This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Jostiene Marie Windish,


Filed December 16, 2003

Affirmed in part and remanded

Stoneburner, Judge


Washington County District Court

File No. K600813


Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Doug Johnson, Washington County Attorney, Washington County Government Center, 14949 62nd Street North, Stillwater, MN 55082-0006 (for respondent)


John M. Stuart, Minnesota Public Defender, Leslie J. Rosenberg, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414; and


Jason A. Lien, Special Assistant Public Defender, 3300 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Stoneburner, Judge, and Poritsky, Judge.*


U N P U B L I S H E D  O P I N I O N




            Appellant Jostiene Marie Windish challenges her convictions of offering a forged check and aiding and abetting offering a forged check, arguing that (1) she was denied an impartial jury when the prosecutor failed to redact her invocation of her right to counsel from the tape of her police interview that was admitted into evidence, (2) the prosecutor committed prejudicial misconduct, and (3) the evidence was insufficient to support her convictions.  We affirm in part and remand for a Schwartz hearing.



            On February 8, 2000, a woman who identified herself as Charlotte Duresky, presented a check written on Duresky’s account to purchase merchandise at the Home Depot in Woodbury.  The cashier was suspicious because the woman seemed nervous and asked her why the cashier had to run the check through a verification system.  But the system indicated that the check was good, so the cashier accepted the check and the woman left the store.  Because the cashier remained suspicious, she called Charlotte Duresky and asked her if she had been in the store that morning.  Duresky said she had not been in the store, and that her purse had been stolen two days earlier.  The cashier notified the police and described the woman who had passed the forged check.  A short time later, a man tried to return the merchandise for cash at a nearby Home Depot store that had been notified to be on the lookout for return of the merchandise purchased with the forged check, but he left the store before the police could be contacted.

            Two days later, Lisa Bullis, who was dating appellant’s son, drove up to a drive-through window at the Norwest Bank in Woodbury.  Appellant was in the front passenger seat.  Bullis put the following items into a transport tube for the bank teller: a Country Inn employee identification card for Dawn Kennedy, a receipt for a Minnesota driver’s license application, a $930 check payable to Dawn Kennedy, and a checking account deposit slip requesting $500 cash and $430 to be deposited into Dawn Kennedy’s account at Norwest. 

            The check was over seventeen years old, and the teller was suspicious.  She showed the check to a co-worker and then to a supervisor.  The supervisor tried to locate an account for the drawer, but could not.  She called the phone number on the check but the phone was disconnected.  The bank contacted the police. 

            As Bullis and appellant waited, a teller asked Bullis how she wanted the cash and Bullis replied “$20s and $50s.”  Eventually Bullis asked what was taking so long.  Bullis told the teller she was going to park and come into the lobby, but instead she drove off.  A Woodbury police officer stopped Bullis shortly after she left the bank.  Appellant and  Bullis were separated and placed in separate squad cars and questioned. 

            Bullis said that appellant had given her an envelope to give to the bank.  Bullis denied knowing what was in the envelope and told the officer that she drove off because she thought the transaction was complete.  Bullis wrote out a similar statement at the police department.  No envelope was recovered from the bank. 

            In the squad car, appellant denied that she offered the check and said she did not want to get anyone in trouble.  An officer at the scene thought that appellant matched the description of the person who had offered the forged check at the Woodbury Home Depot two days earlier so appellant was driven to the Woodbury Home Depot store.  The cashier who had accepted the forged check identified appellant as the woman who passed the forged check.  The cashier was about 20 feet away from appellant when she made the identification.

            Appellant was interviewed at the police station.  She denied any involvement with the checks and insisted that she was just sitting in Bullis’s car.  Appellant would not answer any questions about the incidents and claimed not to know anything about them.  Appellant said she was babysitting her grandchildren when she “was supposed to be writin’ these checks.”  The interviewing officer said Bullis had told him what happened and that there was a videotape of her from the bank.  Appellant asked to see the videotape and any fingerprints linking her to the transaction.  After the officer told her she was lying, appellant said “quit right now because I want, because I want to talk to an attorney.”  The interview was terminated. 

            Appellant was charged with offering a forged check for the incident at Home Depot and aiding and abetting offering a forged check for the incident at the bank.  Prior to trial, Bullis admitted that she knew that a crime was probably being committed when she drove away from the bank, and pleaded guilty to aiding and abetting offering a forged check in exchange for participation in a diversion program.  A condition of the diversion program was that she testify against appellant.  Bullis testified that she had lied to the officer about leaving the bank when she told him she thought the transaction was complete.  She testified that she left the bank because she realized there was something wrong.

            The audiotape of appellant’s interview at the police station was admitted into evidence and played for the jury.  The parties stipulated that appellant’s termination of the interview and request to talk to an attorney would be redacted from the tape. Although those statements were not played to the jury, the prosecutor failed to redact the statements from the tape.  The comments were redacted from the transcript of the tape that was given to the jury to follow as the tape was played, but the transcript was not admitted into evidence.  During deliberations the jury asked to see the transcript of the tape, but this request was denied.  It is unknown whether the jurors played the tape in the jury room.

            The jury found appellant guilty of both charges.  She was sentenced, and this appeal followed.



I.          Error in admitting appellant’s invocation of right to counsel


            Appellant alleges that her constitutional right to an impartial jury was violated when the tape of her police interview was sent to the jury room without redaction of her invocation of her right to counsel.  The state admits that allowing the jury to hear evidence of appellant’s request for counsel was error under State v. Roberts, 296 Minn. 347, 353, 208 N.W.2d 744, 747 (1973).  In Roberts, the supreme court held that an interrogating officer’s testimony that defendant requested counsel when asked if he had committed the crime had no legitimate probative value or any other proper use, and its admission constituted error.  Id.  “Since the jury was likely to infer from the testimony that defendant was concealing his guilt, admission of the testimony was constitutional error because its effect was to penalize defendant impermissibly for exercising his constitutional privilege.”  Id.  We conclude that admission of the unredacted tape into evidence in this case constitutes error.

            Appellant urges us to hold that this error requires a new trial, and the state urges us to conclude that this error was harmless.  Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it is harmless, beyond a reasonable doubt.  Id

Harmless error analysis inherently requires that we first consider the nature and extent of the error before we go on to consider whether the conviction was “surely unattributable” to the error.  If the jurors were unaware . . . [of the error] then obviously [the] error . . . did not have an impact on the verdict.”


State v. Shoen,  (Shoen I), 578 N.W.2d 708, 715-16 (Minn. 1998) (citations omitted).  But in this case, the record is silent as to whether the jurors were aware of appellant’s invocation of the right to counsel.  There is nothing in the record establishing whether the tape was sent to the jury room, whether the jurors had access to a tape player, or whether the jurors played the tape and heard appellant invoke her right to counsel.  Because we do not know the nature and extent of the error in this case, we remand the case to the district court for a Schwartz hearing.  See Id. at 716 (citing State v. Lehman, 511 N.W.2d 1, 3-4 n.1 (Minn. 1994) for proposition that in appropriate case where a hearing is warranted, district court can hold Schwartz hearing notwithstanding passage of significant period of time following trial); State v. Shoen (Shoen II), 598 N.W.2d 370, 373 n. 1 (Minn. 1999).  A Schwartz hearing allows the district court to question jurors as to “whether extraneous prejudicial information was improperly brought to the jury’s attention.”  Minn. R. Evid. 606 (b); see also Minn. R. Crim P. 26.03, subd. 9;  Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 104 N.W.2d 301 (1960).

            If the district court determines after a Schwartz hearing that the jury, or any juror, heard appellant’s termination of the interview and invocation of her right to counsel, the district court is then in the position to apply the harmless error standard to determine whether appellant’s guilty verdict is “surely unattributable” to the error.  See Shoen I, 578 N.W.2d at 716.

            Because the outcome of the Schwartz hearing may not be dispositive, we address the remaining issues raised by appellant in this appeal.

II.        Claims of prosecutorial misconduct

            Appellant asserts that serious prosecutorial misconduct deprived her of her constitutional right to a fair trial and requires a new trial.  We disagree. 

            Prosecutorial misconduct does not require a reviewing court to grant a new trial if the misconduct was harmless beyond a reasonable doubt.  State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996).  A conviction will only be reversed if the misconduct appears to be inexcusable and so serious and prejudicial that the defendant’s right to a fair trial was denied.  State v. Smith,541 N.W.2d 584, 588 (Minn. 1996).  And the right to raise the issue of prosecutorial misconduct can be considered waived on appeal by failure to object or seek a curative instruction from the district court.  State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001); State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).  Relief will be granted in the absence of a timely objection only in extreme cases involving “unduly prejudicial” prosecutorial misconduct.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).   

            Appellant first argues misconduct by the prosecutor in eliciting testimony from Bullis that her attorney told her she was eligible for diversion because she had a clean record, after the district court granted appellant’s motion in limine to preclude admission of this evidence.  But at trial, the court decided to allow evidence of the diversion program and admitted Bullis’s application for the diversion program, which showed both her clean record and evidence that the diversion agreement required her to testify against appellant.  Appellant does not challenge admission of the application on appeal and only raised a foundation objection to the questioning that ultimately elicited brief testimony from Bullis that her attorney said she qualified for the program because she had a clean record.  We conclude that by failing to raise the proper objection or request a curative instruction or that the testimony be stricken, appellant has waived this issue on appeal.  “An objection must be specific as to the grounds for challenge.”  State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993) (objection on grounds of legal conclusion did not alert trial court to hearsay and confrontation-clause issues), review denied (Minn. Oct. 19, 2003).  This court has previously held that a defendant does not preserve an objection for appeal if he objected at trial based on different grounds than those argued on appeal.  Id. at 376.  Appellant’s counsel never specified the grounds for his objection to the prosecutor’s question.  The failure to properly object or to request a curative instruction weighs against reversal.  State v. Taylor, 650 N.W.2d 190, 208 (Minn. 2002).

            Appellant next argues that the prosecutor committed misconduct in her closing argument by inflaming the jury’s emotions, offering personal opinion on witness credibility, and improperly belittling the defense’s case.  Again, there was no objection at trial except an unspecified objection when the prosecutor referred to the jury having heard a “song and dance” from the defense, which are the statements that appellant argues belittled her defense.  We conclude that appellant has waived appeal on these comments, but note that our review of the record demonstrates that each of the claims is without merit because the prosecutor did not give a personal opinion of anyone’s credibility and the “song and dance” comment was not the type of comment that has been found to be objectionably belittling of a defense.

III.       Sufficiency of evidence

            Appellant also contends that the evidence is insufficient to support her conviction.  In considering a claim of insufficient evidence, this court’s review is limited to an examination of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to allow the jurors to reach the verdict that they did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  It is the exclusive role of the jury to determine the weight and credibility of witness testimony.  State v. Folkers, 581 N.W.2d 321, 327 (Minn. 1998).  In considering an appeal based on insufficiency of the evidence, this court must assume that the jury believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  Review is “limited to ascertaining whether, given the facts in the record and the legitimate inferences that can be drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.”  State v. Merrill, 274 N.W.2d 99, 101 (Minn. 1978).

            Specifically, appellant alleges that the identification by the Woodbury Home Depot cashier was not credible because it was the product of a “show-up” procedure from 20 feet away, and because the witness first described appellant as having pockmarks, which appellant denies she has.  But appellant’s attorney cross-examined the witness extensively and argued the unreliability of the identification in closing.  Assessing witness credibility is the exclusive function of the jury.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  Based on the record, the evidence is sufficient to support appellant’s conviction of the offense committed at the Woodbury Home Depot.

            Appellant also argues that there was not sufficient corroboration of accomplice Bullis’s testimony to support her conviction for aiding and abetting offering a forged check at Norwest Bank in Woodbury on February 10.  Accomplice evidence must be corroborated by circumstantial or direct evidence, sufficient to link or connect a defendant to a crime.  Minn. Stat. § 634.04 (2002); State v. Ford, 539 N.W.2d 214, 225 (Minn. 1995).  Corroborating evidence may come from the defendant’s association with those involved in the crime, as well as the defendant’s own behavior.  Id.  Corroboration is sufficient if the defendant’s connection to the crime may be fairly inferred from those circumstances.  Id.  When evaluating the sufficiency of corroborating an accomplice’s testimony, this court views the evidence in the light most favorable to the state, with all conflicts resolved in favor of the verdict.  State v. Lundberg, 575 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. May 20, 1998).  Appellant’s presence in the car during the incident, the fact that she passed a forged check two days earlier, and her lies to the police, all corroborate Bullis’s testimony.  State v. Miller, 396 N.W.2d 903, 905 (Minn. App. 1986) (holding that defendant’s initial lie to police, among other things, corroborated accomplice testimony); State v. Henderson, 394 N.W.2d 561, 563 (Minn. App. 1986), (stating Spreigl evidence corroborated accomplice testimony), review denied (Minn. Dec. 17, 1986).  We conclude that there was sufficient corroboration of accomplice testimony to support appellant’s conviction.

            Affirmed in part and remanded.   


* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.