This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Paul Isauro Ramirez,
Filed November 18, 2003
Robert H. Schumacher, Judge
Jon A. Edin, Wadena County Attorney, Wadena County Courthouse, 415 Jefferson Street South, Wadena, MN 56482 (for respondent)
John M. Stuart, State Public Defender, Melissa V. Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)
Considered and decided by Schumacher, Presiding Judge; Lansing, Judge; and Crippen, Judge.*
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Appellant Paul Isauro Ramirez challenges his conviction as an ineligible person in possession of a firearm under Minn. Stat. § 624.713, subd. 1(b) (2000). He argues he was denied a fair trial when the district court and the prosecutor informed the jury of his prior felony conviction, despite his stipulation to this fact. He also argues the trial court erred when it instructed the jury regarding Ramirez's decision not to testify without obtaining Ramirez's consent. We reverse.
In June 2002, Ramirez was charged with being an ineligible person in possession of a firearm under Minn. Stat. § 624.713 subd.1(b) (2000). Ramirez was ineligible because he had been convicted of a violent crime in March 2002 and his civil rights had not been restored. In September 2002, a pretrial conference was held where Ramirez sought to stipulate to his prior criminal history. The State did not oppose the motion. The trial court, however, felt the jury would still need to be informed of the conviction since it was an element of the charged crime. Also, the prosecutor stated he wished to list the elements of the crime in his closing argument and state some elements had been stipulated to. The prosecutor suggested a statement from the bench that Ramirez "was convicted on this offense on such and such a day" would be best. Ramirez's counsel agreed. The trial court stated that, in its experience, either the appropriate witness could be asked about the prior conviction on the stand or the court could announce to the jurors if that witness had been called, he would testify that Ramirez had been convicted of the offense. Ramirez's counsel responded the proposal "makes a great deal of sense."
During trial, the prosecutor, the trial court, and a state witness all made reference to Ramirez's prior conviction. Ramirez did not object to any of these references. Additionally, at the close of the case, the court chose to inform the jury that no adverse inference may be drawn from Ramirez's decision not to testify. The court did not consult with Ramirez before including the statement as part of the final jury instructions.
The jury convicted Ramirez of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b). The court sentenced Ramirez to 39 months, executed.
Ramirez argues his decision to stipulate that he was an ineligible person to possess a firearm makes references to his felony conviction reversible error under the supreme court's decision in State v. Davidson, 351 N.W.2d 8 (Minn. 1984). Ramirez points to numerous instances where the jury was impermissibly informed of his felony conviction. We conclude the error occurred at the pretrial conference when the defense attorney failed to object to the court's suggestions that the jury needed to be informed Ramirez had stipulated to his prior felony conviction. Although defense counsel's actions may have amounted to ineffective assistance of counsel, we choose to address the matter as Ramirez has raised it in this appeal and reverse his conviction.
Generally, a defendant is deemed to have forfeited his right to have an error reviewed on appeal if he fails to object to the error at trial. State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003). This court will consider an un-objected to alleged error only if, (1) there is error; (2) the error is plain; and (3) the error affects the defendant's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). To satisfy the third prong, a defendant bears a “heavy burden” of persuasion to show that “the error was prejudicial and affected the outcome of the case.” Id. at 741. If these three prongs are met, the court must then decide whether it should address the issue in order to “ensure fairness and the integrity of the judicial proceedings.” Id. at 740.
Ramirez argues it is plain error to inform the jury he has a prior felony conviction after he has stipulated to that fact. In Davidson, the supreme court addressed whether the trial court's refusal to accept the defendant's stipulation that he was ineligible to possess a handgun required a new trial. Davidson, 351 N.W.2d at 10. The court in Davidson concluded a felony conviction's probative value is clearly outweighed by its unfair prejudice. Id. at 11. Accordingly, the court concluded the defendant in an ineligible-person-in-possession-of-a-firearm case, generally should be permitted to remove the issue of his eligibility to possess a firearm from the jury. Id. at 12. The proper method is to instruct the jury "that [the] defendant had stipulated under Minnesota law he was not entitled to possess a [firearm] and that therefore the jury should direct its attention to the issue of whether or not . . . he possessed the [firearm]." Id. The trial court's decision to allow the jury to be informed of Ramirez's prior conviction is plain error in light of Davidson.
Ramirez also argues it was plain error to refer to the offense as "felon in possession of a firearm." Ramirez was charged under Minn. Stat. § 624.713, subd.1(b). This statute is entitled "Certain persons not to have pistols or semiautomatic military-style assault weapons; penalty" and not "felon in possession of firearm." See Minn. Stat. § 624.713 (2000). Subdivision one of this statute details who are "Ineligible persons." Minn. Stat. § 624.713, subd. 1. A person with certain types of prior felony convictions is an ineligible person. Id. at subd. 1(b). Considering the prejudicial nature of labeling a defendant as a "felon,"we conclude it is also plain error to label the charging offense as "felon in possession" when a defendant stipulates to his prior felony conviction.
Having determined these actions were plain error, we now analyze whether Ramirez has met his heavy burden of persuasion to show the errors were prejudicial and affected the outcome of the case. This court has concluded evidence regarding a defendant's prior conviction in an ineligible person in possession of a firearm case is prejudicial when the state's case is weak and there was reason to believe that the jury "was likely to be particularly susceptible to prejudicial influences." State v. Allen, 375 N.W.2d 82, 84 (Minn. App. 1985), review denied (Dec. 19, 1985).
Here, the record demonstrates the decision to inform the jury of Ramirez's prior felony conviction was prejudicial and affected the outcome of the case. Ramirez did not possess the firearm at the time of his arrest and the state was never able to locate the firearm he allegedly possessed. The state's evidence regarding the possible location of the firearm is solely derived from a witness who admits his memory was unreliable. We conclude Ramirez has met his burden to show the plain error was prejudicial and affected the outcome of the case. Having determined Ramirez's prior conviction substantially influenced the jury, we reverse the conviction to “ensure fairness and the integrity of the judicial proceedings.” See Griller, 583 N.W.2d at 740.
Ramirez also argues the district court's sua sponte decision to instruct the jury that it is not permitted to draw any adverse inference from Ramirez's silence denied him of a fair trial. Although we choose not to address this issue because we are reversing on other grounds, we stress that this instruction should not be given unless personally requested by the defendant on the record. See State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); Minn. Stat. § 611.11 (2000) (defendant’s failure to testify shall not be alluded to by prosecuting attorney or court).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.