This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Milton Oliver Thomas,




Filed September 23, 2003


Randall, Judge



Hennepin County District Court

File No. 02037596



Bradford Colbert, Kelly Prettner, Certified Student Attorney, 875 Summit Ave., Room 254, St. Paul, MN  55105 (for appellant)


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)



            Considered and decided by, Randall, Presiding Judge, Halbrooks, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from a conviction for fleeing police in a motor vehicle, appellant argues that the district court abused its discretion in ruling that the state could impeach him with his 1997 conviction for a controlled substance offense.  Because we find no clear error, we affirm.


            On the evening of May 11, 2002, Minneapolis police officers Ochs and Bohnsack witnessed the driver of a Cadillac Cimmaron fail to properly use his turn signals.  The officers turned on the squad car’s lights in an attempt to pull over the vehicle.  Instead of complying, the driver of the Cadillac accelerated, and proceeded to lead the officers on a high-speed chase through north Minneapolis. 

            The driver of the Cadillac eventually became trapped at 1655 Penn Avenue.  The driver subsequently exited his vehicle and fled on foot.  The officers chased the driver for a short distance, but ultimately lost sight of him.  However, before the driver left his vehicle, the officers shined the squad car’s spotlight at the driver, and were able to get a good look at him when he turned to look at the squad car.  The officers observed that the driver was an African American male, with a low haircut, wearing a red shirt or jacket. 

            Shortly after Ochs and Bohnsack lost sight of the driver, Officer Sworski spotted appellant walking near his home.  Appellant fit the description of the driver that had recently eluded police, and Sworski proceeded to detain him.  Sworski observed that appellant was sweaty, out-of-breath, and his heart was beating rapidly.  Once Ochs and Bohnsack arrived at the scene, they positively identified appellant as the driver of the Cadillac. 

            After arresting appellant, the officers noted that he had “bloodshot and watery eyes,” and they concluded that appellant was possibly under the influence of alcohol.  Appellant was read the Implied Consent Advisory, and asked to take a breath, blood or urine test.  Appellant refused.  He was then charged with fleeing a police officer in a motor vehicle, in violation of Minn. Stat. § 169.487, subd. 3 (2002), and refusal to submit to chemical testing, in violation of Minn. Stat. § 609A.20, subd. 2 (2002). 

            At trial, the district court refused to admit appellant’s prior convictions for fleeing an officer, but then ruled that appellant’s 1997 conviction for a controlled substance crime would be admissible for impeachment purposes if appellant elected to testify.  Appellant decided not to testify and was subsequently convicted.  This appeal follows.    


            Appellant argues the district court abused its discretion by ruling that appellant could be impeached with his 1997 controlled substance crime conviction.  Whether the probative value of the prior convictions outweighs their prejudicial effect is a matter within the discretion of the district court.  State v. Graham, 371 N.W.2d 204, 208 (Minn. 1985).  The district court’s decision will not be reversed absent a clear abuse of discretion.  Id. at 209.

            Minn. R. Evid. 609 governs the admissibility of prior convictions for impeachment purposes.  If a crime involves dishonesty or false statements, the conviction is admissible.  Minn. R. Evid. 609(a)(2).  For crimes not involving dishonesty, Rule 609 allows a felony conviction to be admitted for impeachment purposes if ten or fewer years have elapsed since the conviction, and if the probative value of the evidence outweighs its prejudicial effect.  Minn. Rule Evid. 609(a)(1), (b).  When evaluating the probative value and prejudicial effect of a proffered crime that does not involve dishonesty or false statement, the court is required to look at five factors:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.


State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).

            (1) Impeachment value

            Appellant argues that his conviction for controlled substance crime weighs heavily against admitting the evidence because drug convictions are not the type of crime that directly relates to truth or falsity, and therefore it has little or no impeachment value.  Nevertheless, the fact that a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value.  State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988).  We understand appellant’s argument.  Drug convictions have no direct relationship to truth or falsity.  But the district court was within its discretion in allowing the conviction in.  The district court determined that evidence of appellant’s prior fleeing convictions were too similar to the present offense, and would have a substantial prejudicial effect.  Thus, the court ruled the convictions were inadmissible.  The record is clear the district court toiled carefully to balance appellant’s priors and remain fair to both appellant and the state.

            The state argues that evidence of the prior drug offense did assist the jury in weighing appellant’s credibility.  The other important factors to consider on the issue of admissibility include the following.

            (2) Date of the conviction and subsequent history

            Appellant's prior conviction occurred in 1997, within the ten years required under Minn. R. Evid. 609(b).  Appellant concedes the crime is not stale and is properly within the district court’s discretion under Rule 609(b).

            (3) Similarity of crimes

            Appellant argues there is little similarity between the past crime and the present offense.  This factor, almost a neutral, does not hinder admitting the evidence for impeachment purposes.

            (4) and (5) Importance and credibility of appellant’s testimony

            Appellant argues the district court should have excluded the conviction because it was more important to hear appellant’s version of the events and to ensure the defendant is not chilled from testifying, than to admit the evidence for impeachment purposes.  If admitting impeachment evidence would cause a defendant not to testify, the evidence can be excluded.  State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980).  But if a defendant's credibility is the central issue of a case, “a greater case can be made for admitting the impeachment evidence, because the need for the evidence is greater.”  State v. Ihnot, 575 N.W.2d 581, 587 (Minn. 1998) (quotation omitted). 

            Here, both officers Ochs and Bohnsack testified that before the driver of the Cadillac fled on foot, they were able to get a good look at the driver when he turned and looked at them.  After Officer Sworski apprehended appellant, Ochs and Bohnsack stated they were 100 percent sure that he was the driver of the Cadillac.  At trial, appellant did not make an offer of proof as to what his testimony would have been had he testified.  Appellant’s counsel’s closing arguments indicates that appellant would have testified that he is not guilty because he was not the driver of the Cadillac.  Thus, had appellant testified, the central issue for the jury would have been the credibility of appellant.  That factor tilts in favor of admission of the conviction for impeachment purposes. 

            Based upon the examination of the five factors articulated in Jones, the district court did not abuse its discretion in determining the probative value of appellant’s conviction outweighed its prejudicial effect.  The trial judge considered appellant’s prior convictions for fleeing police, and kept them out because of their prejudicial effect.  The irony is that if courts were “honest” about Spreigl evidence, those identical priors, whether misdemeanors or felonies, would have come in as being more probative than prejudicial.  Obviously they would “prejudice” appellant.  But on the probative side, any common-sense jury is going to find evidence that someone who has fled the police before is probative on the issue, “did he flee the police now?”[1] 

            The prior fleeings were kept out on either basis, assumably, because they were found to be more prejudicial than probative.  Then, to “balance the books,” the district court let in a controlled-substance conviction, which really has nothing to do with the person’s ability to remember and tell the truth on a “fleeing a police officer case.”  But the district court reviewed the appropriate factors and determined the conviction should be admissible.  The district court kept out the prior fleeing convictions, even though the state wanted them in.  On the totality of this record, we cannot find that the district court abused its discretion in making its decision to allow, for impeachment purposes, a drug-related offense.  

            Appellant contends that the district court’s decision to admit evidence of his prior controlled-substance-crime conviction impermissibly interfered with his constitutional right to testify.  We disagree.  The defendant’s right to testify on his own behalf is protected by both the Due Process Clause of the Federal Constitution and Minnesota law.  Faretta v. California, 422 U.S. 806, 819, n. 15, 95 S. Ct. 2525, 2533, n. 15 (1975); State v. Rosillo, 281 N.W.2d 877, 878 (Minn. 1979); Minn. Stat. § 611.11 (2002).  Nonetheless, “the mere fact that a trial court would allow impeachment evidence if a defendant chooses to testify does not necessarily implicate his constitutional right to testify in his own defense.”  Ihnot, 575 N.W.2d at 587 (quoting State v. Gassler, 505 N.W.2d 62, 68 (Minn. 1993)).  Only when a district court has abused its discretion under Rule 609(a)(2) by improperly ruling that the probative value of the impeachment evidence outweighed its prejudicial effect is a defendant's right to testify infringed upon by the threat of the impeachment evidence.  Id. 

            Here, appellant was not kept from testifying.  Appellant made a decision not to testify.  He calculated that the risk of testifying outweighed the risk of not testifying.  That was his decision to make.  It is difficult to say, on appellate review, that his testimony, plus the impeachment evidence, would have helped or hindered his case more than no direct testimony and no impeachment evidence.  Essentially, that choice belongs to appellant, and his attorney as a tactical choice of what to put before a jury.

            Appellant’s right to testify was not impermissibly infringed by the threat of impeachment evidence.  The district court did not abuse its discretion in picking and choosing what evidence to allow in and what to keep out.



[1]  That is why evidence of prior misdeeds is kept out, when it is, and should only be admitted under the most narrow of circumstances.  It is not that it has little probative value, it is that it has too much!  You can never outrun your past life; you can never have a second chance when the state insists on trying you for what you did before, and not for what you stand accused of doing now.