This opinion will be unpublished and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
Lee Michael Thompson,
Filed December 27, 2005
Washington County District Court
File No. K4-03-6959
Mike Hatch, Attorney General, 1800
Michael A. Welch, Forest Lake City Prosecutor,
John M. Stuart, State Public Defender, Steven P. Russett,
Assistant Public Defender,
Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.
Appellant challenges his conviction of third-degree DWI on the grounds that the district court erred in overruling defense objections to the prosecutor’s alleged misconduct during closing argument and that he was denied a fair trial due to testimonial references to appellant’s exercise of his right to counsel and right to remain silent. Because the misconduct did not likely play a substantial part in influencing the jury to convict and the improper testimony did not rise to a level that denied appellant a fair trial, we affirm.
Sunday, August 17, 2003, around 8:30 a.m., Officer Ayers arrived at a gas
Ayers arrested appellant for being under the influence of drugs and/or alcohol
and arranged for the truck to be towed; he made no attempt to start the truck
before it was towed. The officer took
appellant to the police station around 9:00 a.m., where the officer read him
the implied-consent advisory. Appellant
contacted several attorneys, then agreed to take a blood test. The officer took appellant to the
Appellant was charged with several misdemeanor and gross misdemeanor counts of driving while impaired and driving in violation of a restricted driver’s license. Appellant stipulated that he had four prior driving-while-impaired convictions (one within ten years of the current charge), that he had a restricted license, and that he was under the influence when he was arrested. The sole issue submitted to the jury was whether appellant was driving, operating, or in physical control of a motor vehicle.
trial, appellant testified that he and his brother, Wayne, were at a party on
testified that both he and Wayne needed to use a restroom while they were at
the shop. But because there was no
restroom there, they decided to drive to a gas station that was less than two
blocks away. Appellant stated that
testified that he used the restroom after
During cross-examination, Officer Ayers referred three times to appellant’s contact with counsel on the night of his arrest and also mentioned that appellant did not answer questions that evening. Defense counsel did not object to any of these references.
Appellant’s brother did not testify at the trial. During closing arguments, the prosecutor stated:
Remember, first, the State doesn’t need to prove that it’s operable. That’s just a consideration. The second thing you need to think about, is there any evidence that’s been presented to you that this vehicle wasn’t operable and couldn’t easily be made operable?
[DEFENSE COUNSEL]: Objection. The State’s trying to shift the burden to the defendant.
THE COURT: Well, overruled. There’s no burden here. It’s a consideration.
[PROSECUTOR]: Ask yourself, where is
[DEFENSE COUNSEL]: Same objection.
THE COURT: Noted. You can continue.
[PROSECUTOR]: All you have is Mr. Thompson’s story in terms
of how this vehicle happened to get to the gas station and how he happens to
know that it’s not operable. Ask yourself
whether or not that really is credible testimony in light of all this. . .
. There’s no accounting for
Appellant was convicted and sentenced to 365 days in jail and a $3,000 fine. This appeal follows.
Whether a final argument is
improper is normally a matter within the discretion of the district court. State
v. Ture, 353 N.W.2d 502, 516 (
reviewing claims of prosecutorial misconduct occurring during closing argument,
we analyze the argument “as a whole rather than focus[ing] on particular
phrases or remarks.” State v. Johnson, 616 N.W.2d 720, 728 (
The rationale behind the proscription on
commentary regarding a defendant’s failure to call witnesses is twofold:
“[f]irst, such comment might suggest to the jury that defendant has some duty
to produce witnesses or that he bears some burden of proof; second, the comment
might erroneously suggest to the jury that defendant did not call the witnesses
because he knew their testimony would be unfavorable.” State v. Caron, 300
Here, while the
prosecutor’s statements were clearly improper, this court must still determine
whether the statements were harmless.
The proper test to use is that for less serious misconduct.
Appellant argues that the misconduct played a substantial part in the jury’s decision to convict because of the lack of direct evidence and the resultant critical nature of appellant’s credibility. Appellant contends that the prosecutor’s statements led the jury to believe both that appellant had a burden to prove that the truck was inoperable and that appellant had some duty to call his brother as a witness, but that he did not call him because the testimony would have been unfavorable. Respondent counters that the prosecutor’s statements went only to the adequacy of the evidence presented regarding the inoperability of the vehicle and that the statements therefore did not mislead the jury as to the state’s burden of proof.
Even when a prosecutor makes
improper statements that might otherwise lead a jury to think that the burden
of proof was on the defendant, such statements may not be grounds for a
reversal and new trial when the district court repeatedly instructs the jury on
the state’s burden to prove the
defendant’s guilt. The court’s
instructions may leave no doubt that the jury could not have been misled about
the state’s burden to prove each element of the charged crime beyond a
reasonable doubt. State v. Robinson, 604 N.W.2d 355, 362 (
Here, the district court diminished the effect of the prosecutor’s comments by instructing the jury on the state’s burden and the lack of a burden on the appellant. While giving the jury its instructions, the court clearly explained that physical control of the vehicle was an element of the offense that needed to be proven beyond a reasonable doubt by the state. The court repeatedly stated that the defendant is presumed innocent, that the burden of proving guilt is on the state, and that the defendant does not have to prove his innocence. The prosecutor also acknowledged that the state has to prove the elements of the offense.
there was sufficient evidence to support the verdict in this case. See,
e.g., State v. Whittaker, 568 N.W.2d 440, 451 (
Appellant argues that he was denied a fair trial due to Officer Ayers’ testimonial references to appellant’s exercise of his right to counsel and his right to remain silent. In response to a question from the prosecutor about whether Officer Ayers knew if appellant made contact with anybody via telephone, the officer stated, “Yah, he made contact with several attorneys. . . . I believe he talked with one attorney for sure, if not two.” Also during direct examination, Officer Ayers was asked when appellant was transported to the jail. He answered:
[A]fter the police department we went to the hospital for the blood draw and then back to the police department, and in my notes on the Miranda statements was 10:51, no questions were answered. I’m going to guess about 11:00, 11:15 we then transported Mr. Thompson from the police department down here to the Washington County Jail.
Finally, during cross-examination, when Ayers was asked whether appellant had contacted his brother or father, the officer responded, “I remember he contacted several attorneys.” Appellant failed to assert objections to any of this testimony.
If a defendant
fails to object to an error at trial, he is generally “deemed to have forfeited
his right to have the alleged error reviewed on appeal.” State
v. Quick, 659 N.W.2d 701, 717 (
The officer’s references
to appellant’s silence and interactions with counsel constitute plain error, as
“it has long been recognized that a defendant’s decision to exercise his
constitutional rights to silence and to counsel may not be used against him at
trial.” State v. Litzau, 650 N.W.2d 177, 185 (
An error affects
substantial rights when it is reasonably likely that the error had a
significant effect on the jury’s verdict.
Griller, 583 N.W.2d at
741. Ayers’ references to appellant’s
consultation with counsel, while wholly inappropriate, did not likely have such
an effect on the verdict. The officer’s testimony
consists of over 20 transcribed pages, and the references to appellant
consulting with counsel comprise just a few words on a few of those lines. One reference was made during
cross-examination, and there is no evidence that the prosecutor intended to
elicit the references made during direct examination. “[U]nintended responses under unplanned
circumstances ordinarily do not require a new trial.” State
officer’s testimony concerning appellant’s exercise of his right to remain
silent was a passing reference, briefly mentioned in the context of a run-on,
stream-of-consciousness answer to a question addressing the time frame of
events on the morning of appellant’s arrest.
No objection to any of these statements was made at the time they were uttered. A
defendant’s failure to object to statements implies that the statements were
not prejudicial. State v. Parker, 353 N.W.2d 122, 128 (
While we conclude that the prosecutor committed misconduct during closing argument by urging the jury to draw an adverse inference from appellant’s failure to call his brother as a witness and Officer Ayers improperly testified about appellant’s exercise of his rights to counsel and to remain silent, the misconduct and improper testimony do not rise to a level such that they denied appellant a fair trial.