This opinion will be unpublished and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

C3-01-2131

 

 

State of Minnesota,

Respondent,

 

vs.

 

George David Meriwether,

Appellant.

 

 

Filed October 15, 2002

Affirmed

Anderson, Judge

 

Ramsey County District Court

File No. T30157111

 

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

 

Manuel Cervantes, St. Paul City Attorney, Rachel A. Gunderson, Assistant City Attorney, 500 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN  55102 (for respondent)

 

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

 

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

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant George David Meriwether challenges his convictions of minor consumption of alcohol and minor possession of alcohol, arguing that the district court erred or abused its discretion by (1) failing to admit or exclude various evidence; (2) failing to obtain a waiver of appellant’s right to testify; (3) failing to recuse itself; and (4) failing to find prosecutorial misconduct in respondent’s closing argument.  We affirm.

FACTS

 

Appellant attended the Taste of Minnesota festival in St. Paul on July 4, 2001.  Two Minnesota State Patrol officers noticed appellant, who appeared to the officers to be a minor, holding and drinking from a cup with a “Budweiser” logo on it.  The officers approached appellant and noticed that his eyes were bloodshot and watery and that his breath smelled strongly of alcohol.  When asked his age, appellant admitted that he was 19 years old and twice gave the officers a false name and date of birth.  Appellant submitted to a preliminary breath test (PBT), which indicated that appellant had consumed alcohol.  The officers cited appellant for possession and consumption of alcohol by a person under 21 in violation of Minn. Stat. § 340A.503, subd. 1, 3 (2000).

            Before trial, the district court denied appellant’s motions to suppress various evidence and to remove the judge.  A jury found appellant guilty on both counts and the district court fined appellant $210.  This appeal followed.

 

D E C I S I O N

 

1.  Evidentiary Rulings

 

Appellant challenges several of the district court’s evidentiary rulings.  Evidentiary rulings rest within the district court’s sound discretion, and we will not reverse those rulings absent a clear abuse of that discretion.  State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997).  On review, appellant has the burden of proving that the district court abused its discretion and that the resulting prejudice warrants reversal.  Id.  Reversal for evidentiary errors is warranted when “there is any reasonable doubt the result would have been different” had the district court ruled differently.  Id. at 699 (quotation omitted).

Appellant argues that the district court abused its discretion by admitting the results of the PBT because respondent did not call an expert witness to lay a technical foundation and establish the testing machine’s reliability.  This argument is without merit.  The testing machine used here was certified by the Commissioner of Public Safety as capable of measuring the alcohol concentration of an individual, and the test results are therefore admissible in proceedings concerning underage alcohol consumption.  Minn. Stat. § 169A.41, subd. 2(4) (2000).  The district court properly took judicial notice of the machine’s reliability and rejected appellant’s argument that reliability must be established by expert testimony concerning the theory and mechanics of the device.  See State v. Gerdes, 291 Minn. 353, 357, 191 N.W.2d 428, 431 (1971) (holding that a district court may take judicial notice of the reliability of an established means of measurement “without requiring the operator to be qualified as an expert in the field”).         

            Appellant argues that the district court abused its discretion by excluding as irrelevant several of appellant’s questions on cross-examination.  We will not disturb a district court’s decision to exclude defense evidence if a reasonable jury would have reached the same verdict had the evidence been admitted and its damaging potential fully realized.  State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).  “[A] defendant has no constitutional right to present irrelevant evidence.”  State v. Jensen, 373 N.W.2d 364, 366 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985).  Here, the district court properly excluded as irrelevant appellant’s cross-examination concerning the reliability of the PBT machine, which was established before trial, and about DWI law, which was not at issue here.  There is no reasonable possibility here that the jury would have reached a different verdict had the evidence been admitted. 

            Appellant argues that the district court abused its discretion by allowing respondent to present evidence that appellant twice gave the arresting officers a false name and date of birth.  Appellant contends that because giving false information to the police is a crime, the state was required to give appellant notice before trial of its intent to use the evidence.  See State v. Spreigl,  272 Minn. 488, 497, 139 N.W.2d 167, 173 (1965).  But the state is not required to furnish notice of its intent to use evidence of “[o]ffenses which are part of the immediate episode for which defendant is being tried.”  Id.  Here, appellant furnished the false information about his name and birth date as part of the immediate episode for which appellant was tried, as the officers were attempting to determine if he was a minor possessing and consuming alcohol.

            Appellant contends that all evidence obtained from him after his initial contact with the officers must be suppressed because the officers lacked a reasonable, articulable suspicion to seize him.  See State v. Battleson, 567 N.W.2d 69, 71 (Minn. App. 1997) (holding that a police officer may only seize an individual if the officer has a reasonable, articulable basis to believe that a violation of law has occurred).  Appellant may be correct that the officers’ request for identification constituted a seizure.  See State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (holding that an officer seizes individuals by asking them for identification to verify they are all of legal drinking age).  But the officers, who believed that appellant was under the legal age to consume alcohol, had a reasonable, articulable suspicion of criminal activity to justify the seizure.  Id. at 392.  Evidence subsequently collected was properly admitted.

2.  Waiver of Appellant’s Right to Testify

            Appellant argues that he is entitled to a reversal because there is no evidence in the record that he ever waived his right to testify.  We find no merit in this argument.  Appellant provides no authority for his contention that a waiver of the right to testify must be on the record or in writing.  Moreover, the mere fact that a defendant did not testify is not evidence that the right was denied.  See State v. Smith, 299 N.W.2d 504, 506 (Minn. 1980) (stating that “[w]ithout anything in the record suggesting otherwise, we must presume that the decision not to testify was made by defendant voluntarily and intelligently”).

3.  Recusal

            Appellant argues that he is entitled to a reversal of his conviction because the trial judge erroneously refused to recuse himself.  The trial judge provided legal advice to, and was counsel for, the Department of Public Safety in 1982 and was acquainted many years ago with one of the officers who testified at trial.  A litigant seeking to remove a judge must show a judge’s impartiality might reasonably be questioned.  State v. Laughlin, 508 N.W.2d 545, 548 (Minn. App. 1993).  There is no reasonable basis for questioning the trial judge’s impartiality here. 

4.  Prosecutorial Misconduct

            Appellant argues that he is entitled to reversal because prosecutorial misconduct during closing arguments denied him a fair trial.  In its closing statement, the prosecution stated that the police officers who cited appellant were the sole witnesses at trial.  Appellant argues that this remark unfairly drew the jury’s attention to his failure to testify.  “A prosecutor may not comment on a defendant’s failure to call witnesses or to contradict testimony.”  State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).  Respondent’s remark was at most an implicit comment on the lack of defense evidence. 

We will not affirm serious prosecutorial misconduct unless we are certain beyond a reasonable doubt that the error was harmless.  State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197 (1974).

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.

 

Id. at 128, 218 N.W.2d at 200.  On the record before us, we cannot conclude that the prosecutorial misconduct, if any, likely played a substantial part in influencing the verdict. 

            Affirmed.