This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).






State of Minnesota,





Troy Mike Payton,



Filed November 27, 2001

Reversed and remanded

Randall, Judge


Hennepin County District Court

File No. 00056501


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, 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 Hanson, Presiding Judge, Randall, Judge, and Foley, Judge.*


R. A. RANDALL, Judge

This is an appeal from a conviction of felon in possession of a firearm. Appellant argues that a state's witness's reference to appellant's association with "criminal activity statewide" was evidence that the district court had previously excluded and that the state agreed should have been excluded, and was so prejudicial that appellant is entitled to a new trial. We reverse and remand.


On June 12, 2000, Minneapolis Police Officer Richard Bautista received information that an individual named "Troy" would be at the 2600 block of Nicollet Avenue in Minneapolis and in possession of a handgun. Bautista took this information to his office and ran the name "Troy" through a database on his computer and came up with the name "Troy Payton."

Bautista drove to Minneapolis and parked on Nicollet Avenue, just south of 26th Street. He was in an unmarked car and in plain clothes. During the surveillance, Bautista observed Payton remove a handgun from his waistband and place it in a car under the passenger's seat. A short time later near Nicollet Avenue and 26th Street, a Minneapolis police officer in a marked squad car, based on Bautista's observations, initiated a "controlled" felony traffic stop of the vehicle in which Payton was a passenger. Police recovered a loaded handgun under the passenger's seat where Payton was sitting. Payton was arrested at the scene.

For trial purposes, Payton stipulated that he was a convicted felon. The issue of "possession of a firearm" was contested throughout the trial. Before trial, Payton's attorney requested, and the state agreed, to instruct Bautista to not make any references to "gangs," being on a "gang strike force," or anything that would direct the jury's attention to the fact that Bautista alleged Payton was related to a gang. The district court directed the state and Bautista not to make any references to gangs or gang strike forces, etc. The state informed the court that it had already addressed this issue with Bautista in anticipation of this limitation on his testimony and to assure the court, the state went to the extraordinary length of telling the court that it would remind Bautista of this evidentiary ruling again at trial: "I'll remind him a third time prior to his actual testimony." The record indicates that Bautista was given three specific warnings not to make these references and the reasons why he could not. Bautista made such a reference during his testimony. Payton's attorney asked to approach the bench immediately after the statement was made and objected to the improper testimony.

The facts leading up to the objected testimony are that Bautista told the jury he had identified Payton by running the name "Troy" through a computer database. Bautista stated:

I went back to my office and through our data base I came up with the name "Troy Payton," which is the gentleman sitting right here (indicating), and his name is in our data base for a specific reason. One of the things we do in my job is to investigate individuals and groups of people who conduct criminal activity statewide. With that information--


This was the point at which Payton's attorney approached the bench and objected to Bautista's testimony, meaning the reference to "individuals and groups of people who conduct criminal activity statewide."

After both parties rested, Payton's attorney asked for a mistrial. The district court denied the motion. The jury found Payton guilty of possession of a firearm, and he was sentenced to 60 months in prison. This appeal follows.


Payton claims that he was denied a fair trial because Bautista gave improper testimony referencing that Payton was a gang member, or the equivalent involved in "statewide criminal activity" and that Bautista's testimony was so prejudicial that only a new trial will ensure due process. We agree.

The state argues that the offending word "gang" was not used. To put it tactfully, that does not persuade us. What Bautista referenced by direct implication to Payton was that Payton was an individual or part of a group of individuals who conduct "criminal activity statewide." It may well be that if the court told Payton and his attorney in camera that Payton would have his choice of either being described as a gang member or as a person involved in "criminal activity statewide," but must accept one or the other, Payton might have said, "Judge, don't do me any favors. Rather than have the police tell the jury that I conduct criminal activity statewide, I'll settle for some reference to a gang!"

At least with the word "gang" or "gang activity," an attorney might be able to make a weak argument that gangs are groups of people, but not necessarily held together by the intention to commit crimes. On the other hand, identifying someone as connected with "statewide criminal activity" will not lead to a question by a juror, "Gee, could you be more specific?" Identifying an individual as someone connected with "statewide criminal activity" easily raises speculation about organized crime and/or the Mafia, and/or a "group" of people who are not just drawn together haphazardly to do wrong, but who are connected systematically and throughout the entire State of Minnesota to commit crimes. It is a bad inference. It is pure guilt by association.

There was nothing helpful to the jury about this reference, and there was nothing "veiled" about this reference. It was totally volunteered and gratuitous on the part of Bautista, who could have stopped his testimony, as he had been told to do more than once, with just some reference to a database.

The state then urges the next step, which is to call this a "harmless error," and argues the strength of the state's overall case. In point of fact, the record indicates that the state, in arguing against a mistrial, conceded that Bautista's testimony might be error and instead argued that it was "not prejudicial" in the context of the case. The state points out that Payton's attorney rejected a curative instruction. We agree with the state that rejecting a proposed curative instruction does not help a defendant's claim on appeal, but that is not the point if the improper reference is deemed so prejudicial that a curative instruction would be of no effect.

We do not need to spend a lot of time on the issue of "harmless error." The district court effectively decided that issue pretrial in chambers when it agreed with Payton that no reference to gangs or gang membership should be used and further directed the state to inform Bautista of that. The state indicated that it agreed with the court's ruling and would reinstruct Bautista for the third time. This is not a case where, after an in camera discussion about possible testimony, the district court tells the state, "At this point I am not going to rule it objectionable per se, but I understand defense counsel's argument, and you are instructed to proceed carefully into this (disputed) area and I mention now that it has the potential for a mistrial." Rather, the district court listened to both attorneys' arguments and made a pretrial ruling in favor of Payton. The state acquiesced in its understanding of the ruling and assured the court that it would so instruct its witness and the trial could proceed.

Harmless error analysis is premised on the reasonable belief that the state intends to give a defendant a fair trial.[1] With that premise in place, appellate courts understand that defendants are entitled to a fair trial, not a "perfect" one, as such a trial could only be realized in the abstract. Thus, when errors creep into a trial, the test becomes what sanction is proper. Will a curative instruction do it? Sometimes it does. Sometimes both attorneys and the court decide in camera against a curative instruction for fear that it might call undue attention to something said or something done, admittedly not much more than a minor glitch in an otherwise fair trial. Sometimes a specific striking of erroneous testimony satisfies due process. But there remain those cases where the error is so severe and so prejudicial that the only "cure" is a new trial for the defendant before a different jury panel.

If a key witness (here the key witness) makes the decision on his own to violate the state's direct instruction and violates the court's direct order to "help" his case, that witness has struck at the heart of the system. Witnesses in a criminal case are just that, witnesses. The power and authority to make the final decision as to what evidence to present during trial belongs to the state, and the state alone. Law enforcement certainly can give their private opinion to the state as to what they deem is relevant. But the state alone has the final say as to what is presented. Then, after the state presents the evidence that it has selected, the district court alone has the final decision as to admissibility. When one has the situation we have here and the question of a proper sanction is at issue, of what benefit is a curative instruction? Does that not simply encourage overzealous law enforcement to volunteer information to the jury, completely on their own, even when forbidden to do so, on the chance that it will slip in unobjected to, or if objected to, will slide through that "wide door" of harmless error?

The state has simply not convinced us that this error was harmless by proof beyond a reasonable doubt. There is no fixed rule for determining, in a situation like this, whether the witness's testimony was prejudicial. The test for prosecutorial misconduct, for example when a prosecutor makes inappropriate comments during closing arguments, is instructive. In State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980), involving a prosecutor's improper comments during closing arguments, the court said:

Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect. The court's determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.


(Emphasis added) (citation omitted).

In determining whether the misconduct was harmless, the supreme court stated that it

depends partly upon the type of misconduct with which we are dealing. That is, the more serious the misconduct, the more certain of its effect this court has felt that it should be before labeling the error harmless. Thus, in cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.


State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974) (citation omitted).

The record shows that while Bautista did not make a direct reference to "gang" or "gang task force," his gratuitous comment, "One of the things we do in my job is to investigate individuals and groups of people who conduct criminal activity statewide" could not help but have had a substantial part in influencing a jury to believe that Payton was criminal-minded or a criminal-type person hanging around with and directly associated with other criminal-minded persons who involve themselves in statewide criminal activity. This comment fell completely outside the scope of the question and was completely within the scope of the testimony Bautista had been ordered directly not to give. Bautista circumvented the court's order and implicated Payton in statewide criminal activity, which is about as close to implicating Payton in gang-associated criminal activity as one can get while avoiding the word "gang," which was filled in by implication.

The state has not met its burden of proof of showing that this error was harmless beyond a reasonable doubt. Rather, the error was substantial and prejudicial. Payton is entitled to a new trial. Based on our decision, it is unnecessary to address Payton's pro se arguments.

Reversed and remanded.

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

[1] There is nothing in the record to indicate complicity or negligence by the state. Our analysis is directed toward Bautista's testimony, which he volunteered on his own.