This opinion will be unpublished and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
Filed July 6, 2004
Brown County District Court
File No. K8-02-921
Mike Hatch, Attorney General, NCL Tower, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and
Hugh T. Nierengarten, City Attorney, New Ulm City Attorney’s Office, 11 North Minnesota Street, P.O. Box 214, New Ulm, MN 56073 (for respondent)
John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Wright, Judge.
On October 19, 2002, at approximately 1:10 a.m., Officer Jeremy Brennan of the New Ulm Police Department observed a vehicle traveling south on Broadway Street in New Ulm. The vehicle was driving at a speed of 48 miles per hour in a 35 mile-per-hour zone. Brennan activated his lights and stopped the vehicle. He identified the driver as appellant Jason Edward Stiernagle. Brennan smelled an odor of alcohol coming from appellant’s breath and asked appellant for his insurance information. As appellant searched for his insurance documents, he knocked his cigarette ashes “all over.” Brennan asked appellant if he had been drinking, and appellant told Brennan “he had a couple of drinks.” Brennan then performed three field sobriety tests; the horizontal-gaze nystagmus test, the one-legged-stand test, and the walk-and-turn test. According to Brennan, appellant failed all three tests. Brennan observed that appellant was unsteady on his feet and had “bloodshot, glassy, [and] watery” eyes. Brennan administered a preliminary breath test that did not conclusively indicate whether appellant’s alcohol concentration was .10 or greater. Brennan arrested appellant on suspicion of driving while intoxicated and placed him inside his squad car.
Brennan transported appellant to the Brown County Jail for further testing. At the jail, appellant told Brennan that, between 11:45 p.m. and 12:45 a.m., he had three rum and cokes. At 1:43 a.m., Brennan began performing breath tests using the Intoxilyzer 5000 testing equipment. Appellant’s first breath sample registered an alcohol concentration reading of .110. The second breath sample was performed four minutes later and registered a reading of .101. The Intoxilyzer’s final report registered appellant’s alcohol-concentration level at .10. The testing was videotaped. The tape was not initially provided in this appeal as part of our record, but it had been admitted at trial. The clerk of the district court subsequently located it and forwarded it to us, and it is part of the appellate record.
Appellant was charged with third-degree driving while under the influence of alcohol and third-degree driving with an alcohol concentration of .10 or more. Brennan testified at appellant’s trial. In addition to testifying about the above events, Brennan testified that he was certified to operate the Intoxilyzer 5000. Brennan acknowledged that an observation period is important to make sure that individuals do not have any foreign objects in their mouths. He stated that the observation period helps eliminate the possibility of alcohol contamination in the mouth. Brennan testified that mouth alcohol dissipates within seconds and the machine would reject the sample if it detected mouth alcohol. He stated that if mouth alcohol were present, the Intoxilyzer 5000 would flash, “invalid sample.” Brennan also testified that if a person regurgitates, that person’s mouth must be cleansed of foreign objects and the observation period restarted.
Brennan testified that he observed appellant for 15 or 20 minutes prior to administering the Intoxilyzer test and did not observe anything that would have affected the test results. He stated that he visually checked appellant’s mouth for foreign objects and asked him if he had anything in his mouth. Brennan testified that he did not observe appellant place anything in his mouth and he did not witness appellant burp or regurgitate. He stated that, although he did not witness appellant burp or regurgitate, he did hear appellant tell him that he had burped. Brennan testified that he complied with all the requirements needed to produce accurate and valid test results. He also testified that, based on appellant’s failure of the field tests, his odor of alcohol, and his bloodshot and glassy eyes, appellant was under the influence of alcohol.
Appellant testified that he did not feel he was under the influence of alcohol when Brennan stopped him. He stated that he did not feel any effects of the alcohol he consumed and was not stressed out. According to appellant, he and two of his friends were planning to have more drinks at his house, watch a movie, and eat pizza. Appellant felt he was not beyond the legal limit of alcohol concentration, despite the Intoxilyzer’s contrary readings. He stated that he was not legally intoxicated because, according to a formula he had been taught, he was able to have three drinks within an hour and a half without reaching the legal limit. Appellant testified that he was diagnosed with acid reflux condition after the October 19, 2002 incident. He stated that he took medicine for the condition until his insurance expired. Appellant testified that he burped and/or regurgitated during the Intoxilyzer test. He described the burp as air staying in his throat for a period of time and then suddenly coming up the back of his nose with a burning sensation. According to appellant, his stomach acid worked its way through the esophagus and into his mouth.
At appellant’s request, the district court reviewed the Intoxilyzer 5000’s manual to determine whether it contained any relevant information and whether it would permit the defense to question Brennan about the observation period or contamination of the sample. The relevant part of the manual states:
Mouth alcohol: Alcohol remains in the mouth after ingestion and can be introduced through products such as breath fresheners, cough syrups and medications. The operator must be certain that at least 15 minutes have elapsed to ensure that mouth alcohol has dissipated.
In concluding that questioning of the above portion of the manual would be cumulative, the district court stated:
My ruling on the first issue is that because of the current evidence that is in the record and because of the absence of anything clearly in deference to the training of the officer regarding the observation period or the mouth issue, I am not going to allow further examination of the officer on that topic or attempt to impeach with the manual, so to speak.
The court did not permit appellant’s attorney to question Brennan about the manual because it reasoned that Brennan previously testified to it.
During the state’s closing, the prosecutor argued that there was no evidence before the jury indicating that the test results were inaccurate. He also argued that there was no expert testimony to suggest anything appellant did interfered with the test. The jury convicted appellant of third-degree driving while under the influence of alcohol and third-degree driving with an alcohol concentration of .10 or more. The district court sentenced appellant to one year in jail and stayed all but 60 days of the sentence. The court also placed appellant on probation for two years. This appeal follows.
Although the parties do not raise this issue on appeal, appellant’s notice of appeal was filed one day after the expiration of the 90-day appeal period. Minn. R. Crim. P. 28.02, subd. 4(3) provides that:
[f]or good cause the trial court or a judge of the Court of Appeals may, before or after the time for appeal has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed herein for appeal.
Appellant was sentenced on June 25, 2003. The appeal papers were filed and served by mail on September 24, one day late. Because we are authorized to extend the appeal period for 30 days and there is no evidence that respondent was prejudiced, we will grant an extension and accept the appeal.
As a preliminary issues, the state argues that because appellant failed to serve the notice of appeal on the New Ulm City Attorney’s Office as the “prosecuting attorney” until after the expiration of the 90-day appeal period, appellant did not perfect his appeal. Minn. R. Crim. P. 28.02, subd. 4(1) states that:
[a]n appeal shall be taken by filing a notice of appeal with the clerk of the appellate courts together with proof of service on the prosecuting attorney, the attorney general for the State of Minnesota, and the clerk of the trial court in which the judgment or order appealed from is entered.
However, “[f]ailure of the defendant to take any other steps than timely filing the notice of appeal does not affect the validity of the appeal.” Id. (emphasis added). Here, appellant served a timely notice of appeal on the Brown County Attorney’s Office, but failed to serve the New Ulm City Attorney’s Office until six days after the appeal deadline. Because the main concern is the timely filing of the notice of appeal to this court, appellant’s failure to timely serve the New Ulm City Attorney’s Office does not affect the validity of this appeal.
2. Evidentiary Ruling
Generally, evidentiary rulings lie within the discretion of the district court, and will not be reversed absent a clear abuse of discretion. State v. Willis, 559 N.W.2d 693, 698 (Minn. 1997). Even when a defendant alleges a violation of his constitutional rights, evidentiary rulings are reviewed under an abuse-of-discretion standard. State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999). “[E]very criminal defendant has the right to be treated with fundamental fairness and afforded a meaningful opportunity to present a complete defense.” State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)). But this right is not without limits and precludes a defendant from introducing irrelevant or otherwise inadmissible evidence. State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996).
Appellant argues that the district court violated his constitutional rights by impermissibly limiting the scope of Brennan’s cross-examination. He argues that the court denied his right to a fair trial and his right to confrontation by prohibiting his attorney from questioning Brennan about the contents of the Intoxilyzer manual, which would have impeached the reliability of the Intoxilyzer test.
The United States and Minnesota Constitutions provide criminal defendants with the right to a fair trial. U.S. Const. amend. VI; Minn. Const. art. I, § 6. A criminal defendant also has a right to confront the witnesses against him. Minn. Const. art. 1, § 6. The essence of the right to confrontation is the opportunity to cross-examine opposing witnesses. State v. Greer, 635 N.W.2d 82, 89 (Minn. 2001). The United States Supreme Court recently emphasized this notion in the context of testimonial hearsay statements. Crawford v. Washington, 124 S.Ct. 1354 (2004). The Crawford Court held that a defendant’s right to confrontation precluded the admission of testimonial hearsay statements unless the declarant was unavailable and the defendant had a prior opportunity to cross-examine the declarant. Id. at 1374.
However, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435 (1986); see also Hamling v. United States, 418 U.S. 87, 127, 94 S.Ct. 2887, 2912-13 (1974) (holding that district courts have considerable latitude to reject cumulative evidence). Further, district courts possess wide latitude to impose reasonable limits on the cross-examination of a prosecution witness. State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995).
Minn. R. Evid. 403 states that:
[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Here, the district court limited the scope of Brennan’s cross-examination because it found that questioning Brennan about the Intoxilyzer 5000 manual would be cumulative. Brennan testified that mouth alcohol dissipates within a matter of seconds and that the Intoxilyzer 5000 would reject the sample if it detected mouth alcohol, requiring the start of a new observation period. Appellant argues that, because the manual states that the “operator must be certain that at least 15 minutes have elapsed to ensure that mouth alcohol has dissipated,” cross-examination from the manual would have impeached the officer’s testimony that mouth alcohol takes just seconds to dissipate. The district court ruled that further questioning Brennan about the manual would have been just cumulative evidence. Brennan previously testified that the testing procedures concerning contamination were not followed because he did not witness appellant burp and/or regurgitate.
This is a close question, and, generally, trial errors are not made by allowing a criminal defendant substantial leeway on cross-examination. The errors are made when the constitutional right to cross-examination is impinged on. Having said that, we note that appellant’s attorney was only prohibited from asking further questions about the Intoxilyzer 5000 manual. His attorney was permitted to question Brennan about the Intoxilyzer test. Appellant’s attorney was allowed to question Brennan about how the machine works and how he administered the test to appellant. His attorney was able to cross-examine Brennan about his training and certification concerning the Intoxilyzer 5000. Appellant’s attorney was also allowed to ask Brennan if he used a manual during his training of the Intoxilyzer 5000. His attorney then specifically questioned Brennan about the observation period and why it is important. Appellant’s attorney also asked Brennan about the procedures involved in administering the test when a person burps or regurgitates during testing. Furthermore, in his closing argument, defense counsel was allowed to argue that appellant’s acid reflux (through appellant’s burping and regurgitation) affected the test results and that the Intoxilyzer 5000 would not necessarily invalidate a sample if it detected mouth alcohol. We conclude that appellant was not impermissibly limited in his opportunity to cross-examine the state’s witnesses on relevant issues.
B. Harmless Error
Appellant argues the district court’s decision to limit the scope of Brennan’s cross-examination by refusing to allow questioning about the Intoxilyzer manual was prejudicial error. If the district court has erred in excluding defense evidence, the error is harmless only if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.” State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted). The “correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” State v. Pride, 528 N.W.2d 862, 867 (Minn. 1995) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436 (1986)). The factors to consider in assessing the harm are the extent of the cross-examination otherwise allowed, the importance of the witness’s testimony to the prosecution’s case, whether the testimony was cumulative, the presence or absence of corroborating or conflicting testimony on material points, and the overall strength of the prosecution’s case. Id.
As stated before, the district court allowed appellant to argue that his acid reflux affected the Intoxilyzer’s test results. Appellant was also permitted to question Brennan about the testing procedures regarding contamination. Brennan testified that he did not follow the procedures concerning contamination because he did not observe appellant burp or regurgitate. Appellant failed to provide any evidence, other than his own testimony, that he burped and/or regurgitated and, thus the direct results could have been affected. We conclude that even if the district court erred by preventing defense counsel from questioning Brennan about the contents of the Intoxilyzer manual, the error was harmless beyond a reasonable doubt.
Appellant also argues that the district court’s ruling prevented him from presenting evidence that the Intoxilyzer test was unreliable, which would have rebutted the state’s prima facie showing. The state argues that it satisfied its burden and appellant failed to rebut it.
The state has the burden of establishing that the test is reliable and that the administration of the test conformed to the procedure necessary to ensure its reliability. State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977). While the proponent of the test cannot absolutely eliminate the possibilities of contamination, the proponent must show steps were taken which were reasonably aimed at eliminating contamination. Tate v. Comm’r of Pub. Safety, 356 N.W.2d 766, 768 (Minn. App. 1984). A slight interruption of the observation period or a less-than-perfect observation does not invalidate the test unless the driver has ingested or regurgitated a substance that affects the results. Melin v. Comm’r of Pub. Safety, 384 N.W.2d 474, 476 (Minn. App. 1986). A prima facie case is established by showing that a certified Intoxilyzer operator conducted the test and that the instrument was operating properly. See State, Dep’t of Pub. Safety v. Habisch, 313 N.W.2d 13, 15 (Minn. 1981).
Brennan testified that he is a certified operator of the Intoxilyzer 5000 and has been trained to interpret Intoxilyzer test results. He stated that he performed “one adequate breath-sample analysis, one calibration standard analysis, and a second, adequate breath-sample analysis,” as required by Minn. Stat. § 169A.51, subd. 5 (2002). Further, Brennan testified that he observed appellant for 15 to 20 minutes before administering the Intoxilyzer test. He stated that he understood that the observation period is important to ensure that, prior to the test, the suspect does not place anything into his mouth or regurgitate. Brennan checked appellant’s mouth prior to the test and testified that appellant did not place anything in his mouth. Brennan also did not see him burp or regurgitate at this time. Brennan followed proper testing procedures, and the Intoxilyzer 5000 indicated that it received adequate samples. We conclude the state met its burden of proving that the test was reliable. Having established the prima facie reliability of the test results, the state shifted to appellant the burden of showing that the test results were untrustworthy.
Once the state establishes the reliability of the test, the driver must produce evidence suggesting why the test was untrustworthy. Noren v. Comm’r of Pub. Safety, 363 N.W.2d 315, 317 (Minn. App. 1985). The duty to produce the evidence of contamination through burping or belching, which are often concealed and difficult to detect, is properly placed on the driver. Scheper v. Comm’r of Pub. Safety, 380 N.W.2d 222, 224 (Minn. App. 1986). Mere speculation that some contamination might have occurred is insufficient. Bielejeski v. Comm’r of Pub. Safety, 351 N.W.2d 664, 666 (Minn. App. 1984). For example, the defendant can rebut this evidence by presenting evidence that the observation period was interrupted by the driver regurgitating a substance that affects the results. See e.g., id.
Finally, appellant did not offer any evidence suggesting that the instrument failed to receive adequate breath samples or accepted those that it received despite alcohol contamination. Appellant’s contention that his claimed burping affected the test results is speculation. We conclude appellant was given a reasonable chance to rebut the state’s prima facie case of test reliability.
4. Adequacy of Record
Appellant argues that the videotape shown to the jury establishes that appellant was not intoxicated and that the Intoxilyzer equipment erred. On appeal, appellant has the burden of providing an adequate record comprised of papers filed in the district court, the exhibits, and the transcripts of the proceedings. Minn. R. Civ. App. P. 110.01, 110.02, sub. 1; Minn. R. Crim. P. 28.02, subds. 8 and 9; State v. Anderson, 351 N.W.2d 1, 2 (Minn. 1984).
The videotape of Brennan testing appellant with the Intoxilyzer 5000 test was not initially provided to this court. Since the record disclosed that the videotape was a part of the district court record, the clerk of the district court was asked to look further for it and forward it to us when found. It did, and we reviewed the tape.
Appellant asserts that the videotape “proves” that he was: “walking with a steady gait”; “speaking clearly”; “cooperative, patient and polite”; and was “looking and behaving sober.” Thus, appellant argues that the videotape proves the Intoxilyzer readings of .11 and .10 were erroneous. Our examination of the videotape leads us to the conclusion that the videotape “proves” nothing more than that the factual inferences to be drawn from it are for the fact-finder, here a jury. We cannot conclude that the jury verdict was “manifestly and palpably contrary to the evidence.” State v. Houge, 280 Minn. 372, 376, 297 N.W.2d 265, 267 (Minn. 1968).