This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Filed April 17, 2007
Concurring specially, Shumaker, Judge
Watonwan County District Court
File No. K6-04-70
Lori Swanson, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
LaMar Piper, Watonwan County
Attorney, Watonwan County Courthouse, 710 Second Avenue South, St. James,
John M. Stuart, State Public
Defender, Sara L. Martin, Assistant Public Defender,
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of sale of a controlled substance, appellant argues that the district court erred when it failed to exclude evidence of appellant’s prior convictions and that prosecutorial misconduct during trial warrants reversal of his conviction. Because we conclude that the district court did not abuse its discretion by admitting evidence of appellant’s prior convictions and that any prosecutorial misconduct did not deny appellant his right to a fair trial, we affirm.
At trial, the state called as witnesses the police informant and a law-enforcement officer who saw appellant leave the warehouse with the informant. Appellant was the only defense witness. The jury found appellant guilty, and this appeal follows.
D E C I S I O N
Appellant first argues that the district court erred when
it denied his motion to exclude evidence of his two prior felony
convictions. Appellant was convicted of
conspiracy to sell methamphetamine in
Appellant moved the district
court to exclude the evidence of his prior conviction in Cottonwood County,
arguing that the conviction was not final because an appeal was pending and
that the prejudicial effect of the evidence outweighed its probative value,
“particularly in light of the fact that [appellant] does have a second felony
conviction for receiving stolen property . . . that is certainly admissible and
would accomplish the same goal.” The
district court denied appellant’s motion to exclude evidence of the
The record shows that appellant
moved to exclude only the
appellant did move the district court to exclude evidence of his prior
conviction for selling methamphetamine, we review the denial of that motion for
an abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (
correct that a district court applies the factors set forth in State v.
Jones to determine whether the probative value outweighs the prejudicial
effect of admitting a prior conviction for impeachment purposes. 271 N.W.2d at 537-38. To apply the Jones
factors, the district court considers (1) the impeachment value of the
prior crime, (2) the date of conviction and the defendant’s subsequent history,
(3) the similarity of the past and charged crimes, (4) the importance of the
defendant’s testimony, and (5) the centrality of the credibility
The first Jones factor weighs in favor of
admissibility. Appellant’s prior
convictions had impeachment value “by helping the jury see the ‘whole person’
of the defendant and better evaluate his . . . truthfulness.”
The second Jones factor also weighs in favor of
admissibility. Appellant’s prior
conviction took place in 2004, slightly more than a year before the trial here. See id.
(determining that the fact that prior convictions were less than ten years
old weighed in favor of admissibility).
The prior conviction therefore has not “lost any relevance by the
passage of time.” State v. Bettin, 295 N.W.2d 542, 546 (
We agree with appellant that
the third factor weighs against the admissibility of the prior-conviction
evidence. The prior conviction was of
the same crime for sale of the same drug to the same police informant. When the alleged offense and the crime
underlying a past conviction are similar, it is possible that the jury will use
the evidence of the past conviction substantively rather than merely for
impeachment purposes, so it is more likely that the past conviction is more
prejudicial than probative.
The fourth and fifth Jones factors are often combined, and here, they weigh in favor of admitting the prior-conviction evidence. When appellant testified, his version of the facts sharply contradicted the versions offered by the two other witnesses. And, as the state points out, appellant and the police informant were the only two people present at the alleged drug sale. Appellant’s testimony was crucial to his defense, and his credibility was therefore central. See Ihnot, 575 N.W.2d at 587.
Four of the five Jones factors weigh in favor of admissibility. The district court did not abuse its discretion when it concluded that the probative value of the evidence of appellant’s prior conviction for the sale of methamphetamine did not outweigh its prejudicial effect and admitted the evidence.
argues that the state committed prosecutorial misconduct (1) when the prosecutor
questioned appellant during cross-examination regarding his failure to produce
certain witnesses; (2) when the prosecutor asked appellant whether the state’s
witnesses were lying; and (3) when the prosecutor misstated the jury’s duty and
made improper comments during his closing argument. Prosecutorial misconduct must be carefully
evaluated on appeal because it may have denied a defendant his right to a fair
trial. State v.
counsel objected to the prosecutor’s questions on cross-examination regarding
appellant’s failure to produce certain witnesses and regarding whether certain
witnesses were lying. When actions by a
prosecutor have risen to the level of misconduct and defense counsel has
objected, we review the misconduct in light of the whole trial and reverse only
if the appellant’s right to a fair trial was impaired. State
v. Mayhorn, 720 N.W.2d 776, 785 (
The state argues that the prosecutor’s two
questions regarding appellant’s failure to produce certain witnesses did not
constitute misconduct because defense counsel’s immediate objections were
sustained, and the prosecutor then “moved on” and did not re-ask his
question. But it is well settled that a prosecutor
may not comment on a defendant’s failure to call a particular witness because
such a comment suggests both that the defendant bears a burden of proof and
that the defendant avoided calling the witness because the witness’s testimony
would be unfavorable.
But we also
conclude that the jury’s verdict was surely unattributable to the misconduct.
next argues that the state committed prosecutorial misconduct when the
prosecutor asked appellant three times on cross-examination whether the state’s
witnesses were lying or mistaken. As a
general rule, “were they lying” questions are inappropriate because they create
the impression that the jury must conclude that the witnesses in question were
lying before the jury may acquit the defendant.
Dobbins, 725 N.W.2d at 511. The prosecutor may ask “were they lying”
questions only if “the defendant holds the issue of the credibility of the
state’s witnesses in central focus” and not merely because the defendant’s
testimony conflicts with the witnesses’ testimony.
appellant claimed that both of the state’s two witnesses were lying, and
appellant was the only other witness at trial.
And he essentially “flatly denie[d] the occurrence of events” when he
testified that he spoke with the police informant only on the phone on
September 25, 2003; that drugs were not discussed; and that he did not see her
that day. The “were they lying”
questions were not misconduct here because the appellant placed the credibility
of the state’s witnesses in central focus.
Even if the questions did constitute prosecutorial misconduct, we conclude that the jury’s verdict was surely unattributable to such misconduct, rendering it harmless beyond a reasonable doubt. The questions were objected to, and those objections were sustained; the jury was properly instructed; and the evidence against appellant was substantial. Any misconduct did not deny appellant’s right to a fair trial.
argues that the prosecutor committed additional acts of misconduct during his
closing argument to which appellant admittedly failed to object at trial. We review unobjected-to prosecutorial
misconduct for plain error that affects substantial rights. State
v. Ramey, 721 N.W.2d 294, 299 (
Appellant claims that the prosecutor committed prosecutorial misconduct during his closing argument by (1) encouraging the jury to “reach a verdict that is effective”; (2) minimizing the fact that appellant was not arrested until a week after the offense by explaining that “in law enforcement they want to see if somebody does something else,” when that statement was not supported by the record; (3) stating that the jury “may wonder if this—if this series of events that the [d]efendant has now testified to has been created on the fly, so to speak”; and (4) improperly vouching for the state’s witnesses by asking the jury to consider whether either the law-enforcement officer or the police informant had any reason to lie.
The state argues that the prosecutor’s statements “were not prejudicial and did not deprive appellant of a fair trial for a number of reasons”: (1) the district court properly instructed the jury on all relevant matters, making it “doubtful that the jury was influenced by any improper remark by the prosecutor”; (2) the prosecutor admonished the jurors during his closing argument that statements by attorneys are not evidence and that they must evaluate only evidence; (3) appellant complains about only a few “brief, isolated comments” from the prosecutor’s lengthy closing argument, most of which was devoted to reviewing the evidence; (4) any alleged improper statements were “minor and most likely unintentional”; and (5) “the evidence against appellant was strong.”
The state is correct that appellant does not characterize the alleged misconduct during the prosecutor’s closing argument as plain error. Because appellant bears the burden of demonstrating “both that error occurred and that the error was plain” under Ramey, 721 N.W.2d at 302, appellant has failed to meet his burden. Further, the comments that appellant characterizes as misconduct were not plainly improper. They simply did not rise to the level of misconduct. And even if the comments that appellant complains of were to be considered plain error, we conclude that the state has met its burden to show that any such error did not significantly affect the verdict. Appellant was not denied his right to a fair trial.
SHUMAKER, Judge (concurring specially)
I concur specially to suggest the adoption of a bright-line prohibition against the so-called “were they lying” questions. Although caselaw has tentatively condemned such questions, it is this tentative approach that has left the door open for the continuation of the practice of asking witnesses to comment improperly on the credibility of other witnesses and has spawned increasingly frequent appeals alleging prosecutorial misconduct when prosecutors ask such questions. In my view, there is no principled reason to allow “were they lying” questions at all.
The majority correctly notes the Dobbins case as to one of the vices of
such questions, namely, that the jury must conclude that prosecution witnesses
were lying before it could acquit the defendant. State
v. Dobbins, 725 N.W.2d 492, 511 (
Another vice of such questions is
that the answer they seek is simply improper under the rules of evidence. Although a lay witness may sometimes state an
opinion, that opinion must be the product of personal knowledge and must be
helpful to the jury.
The rules of evidence do permit a witness to state an opinion as to another witness’s truthfulness or untruthfulness under Minn. R. Evid. 608, but only after foundation has been laid to show that the witness is competent to offer that opinion. The “were they lying” question ignores rule 608 altogether and bypasses any foundational requirement.
Because there is a proper way to elicit a credibility opinion under rule 608, I see no reason the courts should impliedly endorse an improper way to obtain that opinion. Without a bright-line prohibition on “were they lying” questions, the impropriety will continue to the detriment of the accused, in most cases, and the system of justice in general.