This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Song Ho Yu,




Filed July 30, 2002


Harten, Judge


Hennepin County District Court

File No. 01009869



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55013; and


Rolf Sponheim, Assistant Minnetonka City Attorney, 14600 Minnetonka Boulevard, Minnetonka, MN 55345 (for respondent)


Stephen V. Grigsby, 210 North Second Street, Suite 50, Minneapolis, MN 55401 (for appellant)



Considered and decided by Harten, Presiding Judge, Willis, Judge, and Shumaker, Judge.

U N P U B L I S H E D  O P I N I O N



            Appellant Song Ho Yu was charged with two misdemeanors, driving under the influence in the third degree and driving with an alcohol concentration of 0.10 or more as measured within two hours of the time of driving, Minn. Stat. § 169A.20, subd. 1(5).  The jury found him guilty of the charge of driving with an alcohol concentration of 0.10 or more as measured within two hours of driving and not guilty of driving under the influence.

            After the trial, appellant moved for a new trial on three grounds, claiming that the trial court erred: (1) when it restricted the scope of appellant’s cross-examination regarding the comparative reliability of blood tests and breath tests; (2) when it restricted appellant’s right to argue the meaning of proof beyond a reasonable doubt; and (3) by improperly indicating to the jury an opinion on the case through the use of facial expressions.  The district court denied appellant’s motion for a new trial.  We affirm.


            On 31 January 2001, Minnetonka police officers, who were investigating a vehicle stopped on a freeway entrance ramp, observed appellant’s vehicle resting against the barrier median of the freeway exit ramp.  One of the officers went to examine appellant’s vehicle.  After speaking with appellant, the officer suspected that appellant had been drinking.  He instructed appellant to perform various field sobriety tests, after which he concluded that appellant was under the influence of alcohol.  The officer then arrested appellant and had him transported to the police department where appellant submitted to an Intoxilyzer breath test, which indicated his alcohol concentration to be 0.14.  Appellant was then charged with the driving with an alcohol concentration of .10 as measured within two hours of driving and driving under the influence.  He pleaded not guilty, and the matter was set for a jury trial.

            At trial, before the direct testimony of the officer who administered the Intoxilyzer test, the state moved in limine to exclude any evidence of a comparison between blood and breath testing.  The state claimed that appellant’s opening statement suggested to the jury that blood tests are a form of testing superior to breath tests, but such a comparison would be irrelevant in the instant case because only a breath test was given. 

During cross-examination of the officer who administered the Intoxilyzer test, defense counsel asked questions regarding the type of tests that are available and offered.  The officer testified that he decides which test to administer, and that if an individual requests a blood test, the officer could decline the request and offer a breath test only.  Here, the officer testified that he administered the breath test to appellant.  The district court did not allow appellant to question the officer about blood tests taken in felony cases because this case does not involve a felony.  The district court ruled that what the officer would do in a felony case was irrelevant.  But appellant did inquire if the officer knew whether a blood sample is more accurate than a breath sample, and the officer stated that he did not know.

During closing arguments, defense counsel argued that “proof beyond a reasonable doubt is such proof that ordinary prudent men and women would act upon in their most important affairs.”  Counsel then characterized “most important affairs” as “life and death decisions.”  He also argued that proof beyond a reasonable doubt means “that the evidence has to be so certain, has to be so persuasive, so convincing that, you would act without hesitation in making a life or death decision.”  There were no objections to these arguments.  Later, during a bench conference out of the jury’s hearing regarding the state’s objection to defense counsel’s closing argument on another issue, the district court said:

Well, I don’t know exactly where this is going, but I will tell you that characterizing proof beyond a reasonable doubt [as the] kind of proof you would use in making life or death decisions is not the law.


* * * *


You may argue most important affairs, but you need not instruct them that it’s life or death, that is not the standard.


            After hearing these cautionary remarks, defense counsel for the first time made a record claiming that the district court had been “making expressions of disapproval throughout the case to the jury against me.  I was informed of this by spectators.”  The district court instructed the jury that, “If I have said or done anything that would seem to indicate such an opinion [as to the outcome of this case], you are to disregard it.”  See 10 Minnesota Practice, CRIMJIG 3.01 (1999).  The jury found appellant guilty of driving with an alcohol concentration of 0.10 or more.


1.         Limitation on Cross-Examination

Appellant first asserts that the district court denied his constitutional right to confront the adverse witnesses by disallowing his cross-examination of the Intoxilyzer operator about the comparative reliability of a breath test and a blood test.

A trial court possesses wide latitude to impose reasonable limits on the cross-examination of a prosecution witness.  State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995).  On review, we will not overturn the trial court’s ruling regarding the scope of cross–examination absent a clear abuse of discretion.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998).   

            Here, the district court sustained as irrelevant defense counsel’s question to the Intoxilyzer operator regarding whether a blood test was used in felony cases.  See Minn. R. Evid. 401 (stating that relevant evidence tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence).  The relevancy of evidence is a determination within the trial court’s discretion.  State v. Morgan, 477 N.W.2d 527, 530 (Minn. App. 1991), review denied (Minn. 17 Jan. 1992).  The district court correctly determined that what is allowed in felony cases is irrelevant in the instant misdemeanor case. 

Defense counsel went on to ask the Intoxilyzer operator whether he knew if a blood sample is more accurate than a breath sample and to question the procedure involved in administering a blood test.  Finally, counsel cross-examined the Intoxilyzer operator on his training, on how the Intoxilyzer works, it’s accuracy, and how he administered the breath test to appellant.  Accordingly, appellant was not unlawfully limited in his cross-examination of the state’s witnesses on these issues.

2.         Closing Argument Restriction

            Appellant next contends that the district court improperly restricted the scope of his closing argument by not permitting him to argue, in the context of defining proof beyond a reasonable doubt, that the “most important affairs of men and women” are “life and death matters.”  Appellant claims that defense counsel was using the concept of “life and death matters” to provide an example of what the jury might consider to be extremely important matters to men and women.

            A trial court has an affirmative obligation to keep counsel within bounds during closing arguments.  See State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (noting trial court’s affirmative duty to take initiative on any matter, including inappropriate closing arguments, in order to promote a just outcome).  A trial court’s directive restricting defense counsel’s closing argument on questions of law is a matter within the trial court’s discretion.  See State v. Armstrong, 257 Minn. 295, 310, 101 N.W.2d 398, 408 (1960) (stating that defendant's contention that the defense counsel was restricted in closing argument, if it is directed to arguments to the court on questions of law in support of defense counsel's objections, went to a matter within the trial court's discretion).  On review, we examine the closing argument as a whole.  State v. Johnson, 616 N.W.2d 720, 727 (Minn. 2000).

            Here, defense counsel made the following closing argument without objection:

[P]roof beyond a reasonable doubt is such proof that ordinary prudent men and women would act upon in their most important affairs.  Now, you notice it’s very careful when it says most important affairs.  It doesn’t say things are really important to you, things of substantial importance.  It says most, it uses the superlative.  And that’s the Court’s instructions, those are not my words.  It says most, because you know what, ladies and gentlemen, we are dealing with the most important affairs, the lives of men and women.  And what are those things, is it where to invest your money?  Money is important, very important, but that’s not the most important affairs in lives.  What’s most important, ladies and gentlemen, I think you would agree with me, are life and death decisions.


After describing and comparing the various burdens of proof, he further stated without objection:

This is proof beyond a reasonable doubt, and that means, ladies and gentlemen, that the evidence has to be so certain, has to be so persuasive, so convincing that, you would act without hesitation in making a life or death decision.


Later during appellant’s closing, the state objected when defense counsel made statements allegedly calling for the jury to identify with the defendant.  At that point, a bench conference out of the jury’s hearing ensued and the district court instructed defense counsel to refrain from further characterizing proof beyond a reasonable doubt as requiring the certainty necessary in making life or death decisions because that is not the standard in Minnesota.  Proof beyond a reasonable doubt has been defined in Minnesota as “such proof as ordinarily prudent men and women would act upon in their most important affairs.”  10 Minnesota Practice, CRIMJIG 3.03 (1999). 

            We need not determine the suitability of appellant’s closing argument in defining proof beyond a reasonable doubt because we conclude that appellant was able to convey to the jury, without objection, his message that “most important affairs” decisions include “life and death decisions.”  For the purposes of this opinion, even if we assume without deciding that the district court erred in restricting the use of the “life and death” phrase, under the circumstances here, that error would be harmless.  Appellant’s counsel used the phrase more than once in his argument without objection.  Because the jury was well advised of appellant’s position, we conclude that appellant cannot show any prejudice and leave for another day a decision on the merits of such claim.  The district court’s directive disallowing problematic repetition of the phrase was well within the district court’s discretion.

3.         Facial Expressions

            Finally, appellant argues that the district court made improper facial expressions in the presence of the jury, which expressed the court’s disapproval of appellant’s defense.  After trial, appellant provided the district court with two affidavits to support his argument.  At the same time, the state provided the court with four affidavits to the contrary.

            Because a defendant is entitled to an impartial judge, the trial court must not have an actual bias against the defendant.  McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998).  See State v. Strodtman, 399 N.W.2d 610, 616 (Minn. App. 1987) (stating that trial judge should refrain from any words that might emphasize the personal feelings of the court), review denied (Minn. 25 Mar. 1987).  It is presumed, however, that a judge has discharged his or her judicial duties properly.  McKenzie, 583 N.W.2d at 747. 

            There is nothing in the record, save defense counsel’s remarks to the district court at the bench conference during closing arguments and appellant’s affidavits, to indicate that the district court engaged in inappropriate nonverbal conduct.  Moreover, the district court properly instructed the jury to disregard any judicial expression or ruling during trial that the jury could take as an indication of the district court’s opinion on the outcome of the case.  See 10 Minnesota Practice, CRIMJIG 3.01 (1999).  We conclude that appellant failed to rebut the presumption that the district court properly performed its duties.