused.
O P I N I O N
A jury found appellant Keith Edward Montgomery guilty of first-degree and second-degree sale of a controlled substance. On appeal, he argues that the district court abused its discretion by admitting Spreigl evidence and by denying his motion for a mitigated sentencing departure. He also claims the prosecutor committed misconduct.
According to testimony in the trial that began on April 19, 2004, Brenda Peterson, a recovering drug user who worked as a police informant, received a telephone call from a man who identified himself as Hakeem. Peterson knew Hakeem to be Keith Montgomery, a person with whom she had had a personal relationship in the past. Hakeem wanted to sell to her an ounce of cocaine for $700 or $800, and they agreed that he would come the next day to Kasson, where Peterson lived, to make the sale. Peterson then notified the Kasson police, and they decided to equip her with a “wire” so that they could listen to further conversations she might have with Hakeem. Through additional calls, Peterson arranged to meet Hakeem at the carwash in Kasson.
The next day, Hakeem arrived in Kasson in a car driven by Hyson Harper and owned by Shawntan Smith’s aunt. Hakeem sat in the front passenger seat and Smith was in the back. When Hakeem notified Peterson of his arrival, she directed him to go to the carwash.
At the carwash, Peterson got into the back seat of the car and sat next to Smith. She counted out the money for the cocaine and gave it to Smith. Smith, who was holding a napkin that he said contained the cocaine, handed the money back to her. Then Peterson saw the lights of police cars, and the police arrested the men.
Harper testified that he had not known Hakeem prior to this date but that he saw Hakeem put drugs in a glove and then place the glove somewhere under the hood of the car. When the police searched the car, they found a glove containing baggies of cocaine in the car’s air-filter housing, and they found baggies without drugs in them in the backseat. None of the occupants of the car had actual possession of any drugs, but Smith had $1,700 in his shoe. When originally questioned, Harper lied to the police about knowing that there were drugs in the car, but he maintained that he was not involved in a drug sale.
When Peterson got into the car next
Prior to trial, the state notified
The court has to make a finding that under the circumstances of the case the state’s case is particularly weak or that it completes a pattern of behavior that would be of assistance to the jury, and the admission of the prior convictions would not be unduly prejudicial to the defendant.
Opposing the Spreigl offer, defense counsel argued that the prior crimes were for possession and not a sale and thus did not show any pattern of behavior and that they were remote in time.
Without analysis or disclosure of the basis for the admission of the evidence, the court stated, “Well, I’m going to permit it.” The prosecutor later informed the court that it needed “to make findings on the record, articulated . . . as to why you are allowing this particular Spreigl evidence to come in.” The court responded that the
findings are predicated on the fact that the state’s case is largely circumstantial, which in and of itself is going to make a finding that the case is weak and that the two convictions are relevant to show opportunity, intent, knowledge and common scheme or plan, and it has probative value, and the probative value outweighs the potential of unfair prejudice to the defendant.
The court then indicated that it would give a cautionary instruction that the Spreigl evidence “is admitted only for your consideration concerning whether Keith Edward Montgomery is telling the truth in this case” and the evidence cannot be considered as to his “character or conduct except as you may think it reflects his believability.” The court gave that instruction before the state offered the Spreigl evidence.
Q. We don’t hear that from Shawntan, do we?
A. Pardon me?
Q. We hear that from you, right?
Q. And you know Shawntan Smith is refusing to talk to anybody, don’t you?
A. Like . . .
Q. You know that, don’t you?
A. What do you mean?
Q. He is refusing to talk.
A. No, I don’t know that.
Q. And you didn’t subpoena him, did you?
A. No, I did not.
Q. And that’s because he is afraid of you, isn’t it?
The court then sustained defense counsel’s objection. Third,
1. Did the district court err by admitting Spreigl evidence without determining a legitimate purpose for the evidence and without conducting a rule 403 balancing test?
2. Did the prosecutor commit misconduct by suggesting that appellant was a drug dealer, that appellant had a duty to call a witness to testify, and that appellant was of a violent nature?
review the admission of evidence of other crimes, wrongs, or acts for an abuse
of discretion. State v. Blom, 682 N.W.2d 578, 611 (
There are several procedural
requirements that must be met before Spreigl
evidence may be admitted, only two of which are argued by Montgomery as
being at issue here: (1) the evidence “shall not be admitted in a criminal
prosecution unless . . . the state clearly indicates what
the evidence is being offered to prove”; Kennedy,
585 N.W.2d at 389; and (2) the court must assess and evaluate the evidence
under Minn. R. Evid. 403 to determine whether it “will create unfair
prejudice . . . .” State v. Bolte, 530 N.W.2d 191, 197 (
The only thing that approximates a
disclosure of the purpose for which the Spreigl
evidence was being offered is the state’s suggestion that “it completes a
pattern of behavior.” Perhaps the state
was alluding to the “common scheme or plan” provision of rule 404(b). To fit that provision, the Spreigl evidence must be “sufficiently
or substantially similar to the charged offense—determined by time, place and
modus operandi.” Kennedy, 585 N.W.2d at 391 (citing State v. Cogshell, 538 N.W.2d 120, 123-24 (
The court admitted the evidence for
a variety of ostensible rule 404(b) purposes.
However, it did so without any analysis of the legitimacy of any of
Implicit in the requirement that the proponent of Spreigl evidence disclose its purpose is that there also be some showing or determination that the evidence reasonably and genuinely fits that purpose. It is not sufficient simply to recite a 404(b) purpose without also demonstrating at least an arguable legitimacy of that purpose. Furthermore, although the district court has the ultimate responsibility for determining admissibility, the party offering the Spreigl evidence has the burden of persuading the court that all Spreigl requirements and safeguards are met. Blom, 682 N.W.2d at 611).
The record also shows that the court made an inadequate analysis of the possible prejudice to the defendant if the prior crimes were admitted. The supreme court has noted this obligation of district courts when a party desires to offer Spreigl evidence:
In determining admissibility, the trial court should engage in a balancing of factors such as the relevance or probative value of the evidence, the need for the evidence, and the danger that the evidence will be used by the jury for an improper purpose, or that the evidence will create unfair prejudice pursuant to Minn. R. Evid. 403.
Bolte, 530 N.W.2d at 197 (footnotes omitted).
court correctly determined that the state’s case was weak, depending mostly on
circumstantial evidence. We also note
that credibility was the central issue in the case and that all three
principals were subject to attack on that issue. Peterson had been rejected by
But even if the
state’s case is weak, rule 403 requires the court to determine whether the
probative value of the Spreigl evidence
is substantially outweighed by the danger of unfair prejudice.
proposition here is that
second instructional error was that it gave the instruction only just before
the evidence was received and did not repeat it in the final charge as required
by caselaw. State v. Billstrom, 276
A conviction may
be reversed for prosecutorial misconduct only “when the misconduct, considered
in the context of the trial as a whole, was so serious and prejudicial that the
defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720,
In assessing the probable impact of
prosecutorial misconduct, we apply two possible standards. If the misconduct was serious, we determine
whether it was harmless beyond a reasonable doubt. State
v. Hunt, 615 N.W.2d 294, 302 (
a. Opening Statement
An opening statement may not contain argument but rather must be confined to a description or outline of the facts a party expects to prove:
The prosecution may outline the facts in the opening statement which he expects to prove to aid the jury in following the testimony. This statement is not evidence but a recital of factual claims expressed with an intention and expectation that testimony will be offered and received to support them.
Tucker v. State, 309
in describing the expected proof, the prosecutor must refrain from language
that might inflame the passions and prejudices of the jury. State v. Salitros, 499 N.W.2d 815, 817
the prosecutor here began his opening statement with a reference to an
imaginary newspaper headline announcing that a Twin Cities drug dealer was
caught in a small-town sting, it might be argued that that is precisely what
the prosecutor intended to prove and, in hindsight, did prove. But the language was inflammatory and could
have little effect other than to arouse jurors’ negative emotions toward
the opening statements, the district court clearly instructed the jury that
what the lawyers say is not evidence and that the evidence would come only from
the witnesses and exhibits. “We presume
that the jury followed the court’s instruction.” State v. Taylor, 650 N.W.2d 190, 207 (
Even though the prosecutor’s characterization of the case was inflammatory, considering that the statement occurred at the very outset of the trial and that the court had just previously instructed the jury that statements by the lawyers could not be considered evidence, we hold that the misconduct was of the less-than-serious type and did not likely play a substantial part in influencing the verdict.
criminal case, the state has the burden of proving every element of the charged
crime beyond a reasonable doubt. In
re Winship, 397
four principals in this case, only three testified. Shawntan Smith did not testify. When the prosecutor cross-examined
the prosecutor sought to explain Smith’s refusal to testify by asking “And
that’s because he is afraid of you, isn’t it?” the prosecutor suggested that
cross-examination questions were serious prosecutorial misconduct in that one
suggested that Montgomery had a duty to present evidence on his own behalf and
the other insinuated that he had a sufficiently bad trait of character that
even a principal witness was afraid to come to court to testify. Both questions were of a nature that
c. Prosecutor’s Closing Argument
We do not
find that the prosecutor improperly disparaged
Nor do we
find that the prosecutor belittled
Spreigl evidence was improperly admitted and served to support an
impermissible character inference. The
limiting instruction was substantively incorrect. The prosecutor called Montgomery a drug
dealer at the opening of the trial, insinuated that he was of sufficiently
violent character to prevent another witness to testify, and suggested that
the Spreigl and cross-examination errors are likely sufficient standing
alone to warrant a reversal, we hold that surely the cumulative effect of all
of the errors was to deprive
D E C I S I O N
Because the district court admitted unfairly prejudicial Spreigl evidence and because the prosecutor committed serious misconduct, appellant is entitled to a new trial.
Reversed and remanded.