This opinion will be unpublished and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
Ronald Vincent Johnson,
Filed December 12, 2006
Mille Lacs County District Court
File No. 48-K2-04-000935
Mike Hatch, Attorney General, Kimberly Parker, Assistant
Attorney General, 1800
Janice S. Kolb, Mille Lacs County Attorney,
John M. Stuart, State Public Defender, Lawrence Hammerling,
Assistant Public Defender,
Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
Appellant Ronald V. Johnson challenges his convictions of (1) first-degree DWI in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24 (2004); (2) test refusal in violation of Minn. Stat. §§ 169A.20, subd. 2, .24 (2004); (3) driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2004); (4) unlawful speed in violation of Minn. Stat. § 169.14, subd. 2 (2004); and (5) criminal damage to property in violation of Minn. Stat. § 609.595, subd. 3 (2004), arguing that (a) his right to counsel during the implied-consent process was violated; (b) the district court abused its discretion when it excluded the testimony of certain defense witnesses; (c) the evidence was insufficient to support his convictions; and (d) the tribal police department lacked authority to make an arrest off of the Mille Lacs Reservation. We affirm.
On the evening of
August 4, 2004, the
Berg stated that the
same vehicle returned a few minutes later.
The vehicle was “[d]riving fast, spinning tires, [and] going between the
two buildings really fast.” Alexander
Smude (“Butch”), the owner of Pine Center
Dispatch contacted Officer Jason Rice of the Mille Lacs County Tribal Police Department and gave Officer Rice a description of the car and the license number and informed him that the vehicle contained “an intoxicated driver with two Native American males and a pit bull.” While at a stop sign, Officer Rice observed an older LTD with two Native Americans and a dog drive by. Officer Rice testified that “It was obvious that the suspect vehicle was maintaining a high rate of speed” and that he “had to accelerate hard to catch up to the vehicle.” Officer Rice estimated that the vehicle was traveling approximately 80 miles per hour in a 55-mile-per-hour zone and around 70 miles per hour in a 40-mile-per-hour zone. Officer Rice also stated that the vehicle crossed the center line several times. Based on his training and experience, Officer Rice believed that the driver was potentially under the influence.
Officer Rice followed the vehicle until it pulled over onto the shoulder of the highway. Officer Rice pulled in behind the vehicle and activated his emergency lights. Officer Rice approached the vehicle and asked appellant for his driver’s license, which appellant was unable to produce. Officer Rice later testified that appellant had “slow reactions, slow speech, bloodshot watery eyes, and a strong odor of an alcoholic beverage.” Based on his observations, Officer Rice believed that appellant was under the influence. When Officer Rice asked appellant if he had been drinking, appellant said, “No.”
Officer Rice asked appellant to step out of the vehicle to perform field sobriety tests. When Officer Rice asked appellant if he had any physical impairments that would impair his ability to perform the tests, appellant responded that he had a head injury. Officer Rice did not ask appellant whether his head injury affected his speech or balance. Appellant refused Officer Rice’s requests to perform the field sobriety tests and to submit to a preliminary breath test (PBT).
Upon learning that appellant’s license was canceled, Officer Rice placed appellant under arrest. Because Officer Rice had a canine partner and the dog was in the squad car behind a glass barrier, the officer handcuffed appellant, put shackles on his legs, and placed appellant in the front seat of the vehicle. In response to appellant’s passenger’s comment that the pit bull in appellant’s vehicle was a “biter,” Officer Rice called a community-service officer to remove appellant’s dog before towing appellant’s vehicle.
Appellant became “agitated” and started kicking the inside of Officer Rice’s vehicle. Officer Rice told appellant to stop and drew his stun gun. When Officer Patrick Broberg arrived, he observed Officer Rice standing by his car with his taser out, telling appellant to “stop kicking.” Officer Broberg testified that appellant was belligerent, swearing, and kicking. Officer Broberg told appellant to calm down. As a result of his kicking, appellant broke off Officer Rice’s shift lever, rendering the squad car inoperable. Officer Broberg then took appellant out of Officer Rice’s vehicle, placed appellant on the ground, and told him to relax. Officer Broberg testified that when he opened the door to remove appellant from the vehicle he smelled a “strong odor of alcohol.”
Appellant was transferred to the back seat of Officer Broberg’s vehicle. Appellant sat on the rear seat but refused to place his feet inside the car. Officer Rice advised appellant to put his feet in the vehicle or he would “taser him.” When appellant refused to place his feet inside the vehicle, Officer Rice used his taser on him.
Appellant was transported to the Mille Lacs Tribal Police Department. En route, appellant vomited in Officer Broberg’s squad car and had “dry heaves.” Appellant also spat on the partition and rear passenger window of the vehicle. Based on his training and experience, Officer Broberg believed that appellant was intoxicated at the time of his arrest. Officer Broberg testified that his conclusion was based on appellant’s “smell of liquor, the spitting and being uncooperative [and] verbally assaulting us.”
At 7:22 p.m., Officer Rice read the implied-consent advisory to appellant at the Mille Lacs Police Department. Officer Rice asked appellant if he understood everything that he had explained to him, and appellant responded affirmatively. Officer Rice then asked appellant if he wanted to consult with an attorney. When appellant responded affirmatively, Officer Rice gave him a telephone and phone books. To place a long distance call at the police station, it was necessary to first dial 9, then 1, then the area code and number, and, finally, a five-digit code. Officer Rice offered a pen and piece of paper to appellant so that he could write the sequence of numbers down and also offered to dial the telephone number for appellant. But Officer Rice testified that after repeated instruction, appellant could not figure out how to use the phone and never contacted an attorney. At one point, Officer Rice gestured to Officer Broberg by spinning his finger near his temple. Officer Rice testified that he made this gesture because appellant “couldn’t figure out how to use the telephone.”
According to Officer Rice, appellant appeared hostile and agitated while trying to call an attorney. Officer Rice also testified that, on a couple of occasions, appellant acted like he was going to throw the phone at him. Appellant said, “I’ll f-ckin’ throw this f‑ckin’ phone around your neck . . . you think I won’t?” Appellant also acted like he was going to stab Officer Rice with the pen he had been given. Officer Rice testified that he initially felt threatened by appellant’s behavior and backed away from the table. In all, appellant was given a total of 23 minutes to contact an attorney.
Officer Rice then asked appellant to take a breath test. Appellant first said “No,” but then changed his mind. But once the Intoxilyzer was ready, appellant refused to take the test, saying “I ain’t doing f‑cking nothing. I ain’t doing sh-t.” Appellant again told Officer Rice that he wanted to consult with an attorney. Officer Rice told appellant that his time to do so was over. Appellant then sat back down at the table and acted like he was going to make more calls. After denying appellant the opportunity to resume searching for an attorney, Officer Rice released appellant to Officer Broberg for transport to the hospital so that appellant could be examined, given his statement about his head injury and the fact that the officer had used a taser gun on him. The testimony at trial was that appellant was examined and released.
Appellant was charged in Mille Lacs County District Court with five counts, including: (1) first-degree DWI in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24 (2004); (2) test refusal in violation of Minn. Stat. §§ 169A.20, subd. 2, .24 (2004); (3) driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2004); (4) unlawful speed in violation of Minn. Stat. § 169.14, subd. 2 (2004); and (5) criminal damage to property in violation of Minn. Stat. § 609.595, subd. 3 (2004). A jury found him guilty on all counts, but appellant was sentenced only for the DWI violation. This appeal follows.
argues that he was not afforded a reasonable opportunity in the implied-consent
process to exercise his right to consult with counsel. Under the Minnesota Constitution, a driver
has a limited right to consult with an attorney before deciding whether to
submit to chemical testing.
of whether an officer has vindicated a driver’s right to counsel is a mixed
question of law and fact. Kuhn v. Comm’r of Pub. Safety, 488
N.W.2d 838, 840 (
Appellant contends that his right to counsel was not vindicated because the officers provided him with a telephone that required a “complicated” dialing-out sequence, engaged in “provocative” and “demeaning” conduct, and refused to let him use a toilet. We conclude that appellant was given a reasonable opportunity to consult with a lawyer of his own choosing. Appellant was informed by Officer Rice that he had a right to counsel, and appellant indicated that he understood his right. Appellant was provided with a telephone and phone books, and the officers explained several times to appellant the process for dialing out of the police station. Appellant had a pen and paper to write down phone numbers, and Officer Rice even offered to assist appellant by dialing phone numbers for him. The record indicates that appellant was given 23 minutes to contact counsel, a reasonable amount of time in this case.
conclude that appellant’s right to counsel was vindicated, respondent’s alternative
argument that appellant’s behavior frustrated the implied-consent process and
amounted to a retraction of appellant’s right to contact an attorney warrants
discussion. A driver’s conduct may be
deemed to frustrate an officer’s reasonable attempt to assist in the
vindication of this limited right. Busch, 614 N.W.2d at 260. A refusal need not be indicated by express
language, but can be indicated by conduct.
State Dep’t of Highways v. Lauseng,
In Collins, defendant was convicted of
misdemeanor DWI, refusal to submit to testing, disorderly conduct, and
obstructing legal process. 655 N.W.2d at
655. Defendant appealed, arguing that
because she was never able to consult with an attorney, despite three requests
to have her attorney present, “her right to counsel was violated and her
conviction for test refusal should be reversed.”
In Busch, defendant filed a petition
challenging the district court’s decision to sustain the revocation of his driver’s
license under the implied-consent law based on his refusal to submit to testing
for alcohol. 614 N.W.2d at 257. Defendant argued that his right to counsel
was not vindicated, and thus his refusal to test was reasonable.
Here, the jury saw the videotape from the police station. While appellant concedes that his “behavior was wrong,” he argues that “his conduct does not fall into the class of cases reflected by Collins and Busch.” We disagree. Appellant was hostile and belligerent toward Officer Rice during the implied-consent process. Appellant grabbed the telephone base as if he were going to throw it at Officer Rice. At one point appellant lunged at Officer Rice with a pen as though he was going to stab him. The district court found that “[t]he videotape . . . showed defendant’s belligerent behavior along with obvious signs of his intoxication. Defendant mocked and threatened the officer at various stages of the 23-minute proceeding.” These findings are not clearly erroneous. Therefore, even if appellant’s right to counsel was not vindicated, we conclude that appellant’s behavior frustrated the implied-consent process so as to constitute a retraction of his right to speak with an attorney.
Appellant contends that the district
court abused its discretion by excluding testimony from two witnesses with
“firsthand knowledge of the effects upon appellant’s behavior and demeanor of
suffering a head injury several days prior to his arrest.” “A criminal defendant has the right to a
meaningful opportunity to present a complete defense.” State
v. Penkaty, 708 N.W.2d 185, 201 (
A portion of appellant’s defense to the DWI charge was that his demeanor and behavior at the time of his arrest were not a result of appellant’s intoxication, but rather due to his recent head injury. In support of this theory, appellant attempted to call two witnesses, his cousins, to testify about appellant’s behavior both before and after the assault that resulted in appellant’s head injury. In addition, the witnesses would have testified that appellant’s behavior and demeanor on the video tape from the police station were consistent with his post-head-injury behavior. The state objected to the testimony, arguing that such testimony would be inadmissible because the proffered witnesses had no medical training and did not observe appellant on the date of the incident.
After taking the matter under advisement, the district court granted the state’s motion barring this testimony. The court stated:
I am certainly mindful of your client’s rights to present an adequate defense, Mr. O’Malley, and lay witnesses are permitted where an adequate foundation, including personal knowledge, rational basis and helpful to the trier of fact has been laid. Lay witnesses can give opinion testimony as to intoxication, but pursuant to State vs. Schneider, that is found at 249 N.W.2d 720, Minnesota Supreme Court case of 1977, such opinions may be offered by one who has had the opportunity to observe the person’s appearance, breath, manner of walking or standing, and manner of speech.
The differentiation I see from the testimony of the State’s witnesses was that those witnesses testified as to what they saw and heard on August 4th of 2004.
The Defense proposed witnesses, as I understand it, would testify as to [appellant’s] behavior prior to his assault and their observations of his appearance on the videotape, which I do not find to be helpful to the trier of fact or provide a rational basis.
The district court appears to have denied the defense testimony under Minn. R. Evid. 701, which provides:
If the witness is not testifying as an expert, the witness’ testimony 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.
The crux of
appellant’s argument is that the district court abused its discretion when it
applied rule 701 because rule 701 applies only to opinion testimony, not the
testimony at issue here. Caselaw permits
lay-witness opinion testimony on intoxication, or lack thereof, only when the
witness has personally observed indicia of intoxication. For example, in Trail v.
But even if the
district court’s exclusion of the testimony of defense witnesses was in error, this
court will not reverse a district court’s decision if the error was harmless
beyond a reasonable doubt. Quick, 659 N.W.2d at 716. Harmless-error analysis applies to the
erroneous exclusion of defense evidence in violation of the defendant’s right
to present evidence. State v. Post, 512 N.W.2d 99, 102 (
Even if the district court improperly excluded the testimony of appellant’s two witnesses here, we conclude that the admission of the excluded testimony would not have changed the jury’s verdict. First, appellant testified at trial and offered the jury the same information that appellant’s witnesses intended to testify about—that his behavior on August 4 was attributable to his head injury rather than intoxication. Thus, the jury still had an opportunity to evaluate appellant’s theory of the case.
Second, while appellant denied consuming any alcohol on August 4, the evidence overwhelmingly indicated that he was in fact intoxicated. Multiple witnesses who personally observed appellant on August 4 all believed that he was intoxicated. Larry Berg testified that he thought appellant was intoxicated because he was driving in a reckless manner, slurred his words, staggered around like a drunk person, and urinated near his car. Alexander Smude, a first responder for seven years, testified that he believed appellant to be intoxicated based on his dazed look and erratic driving. Officer Rice testified that, based on his background and expertise, he believed appellant to be intoxicated because of appellant’s physical appearance and personal characteristics. Officer Broberg also believed appellant to be intoxicated because appellant smelled of liquor and was uncooperative. Finally, the anonymous 911 caller also indicated that appellant was driving as if he were drunk. In total, these witnesses testified that, at one time or another on August 4, appellant exhibited the following characteristics of intoxication: slow reactions, staggering, slow and slurred speech, dazed condition, bloodshot and watery eyes, strong odor of alcohol, erratic and illegal driving, violent and belligerent behavior, swearing, refusing to take a breath or field sobriety tests, vomiting, dry heaves, and spitting and kicking in the squad cars.
argues that the evidence presented by the state was insufficient to support his
conviction. In considering a claim of
insufficient evidence, this court’s review “is limited to a painstaking
analysis of the record to determine whether the evidence, when viewed in a light
most favorable to the conviction, was sufficient” to allow the jurors to reach
the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (
Appellant does not specifically articulate which of his convictions he is challenging as being supported by insufficient evidence. Nonetheless, we conclude that the evidence was sufficient to sustain all of appellant’s convictions.
A. First-degree DWI
Appellant was convicted of first-degree DWI in violation of Minn. Stat. §§ 169A.20, subd. 1(1), .24 (2004). At the time Officer Rice pulled appellant over, dispatch had already received phone calls identifying appellant as a suspected drunk driver. Officer Rice testified that appellant was speeding and swerving across the center line before appellant pulled over. Further, several witnesses testified that appellant exhibited indicia of intoxication. In addition, the jurors viewed for themselves the videotape of appellant at the police station. When viewed in the light most favorable to the conviction, this evidence is sufficient to support appellant’s DWI conviction.
B. Test Refusal
Appellant was convicted of test refusal in violation of Minn. Stat. §§ 169A.20, subd. 2, .24 (2004). While appellant was unsuccessful in contacting an attorney, he was given a reasonable opportunity to contact an attorney at the police station. Although appellant initially agreed to submit to an Intoxilyzer test, he later refused after the machine was prepared for testing. Much of his conduct at the police station was belligerent toward the officers. This evidence, when viewed in the light most favorable to the conviction, is sufficient to have allowed the jurors to convict appellant of test refusal.
C. Driving After Cancellation of License
Appellant was convicted of driving after cancellation in violation of Minn. Stat. § 171.24, subd. 5 (2004). Appellant admitted to improperly driving after his license was cancelled, and thus the evidence was sufficient.
Appellant was convicted of speeding in violation of Minn. Stat. § 169.14, subd. 2 (2004). Officer Rice testified that, upon first glance, “[i]t was obvious that [appellant] was maintaining a high rate of speed.” Officer Rice also stated that he “had to accelerate hard to catch up to [appellant’s] vehicle.” Based on his practice of “pacing,” Officer Rice stated that appellant was traveling approximately 80 miles per hour in a 55-mile-per-hour zone, and around 70 miles per hour in a 40-mile-per-hour zone. This evidence, when viewed in the light most favorable to the conviction, is sufficient to have allowed the jurors to convict appellant of unlawful speed.
E. Criminal Damage to Property
Finally, appellant was convicted of criminal damage to property in violation of Minn. Stat. § 609.595, subd. 3 (2004). Officer Rice testified that appellant kicked the inside of his squad car and appellant admitted that he kicked the shift lever in the squad car, rendering the vehicle inoperable. Therefore, the evidence is sufficient to support appellant’s conviction of criminal damage to property.
In his pro se
brief, appellant challenges the statutory authority of the tribal police
department to arrest outside of the Mille Lacs Reservation. This argument was made by appellant’s counsel
at the omnibus hearing and rejected by the district court.
[t]he band shall have concurrent jurisdictional authority under this section with the Mille Lacs County Sheriff’s Department only if the requirements of paragraph (a) are met and under the following circumstances:
(1) over all persons in the geographical boundaries of the property held by the United States in trust for the Mille Lacs Band or the Minnesota Chippewa tribe;
(2) over all Minnesota Chippewa tribal members within the boundaries of the Treaty of February 22, 1855 . . . ; and
(3) concurrent jurisdiction over any person who commits or attempts to commit a crime in the presence of an appointed band peace officer within the boundaries of the Treaty of February 22, 1855 . . . .
The mutual aid agreement between
the Mille Lacs Band of Chippewa Indians and the Mille Lacs County sheriff’s
department recognizes that the geographical authority of the band law-enforcement
agency is governed by Minn. Stat. § 626.90, subd. 2(c), and further states that
the agreement is “specifically limited to the lands listed in Appendix A
attached hereto.” But Appendix A was not
attached to the documents submitted and is not a part of the record. Nonetheless, the district court determined
that “[t]he geographical definition of the trust property does not limit the
authority of the tribal police department to that area,” because “[t]o imply
that interpretation would defeat the purpose of a mutual aid agreement.” Thus, the district court concluded that Officer
Rice had the ability, pursuant to the mutual-aid agreement between the band and
In his supplemental
pro se brief, appellant again asserts that Officer Rice had no jurisdiction to
arrest him outside of the reservation. But
appellant does not provide any applicable legal authority in support of his
position. Further, the record does not
include all relevant documents, including Appendix A to the mutual-aid
agreement, and, thus, is not amenable to a determination on the matter. See
Truesdale v. Friedman, 267
Appellant makes a number of additional arguments in his pro se brief, including: (1) the anonymous 911 call made to Mille Lacs dispatch was unreliable; (2) the lack of documentation of the 911 call between Mille Lacs County and Crow Wing County dispatch violates appellant’s right to due process; (3) the stop by Officer Rice was illegal; and (4) Officers Rice and Broberg committed misconduct.
appeal, this court generally considers only those issues presented to and
considered by the district court. Thiele v. Stitch, 425 N.W.2d 580, 582 (
 Appellant had received 28 staples in his head on July 29, 2004, after being struck with a crowbar the day before. Appellant suffered a concussion from the blow.