This opinion will be unpublished and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
Scott Wade Ramey,
Filed May 1, 2007
Reversed and remanded
Steele County District Court
File No. K2-03-419
Lori Swanson, Attorney General,
James B. Early, Assistant Attorney General,
Douglas L. Ruth, Steele County
Attorney, 303 South Cedar,
John M. Stuart, State Public
Defender, Paul J. Maravigli, Assistant Public Defender,
Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
This appeal from a felony conviction for violating an order for protection was remanded by the supreme court for application of the new plain-error analysis announced in its opinion, State v. Ramey, 721 N.W.2d 294 (Minn. 2006). Because we conclude that the state has not shown that the prosecutor’s unobjected-to error did not affect appellant Ramey’s substantial rights, we reverse and remand.
The state alleged in the complaint that appellant Scott Ramey called his former girlfriend, S.S., at work in the early morning hours of April 9, 2003, in violation of an Order for Protection (OFP) that had been served on him the previous evening. The complaint also alleged that Ramey had two prior convictions for fifth-degree assault committed against S.S., and a prior conviction for felony violation of an earlier OFP obtained by S.S.
At trial, Ramey stipulated to the prior domestic-violence convictions that made the current charge a felony. In his opening statement, the prosecutor described the case as “very straightforward,” involving service of the OFP on Ramey in the evening and his calling S.S. at work the following morning. The prosecutor stated at one point, “The State does believe that the evidence will show” that Ramey made the call to S.S.
The state presented the testimony of S.S., as well as that of Officer Eichten, who saw Ramey at S.S.’s residence the evening of April 8 and served him with the OFP, and Officer Fandel, who took S.S.’s call the following morning reporting the violation.
Officer Eichten testified that he went to S.S.’s house twice on April 8, once in the afternoon at 4:30, and again at about 8:30 or 8:45. The first time, S.S. told him that Ramey had been there in violation of an OFP she had obtained. But Eichten discovered that Ramey had not been served with the OFP. The second time, Eichten arrived to see Ramey talking outside S.S.’s house with another police officer. Eichten told Ramey about the OFP, then filled out a “short form” OFP that he had Ramey sign.
S.S. testified that she was asleep in the afternoon inside her house when Ramey woke her up by kissing her on the cheek. She told him “numerous” times to leave, but he wouldn’t do so until she finally told him to leave and come back later (so she could call police). She called police and watched as they served Ramey with some papers.
S.S. testified that she worked the third shift, from 10 p.m. to 6 a.m., at Kwik Trip. She testified that early the following morning, April 9, Ramey called her at work at about 2 a.m. After Ramey said, “What’s up with the . . . ,” she hung and called police. S.S. testified that she recognized Ramey’s voice because he used to call her 20 to 30 times a day and had called her at work about ten times in the past. She testified she was “100% certain” it was Ramey’s voice.
On cross-examination, S.S. estimated that the phone call lasted no more than two seconds. She admitted that there was no caller ID on the phone, and the call-tracing feature did not work. Defense counsel then led her through a long description of the different features of the Kwik Trip gas station and convenience store, including the number of gas pumps and the number of cars and trucks that could pump gas (or diesel) there at one time. S.S. admitted that her job required her to “manage multiple tasks.”
On direct examination, S.S. testified that the hours of midnight to 4 a.m. were the least busy times on her shift.
Officer Brandon Fandel testified that he was called to the Kwik Trip about 2 a.m. and talked to S.S., who reported that she had received a phone call from Ramey. Fandel testified that the phone call consisted of Ramey saying, “Sherry what the – what’s with the . . . .” Fandel testified that he could not remember if there were customers in the store when he arrived.
jury found Ramey guilty of violating an order for protection. This court held that the trial court
committed plain error in giving the no-adverse-inference jury instruction
without Ramey’s consent. State v. Ramey, No. A04-1056, 2005 WL
832054, at *2 (Minn. App. Apr. 12, 2005), rev’d
and remanded,721 N.W.2d 294, 296
As listed in the supreme court’s opinion, Ramey has challenged four statements made by the prosecutor:
(1) “The State charged Mr. Ramey, entered this trial believing he’s guilty.”
(2) “That would be a big coincidence if it wasn’t the defendant, and the State believes that would be too big of a coincidence. The State believes that’s too big of a bridge to jump.”
(3) “The State believes her testimony is credible. The officer[s’] testimony is credible and you should believe what they told you.”
(4) “We suggest there [is] no evidence that you can find that[S.S.] was somehow affected, that she couldn’t have— couldn’t have accurately identified Ramey’s voice.”
v. Ramey, 721 N.W.2d 294, 297 n.1 (
This court’s opinion had addressed two
issues: (1) the trial court’s failure to obtain Ramey’s consent before giving
the no-adverse-inference instruction, and (2) the prosecutor’s alleged
misconduct in interjecting his personal opinion and vouching for prosecution
witnesses. State v. Ramey, A04-1056, 2005 WL 832054, at *1 (
The supreme court granted the state’s petition for review, but only as to whether the plain-error doctrine should apply to unobjected-to prosecutorial misconduct and what legal standard should be applied in determining whether the misconduct was prejudicial. Ramey, 721 N.W.2d at 296. The court held: (1) the plain-error doctrine applies to unobjected-to prosecutorial misconduct, id. at 299; (2) in applying that doctrine, the state should bear the burden, on the third prong, to show that the error did not affect the defendant’s substantial rights, id. at 302; and (3) the two-tiered Caron approach to assessing prejudice from prosecutorial misconduct should not apply to unobjected-to misconduct, id. at 299 n.4.
Under the plain-error doctrine,
before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.
v. Griller, 583 N.W.2d
736, 740 (
state argues that the prosecutor’s “the State believes” arguments were not
misconduct. We agree that the “State
believes” phrasing was a verbal tic that did not convey the prosecutor’s
personal opinion to the jury. See generally State v. Blanche, 696
N.W.2d 351, 375 (Minn. 2005) (rejecting argument that phrases such as “I
suggest to you” and “I think” were improper personal opinion, and quoting district
court’s conclusion that these were “rhetorical idiosyncrasies”). And the prosecutor’s statement in rebuttal,
“We suggest there [is] no evidence,” was clearly not an injection of personal
opinion, and, therefore, not misconduct.
The first statement, made as part of the prosecutor’s opening statement, and again involving use of the phrase “the State believes,” does not appear to have had a significant impact on the verdict. The prosecutor was speaking before the evidence was presented, and in the position of the person who filed the charges, not as one who had already heard the evidence and was offering a personal opinion on it. Moreover, the jury had been instructed not to consider “as in any way suggesting guilt” the fact that Ramey “has been brought before the Court by the ordinary processes of the law.” We conclude, given these factors, the ambiguity of the phrase and the strength of the state’s evidence, that the state has shown that there is no reasonable likelihood that the absence of this statement would have had a significant effect on the verdict.
The prosecutor’s vouching for the credibility of S.S.’s testimony, however, stating “the State believes her testimony is credible,” and adding that the police officers’ testimony was also credible, poses a much greater problem.
Although the defense did not explicitly challenge S.S.’s credibility in the narrow sense of her veracity, it did challenge the reliability of her identification of Ramey’s voice. The jury certainly could have taken the prosecutor’s vouching for S.S.’s “credibility” as also vouching for the reliability of that identification. And the prosecutor also vouched for the credibility of the police officers who testified. Although their testimony was merely corroborative, and basically unchallenged by the defense, the statement was still improper and may have had a significant impact on the verdict.
a very short trial in which the reliability of one witness’s testimony is the
critical issue, a prosecutor’s argument vouching for the credibility of that
testimony must be assumed to have had some impact. And the trial court’s error in giving the
no-adverse-inference instruction without Ramey’s consent may have had an
additional impact on how the jury resolved the credibility issue. Although the instruction tells the jury it
may not draw an adverse inference from the defendant’s failure to testify, it calls
to the jury’s attention that failure to testify. While jurors are presumed to follow the
court’s instructions, caselaw recognizes that they do not do so in all
situations. See State v. Pendleton, 706 N.W.2d 500, 509 (
The trial here was quite brief and the issue presented was straightforward. There was no dispute about the OFP or that Ramey was aware of it. The only issue was whether he called S.S. on the morning of April 9, and, therefore, whether S.S.’s identification of his voice, during a two-second phone call, was reliable.
Given the brevity of the phone call, S.S.’s identification of the caller was certainly less than overwhelming evidence. S.S. had heard Ramey’s voice many times on the phone and presumably was able to identify it. And the circumstances of the previous evening’s contacts and Ramey being served with the OFP certainly supported an inference that the caller was Ramey. But S.S. also could have been influenced by Ramey’s unwanted contacts into misidentifying the caller’s voice. If the call had lasted significantly longer, and included references to the relationship between Ramey and S.S., or if it had been traced to a phone used by Ramey, then the evidence would have been “overwhelming,” depriving the misconduct of any significant effect on the verdict. As it is, however, the state’s evidence was not so strong as to diminish the impact of the prosecutor’s vouching statements. Therefore, we conclude that Ramey’s conviction must be reversed and that he is entitled to a new trial.
Reversed and remanded.