This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed August 2, 2005
Redwood County District Court
File No. K2-03-372
Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.
In this appeal from an order
denying his postconviction petition challenging his felony DWI conviction, appellant
Driving east on Highway 19, a state trooper noticed the lit dome light of a vehicle in the ditch on the west side of the road. The trooper turned his car around, noticed that the dome light had been turned off, and pulled up near the vehicle. He then observed appellant walking out of the ditch and approached him. Appellant turned away from the trooper, who noticed that appellant was bleeding from the elbow, was unsteady on his feet, smelled of alcohol, and had bloodshot and watery eyes.
Most of the trooper’s contact with appellant was videotaped. Appellant refused to perform field sobriety tests and a breath test, stating that he was not driving. Blood was found only on the driver’s side of the vehicle, and the key was in the ignition.
A jury found appellant guilty of refusing to submit to testing and driving while under the influence. Appellant was convicted, and the court stayed execution of his sentence. He now appeals from the district court’s denial of his petition for postconviction relief.
D E C I S I O N
“A petition for postconviction relief is a collateral attack on a
judgment which carries a presumption of regularity and which, therefore, cannot
be lightly set aside.”
1. Trooper’s Opinion
Appellant argues that the district court abused its discretion in allowing the trooper to provide expert opinion that appellant was the driver of the vehicle. The postconviction court determined that the trooper’s testimony was admissible lay opinion.
Although the parties’ dispute turns on whether appellant was driving the vehicle, appellant stated on the night of the accident, to the officer, and on videotape, that he climbed over to the driver’s side and tried to drive the vehicle out of the ditch but was unsuccessful. Thus, even if appellant was not driving at the time of the accident, by his own admission, he had been in physical control and was trying to operate the vehicle while intoxicated. See State v. Hendricks, 586 N.W2d 413, 414-15 (Minn. App. 1998) (setting out factors relevant to finding of physical control), review denied (Minn. Feb. 18, 1999).
regard to the trooper’s testimony about driving, however, a lay witness may
testify “in the form of opinion or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the witness and
(b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue.”
also argues that the trooper’s opinion was just another way of saying that the
trooper did not believe appellant’s claim that he was the passenger. Vouching testimony is improper when a witness
testifies that another witness was telling the truth or that he believed one
witness over another.
2. Prosecutorial Misconduct
In his petition for postconviction relief, appellant argued for the first time that the state improperly played the videotapes of the arrest after agreeing not to refer to prior bad acts or prior DWIs.
a defendant fails to object to the admission of evidence, this court’s review
is under the plain error standard. See
The record is clear that the videotapes were in defense counsel’s possession well before the trial, and he had specifically reserved the right to challenge their content. Defense counsel and the prosecutor discussed the videotapes on more than one occasion, and a part was redacted at defense counsel’s request. The record reflects no specific reference to the videotapes in the motion or the order to exclude prior bad acts and no objection to them on that ground before or after they were played. Considering the active part played by defense counsel in the admission of the videotapes without objection, there is no basis for appellant’s claim of misconduct by the prosecutor. The only explanation for their admission without objection is that defense counsel strategically determined to use the videotapes to present appellant’s version of events and his defense that he was not driving.
any event, appellant identifies no direct evidence in the videotapes of his
prior bad acts and convictions, and, even if he had, the test for less serious
misconduct is “whether the misconduct likely played a substantial part in
influencing the jury to convict.” State v. Hunt, 615 N.W.2d 294, 302 (
also argues that references to “invoking his right to counsel” should have been
redacted from the tapes even though he did not object at trial. When a defendant requests counsel, the
context of his request determines whether the request raises a strong inference
of guilt. See State v. Roberts, 296
Finally, appellant argues that it was misconduct for the prosecutor to comment in his closing argument that appellant produced no evidence. Appellant did not object when the prosecutor said in closing argument, “Now, what evidence is there that the defendant didn’t drive a car? Well there is none.” The prosecutor, however, then proceeded to comment on the evidence proffered by appellant to support his claim that someone else was driving. In this context, the prosecutor’s comment simply meant that there was no credible evidence; saying there is no credible evidence is not misconduct.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.