This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Michael Dean Cramer,
Filed July 26, 2005
Stearns County District Court
File No. K8-03-660
Mike Hatch, Attorney General,
Janelle P. Kendall, Stearns County Attorney, Lotte R. Hansen, Assistant County Attorney, Rm. 448, 705 Courthouse Square, St. Cloud, MN 56303-4701 (for respondent)
Michael Dean Cramer,
Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Michael Cramer raises seven issues in this appeal from his conviction and sentence for first-degree refusal to submit to a chemical test. We conclude that the district court did not err in determining that Cramer’s wife consented to police officers entering the residence, Cramer’s right to counsel was vindicated, and the jury’s access to an exhibit that was not admitted into evidence constituted harmless error. We also reject Cramer’s claims that police officers did not have probable cause to arrest him, the prosecutor committed misconduct, the evidence was insufficient to support his conviction, and his counsel was ineffective. We therefore affirm.
F A C T S
the early morning of February 14, 2003, a driver in
Upon answering the door, Cramer’s wife told the officers that her husband had been driving the Jeep and had recently returned home. The officers told her that they needed to speak with Cramer and that she needed to wake him up. According to her testimony, when she turned toward the inside of the residence, she heard one of the officers say, “We will need to come in,” and she did not stop them. Both officers testified that Cramer’s wife permitted their entry, and one officer testified that Cramer’s wife affirmatively answered, “Sure,” when asked if the officers could enter the residence.
The officers then talked with Cramer who confirmed that he had been driving the Jeep and said that he had been drinking beer after coming home. Both officers observed that Cramer smelled like alcohol, was unsteady while standing, had bloodshot and watery eyes, and spoke with slightly slurred speech. The officers further observed that Cramer could not successfully perform field sobriety tests. The officers arrested Cramer for driving while impaired. After providing Cramer with access to a telephone and telephone directory and reading Cramer the implied-consent advisory, an officer asked Cramer if he would take a breath test, and Cramer refused.
Following a four-day trial, a jury found Cramer guilty of one count of first-degree driving while impaired and one count of first-degree refusal to submit to a chemical test. The district court later vacated the driving-while-impaired conviction after discovering that the jury had been given access to a 911-call transcript that had not been admitted into evidence. Cramer appeals, challenging the (1) determination that his wife consented to police officers entering the residence, (2) determination that probable cause existed to arrest him, (3) determination that his right to counsel was vindicated, (4) prosecutor’s conduct during closing argument, (5) sufficiency of the evidence, (6) jury’s access to the 911-call transcript, and (7) effectiveness of his trial counsel.
D E C I S I O N
a suppression order is challenged, we independently review the facts and
determine, as a matter of law, whether the district court erred in
suppressing—or not suppressing—the evidence.
State v. Othoudt, 482 N.W.2d 218, 221 (
right to be free from “unreasonable searches and seizures” is constitutionally
guaranteed. U.S. Const. amend. IV;
One officer testified that Cramer’s wife affirmatively
gave permission to enter the residence.
The district court found that Cramer’s wife’s testimony did not credibly
rebut the officer’s testimony. See
contends that police officers did not have probable
cause to arrest him or to require that he submit to a chemical test. Cramer did not raise this issue in the
district court, and we therefore decline to consider it on appeal. See Roby v.
State, 547 N.W.2d 354, 357
if we extended review, Cramer’s contention would fail on its merits. The totality of the facts known to the
officers at the time of arrest support a finding of probable cause to arrest. Those facts include the 911 call, tire
tracks, fallen mailboxes, Cramer’s wife’s statements to police, and Cramer’s
behavior when talking to police. See Holm v. Comm’r of Pub. Safety, 416 N.W.2d 473, 475 (
the Minnesota Constitution, a driver has a limited right to consult with an
attorney before deciding whether to submit to chemical testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (
Cramer contends that the district court erred in finding that his right to counsel was vindicated because the implied-consent-advisory form shows that a telephone was made available to Cramer for a brief time, “start[ing]” at 1:42 a.m., “stopp[ing]” at 1:46 a.m., and starting again at 1:58 a.m. At the contested omnibus hearing, a police officer testified that he made a telephone and telephone directory available to Cramer throughout the entire twenty-four-minute period starting at 1:42 a.m. and ending at 2:06 a.m. According to the officer, Cramer immediately attempted to make one or two calls to an attorney and then stopped, telling the officer that he had left a message and was waiting for an attorney to return his call, and then made another call at 1:58 a.m. Telephone access ended at 2:06 a.m.
district court found the officer’s testimony to be credible, and we defer to
that credibility determination. See
Cramer contends that the prosecutor committed prejudicial
misconduct during closing argument. When
assessing a claim of prosecutorial misconduct, we first examine the challenged conduct to determine
whether the prosecutor
erred, and, if error is established, we then determine whether the defendant is
entitled to a new trial. State v.
Ford, 539 N.W.2d 214, 228 (
Cramer first contends that the prosecutor committed prejudicial misconduct by encouraging a conviction based on reference to a Jeep television commercial. But the contested reference goes to the charge of driving while impaired, which was vacated by the district court. The error, if any, was therefore harmless.
Second, Cramer contends that the prosecutor
misstated testimony by stating that “[t]hey [police] have an admission to
driving” and that “[t]hey [police] have an admission to drinking.” These statements were made in the context of discussing
whether police had probable cause to arrest Cramer and therefore to request a
chemical test. According to the trial transcript,
one officer testified that Cramer told him that he had been driving the Jeep and
that he had been drinking beer after returning home. Because a proper closing argument
focuses on the evidence and reasonable inferences drawn from the evidence, State
v. DeWald, 463 N.W.2d 741,
Third, Cramer contends that the prosecutor misstated testimony by saying that the 911 caller provided very good detail, including a description of the Jeep as a mid-1990’s model. This statement was also made in the context of discussing whether police had probable cause to arrest. As Cramer contends, this statement was not an accurate account of the evidence; the officers testified to the 911 caller describing a white Jeep Cherokee, but not that the Jeep was a mid-1990’s model. Even so, given Cramer’s failure to object, and the district court’s instruction to disregard any statement by the attorneys that differs from the jury’s recollection of the evidence, the error is harmless.
Fourth, Cramer contends that the prosecutor
misstated the burden of proof. In
discussing whether police had probable cause to arrest Cramer, the prosecutor
used the language “more probable than not” to describe what probable cause
cause, in the context of driving while impaired,
means that it was more likely
than not that the defendant
drove, operated, or was in physical control of a motor vehicle while under the
influence of alcohol. State v. Johnson, 672 N.W.2d 235, 242
(Minn. App. 2003), review denied (
Finally, in his fifth challenge, Cramer argues that the prosecutor improperly inflamed the passions of the jury by stating that “sometimes we don’t catch them before they get home” and “this is as good as it gets when you don’t catch them driving.” Because the evidence at trial established that police officers did not witness Cramer driving the Jeep but found him after he had returned home, the prosecutor’s statements, to the extent they refer to Cramer, do not amount to error. And, even if they do amount to error, these statements were made sporadically throughout the prosecutor’s closing argument and Cramer consistently did not object. We conclude that any error was harmless.
next contends that the evidence was insufficient to support the jury’s
verdict. When sufficiency of the
evidence is challenged, we examine the evidence as a whole to
determine whether it was sufficient to support the conviction. State v. Webb, 440 N.W.2d 426, 430
The elements of refusal to submit to testing include (1) probable cause to arrest for driving while impaired, (2) a request by a police officer to submit to a chemical test, and (3) refusal to submit to the requested chemical test. 10A Minnesota Practice, CRIMJIG 29.28 (1999); see Minn. Stat. §§ 169A.20, subd. 2 (2002) (stating that refusal to submit to test is crime), .52, subd. 3 (2002) (providing necessary elements for refusal to submit to test).
The record supports the determination that police had probable cause to arrest Cramer and therefore to require a chemical test. At trial, a police officer testified that after reading Cramer the implied-consent advisory the officer asked Cramer, “Will you take the breath test?” He then testified that Cramer responded, “No, I will not,” and Cramer testified to saying “[s]omething to that effect.” Considering this record, the evidence was sufficient to permit the jury to convict Cramer of refusing to submit to a chemical test.
During jury deliberations the district court learned that a transcript of the 911 call had been provided to the jury even though the transcript had not been submitted into evidence. According to the district court, the court asked the jury how it came to its verdict, and the jury explained that they used the 911-call transcript to establish a timeline to ascertain whether Cramer could have committed the alleged crime of driving while impaired. The district court then vacated the driving-while-impaired conviction. Cramer contends that the district court erred in concluding that the 911-call transcript did not substantially affect the jury’s verdict on the test-refusal conviction.
though the jury’s use of the 911-call transcript amounts to error, the error is harmless if there is no reasonable possibility that
the wrongfully admitted evidence significantly affected the
verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (
Officers testified at trial to what they knew about the 911 call at the time of arresting Cramer. The totality of the facts known to police at the time of Cramer’s arrest, including what the officers knew about the 911 call, support a finding on the first element of the test-refusal charge—probable cause to arrest. The transcript of the 911 call did not supply the jury with any information on probable cause that police did not otherwise testify to at trial. And the jury heard Cramer’s uncontested testimony that he refused a police officer’s request to submit to a chemical test, satisfying the second and third elements of the offense. Given that the 911-call transcript was merely cumulative to trial testimony on the elements of the test-refusal charge, we conclude that the jury’s verdict was surely unattributable to the error.
Finally, Cramer contends that he did not
receive effective assistance of counsel because counsel did not properly plead
the defense of postdriving medication use and failed to object to photographs not
disclosed prior to the contested omnibus hearing. Minnesota has adopted the two-part
test articulated in Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), for determining whether
grounds exist to grant a new trial based on ineffective assistance of
counsel. State v. Voorhees, 596 N.W.2d 241, 255 (
Contrary to Cramer’s contention, the trial transcript demonstrates that defense counsel did argue the defense of postdriving medication use and put forward testimony supporting that defense. The contested omnibus hearing transcript demonstrates that defense counsel participated in significant discussion with the district court on the photographs and agreed to the court’s instructions that the parties would confer out of court on the issue. Additionally, Cramer’s arguments of ineffective assistance of counsel go to the vacated conviction for driving while impaired. We therefore find no basis for Cramer’s ineffective-assistance-of-counsel claim.