This opinion will be unpublished and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
Kevin Jerome Johnson,
Filed January 2, 2007
Hennepin County District Court
File No. 05013354
Lori R. Swanson, Attorney General, 1800 Bremer Tower, 445
Minnesota Street, St. Paul,
Michael O. Freeman, Hennepin County Attorney, David C.
Brown, Assistant County Attorney, C-2000 Government Center,
John M. Stuart, State Public Defender, Leslie J. Rosenberg,
Assistant Public Defender,
Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Dietzen, Judge.
Appellant challenges his conviction of first-degree refusal to submit to chemical testing, arguing (1) that the district court erred in denying his pretrial motion to suppress; (2) that prosecutorial misconduct occurred during closing argument; and (3) that the implied consent statute is unconstitutional as a violation of due process. We affirm.
In March 2005, Officers
Timothy Savior and Roderick Weber observed a car backing into a parking space
Both appellant Kevin Jerome Johnson and the passenger then exited the car on the passenger side. Officer Savior stated that appellant got out of the car “in a nervous manner” and staggered and swayed as he walked away. When appellant was ordered to step over to the squad car, the officers observed that appellant’s eyes were bloodshot and watery, that his breath smelled of alcohol, and that his speech was slurred. Appellant had the keys to the vehicle in his hand and stated that he was going to a nearby bar. The officers were then able to access the state database and learned that the car was not stolen, but that appellant’s driver’s license had been cancelled. When the officers asked appellant to perform several field sobriety tests, he refused.
Appellant was transported to the police station and was read the implied consent advisory, but refused to submit to testing. Appellant was then charged with first-degree felony driving while intoxicated (DWI) and first-degree refusal to submit to chemical testing.
Before trial, appellant moved to suppress the evidence leading up to the arrest on the grounds that the police officers lacked probable cause to stop the vehicle. The district court denied appellant’s motion, finding that there was no stop of an automobile and that there were “grounds for a Terry stop to talk with [appellant].”
At trial, appellant testified that he was not the driver of the vehicle, denied that he was holding the car keys, denied staggering or swaying while walking, but admitted that he drank a beer and a half that day. He stated that he refused to take the sobriety test because he was not the driver of the vehicle and did not believe that he was required to do so.
The jury acquitted appellant of the DWI charge but convicted him of first-degree refusal to submit to chemical testing. Appellant received the presumptive sentence of 54 months in prison. This appeal followed.
D E C I S I O N
that the police officers lacked the proper grounds to stop him on the street
after he exited the vehicle, and that the court erred by refusing to suppress the
evidence obtained as a result of the stop. We review de novo the legality of an investigatory stop and
questions of reasonable suspicion. Magnuson v. Comm’r of Pub. Safety, 703
N.W.2d 557, 559 (
Appellant argues that the
police officers lacked reasonable, articulable suspicion of criminal activity,
and relies on State v. Britton,604 N.W.2d 84, 89 (
But the district court distinguished
Britton factually, concluding that a
punched-out lock is “far more of a symptom that the car has been stolen than
the fact that a window is broken and covered with plastic.” We agree.
Here, Officer Savior testified that, based on his training and
experience as a police officer, a punched-out door lock supported a suspicion
that the car was stolen. Unlike a broken window, which may be broken
for many reasons other than car theft (e.g. road debris, hail, baseball games
gone awry, or other accidental causes; or intentional damage to steal the contents of the car) a broken lock is
less likely to occur for reasons other than car theft. A missing lock, by its nature, “support[s] at
least one inference” that a car is stolen.
argues that when the officers questioned appellant, they improperly extended
the scope of their investigation. Both
Here, the appellant demonstrated
indicia of intoxication.
that unobjected-to prosecutorial misconduct at closing argument deprived him of
a fair trial. He argues that the prosecutor
committed misconduct by (1) injecting race into the closing argument, and (2)
improperly shifting the burden of proof to the defendant. A conviction will be reversed for prosecutorial misconduct “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,
Minnesota Supreme Court concluded that “appellate courts should use the plain
error doctrine when examining unobjected-to prosecutorial misconduct.” State v. Ramey, 721 N.W.2d 294, 299 (
In Ramey, the supreme court concluded “the
burden should be on the prosecution to show lack of prejudice before we will
affirm a conviction.”
It is improper to inject race
into a closing argument when race is not relevant. State
v. Ray, 659 N.W.2d 736, 747 (
During the state’s closing argument, the prosecutor injected race by stating:
The defendant hasn’t raised his race as an issue in this case. There were some questions during voir dire about the fact that Mr. Johnson is an African American, and the possibility exists that one or more of you might have it in the back of your mind, well, maybe these cops are racist. Maybe these are the O.J. cops or something.
I would submit to you that if these officers were racist, why did they just ID Mr. McIntosh and let him go? If Mr. McIntosh was the driver of the vehicle, if he was really the driver of the vehicle and if he didn’t have a valid driver’s license, why would they let him go?
Respondent concedes that injecting race in the closing argument was error, but argues that it did not affect appellant’s substantial rights, and was a less serious error than the cases that have reversed on the basis of the prosecutor’s discussion of race.
On the charge of failure to submit to testing, appellant challenged whether the officers had probable cause to believe that he drove while under the influence. But as we previously concluded in section I, the officers had ample grounds to believe that appellant was driving under the influence. And where significant evidence exists to support the verdict, the error does not prejudice the appellant’s rights. See Cabrera, 700 N.W.2d at 475 (finding that “strength of the evidence” made verdict unattributable to error, despite racial comments in closing). The prosecution has therefore met its burden of showing lack of prejudice to appellant. Ramey, 721 N.W.2d at 302.
argues that State v. Cabrera requires a new trial.
In Cabrera, the prosecutor
stated that the defense attorney en
We conclude that Cabrera is factually distinguishable. Here, the prosecutor did not affirmatively argue that the defense attorney was racist, but rather argued the negative, i.e., that the police did not exhibit racial bias. And unlike Cabrera, appellant had the opportunity to object to the prosecutor’s argument regarding race, but chose not to do so. Thus, the injection of race in Cabrera was far more serious.
The prosecutor’s comments
are more similar to those in State v.
Taylor, 650 N.W.2d 190, 207 (
This is no O.J. She might want you to think O.J., but this is no O.J. This is Robert Taylor, and what she’s telling you is the police in this case had the opportunity and the ingenuity and the interest and the criminal intent, let’s be clear, it would be criminal intent for these officers to do this, to tamper with evidence in this case. That’s what she’s telling you.
comments that are not a theme of the closing argument should not be given undue
B. Shifting the burden of proof to the defendant
Appellant argues that the prosecutor’s closing argument improperly shifted the burden of proof to the defendant. Appellant identifies a number of statements, which include the following, “[e]ven if the defendant wasn’t driving, if he wasn’t drunk, why in the world wouldn’t he take one of these tests to prove that he wasn’t drunk . . . the reason he didn’t take a test was because he was drunk, obviously. Case closed.”
process requires the state to prove every element of a crime beyond a
reasonable doubt. State v. Auchampach, 540 N.W.2d 808, 816 (
Appellant argues for the first time on appeal
that the implied consent statute unconstitutionally shifts the burden of proof to the
defendant. But when the
constitutionality of a statute is not challenged in the district court, a party
cannot raise the issue for the first time on appeal. State v.
Schleicher, 672 N.W.2d 550, 555 (
But, even if we were to
examine the issue, our standard of review is very narrow.
Appellant’s argument consists
of one sentence that asserts the statute is unconstitutional and the quotation
of an entire concurring opinion. See State v. Myers, 711 N.W.2d 113,
119-20 (Minn. App. 2006) (Randall, J., concurring), review granted (
Here, that inference was actually correct—only appellant and his passenger were not the car thieves. Rather, the car had previously been stolen by removing the lock and the owner had not yet repaired the lock upon the car’s return.