This opinion will be unpublished and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
State of Minnesota,
Edwin Albert Dlugopolski,
Filed July 6, 2004
Swift County District Court
File No. K2-03-51
John Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Robin Finke, Swift County Attorney, 114 - 14th Street North, Benson, MN 56215; and
Mike Hatch, Attorney General, Jerilyn A. Hanold, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Wright, 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 felony driving while impaired, appellant argues: (1) the prosecutor committed prejudicial misconduct by eliciting improper impeachment evidence during cross-examination, and misusing the improper impeachment evidence in her closing argument; (2) he was denied effective assistance of counsel by his attorney’s failure to object to the misconduct; and (3) the trial court committed plain error in failing to intervene, even without defense objection. Because we conclude that the cumulative effect of prosecutorial misconduct and trial error denied appellant his right to a fair trial, we reverse and remand for a new trial.
December 11, 2002, Officer Mitchell Osland noticed a red Grand Am parked at a
convenience store. Osland recognized
the vehicle as belonging to Charlene Dlugopolski, the wife of appellant Edwin
Dlugopolski. Believing that appellant
did not have a driver’s license, Osland contacted the Sheriff’s office to
confirm his suspicion. Osland was told
that appellant did in fact not have a driver’s license, so Osland decided to
stay in the vicinity to see if appellant would drive the vehicle. Shortly thereafter, appellant passed Osland
driving the Grand Am. Osland initiated
a standard procedure traffic stop and requested to see appellant’s driver’s
license. Appellant informed Osland that
he did not have one and
neither appellant nor his wife could provide proof of insurance. Osland then placed appellant under arrest for driving after cancellation.
During the course of the traffic stop and arrest, Osland noticed that appellant had slurred speech, stumbled when walking, and weaved his body while he stood. Osland also noticed that appellant’s eyes were bloodshot and that he smelled of alcohol. A pat-search further revealed a prescription bottle containing one pill located on appellant’s person. The outside of the bottle stated that the pill was OxyContin.
After appellant was arrested, he was transported to the law enforcement center. The Grand Am was towed to a body shop, where an inventory search was conducted. The search revealed a prescription receipt in appellant’s name, a prescription bottle for appellant’s wife that contained a clear liquid, a metal pipe, and a blue pill. The pipe contained a “blackish and greenish flaky substance.” Various tools were also discovered in the vehicle.
Upon his arrival at the law enforcement center, appellant submitted to an Intoxilyzer test. Because the Intoxilyzer test revealed a blood-alcohol content of only .01, Osland believed appellant was under the influence of a controlled substance rather than alcohol. Osland had previously contacted Trooper Jeffrey Sharp, a drug recognition expert, to assist with the evaluation of appellant’s condition, and Sharp proceeded to administer a drug evaluation. Sharp observed that appellant was hunched over in his chair, had messy hair, and displayed ptosis, which is “very droopy eyelids.” Sharp also noticed that appellant’s eyes were watery and bloodshot and that appellant’s speech was slurred. In response to questions concerning his medical history, appellant acknowledged that he was under a physician’s care for headaches and stress, and that he had been taking painkillers, OxyContin, and another headache medication. Appellant admitted that he had taken four of his OxyContin pills that day even though his daily dosage was only two pills. Appellant also claimed that he had taken two pills immediately after Osland stopped him.
As part of his evaluation of appellant’s condition, Sharp administered a series of tests. Although appellant passed the horizontal gaze nystagmus test, appellant displayed the “convergence symptom,” which is supposedly consistent with opiate or analgesic use. Appellant also stumbled during walking tests and failed the psychological tests by swaying when he should have been standing still. In addition, appellant had difficulty with the one-legged stand and had trouble touching his nose. Finally, appellant’s muscles were “flaccid or kind of jelly like,” and his pupils were constricted below the normal range, which are also symptoms consistent with narcotic analgesic use. Based upon his (the above) evaluations, Sharp concluded that appellant was under the influence of narcotic analgesic and that he was unable to safely operate a motor vehicle.
After the evaluation was completed, appellant was given an Alcohol Implied Consent Advisory. Appellant agreed to provide a urine sample, which revealed that Hydrocodone, Oxycodone, and Oxymorphone were present in appellant’s system. These substances are all considered Schedule II controlled substances. Appellant was subsequently charged with driving while impaired (DWI) pursuant to Minn. Stat. § 169A.20, subd. 1 (2002).
At trial, both appellant and his wife testified in his defense. Appellant testified that he had a prescription for OxyContin and he was taking the drug for pain caused by an aneurysm. Appellant conceded that he was under the influence of narcotic analgesic, but appellant claimed he was not under the influence at the time he was driving. Appellant asserted that he had taken one or two pills early in the morning when he woke up with a headache, and he took two more pills when he saw the squad car’s lights behind him. Appellant’s wife also testified that she saw appellant take the pills, but she was not sure whether he had taken one or two pills.
During cross-examination of appellant, the state asked him about a pending charge against him in Wright County for forging OxyContin prescriptions and whether he was addicted to OxyContin. The state also inquired as to whether appellant had made a report to jail personnel regarding a piece of sharp glass in his soup that had allegedly cut his mouth. Appellant admitted making the report and insisted on its veracity. In response to appellant’s testimony regarding the “soup” report, the state called Tony Grussing, an inmate at the county jail. Grussing testified that he watched appellant take a piece of glass and cut his gum with it. Grussing testified further that appellant claimed he was going to make the report to “hold it over Swift County’s head.”
Officer Sharp testified for the state. Sharp stated that he observed needle marks on appellant’s arms, and opined that OxyContin is commonly injected as a way of “abusing the drug.” Sharp also opined that the bottle of water found in the Grand Am is “something we commonly see to people that inject drugs. The water is used in a spoon or other type of a source to dilute the substance when it’s heated up or mixed up to be drawn into a syringe.” Although Sharp admitted that none of the needle marks were fresher than a week old, the state speculated during closing arguments that appellant was “shooting up” OxyContin because “the only way drugs can hit you fast is if you inject ‘em.”
The jury found appellant guilty of two counts of DWI in violation of Minn. Stat. § 169A.20, subds. 1(2) and (7). Appellant was sentenced to 48 months in prison. The sentence was stayed on the condition that appellant serve 180 days in the county jail and 185 days on electronic home monitoring over the course of four years. This appeal followed.
D E C I S I O N
Appellate courts reviewing claims of prosecutorial misconduct “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). There are two distinct standards for prosecutorial misconduct; serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while for less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. (quoting State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)). “If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review.” Id.
Here, appellant argues that he was deprived of his right to a fair trial because the prosecutor committed prejudicial misconduct by impeaching him on cross-examination with: (1) a pending charge in another county for forging an OxyContin prescription; (2) an incident at the county jail; and (3) improper questions concerning appellant’s alleged drug addiction and allegations of him “shooting up.” Appellant further contends that the prosecutor misused the improper impeachment evidence in her closing argument.
A prosecutor may not seek a conviction at any price. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993). A “prosecutor must avoid inflaming the jury’s passions and prejudices against the defendant,” State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995), or otherwise seek to distract the jury from its proper role of deciding whether the state has met its burden. See Salitros, 499 N.W.2d at 819. We “will pay special attention to statements that may inflame or prejudice the jury where credibility is a central issue.” Porter, 526 N.W.2d at 363.
1. Pending Charge
Under Minn. R. Evid. 404(b), evidence of other crimes or bad acts is not admissible to prove character of a person in order to show action in conformity therewith. It, narrowly, may be admissible for other purposes, such as proof of motive, opportunity, intent, and absence of mistake. Minn. R. Evid. 609 governs the admission of evidence of prior convictions to impeach the credibility of a witness, including a criminal defendant testifying in his own behalf. Prior convictions are regularly used to impeach a witness on cross-examination. That is settled law. But, Rule 609 and Rule 404(b) preclude the introduction of pending charges to impeach. State v. Hathaway, 379 N.W.2d 498, 506 (Minn. 1985). The state argues that appellant opened the door to cross-examination on his pending forgery charges by testifying that he does not abuse OxyContin. Thus, the state contends that under Rule 608(b), it was permissible to attack appellant’s credibility with the pending charges.
We disagree. Trooper Sharp and Officer testified that the needle marks in appellant’s arms, the items discovered in his car, and appellant’s condition at the time of his arrest, tend to be consistent with somebody injecting drugs into their system. Sharp testified that OxyContin is commonly injected as a way of abusing the drug. After the state rested, appellant then took the stand in his defense. Appellant testified that he took two OxyContin pills when he was pulled over by Officer Osland. On direct examination, appellant did not testify that he abused or was addicted to OxyContin, and did not go into his history of the drug other than to give his version of what had happened that day. On cross-examination, the prosecutor asked appellant if he was addicted to OxyContin. Appellant attempted to deny the accusation, and then the prosecutor brought up the pending charge in Wright County for forging an OxyContin prescription.
Although apparently unobjected to, the prosecutor’s questions to appellant about addiction were improper. The state cannot argue “opening the door” to justify impermissible testimony when they initiated the impermissible testimony and then appellant simply tried to respond. This “non-issue” tainted the whole trial. Appellant’s wife simply corroborated appellant’s story that he took two OxyContin pills at the time he was pulled over. The state’s entering of the evidence of a pending charge for forging an OxyContin prescription in another county was improper and was clear and substantial error.
B. Jail incident
Appellant also contends that he was improperly cross-examined about an incident in which he reported to jail personnel that a piece of sharp glass in his soup cut his mouth. Under rule 608(b) the district court may allow cross-examination about a specific instance of conduct “if probative of truthfulness or untruthfulness.” Minn. R. Evid. 608 (b). Whether the report was false is probative of truthfulness or untruthfulness. See State v. Gress, 250 Minn. 337, 343, 84 N.W.2d 616, 621 (1957) (stating that a defendant, as a witness, is generally subject to impeachment).
But, specific conduct “may not be proved by extrinsic evidence.” Minn. R. Evid. 608(b). After appellant testified, the state called a rebuttal witness to discredit appellant’s claim that he cut his mouth on glass found in his soup. Although there is no evidence in the record that appellant objected to the questions or the admission of Grussing’s testimony, this extrinsic evidence should not have been admitted and the state concedes that the collateral verification by the inmate and of the cut glass was improper.
C. Evidence of addiction and “shooting up”
Appellant further contends that the prosecution improperly elicited evidence about appellant’s alleged drug addiction and allegations of him “shooting up.” Without formally addressing the admissibility of this testimony, we are reversing on other grounds. We remind prosecutors to prepare their witnesses and instruct them to answer the question that was asked. Here, the witnesses rambled on-and-on, specifically about facts not admitted into evidence and apparently purposefully denigrating appellant‘s character.
D. Closing argument
Finally, appellant argues that the prosecutor committed prosecutorial misconduct during closing arguments by shifting the burden of proof to the defense, relying on inadmissible evidence of appellant’s prior bad acts, and injecting her personal opinion regarding the evidence and veracity of the state’s witnesses. Appellant failed to object during closing arguments. A defendant who fails to object or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). Nonetheless, we may reverse a conviction despite the defendant’s failure to object or seek a curative instruction if the prosecutor’s remarks were unduly prejudicial. State v Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). In reviewing the statements made by the prosecution, this court must examine the closing argument as a whole. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).
During her opening remarks, counsel for appellant used a “tapestry” theme to depict the burden of proof. The state picked up on this “tapestry” theme during closing remarks and stated that: “It’s the job of the defense to make that tapestry unravel, and it’s clear that the defense did not do that for several reasons.” The prosecutor also pointed out that appellant claimed that he took one or two OxyContin pills when he was pulled over, but there was no testimony presented as to how fast OxyContin metabolizes in a person’s system. The prosecutor further mentioned that: “there’s been evidence that this defendant probably does inject drugs into his veins.” Finally, the prosecutor vouched for her witnesses by stating that: “the evidence that the officers gave was straight-forward, and they really have no reason not to tell the truth;” and attacked appellant’s veracity by stating that: “the defendant on the other hand, has a little truth problem.”
The state concedes that “the prosecution’s closing was admittedly inartful at times.” We agree with the state. A defense counsel’s failure to object during closing arguments implies that the comments were not prejudicial. Whittaker, 568 N.W.2d at 450. Because appellant failed to timely object, he carries a heavy burden to establish that he was “unduly prejudiced” by the misconduct. Id.
Here, counsel for appellant responded to the prosecutor’s “tapestry” comments by stating that the defense does not have to show that the tapestry unraveled, but rather the job of finding a defendant guilty beyond a reasonable doubt is a burden placed entirely upon the state. Also, the district court instructed the jury on the presumption of innocence and the state’s burden of proof beyond a reasonable doubt before opening statements and after closing arguments. Both the state and counsel for appellant emphasized the proper burden in both their opening and closing remarks. Accordingly, we conclude that notwithstanding the problems with the prosecutor’s closing arguments, a new trial is not warranted solely on the basis of misconduct committed in the state’s closing remarks.
Although the questionable conduct in the state’s closing, and the evidence concerning the incident at the county jail standing alone might have passed muster, when coupled with the improper testimony about a pending charge, we cannot say that any error was harmless beyond a reasonable doubt. It is the province of the jury to judge the credibility of the witness. State v. Pippitt, 645 N.W.2d 87, 92 (Minn. 2002). Most certainly, with the charges against appellant, the jury’s knowledge about the pending drug charges in another county would adversely affect appellant’s credibility and believability. The admission of the pending charges was then exacerbated by the prosecutor’s closing arguments and the admission of the extrinsic evidence used to discredit appellant’s claim that he cut his mouth on glass found in his soup.
We conclude that the cumulative effect of prosecutorial misconduct and trial error denied appellant his right to a fair trial. See State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979).
Because appellant is entitled to a new trial, we decline to address appellant’s other arguments.
 Appellant was pulled over at approximately 8:00 p.m.
 Minn. R. 608(b) provides that:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction for a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
 There is not much more in a criminal case that is a “non-issue” and that is off limits than some pending charge. Had the state attempted to admit the pending charge as Spreigl evidence, our analysis would be different. But the state did not attempt to do so and, therefore, a Spreigl analysis is unnecessary.
 The record does not disclose that appellant initiated favorable character testimony about himself and his drug use. Appellant’s wife actually testified that she was not sure if appellant took one or two OxyContin pills.
 We note that we are becoming increasingly concerned about criminal appeals based on unobjected to closing arguments by the state. We remind the defense bar, “if you do not like something in the state’s closing argument, object to it!”