This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



John Alan Wittmer,


Filed July 22, 1997


Schultz, Judge


Freeborn County District Court

File No. T2-94-3764

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Craig S. Nelson, Freeborn County Attorney, David J. Walker, Assistant County Attorney, Freeborn County Courthouse, 411 South Broadway, Albert Lea, MN 56007 (for Respondent)

Fred W. Wellman, Hoversten, Johnson, Beckmann, Wellmann & Hovey, LLP, 807 West Oakland Avenue, Austin, MN 55912 (for Appellant)

Considered and decided by Short, Presiding Judge, Toussaint, Chief Judge, and Schultz, Judge.



Appellant John Alan Wittmer was found guilty by a jury of driving with an alcohol concentration of .10 or more, a misdemeanor under Minn. Stat. § 169.121, subds. 1(d) & 3(b) (1992). On appeal, he claims the trial court abused its discretion in denying his motion to suppress audiotaped statements he made to a deputy sheriff on the morning of the accident. He further claims that the trial court erred in denying his motion for a new trial on the ground of prosecutorial misconduct during closing argument. We disagree and affirm.



Appellant argues that the audiotaped statements he made to a deputy sheriff in the emergency room were inadmissible because they violated his constitutional rights against self incrimination and to assistance of counsel.

The appropriate inquiry in determining "custody" for Miranda purposes is "whether a reasonable person in the suspect's position would have believed his freedom of movement was curtailed to a degree associated with formal arrest." State v. King, 513 N.W.2d 245, 248 (Minn. 1994). The test is not, as appellant argues and as the trial court assumed, whether a reasonable person would feel free to leave. See State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995). The only relevant inquiry is how a reasonable person in the suspect's position would understand the situation. Id.

The deputy's interview of appellant occurred in a hospital emergency room. Also present was appellant's brother, who assisted him in obtaining advice from an attorney. Appellant, who was lying on an examination table and was sleepy, clearly could not leave because of his condition and because he was being treated by medical personnel. Nevertheless, he was not restrained in a way that a reasonable person might associate with formal arrest: the deputy never asserted his authority over appellant, told appellant he was under arrest, or prevented appellant from leaving. The deputy merely asked appellant a few questions about the accident.

Even if appellant's interview statements were erroneously admitted, he has failed to demonstrate prejudice entitling him to a new trial. Cf. King, 513 N.W.2d at 248 (court need not decide whether statement violated suspect's rights because any possible error was harmless beyond reasonable doubt). The statements themselves were harmless: in response to the deputy's questioning, appellant repeatedly denied having been in an accident and claimed he had "parked" his motorcycle. Appellant did not confess or otherwise incriminate himself by admitting that he had been driving the motorcycle at the time of the accident. And although appellant insists that the prosecutor misused the statements in his closing argument, that fact alone would not render the audiotaped interview inadmissible or prejudicial.


Appellant argues that he is entitled to a new trial because statements made by the prosecutor during closing argument improperly shifted the burden of proof to him and penalized him for exercising his constitutional right to remain silent. In particular, the prosecutor stated that appellant had offered "[n]othing else, no other explanation of what happened but that he gave his keys to someone else, nameless and faceless." The prosecutor also noted that when interviewed by the deputy in the emergency room, appellant did not claim anyone else was driving, but merely denied being in the accident and stated that he had parked the motorcycle.

A prosecutor may not comment on a defendant's failure to call a witness who supposedly could have helped establish his defense, because such conduct may improperly suggest to a jury that the defendant has a duty to produce witnesses or bears the burden of proof. See State v. Tungland, 281 N.W.2d 646, 651 (Minn. 1979). Also, a prosecutor may not comment on a defendant's failure to tell an arresting officer or other persons the version of events to which the defendant testifies at trial, because such comment is fundamentally unfair and violates due process. See State v. Billups, 264 N.W.2d 137, 138-39 (Minn. 1979).

In this case, the prosecutor did not directly comment on appellant's failure to testify or state that appellant had the burden of proof. See Tungland, 281 N.W.2d at 651. Rather, the prosecutor questioned appellant's credibility by characterizing his version of the events as implausible.

Even if the prosecutor's comments were improper, appellant is not entitled to a new trial. By failing to object and seek cautionary instructions, a defendant generally waives his right to raise an issue on appeal. See State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). Failure to object weighs against reversal where the defendant's claim of prosecutorial misconduct involves only the closing argument. See State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994). This court may reverse a conviction, however, if the prosecutor's comments are unduly prejudicial. See Parker, 353 N.W.2d at 127-28. After reviewing the comments made here, we conclude that any misconduct on the part of the prosecutor was not so serious and prejudicial that appellant's right to a fair trial was denied. See State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).

We therefore affirm appellant's conviction.


[ ]*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.