This opinion will be unpublished and may
not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Gregory Donald Clark,
Reversed and remanded
Hennepin County District Court
File No. 98084572
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Willis, Judge.
In an appeal from conviction of first-degree aggravated robbery, Gregory Clark challenges the district court’s rulings on the admissibility of prior convictions and a photographic lineup, and contends that the prosecutor committed prejudicial misconduct during closing argument. We conclude that the district court erred in failing to apply Minn. R. Evid. 609 to balance the probative value of Clark’s convictions against their prejudicial impact and impermissibly excluded evidence on the nature of the convictions. Because the error was not harmless, we reverse and remand for a new trial.
A jury convicted Gregory Clark of robbing a Video Update store in Minneapolis. Police arrived at the store shortly after the robbery, and the store manager, who was working alone, told them that the robber had entered the store and demanded money while displaying a handgun. The manager described the robber as a black male about six feet tall with a thin build and about 30 years old. The manager also told police that the robber had a thin mustache and was wearing a yellow polo shirt, baggy black shorts, and a dark golf cap. About a month later, the manager selected Clark out of a computer-generated photographic lineup.
At his omnibus hearing, Clark argued against admission of the photographic lineup, contending it was impermissibly suggestive. The court found the photographic lineup admissible. Clark also sought to prevent the prosecution from using five prior convictions for impeachment purposes. The convictions were for aggravated assault (1996), attempted theft of a motor vehicle (1995), possession with intent to sell a controlled substance (1990), prostitution (1987), and third-degree assault (1987). The court ruled that the number of convictions and their dates, but not the nature of the offenses, would be admissible, explaining:
the way I approach it is that I allow the fact that the defendant has a felony conviction from a certain year, without indicating what offense it’s for. And that’s basically how I approach it, unless some of them are outside the realm of the time limits.
Defense counsel took issue with the court’s procedure and requested that the court examine the underlying offenses and apply the probative-prejudicial balancing test. The court gave no indication that it had engaged in any individualized analysis before ruling from the bench that the five felony convictions would be admissible. The court ruled that defense counsel could elicit from Clark that none of the convictions were for robbery.
At trial, the store manager testified and again described the robber. The manager also made an in-court identification of Clark as the robber. In addition to the manager’s testimony, the jury heard testimony from three police officers who investigated the case. Clark chose not to testify and offered no witnesses in his defense.
During closing arguments, the prosecutor addressed the presumption of innocence:
Presumption of innocence. Some of you heard this, it’s been drilled in our brains from the moment we start grammar school. Presumption of innocence, what does that mean? You’re going to get a definition. What does it really mean? It means you can’t assume people are guilty, can’t stereotype people, you can’t assume things just because of how you feel about things. You can’t assume because they’re charged, they’re guilty. And on the other hand, you can’t assume they’re innocent. I mean, you have to assume they’re innocent until the facts convince you they’re not.
Okay. Now, we’ve had the trial and you’ve heard the facts and the State’s position here is that the presumption of innocence has been removed.
Defense counsel objected to the final comment, arguing that it misstated the law. The court overruled the objection.
D E C I S I O N
Evidentiary rulings generally rest within the discretion of the district court and will not be overturned absent a clear abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). When a reviewing court determines that an evidentiary ruling is erroneous, it must then determine whether the ruling resulted in prejudice that requires a new trial. State v. Grayson, 546 N.W.2d 731, 736 (Minn. 1996).
Under Minnesota Rule of Evidence 609, evidence of prior convictions may be admissible to impeach a defendant’s testimony if the underlying offenses are less than ten years old, punishable by imprisonment in excess of one year, and the “court determines that the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a). To determine whether the probative value outweighs the prejudicial effect, the court should consider:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue.
Ihnot, 575 N.W.2d at 586 (citing State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978)).
Although appellate courts largely defer to district courts when reviewing evidentiary determinations, we have repeatedly emphasized that district courts may admit prior convictions only after they have applied the balancing test of rule 609 and considered the Jones factors. State v. Lund, 474 N.W.2d 169, 172 (Minn. App. 1991) (court “should demonstrate on the record that it has exercised the discretion accorded by Minn. R. Evid. 609(a)(1) after considering and balancing the [Jones]factors”). Failure to do so constitutes error. See United States v. Mehrmanesh, 689 F.2d 822, 834 (9th Cir. 1982) (failure to conduct balancing test under Fed. R. Evid. 609(a) was error).
Identifying a harmless-error standard for evidentiary error in criminal cases is complicated by the discord among Minnesota appellate cases. See State v. Schoen, 598 N.W.2d 370, 377-78 n.2 (Minn. 1999) (acknowledging inconsistency between cases). In criminal appeals involving constitutional issues, Minnesota courts consistently have applied the federal standard, which requires the state to demonstrate that any error was harmless beyond a reasonable doubt. Id. In criminal cases involving evidentiary error that is not constitutional error, however, the supreme court has applied the harmless-error standard in only some cases. See, e.g., State v. Fratzke, 354 N.W.2d 402, 409 (Minn. 1984); see generally 11 Minn. Practice § 103.02, at 36-37 & n. 57 (1992 & Supp. 1999). In other cases, the court has shifted the burden to the defendant to show prejudice resulting from any error. See State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981); see generally 11 Minn. Practice § 103.02, at 36. In still other cases, the court seems to have applied both standards. See State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994) (stating both that new trial must be granted if there is any reasonable doubt that erroneously admitted evidence contributed to verdict and that defendant bears burden of showing prejudice). The supreme court has recognized the discrepancies between the standard-of-review cases, but it has not resolved them. Schoen, 598 N.W.2d at 377-78 n.2.
Our review of the cases indicates that the greater weight of authority requires the state to demonstrate that a district court’s erroneous application of Minn. R. Evid. 609 was harmless error. See State v. Sims, 526 N.W.2d 201, 202 (Minn. 1994) (finding rule 609 error “harmless error beyond a reasonable doubt”); State v. Ross, 491 N.W.2d 658, 660 (Minn. 1992) (finding rule 609 error “harmless error”); State v. Kinyon, 302 N.W.2d 27, 29 (Minn. 1981) (same); State v. Hofmann, 549 N.W.2d 372, 376 (Minn. App. 1996) (erroneous admission of conviction was “harmless error”), review denied (Minn. Aug. 6, 1996). But see State v. Darveaux, 318 N.W.2d 44, 48 (Minn. 1982) (requiring appellant to show that 609 error was prejudicial). Applying harmless-error analysis to errors under rule 609 is proportional to the important role the rule plays in ensuring that criminal defendants receive fair trials. See Jones, 271 N.W.2d at 538 (prosecutor’s use of stale and irrelevant prior crimes to impeach defendant may deprive defendant of his right to fair trial). Our conclusion is further supported by the supreme court’s application of the harmless-error standard when evidence is erroneously admitted under Minn. R. Evid. 403, a rule that similarly requires the court to balance probative value versus prejudicial effect. See Fratzke, 354 N.W.2d at 409.
Applying the harmless-error standard in cases in which the district court has merely failed to apply the rule 609 test on the record, this court has found the error harmless if the convictions could be admitted after a proper application of the rule. See Lund, 474 N.W.2d at 172; cf. Ross, 491 N.W.2d at 660 (when district court erroneously admitted conviction as crime involving dishonesty or false statement under Minn. R. Evid. 609(a)(2), error is harmless if conviction would have been admissible after proper application of 609(a) balancing test); State v. Burrows, 295 N.W.2d 100, 101 (Minn. 1980) (same).
In this case, however, the district court not only failed to explicitly apply the rule 609 balancing test, it applied a wholly different test. The court stated that it would admit in all convictions less than ten years old, without regard to their probative value weighed against prejudicial impact. Clark persuasively argues that this is tantamount to an “everything in” rule. Further, the court stated that it would not permit the jury to know the nature of the convictions. Because we conclude that the rulings taken together constitute error, it is necessary to determine whether it was harmless.
Generally, to determine whether an error was harmless, we ask whether the guilty verdict was surely unattributable to the error. State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997). We will disregard an error only “if there is no reasonable possibility that the evidence complained of might have contributed to the conviction.” Fratzke, 354 N.W.2d at 409 (citation omitted).
We cannot conclude that the verdict against Clark was surely unattributable to the district court’s erroneous application of Minn. R. Evid. 609. Because of the error, Clark chose not to testify and tell his version of the events. In fact, Clark offered no testimony or evidence tending to demonstrate his version of the events. While we do not know what the content of his testimony would have been, we presume he would have denied robbing the Video Update store. That testimony would have directly conflicted with the store manager’s otherwise uncontradicted identification of Clark as the robber. Thus, we cannot say that the court’s erroneous application of rule 609 was harmless error. See Jones, 271 N.W.2d at 538 (finding reversible error when erroneous admission of convictions deterred defendant from testifying).
The prejudice is compounded by the district court’s unprecedented exclusion of the nature of the convictions. The very basis for the rule 609 balancing test is that not all convictions are relevant to credibility. Minn. R. Evid. 609, 1989 comm. cmt. The court’s blanket ruling first brings in convictions that may be inadmissible and then prevents a defendant from identifying their possible irrelevance. Rule 609 allows prior convictions to be introduced to impeach credibility, and the jury’s ability to make credibility determinations depends on the nature of the convictions. If Clark chose to testify, he faced the state’s introduction of five unidentified felonies and the possibility that the jury might assume the worst. Further, the district court’s ruling would have precluded Clark from explaining the circumstances underlying the convictions. See State v. Frisinger, 484 N.W.2d 27, 32-33 (Minn. 1992) (citing 3 D. Louisell & C. Mueller, Federal Evidence § 319 (1979) (“accused whose credibility is impeached by prior conviction * * * should be allowed ‘to explain or extenuate’ the conviction or deny his guilt”)).
Clark argues that the court’s erroneous application of rule 609 also constituted a violation of Clark’s constitutional right to testify. See State v. Rossillo, 281 N.W.2d 877, 878 (Minn. 1979) (recognizing right to testify). The Minnesota Supreme Court has implied that a defendant’s right to testify might be violated by an erroneous application of rule 609. See State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993) (holding that when there is no abuse of discretion under rule 609, there can be no violation of a defendant’s right to testify). The U.S. Supreme Court, however, has found that rule 609 is not of “constitutional dimensions.” Luce, 469 U.S. at 43, 105 S. Ct. at 464. And the Minnesota Supreme Court has not indicated that a different holding is warranted under the Minnesota Constitution. Thus, we decline to find a violation of Clark’s constitutional right to testify.
Minnesota courts review challenges to pretrial identification procedures under the two-part test of Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977). State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996). Under that test, this court determines “[first] whether the procedure was unduly suggestive and, second, whether, in light of the totality of the circumstances, the identification is reliable.” Id. Even if an identification procedure was unduly suggestive, the identification evidence may nonetheless be admissible if the court finds the evidence reliable after considering the following factors: the witness’s opportunity to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the witness’s level of certainty at the photo display, and the time between the crime and the confrontation. Manson, 432 U.S. at 114-16, 97 S. Ct. at 2253-54; Jones, 556 N.W.2d at 912.
Clark argues that the photographic lineup was not reliable based on his analysis of the Manson factors. Clark relies mainly on discrepancies between the store manager’s initial descriptions of the robber’s physical features and his own physical features. But Clark does not argue that the photographic lineup itself was unduly suggestive. If the lineup was not unduly suggestive, the court need not reach the Manson factors. See State v. Porter, 411 N.W.2d 187, 190 (Minn. App. 1987) (applying second part of Manson test only after assuming, arguendo, that the photographic display was impermissibly suggestive); cf. State v. Myers, 413 N.W.2d 122, 125 (Minn. App.) (holding that since the photographic display was not impermissibly suggestive, the accuracy of the witness’s earlier description “goes to weight and not admissibility”), aff’d as modified, 416 N.W.2d 736 (Minn. 1987).
The district court did not abuse its discretion by admitting the photographic lineup. A pretrial identification procedure is unduly suggestive if it unfairly singles out the defendant for identification. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). In this case, a police computer generated a photographic lineup of six black males similar in appearance. Police told the store manager that the robber may or may not be in the lineup and did nothing to sway the manager’s choice of one picture over another. See Darveaux, 318 N.W.2d at 47 (eight-picture photographic lineup not suggestive when defendant’s photograph was not unique among those displayed and police did not suggest which photograph should be selected).
Because we reverse Clark’s conviction based on the district court’s erroneous application of Minn. R. Evid. 609, we need not address Clark’s arguments that the prosecutor committed misconduct during closing arguments. We recognize, however, that a similar issue could arise on retrial, and thus we restate the admonition that it is misconduct to shift the burden of proof to the defendant to prove his innocence. Gassler, 505 N.W.2d at 69; State v. Race, 383 N.W.2d 656, 664 (Minn. 1986). Prosecutors may not imply that once the state has amassed a large volume of evidence, a defendant loses his presumption of innocence. State v. Trimble, 371 N.W.2d 921, 926-27 (Minn. App. 1985); see also State v. Jensen, 308 Minn. 377, 379-80, 242 N.W.2d 109, 111 (1976) (disapproving argument that when state has proven its case, “the presumption of innocence falls like a cloak, it drops, it disappears”). The state is allowed to comment on the lack of evidence to support a specific element or a defense theory, see Gassler, 505 N.W.2d at 69, but we believe that the state’s comment that the “presumption of innocence ha[d] been removed,” in the context of the prosecutor’s other remarks, risked shifting the burden of proof to Clark. We caution prosecutors against using this language in their closing arguments.
Reversed and remanded.
 In Lund, we found that the district court should have applied the 609(a) balancing test, but found that the Jones factors had nonetheless been met. 474 N.W.2d at 172. We concluded that the district court’s admission of the prior conviction was not error. Id. at 173. More accurately, the district court’s failure to apply the rule was error, but the error was harmless because the conviction would have been admissible under rule 609. Id.
 We note the difficulty of assessing harmless error in the context of a case like this one. We do not know whether the district court would have admitted the prior convictions if it had properly applied rule 609. Further, we cannot know with certainty whether Clark would have chosen to testify had the court correctly applied the rule. Even more perplexing, we do not know what Clark would have testified to if he had chosen to testify. For these reasons, the U.S. Supreme Court has held that a defendant must testify to preserve a rule 609 challenge. See Luce v. United States, 469 U.S. 38, 43, 105 S. Ct. 460, 464 (1984). Minnesota has not adopted this rule. See Jones, 271 N.W.2d at 537.