This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







State of Minnesota,





Lee Michael Thompson,




Filed December 27, 2005


Halbrooks, Judge



Washington County District Court

File No. K4-03-6959



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


Michael A. Welch, Forest Lake City Prosecutor, 20 North Lake Street, Suite 301, Forest Lake, MN 55025 (for respondent)


John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Klaphake, Presiding Judge; Halbrooks, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            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.


            On Sunday, August 17, 2003, around 8:30 a.m., Officer Ayers arrived at a gas station in Forest Lake to investigate a report of a suspicious male seen using the gas station’s restroom and then getting into a pickup truck.  The truck was parked at the rear of the gas station, near the restroom.  On approach, the officer observed appellant seated behind—but slumped over—the steering wheel, with his feet toward the pedals and keys in his right hand.  It appeared that appellant was sleeping or passed out.  The officer woke appellant by knocking several times on the truck window.  Appellant appeared confused, incoherent, had bloodshot and watery eyes, and was slow with conversation; he also had trouble standing and maintaining his balance once he got out of the truck. 

            Officer 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 Wyoming hospital for the blood test and later transported him to the Washington County jail at 11:15 a.m. 

            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. 

            During trial, appellant testified that he and his brother, Wayne, were at a party on the Apple River the night before he was arrested and that appellant’s brother had driven them to the party in the brother’s truck.  Appellant testified that his brother drove them back to Forest Lake at daybreak because appellant was under the influence at that time.  In Forest Lake, they went to a building where appellant planned to set up a custom motorcycle shop so that Wayne, a contractor, could review the remodeling plans.  

            Appellant 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 Wayne had locked his keys in his truck.  As a result, they took their father’s truck, which was parked at the shop.  The truck had a defective ignition module and would not start on occasion, but the truck had always started when appellant used it that week.  Appellant testified that his brother drove the truck to the gas station and parked it near the restroom. 

            Appellant testified that he used the restroom after Wayne did and that while he was in the restroom, he heard his brother try unsuccessfully to start the truck.  Appellant then heard Wayne say that the truck would not start and that he was going to walk back to the shop to get some tools.  Wayne was gone when appellant exited the restroom, so he entered the truck and fell asleep.  He testified that he did not try to start the truck and that he had no intention of driving.  Officer Ayers found him in the truck shortly thereafter.   

            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 Wayne?  If Wayne drove the truck to the gas station wouldn’t Wayne be here to tell you that?  If Wayne tried the vehicle and it wouldn’t start, wouldn’t Wayne be here to tell you that?


[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 Wayne and Wayne isn’t here to account for himself.  The only evidence that you have that Wayne drove this car at all or that Wayne found out that this vehicle wasn’t operable is Mr. Thompson’s testimony.  Mr. Thompson needs some testimony to explain how this vehicle got here and why he could not be in a position to control it when he’s sitting right behind the wheel in the seat with the keys in his hand when the police wake him up at 8:30 in the morning.  That’s his explanation.  That’s the best he could do.  Can the State disprove it?  No.  Do you have to believe it?  No.  As a juror it’s your province to believe or disbelieve what you choose.


            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 (Minn. 1984).  When considering a claim of prosecutorial misconduct, this court will “reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  There are two harmless-error standards for prosecutorial misconduct.  Serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.”  Id.  “For less serious misconduct, the standard is whether the misconduct likely played a substantial part in influencing the jury to convict.”  Id. (quotation omitted). 

In 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 (Minn. 2000) (quotation omitted).  A prosecutor is afforded considerable latitude during closing argument and is not limited to delivering a colorless argument.  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  Indeed, a prosecutor has “the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.”  Id.  Accordingly, a prosecutor may attack the merit of a particular defense or argument, including attacking the paucity of evidence presented in support of a defense theory.  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993).  But the scope of permissible attack is limited, and “[i]t is established law that a prosecutor may not comment on a defendant’s failure to call witnesses.”  Id.

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 Minn. 123, 127, 218 N.W.2d 197, 200 (1974).

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.  Id.(employing harmless-error test for less serious misconduct where prosecutor improperly commented on the defendant’s failure to call witnesses).  Therefore, this court must determine whether the misconduct likely played a substantial part in influencing the jury to convict.  Id. 

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 (Minn. 2000).  And corrective instructions may cure certain kinds of prosecutorial error.  State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating that jury instructions are relevant in determining whether the jury was unduly influenced by improper comments); State v. Hawkins, 511 N.W.2d 9, 13 (Minn. 1994) (stating that the court’s instructions “lessened the impact of the [prosecutor’s] improper comments”). 

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. 

Additionally, there was sufficient evidence to support the verdict in this case.  See, e.g., State v. Whittaker, 568 N.W.2d 440, 451 (Minn. 1997) (concluding that misconduct was harmless error partly in light of strong evidence of the defendant’s guilt).  Taken in the context of the closing arguments considered as a whole, the prosecutor’s improper remarks about appellant’s failure to call his brother as a witness did not unduly influence the jury and did not prejudice his right to a fair trial. 


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 (Minn. 2003).  But this court may review a previously unraised issue if it constitutes plain error.  Id.; see also Minn. R. Crim. P. 31.02.  Accordingly, an appellate court reviews whether (1) there was error; (2) that was plain; and (3) the error affected substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  If these three prongs are met, this court may correct the error only if it “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (quotation omitted). 

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 (Minn. 2002).  Such references are prohibited because a jury is “likely to infer from the testimony that [the] defendant was concealing his guilt.”  Id.(quotation omitted).

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 v. Hagen, 361 N.W.2d 407, 413 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985). 

Similarly, the 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 (Minn. 1984).  While Ayers’ references to appellant’s exercise of his right to remain silent and his consultation with counsel are clearly improper, appellant has failed to show that those statements seriously affected the fairness, integrity, or public reputation of the trial.

            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.