This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-01-1622

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Wayne Kiehl,

Appellant.

 

Filed August 27, 2002

Affirmed

Parker, Judge*

 

Ramsey County District Court

File No. K0101591

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

 

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

††††††††††† Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Parker, Judge.

 

U N P U B L I S H E D† O P I N I O N

PARKER, Judge

On appeal from a conviction of being a felon in possession of a firearm, appellant Michael Wayne Kiehl argues that statements he made in response to a police question as to the location of his gun were improperly admitted under the public safety exception to the Miranda warning requirement and that the prosecutor committed prejudicial misconduct by eliciting a police officerís opinion about the credibility of a witness, by personally endorsing the witnessís statement in closing argument, and by arguing that police testimony was uncontradicted.† Because Kiehlís statements were properly admitted and the prosecutorís statements were harmless error in light of the overwhelming evidence, we affirm.

D E C I S I O N

I.

††††††††††† When this court reviews a pretrial order suppressing evidence where the facts are not in dispute and the district courtís decision is a question of law, we may independently review the facts and determine whether the district court erred by not suppressing the evidence.† State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

††††††††††† Appellant argues that the district court erred by allowing the state to introduce, under the public safety exception to the Miranda requirement, his statements about where he discarded a gun, made in response to police interrogation.† He asserts that he should have been advised of his Miranda rights before being interrogated by police because he was in custody and restrained to a degree associated with formal arrest, and there was no evidence that he had discarded the gun in a public place.

Generally, statements made during a custodial interrogation * * * cannot be admitted into evidence unless the suspect is given the Miranda warning and intelligently waives the right against self-incrimination.

 

State v. Provost, 490 N.W.2d 93, 96 (Minn. 1992) (citing Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612-13 (1966)).† While a suspect does not have a constitutional right to a Miranda warning, the warning protects the suspectís right against compulsory self-incrimination.† Id. at 96.† The Supreme Court has recognized limited exceptions to this general rule.

††††††††††† The public safety exception allows police officers, faced with an immediate threat to public safety, to ask questions of the suspect prior to administering the Miranda warning.† New York v. Quarles, 467 U.S. 649, 655, 104 S. Ct. 2626, 2631 (1984).† The Court in Quarles held that, based on the specific facts involved in the case, the public-safety exception applied, but warned the exception is narrow and should be applied only where there are exigent circumstances.† Id.†† The exception is necessary to protect the safety of the public and the police officers, because suspects might be deterred from providing information necessary to secure the publicís safety if the police were required to give the Miranda warnings before asking questions such as the location of a gun.† Id. at 657, 104 S. Ct. at 2632.† We have acknowledged and applied the public safety exception only to cases involving exigent circumstances.† State v. Hendrickson, 584 N.W.2d 774 (Minn. App. 1998).† The application of the public safety exception to the Miranda warning requires a case-by-case analysis.† State v. Caldwell, 639 N.W.2d 64, 68 (Minn. App. 2002), review denied (Minn. Mar. 27, 2002).

††††††††††† In Caldwell, this court held that the public safety exception had been properly applied to deny the appellantís motion to suppress.† Id. at 69. †There, the police responded to a call that the appellant, who had assaulted and threatened the victim with a gun, had returned to the scene.† Id. at 68.† The officers had reason to believe that the appellant was carrying a gun or had recently discarded it.† Id.† They did not find a weapon on the appellant and there was an immediate necessity to locate the gun, because it could have been discarded in a public place.† Id.† The officer asked appellant where the gun was located before administering the Miranda warning.† Id.†

††††††††††† Similarly, in this case, the police had good cause to be concerned for their safety and the safety of the public based on the statements Kiehlís wife made to them after a domestic dispute.† Kiehlís wife said that Kiehl had a gun and had threatened to kill her or anyone who got in his way if she called the police.† Kiehlís wife also stated that Kiehl always had a loaded gun, which he kept either in his waistband, under the mattress, or in a sock in a snowbank outside.† Because the officers did not find Kiehlís gun after they identified Kiehl, entered the hotel room where he and his wife were staying, and searched him, they asked him where the gun was.† The officers were justified in asking this question because Kiehl, the police, and the public were possibly endangered by Kiehlís concealment of the known weapon.† Kiehlís response, that the gun was behind the door, a place where a member of the public could not discover it and be harmed, does not affect the initial justification for the question.†† Because the officers knew that Kiehl always carried a gun and its location was not apparent, they had good cause to fear endangerment.† After the police took Kiehl into custody and gave him the Miranda warning, he inquired what the charges were and then said, ďIt doesnít matter.† I had the gun.† I had the gun anyway.† It doesnít matter.Ē† The district court did not err by admitting appellantís statements into evidence under the public safety exception.

II.

††††††††††† Kiehl also argues that the prosecutor committed conduct that, in the context of the trial as a whole, was so prejudicial that Kiehlís constitutional right to a fair trial was impaired.† See State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (stating this standard).†

††††††††††† Kiehl argues that the prosecutor committed prejudicial misconduct by asking an officer if she believed a witnessís statement, by offering her personal opinion in her closing argument, and by arguing that the officerís testimony was uncontradicted.† The state counters that, because appellant failed to object to the conduct or questions of the prosecutor, his right to object to them on appeal was waived.† But we may reverse despite the defendantís failure to preserve the issue if we determine that the error is prejudicial.† Id.; Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).† The transcript shows that Kiehl failed to object to the prosecutorís statements and failed to ask the district court for a cautionary instruction.† However, we choose to address this issue and determine that the prosecutorís conduct was harmless in light of the overwhelming evidence that supports the conviction.

The prosecutor asked Officer Rahlf for her opinion regarding whether Kiehlís wife was being truthful when she said Keihl had threatened to kill her. Officer Rahlf responded that she thought Keihlís wife was being very truthful.† Kiehl argues that the prosecutorís question of Officer Rahlf was improper because it was expert opinion testimony on the truth or falsity of an alleged victimís allegations about a crime.† See State v. Myers, 359 N.W.2d 604, 611 (Minn. 1984) (enunciating the courtís general rule of rejecting expert opinion testimony regarding the truth or falsity of a witnessís allegations about a crime, because it may afford unwarranted legitimacy to the allegations).† We find that this was not prosecutorial misconduct.† It was material to show why the police relied upon her statements to enter the motel room and to locate Kiehlís gun.

Additionally, Kiehl claims the prosecutor engaged in misconduct by vouching for the credibility of Kiehlís wifeís statements to the police.† The prosecutor stated in her final argument: ďI submit to you that what [Kiehlís wife] told the officers on February 12, 2001, is the truthĒ and ď[h]er statements to the officers on February 12, 2001 are highly credible.Ē† Although it is proper for a prosecutor to argue vigorously on the stateís behalf, it is improper for a prosecutor, who is not a witness, to state a personal opinion that testimony is truthful or untruthful.† State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995).† Despite the prosecutorís use of the equivocal phrase ďI submit,Ē her statements border on being taken as endorsements of Kiehlís wifeís testimony.† Although we find no prosecutorial misconduct here, we take this opportunity to remind prosecutors that it is improper to state a personal opinion regarding the truthfulness of a witnessís testimony.†

Finally, Kiehl asserts that the prosecutor endorsed the credibility of the officers by arguing that the officersí testimony was uncontradicted.† In rebuttal argument, the prosecutor argued that the testimony of the officers ďhas not been impeached and it has not been contradicted.† They are not lying.Ē† The Minnesota Supreme Court has warned against prosecutors characterizing the stateís evidence as uncontradicted, because the jury may view this as a reference to the defendantís failure to introduce evidence on his behalf.† Id. at 364-65.† A defendant has no duty to introduce such evidence.† Id. at 365.

††††††††††† The error of allowing this statement by the prosecutor is harmless, however.† In this case, there is overwhelming evidence of guilt.† See State v. Ashby, 567 N.W.2d 27, 28 (Minn. 1997) (concluding prosecutorial error was harmless given the strength of evidence against defendant).† Kiehlís admission, after receiving the Miranda warning, that he possessed the gun coupled with his stipulation that he was ineligible to possess a firearm is dispositive evidence supporting his conviction.† Because of this overwhelming evidence of appellantís guilt, the prosecutorís conduct constitutes harmless error.† We caution that in a case without such overwhelming evidence to support the conviction, a prosecutorís implied assertion that a defendant must introduce evidence on his behalf could be grounds for reversal.

††††††††††† Affirmed.

 



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