This opinion will be unpublished and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
Steven Allen Ross,
Filed March 14, 2006
Isanti County District Court
File No. K2-02-231
Mike Hatch, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Jeffrey Edblad, Isanti County Attorney,
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant
Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of and sentence for criminal vehicular homicide, arguing that the state did not prove exigent circumstances to order the removal of blood from appellant at the hospital without a warrant. Appellant also argues that there was insufficient evidentiary foundation for the blood test, that the district court abused its discretion by denying his motion for a mistrial in light of a prejudicial statement made by the state’s witness, and that several statements by the prosecutor during closing argument constituted prejudicial misconduct requiring a new trial. Finally, appellant argues that based on mitigating factors, the court should have granted him a dispositional departure. We affirm.
Steven Allen Ross was involved in a two-vehicle collision on February 17, 2002,
that resulted in the death of the driver of the other vehicle. Appellant was charged in
The state filed an amended complaint in February 2004, charging appellant with four counts of felony criminal vehicular homicide and one count of misdemeanor operating a vehicle without insurance. Appellant pleaded guilty to the no-insurance charge and was tried on the four remaining felony counts. Prior to trial, the district court denied appellant’s motion to suppress evidence of his blood-alcohol level, which had been admitted during the omnibus hearing prior to the first trial.
passenger at the time of the collision, Troy Anderson, testified at trial that
he was the driver of appellant’s pickup truck when they first left a gathering to
pursue two female occupants who had left the same gathering in a second vehicle.
testified that he had started drinking early that afternoon and that his last
memory of the day was of sitting in a bar in
In April 2004, a jury found appellant guilty of all four counts of felony criminal vehicular homicide. Prior to sentencing, appellant moved for a new trial or, in the alternative, for a downward dispositional departure from the presumptive sentence. In September 2004, the district court sentenced appellant to the presumptive sentence of 48 months in prison and ordered restitution. This appeal follows.
D E C I S I O N
Appellant challenges the constitutionality of the blood
draw that substantiated his intoxication.
“When reviewing pretrial orders on motions to suppress evidence, we may
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. Harris, 590 N.W.2d 90, 98 (
Because he was incapable of providing consent at the
time, appellant argues that officers responding to the accident should have
obtained a warrant prior to drawing his blood sample, and failing to do so
violated his right against unreasonable search and seizure. The drawing of blood from a criminal suspect is
a seizure that must comply with the Fourth Amendment. Schmerber
In Schmerber, the Supreme Court concluded that exigent circumstances were present because the officer, who authorized a blood draw two hours after a car accident,
might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to [the accused’s] arrest.
Appellant’s blood was drawn within one hour and 15 minutes from the time the accident was reported to the police. If appellant’s level of intoxication had been lower, but still above the legal limit, even that delay could have allowed the alcohol concentration in his blood to dissipate enough to jeopardize the evidence. Appellant contends that current sophisticated methods of communication would have allowed the officers to have “easily obtained a timely warrant,” but two other survivors at the scene and the preliminary investigation of a traffic fatality required their attention, and the accident occurred on a Sunday evening. In light of the events preceding the blood draw, we are satisfied that these were exigent circumstances.
Notably, appellant does not dispute that the officers
had probable cause to suspect that he was intoxicated, and bases his appeal of
this issue entirely on exigency. But this
concession misconstrues the law because
Appellant also challenges the district court’s admission
of hearsay evidence during trial testimony.
“Evidentiary rulings rest within the sound discretion of the trial court
and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of
establishing that the [district] court abused its discretion and that appellant
was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (
In the first trial, the state called the medical
technician who performed the blood draw at
As the proponent of the alcohol-concentration test, the
state has the initial burden to “establish that the test itself is reliable and
that its administration in the particular instance conformed to the procedure
necessary to ensure reliability.” State v. Dille, 258 N.W.2d 565, 567 (
The officer who was present at the blood draw testified regarding filling out the form and stated that he recognized the person who drew the blood “as being one of the lab personnel” whose badge read either “lab technician or medical technician.” Appellant provides no legal standard to require that the person be a medical technician for purposes of Minn. Stat. § 169A.51, and, therefore, the court acted within its discretion by accepting the officer’s testimony as proof that the blood draw was performed by a medical technician. Even if there was not a proper foundation to justify the introduction of the document under rule 803(6), its improper receipt into evidence was harmless.
Appellant also alleges that the medical technician admitted during the first trial that she was not certified when she performed the blood draw. Putting aside the fact that this argument cites documents outside the trial record, the medical technician discussed certain types of “licensure or certification” that she planned to reacquire. She also stated that she had been employed at the Cambridge Medical Center as a medical technician for six years, and appellant provides no legal support for the notion that Minn. Stat. § 169A.51 imposes any specific standard of certification for medical technicians.
Finally, appellant argues that without the testimony of the medical technician, the state failed to properly prove the chain of custody with respect to the blood. Minn. Stat. § 634.15, subd. 2 (2002), provides that:
[A]n accused person or the accused person’s attorney may request, by notifying the prosecuting attorney at least ten days before the trial, that the following persons testify in person at the trial on behalf of the state:
(a) A person who performed the laboratory analysis or examination for the report described in subdivision 1, clause (a); or
(b) A person who prepared the blood sample report described in subdivision 1, clause (b).
Appellant maintains that the medical technician was required to testify because his attorney made such a request prior to the second trial. The “person who performed the laboratory analysis” per subdivision 2(a), an employee of the Minnesota Bureau of Criminal Apprehension, did testify at trial. But the medical technician would not have been required to testify under subdivision 2(b) because she did not prepare a blood-sample report as described in Minn. Stat. § 634.15, subd. 1(b) (2002). Technically, the sample was not “withdrawn under the implied consent law.” As previously noted, the officer concluded that appellant was incapable of providing consent at the time. The chain of custody is further established by the officer’s testimony regarding the circumstances of the blood draw, from which the district court could presume that he was in constant presence of the evidence until its remittance to the BCA and that the sample was drawn from appellant.
The district court did not abuse its discretion by admitting evidence with respect to the blood draw. We are also convinced that the state met its prima facie burden to establish the reliability of the blood test. Based on this evidence, the district court could have reasoned that the state had established that the test was reliable and had been administered in conformity with a reliable procedure.
Appellant challenges the
district court’s denial of his motion for a mistrial based on the prejudicial
comments of a witness. An appellant has the burden of establishing that the district
court abused its discretion in its evidentiary rulings and that appellant was
thereby prejudiced. Amos, 658 N.W.2d at 203; State
v. Spann, 574 N.W.2d 47, 52 (
During direct examination of a state witness for the purpose of determining the identity of the driver of the truck, the witness stated that he had said, “Why isn’t [appellant] in jail,” in response to a question about his conversation with a private investigator hired by appellant. After appellant’s attorney objected and an in camera conference with the judge, the prosecutor proceeded with this line of questioning, and the witness corroborated his statement that he had heard Troy Anderson tell appellant, “You better hope you didn’t kill somebody.” Appellant’s attorney later requested that the witness’s testimony be stricken in its entirety, but the district court only affirmed the admissibility of prior statements under hearsay rules and never addressed the prejudicial impact of the specific comment.
Appellant maintains that the
prosecution’s solicitation of
the statement violated his right to due process of law and a fair trial. State v. Haney, 222
Therefore, we must consider “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict[.]” Post, 512 N.W.2d at 102 n.2. The witness in question was a resident of a nearby home and one of the first people to arrive at the scene of the accident. The “jail” comment, while certainly inflammatory, was also corroborative of the witness’s testimony indicating that appellant was the driver and thus did not introduce a distinct theory or idea. See State v. Orfi, 511 N.W.2d 464, 470 (Minn. App. 1994) (finding error harmless when erroneously admitted testimony was “generally cumulative” and other evidence against defendant was substantial). The jurors were instructed that they alone must make a determination of guilt. In light of the trial record and the substantial proof that appellant was the driver, we find no reasonable possibility that the “jail” statement affected the verdict. Therefore, the district court did not abuse its discretion by denying the motion for a mistrial.
A district court’s denial of a new-trial motion based on
alleged prosecutorial misconduct will be reversed only “when the misconduct,
considered in the context of the trial as a whole, was so serious and
prejudicial that the defendant’s constitutional right to a fair trial was
impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (
In moving for a new trial, appellant alleged three examples of misconduct in the prosecutor’s closing argument: disparagement of the defense attorney, vouching for witness credibility, and comparing appellant and his friends to the Mafia. Appellant presents several other examples of misconduct to this court but he did not raise these issues in his posttrial motion, and he did not object during trial. See State v. Clow, 215 Minn. 380, 387, 10 N.W.2d 359, 362 (1943) (error not specified in motion for a new trial and is not reviewable); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that claims not presented to and decided by the district court are deemed waived); see also Powers, 654 N.W.2d at 678 (“If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review”) (citing State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999)).
We use the following standard to evaluate the propriety of a prosecutor’s closing argument:
(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.
(b) It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.
State v. Salitros, 499 N.W.2d 815, 817 (
A prosecutor should not disparage the
defense in closing arguments. State
v. Griese, 565 N.W.2d 419, 427 (
Appellant also complains about the prosecutor twice using the word “slick” during rebuttal closing argument to describe defense tactics. Appellant’s objection following the second use of the word was sustained by the district court. The district court also sustained defense counsel’s objection to the prosecutor’s statement. “We are at a bit of a disadvantage here. Mr. Ross gets to come in here and smile at you all and tell you what a great job he has, we don’t—”, at which point he was cut off by the objection. These statements were disparaging, but even if they amounted to “less serious” misconduct, we cannot see how they could have played a substantial part in influencing the jury to convict.
A prosecutor engages in misconduct if he expresses his
personal opinion of the defendant’s credibility as a witness. State v.
Ture, 353 N.W.2d 502, 516 (
Now we failed here
in one way as a prosecution, I can’t tell you how this stuff went down, how
these girls ended up behind Mr. Ross and Mr. Anderson on
Appellant provides no explanation of how the prosecutor was making an insinuation about appellant’s race or ethnicity, or that of his friends. In the full context of the argument, this statement was much less an expression about appellant’s credibility than it was an admission to the difficulty of assembling a case from reluctant eyewitnesses.
Appellant also argues that the prosecution committed misconduct by vouching for the credibility of the accident reconstructionist in comparison to other witnesses. Defense counsel objected to the following statement:
I really don’t like putting people like Troy Anderson on the stand, no prosecutor would. He comes off as abrasive, not real polished, had cocaine in his system doesn’t add anything to the mix. I recall—you know I wish every witness I could call would be Sergeant Drevnick. But guys like Sergeant Drevnick don’t hang around with [appellant]. This was [appellant’s] friend, he chose this witness for me.
The prosecutor may have spoken about perceptions of credibility, but he did not directly vouch for the truthfulness or falsity of the testimony of any of these witnesses. In the full context of the closing argument, we find such a statement to be acceptable as an attempt by the prosecutor to explain a weakness of his case.
In light of the prosecutor’s entire closing argument, appellant’s constitutional right to a fair trial was not impaired. The district court’s denial of a new trial with respect to appellant’s allegations of prosecutorial misconduct was, therefore, appropriate.
A district court has broad discretion in determining whether
to depart from a presumptive sentence under the sentencing guidelines. State
v. Gassler, 505 N.W.2d 62, 69 (
The district court sentenced appellant to 48 months in prison plus restitution. As an alternative to the arguments we have heretofore addressed, appellant maintains that the district court abused its discretion by denying his motion for a downward dispositional departure because it used improper reasoning and failed to implement the proper legal standard.
Appellant points to ample support from the presentence investigation for his claim that he was amenable to probation and would remain a sober and productive citizen, offers statistical data that suggest that incarceration for similar crimes is the exception, and cites a variety of cases affirming downward departures. But his characterization of the district court’s determination is misguided. Appellant argues that “the court used offense-related factors to deny the departure.” Factors, in this context, are what the court would use to depart downward or a jury would use to justify an upward durational departure. The court did not need to provide factors to impose a presumptive sentence—appellant had the burden to prove to the court that he should not be incarcerated for criminal vehicular homicide while under the influence of alcohol under Minn. Stat. § 609.21, subd. 1(2)(i) (2002).
The district court stated that it gave “quite a bit of thought” to the possibility of probation with correctional placement imposed only if appellant committed another violation. The court stated that it believed appellant’s position that he had no memory of the incident, but stated that his conduct had been “unconscionable.” Given the broad discretion that we afford sentencing courts when deciding whether to depart from the guidelines, we affirm the district court’s sentencing decision.
 If the officer had been able to invoke the implied-consent advisory against appellant, this document would have been admissible under a statutory exception, Minn. Stat. § 634.15, subd. 1(b) (2002).
 Appellant cites State v. Martin, 256 N.W.2d 85 (