This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-01-1934

 

State of Minnesota,

Respondent,

 

vs.

 

Brenda Diane Jones,

Appellant.

 

Filed October 1, 2002

Affirmed

Hudson, Judge

 

Blue Earth County District Court

File No. K40172

 

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

 

Eileen M. Wells, Mankato City Attorney, Christopher D. Cain, Assistant City Attorney, 10 Civic Center Plaza, P.O. Box 3368, Mankato, Minnesota 56002-3368 (for respondent)

 

John Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, Minnesota 55414 (for appellant)

 

            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

On appeal from a conviction for driving after suspension, test refusal, and obstructing legal process, appellant argues that the prosecutor committed prejudicial misconduct in eliciting testimony concerning her post-arrest silence and in referring to her silence in closing argument, as well as in eliciting irrelevant “bad acts” evidence that the police officers and another witness knew appellant from previous driver’s license suspensions and traffic violations.  We affirm.

FACTS

On January 6, 2001, Mankato Police Officer Timothy Stone was on patrol when he passed Brenda Diane Jones as she was driving.  After a check revealed that Jones’s driving privileges were revoked for failure to pay a fine or to appear in court, Stone pulled her over.

Jones pulled the front end of her car into a parking space.  Stone approached the car, asked Jones for her license and registration, and asked her if she knew her license had been suspended.  Jones replied that she was not aware of the suspension.  Stone returned Jones’s license and registration and went back to his squad car to write out a citation.  When he got back to his car, he also called a tow truck.

After another squad car and the tow truck arrived, the tow truck pulled in front of Jones’s car—blocking her in—and the tow-truck driver began to hook up the car.  Jones turned her steering wheel and began to back up.  Stone immediately ran to the car and ordered Jones to stop her car.  Although Jones did not immediately stop, and Stone was unable to remove her from the car by force, Jones eventually consented to getting out of her car and allowing the police to take her car keys.

Jones was charged with driving while impaired, test refusal, driving after suspension and obstructing legal process.  At the omnibus hearing, Stone was asked, “[d]id a particular driver attract your attention about 2:35 in the afternoon on January 6[, 2001]?”  Stone responded by stating,

At approximately 2:35 on January 6th of 2001, I had passed a 1985 Chrysler LeBaron on Mound Avenue.  * * *  At this time, I recognized the driver as Brenda Diane Jones.  I knew Jones from several other dealings in the past and I knew that her driving privileges were frequently suspended or revoked.  At this time, I ran a routine license plate check on my [squad car’s] computer.

(Emphasis added.)

At trial, Stone, the tow-truck driver, the officer who arrived at the scene just prior to the tow truck, and Jones all testified to the events.  Stone was again asked about the stop:

Prosecutor:  Now, when you saw the defendant driving, what did you think or what did you do?

Stone:  Well, I recognized it as being Ms. Jones, and I knew that frequently her driving privileges were suspended or revoked.  So at that time, I ran a license plate on the vehicle.

(Emphasis added.)  Jones did not object to the officer’s reference to her previous license suspensions.  Later, Stone testified that, while in the elevator with Jones at the police station, he smelled “a very strong odor of alcoholic beverages.”  The prosecutor asked, “[d]id you ask the defendant if she had been drinking any alcohol?”  Stone responded by saying:

Yes, I asked her, while we were still in the elevator, how much she had had to drink.  And she didn’t say anything at all to me.  She just stood there and looked at me.

(Emphasis added.)  Jones did not object to the officer’s reference to her silence.

A second officer, who had arrived as backup shortly before the tow-truck driver, was asked why he decided to wait with Stone until the tow truck arrived.  The officer responded by saying:

Why did I do that?  I’ve had past dealings with Ms. Jones for traffic citations, and she becomes very upset when her vehicle gets towed.

(Emphasis added.)  Jones’s attorney objected, and the objection was sustained.

Brian Flowers, the tow-truck driver, testified and was asked about Jones’s demeanor at the time her vehicle was towed.  Flowers responded, “As we’ve dealt with her in the past: volatile.”  No objection was registered.

Jones testified in her defense, disputing the state’s version of events.  On cross-examination, the following exchange took place:

Prosecutor:  Do you remember when you were being escorted up to the third floor by Officer Stone?

Jones:  Yes.

Prosecutor:  And do you remember him asking you how much you had to drink that day?

Jones:  Yes.

Prosecutor:  Do you remember when I asked Officer Stone that question this morning?

Jones:  Yes.

Prosecutor:  Now, he said that you didn’t respond.  You just looked at him.

Jones:  I asked him what made him think I was drinking.

Prosecutor:  So it’s your testimony that …

Jones:  I did answer him.

Finally, during closing arguments, the prosecutor said:

The defendant’s refusal to respond to Officer Stone’s question when he asked her how much she had to drink that day.  He testified that she just looked at him.  Her claim is that she responded, “Why would you think that?”  Now, look at that from two different perspectives.  Someone here has an inaccurate memory.  I’m not going to tell you that the defendant is lying.  I would just tell you that I think the officer has a more accurate memory.  Keep in mind that alcohol affects memory.

The defendant supposedly—in her testimony, claims that she said, “What would make you think that in the first place?”  If you’re asked the question, “How much have you had to drink today?” and you haven’t had a drink, wouldn’t you say, “Nothing?”  Why would you evade that answer?

(Emphasis added.)  Jones did not object to the prosecutor’s references to her silence.

The jury acquitted Jones of driving while impaired, but convicted her of the other three counts.  The district court sentenced her to 180 days in jail, and this appeal followed.

D E C I S I O N

Jones appeals, arguing that she was denied her right to a fair trial by the prosecutor’s commentary on her silence and the elicited testimony regarding her prior bad acts.  We construe Jones’s claim to be one of prosecutorial misconduct. 

Generally, evidence of a defendant’s prior criminal activity is inadmissible in a criminal prosecution.  State ex. rel. Tahash, 280 Minn. 155, 157, 158 N.W.2d 504, 506 (1968).  Even when the elicitation of other-crime evidence is unintentional, appellate courts will reverse if the evidence is prejudicial.  State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978).  It is equally well-settled, however, that a district court’s denial of a new-trial motion based on alleged prosecutorial misconduct will be reversed 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, 727-28 (Minn. 2000) (citations omitted).

Significantly, in this case Jones never moved for a new trial, and the trial court sustained the only objection made to any of the challenged testimony.  It is only in the extreme case of “unduly prejudicial” prosecutorial misconduct that relief will be granted in the absence of an objection at trial.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).  Further, a defendant has an affirmative duty to object promptly or ask for a cautionary instruction because “carefully worded instructions by the trial court can ameliorate the effect of improper prosecutorial argument.”  State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).  A defendant who fails to object to the prosecutor’s statements or to seek specific cautionary instructions is generally deemed to have forfeited the right to have the issue considered on appeal.  State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). 

Here the prosecutor inquired into Jones’s response to Officer Stone’s questioning although the prosecutor surely knew that the question would likely elicit commentary on Jones’s silence.  The prosecutor also cross-examined Jones about her silence, and then mentioned it again in closing argument.  Furthermore, the prosecutor elicited testimony about Jones’s past license revocations/suspensions from three different witnesses.  Two of the witnesses were the arresting police officers, and the prosecutor had already asked one of the officers about Jones’s past behavior at the omnibus hearing.  Thus, only the response from Flowers, the tow-truck driver, could truly have caught the prosecutor by surprise.

The general rule is that a prosecutor may not ask a question to advance an improper inference to the jury.  State v. Jahnke, 353 N.W.2d 606, 609 (Minn. App. 1984).  But here, the reaction of Jones’s counsel is telling.  Defense counsel failed to object to the testimony referencing appellant’s silence regarding the consumption of alcohol.  Nor did defense counsel object when appellant was being cross-examined on this same subject.  Defense counsel’s silence strongly suggests that he did not feel the inquiries were unduly prejudicial.  See State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997) (holding that a defendant who fails to object to the prosecutor’s statements in the state’s summation implies that the comments were not prejudicial); State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (holding that where defense counsel fails to object to a prosecutor’s remarks, this court may logically infer that defense counsel did not consider the argument to be improper).

Moreover, Jones was acquitted on the driving-while-impaired charge, and there was substantial other evidence of her guilt on the remaining charges.  On this record, the admission of evidence relating to appellant’s right to remain silent was harmless beyond a reasonable doubt, and the prosecutor’s improper conduct was insufficient to warrant reversal, especially in the absence of objections at trial.  State v. Griese, 565 N.W.2d 419, 428 (Minn. 1997); State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974).  Although we affirm the conviction, we note that the prosecutor’s conduct is troubling, and we remind prosecutors that in a case where the other evidence is not as strong, similar conduct might warrant reversal.

Affirmed.