This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,


Frank Simonis Goulet,


Filed August 17, 2004


Minge, Judge


Itasca County District Court

File No. K1-02-1458



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


John J. Muhar, Itasca County Attorney, David S. Schmit, Assistant County Attorney, 123 N.E. Fourth Street, Grand Rapids, MN 55744 (for respondent)


John M. Stuart, State Public Defender, Bridget Kearns, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Minge, Presiding Judge; Harten, Judge; and Halbrooks, Judge.


U N P U B L I S H E D  O P I N I O N


MINGE, Judge


            Appellant argues that the district court’s denial of his request to impeach the state’s witness with the witness’s prior felony convictions deprived appellant of his constitutional right to confront the witness.  Because the district court did not abuse its discretion in determining that the impeachment was more prejudicial than probative, we affirm.



            On July 28, 2002, police officers were dispatched to investigate a vehicle that had been driven into a roadside ditch.  Officers discovered skid marks and torn-up gravel on the road, a spilled can of beer and the smell of alcohol in the vehicle, and numerous ruts indicating attempts to drive the vehicle out of the ditch.  The hood of the vehicle was still warm.  A license-plate check revealed appellant Frank Goulet as the owner.  When the officers went to appellant’s home they found a Chevrolet Cavalier with a warm hood in the driveway.  Upon questioning, appellant indicated that he had been consuming alcohol prior to but not after his crash.  Appellant was arrested and after a struggle, taken to the Itasca County Jail and given a breath test, which disclosed a blood alcohol concentration of .18.

Appellant was charged with and convicted of three counts of gross-misdemeanor driving while impaired, one count of misdemeanor open bottle, and one count of gross-misdemeanor obstructing legal process.  At trial, appellant denied drinking before the accident and testified that he had driven his vehicle into the ditch to avoid hitting two deer that ran across the road.  After he and his girlfriend, who had been driving in a separate car behind him, tried unsuccessfully to drive his vehicle out of the ditch, his girlfriend drove him home.  He claimed that he then rode his bike over to a friend’s house where he had a few drinks to celebrate his birthday before riding his bike back home.

Appellant’s girlfriend testified that appellant told her he swerved to miss two deer.  Appellant’s friend testified that appellant arrived at his house around 9:00 p.m., stayed for a couple of hours, and drank beer and tequila.  He testified that he did not know how appellant got to his home but that he did not see any car keys.

            Raymond Olson testified for the state that on July 28 appellant’s vehicle passed him going 10 to 20 miles faster than his own vehicle, was swerving erratically, and nearly struck an oncoming car.  He stated that the vehicle crossed the centerline of the road, hit the shoulder on the left side, and then came back across both lanes before going into the ditch.  Olson stopped to make sure the driver was not injured, saw appellant stagger, and was able to smell alcohol on appellant’s breath.  Olson testified that he then gave appellant a ride home, where he observed a Chevrolet Cavalier running in the driveway.  After briefly stopping at his own house, Olson drove past the ditch again and saw the Chevrolet Cavalier and saw appellant attempting to drive his vehicle out of the ditch.  Olson anonymously called the police to report appellant as a drunk driver.  The sheriff’s department eventually tracked Olson down through his cellular phone records and requested that he give a statement.  At trial, appellant’s counsel sought to impeach Olson with his two prior felonies for arson and theft of a motor vehicle and his two probation violations for underage drinking.  The district court denied the request, finding that the convictions were more prejudicial than probative.



            The only issue in this case is whether the district court deprived appellant of his constitutional right to confront the state’s witness when it prohibited appellant from cross-examining the witness regarding his prior felony convictions.  We review evidentiary rulings, such as decisions to preclude cross-examination of a state’s witness based on the witness’s prior convictions, under an abuse-of-discretion standard.  See State v. Lanz-Terry, 535 N.W.2d 635, 641 (Minn. 1995).

            Minn. R. Evid. 609(a) directly controls when evidence of a prior conviction may be used for impeachment purposes:

(a)  General rule.  For the purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by . . . imprisonment in excess of one year . . . and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.


When determining whether to admit prior convictions of a defendant or a defense witness, the overriding concern is protecting the defendant from unfair prejudice.  Lanz-Terry, 535 N.W.2d at 639.  But when determining whether to admit a prior conviction of a prosecution witness, the overriding concerns are to “protect the witness from being harassed and unduly embarrassed, the jury from being confused and misled, and everyone involved (court, jury, parties) from having to endure an unnecessarily prolonged trial.”  Id.  The district court possesses wide latitude to impose reasonable limits on the cross-examination of prosecution witnesses based on such factors.  Id

            The district court’s discretion to exclude such evidence is limited by the Sixth Amendment, which guarantees the defendant the right to confront the witnesses against him and the opportunity to reveal bias on the part of the witness.  Id. at 640.  Bias includes attitudes, feelings, or emotions of a witness that may affect the witness’s testimony, leading the witness to be more or less favorable to the position of a party than the merits of the case suggest.  Id.  

In determining whether to allow or restrict cross-examination, a distinction must be made between general credibility attacks and attacks designed to reveal bias.  Id.  The introduction of evidence of a prior crime is usually a general attack on the credibility of the witness; a more particularized attack on the witness’s credibility is accomplished by cross-examining the witness on possible biases, prejudices, or ulterior motives relating directly to issues of the case.  Id

Here, Olson’s convictions for arson and theft of a motor vehicle do not reveal bias.  Olson did not know appellant before this incident, and there is no indication that he had a motive to falsely accuse appellant of a crime.  At trial, appellant argued that Olson would be biased in favor of the state simply because he was on probation.  The district court rejected this claim, finding that there were “no facts developed . . . to support such an argument,” that there was “absolutely no basis for it,” and that it was “purely speculation.”   We recognize that an individual’s probationary status can be sufficient grounds to find bias.  See Davis v. Alaska, 415 U.S. 308, 317-18, 94 S. Ct. 1110, 1111 (1974).  But the district court here heard testimony from Olson that the police did not offer him leniency in any future probation violation in exchange for his testimony, and nothing in the record indicates that the police threatened Olson with revocation of his probation.  Further, the present situation can be distinguished from Davis because the concern there was that the probationer-witness identified the defendant in order to avoid implication as a suspect for the same crime.  Id. at 311, 94 S. Ct. at 1108.  There is nothing in the present record to suggest that Olson had any reason to fear that he himself was a suspect in the incident.     

Other than bias, Olson’s prior convictions are relevant only insofar as they relate to his general credibility.  Appellant argues that the convictions are probative of Olson’s credibility because at trial Olson testified that his father was a police officer and that when he called the police on July 28, he used the direct dispatch number rather than 911.  Appellant argues that the jury would infer from this testimony that Olson was an honest and law-abiding citizen and give too much deference to his testimony, and that evidence of his prior convictions would have stripped away the aura of credibility created by the family tie to law enforcement.

Because Olson was a state witness, the district court had the discretion to consider whether such cross-examination would harass and embarrass Olson, confuse and mislead the jury, and result in a prolonged trial.  Here, Olson attempted to remain an anonymous caller because he did not wish to get involved and only reluctantly did he give a statement.  Therefore, informing the jury of his convictions could unduly harass and embarrass him.  Further, his convictions do not bear directly on his honesty and could confuse the jury as to what the underlying issues are in the case.  Given the deference granted to the district court in making such a decision, we conclude that the court did not abuse its discretion.  

Additionally, appellant relies on State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978), where the Minnesota Supreme Court identified five factors that should be considered in determining whether evidence of a prior criminal conviction of the actual defendant should be allowed when the defendant is a witness in his own trial or whether such evidence would have unduly prejudicial effect under Minn. R. Evid. 609.  These factors are: (1) the impeachment value of the prior crime; (2) the date of the conviction and the witness’s subsequent history; (3) the similarity of the past crime with the charged crime; (4) the importance of the witness’s testimony; and (5) the centrality of the credibility issue.   Id

We note that the caselaw applying the Jones factors generally involves impeachment of a defendant as witness in his criminal trial.  See, e.g., State v. Smith, 669 N.W.2d 19, 29 (Minn. 2003).  We also note that the third factor is usually irrelevant when assessing proposed impeachment of a prosecution witness.  Although the factors are embedded in our analysis, the district court considered and the parties addressed them, we do not separately consider them.  In any event, our review of the Jones factors in this case indicates that the district court did not abuse its discretion in deciding to exclude the impeachment testimony.   

Finally, we note that if the district court erred in excluding defense evidence, the error is harmless 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).  Here, there is substantial evidence in the record to corroborate Olson’s testimony, and we conclude that, even had evidence of Olson’s convictions been admitted, the jury would have reached the same result.