This opinion will be unpublished and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

A04-2398

 

State of Minnesota,

Respondent,

 

vs.

 

Steven Allen Ross,

Appellant.

 

Filed March 14, 2006

Affirmed

Worke, Judge

 

Isanti County District Court

File No. K2-02-231

 

Mike Hatch, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Jeffrey Edblad, Isanti County Attorney, 555 – 18th Avenue Southwest, Cambridge, MN  55008 (for respondent)

 

John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Wright, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            Appellant challenges his conviction of and sentence for criminal vehicular homicide, arguing that the state did not prove exigent circumstances to order the removal of blood from appellant at the hospital without a warrant.  Appellant also argues that there was insufficient evidentiary foundation for the blood test, that the district court abused its discretion by denying his motion for a mistrial in light of a prejudicial statement made by the state’s witness, and that several statements by the prosecutor during closing argument constituted prejudicial misconduct requiring a new trial.  Finally, appellant argues that based on mitigating factors, the court should have granted him a dispositional departure.  We affirm.

FACTS

            Appellant Steven Allen Ross was involved in a two-vehicle collision on February 17, 2002, that resulted in the death of the driver of the other vehicle.  Appellant was charged in Isanti County with criminal vehicular homicide, including charges involving intoxication, as the driver of the vehicle that caused the collision.  Appellant’s case went to trial but the jury failed to reach a verdict, and the district court declared a mistrial in October 2003.

            The state filed an amended complaint in February 2004, charging appellant with four counts of felony criminal vehicular homicide and one count of misdemeanor operating a vehicle without insurance.  Appellant pleaded guilty to the no-insurance charge and was tried on the four remaining felony counts.  Prior to trial, the district court denied appellant’s motion to suppress evidence of his blood-alcohol level, which had been admitted during the omnibus hearing prior to the first trial.

            Appellant’s passenger at the time of the collision, Troy Anderson, testified at trial that he was the driver of appellant’s pickup truck when they first left a gathering to pursue two female occupants who had left the same gathering in a second vehicle.  Anderson stated that he and appellant, who had both consumed alcohol, switched driving positions after they drove about 100 yards from the house.  An accident reconstructionist testified at trial that appellant drove the truck through a stop sign at a speed of 97-99 miles per hour, that the truck became airborne as it struck a higher roadbed, and that after “ramping” the truck struck the decedent’s vehicle as it sat at an intersection. 

            Anderson further testified that when the truck stopped, he exited the vehicle through the passenger door, walked around the truck, and found appellant on the ground near the driver’s side of the truck.  After making sure appellant was breathing, he ran to the other vehicle and observed that the driver was injured.  He then “freaked out” or “lost control,” and ran back to appellant’s truck.  He stated that nearby residents came out of their homes and went back to call 911.  One of those residents testified that Anderson ran up to appellant, grabbed him by the shoulders, shook him, and said, “You better hope you didn’t kill someone.”  Officers who responded to the scene determined that the driver of the other vehicle was dead and ascertained that appellant had been the driver of the truck.

            Appellant testified that he had started drinking early that afternoon and that his last memory of the day was of sitting in a bar in Wisconsin; his first memory thereafter was waking up in the hospital the next day.  The collision was reported at 7:22 p.m.  Appellant’s blood, drawn at 8:28 p.m., showed an alcohol concentration of .24.  The officer present at the blood draw had first read an implied consent advisory to Ross, but determined that he was incapable of providing consent because he was confused and “coming in and out of consciousness.”

            In April 2004, a jury found appellant guilty of all four counts of felony criminal vehicular homicide.  Prior to sentencing, appellant moved for a new trial or, in the alternative, for a downward dispositional departure from the presumptive sentence.  In September 2004, the district court sentenced appellant to the presumptive sentence of 48 months in prison and ordered restitution.  This appeal follows.

D E C I S I O N

I

Appellant challenges the constitutionality of the blood draw that substantiated his intoxication.  “When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.”  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  Because the evidence in question was not challenged prior to the first trial, the relevant facts were not developed at the original omnibus hearing, and we must review the current trial record. 

Because he was incapable of providing consent at the time, appellant argues that officers responding to the accident should have obtained a warrant prior to drawing his blood sample, and failing to do so violated his right against unreasonable search and seizure.  The drawing of blood from a criminal suspect is a seizure that must comply with the Fourth Amendment.  Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966).  “[T]he constitutional prerequisite to the warrantless nonconsensual removal of blood of a conscious or unconscious driver is the same: probable cause plus exigent circumstances.”  State v. Aguirre, 295 N.W.2d 79, 81 (Minn. 1980).  One variety of exigent circumstances recognized in Minnesota is the “imminent destruction of evanescent evidence.”  State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996). 

In Schmerber, the Supreme Court concluded that exigent circumstances were present because the officer, who authorized a blood draw two hours after a car accident,

might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to [the accused’s] arrest.

 

Schmerber, 384 U.S. at 770-71, 86 S. Ct. at 1835-36 (internal citation omitted).  Appellant contends that, because a relatively short period of time had elapsed between the collision and the blood draw, exigency did not exist.  See State v. Lohnes, 344 N.W.2d 605, 611 (Minn. 1984) (when determining exigency, the court should review the totality of circumstances). 

Appellant’s blood was drawn within one hour and 15 minutes from the time the accident was reported to the police.  If appellant’s level of intoxication had been lower, but still above the legal limit, even that delay could have allowed the alcohol concentration in his blood to dissipate enough to jeopardize the evidence.  Appellant contends that current sophisticated methods of communication would have allowed the officers to have “easily obtained a timely warrant,” but two other survivors at the scene and the preliminary investigation of a traffic fatality required their attention, and the accident occurred on a Sunday evening.  In light of the events preceding the blood draw, we are satisfied that these were exigent circumstances.

Notably, appellant does not dispute that the officers had probable cause to suspect that he was intoxicated, and bases his appeal of this issue entirely on exigency.  But this concession misconstrues the law because Minnesota courts have established a bright-line rule concerning probable cause in such circumstances.  Where officers suspect intoxication while investigating a fatal accident, we consider whether they had probable cause to believe that “the crime of criminal negligence has been committed and probable cause to believe not that the defendant is intoxicated but that administration of the [blood alcohol] test will result in the discovery of evidence that will aid in the prosecution of that crime.”  State v. Speak, 339 N.W.2d 741, 745 (Minn. 1983) (emphasis added).  The circumstances of this fatal accident clearly required the officers to initiate a criminal investigation.  Therefore, we are convinced that the district court did not err in its denial of appellant’s motion to suppress the evidence of his intoxication.

II

Appellant also challenges the district court’s admission of hearsay evidence during trial testimony.  “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.”  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).

In the first trial, the state called the medical technician who performed the blood draw at Cambridge Medical Center as a witness, but she did not testify at the second trial.  Instead, the officer who was present during the blood draw testified.  During the officer’s testimony, the state offered into evidence a document entitled “Implied Consent Law Peace Officer’s Certificate” that includes a box for certification of the blood-draw procedure, featuring the signatures of the officer and the medical technician.  Appellant’s attorney objected to the introduction of the document, arguing that the state had not established a proper foundation.  The district court overruled the objection and received the document into evidence.

As the proponent of the alcohol-concentration test, the state has the initial burden to “establish that the test itself is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability.”  State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977).  “Only a physician, medical technician, emergency medical technician-paramedic, registered nurse, medical technologist, medical laboratory technician, or laboratory assistant acting at the request of a peace officer may withdraw blood for the purpose of determining the presence of alcohol.”  Minn. Stat. § 169A.51, subd. 7(a) (2002). Appellant contends that the document did not satisfy the business-record hearsay exception under Minn. R. Evid. 803(6) because the state offered no testimony about the regularity of the use of the form by Isanti County law enforcement.

The officer who was present at the blood draw testified regarding filling out the form and stated that he recognized the person who drew the blood “as being one of the lab personnel” whose badge read either “lab technician or medical technician.”  Appellant provides no legal standard to require that the person be a medical technician for purposes of Minn. Stat. § 169A.51, and, therefore, the court acted within its discretion by accepting the officer’s testimony as proof that the blood draw was performed by a medical technician.  Even if there was not a proper foundation to justify the introduction of the document under rule 803(6), its improper receipt into evidence was harmless.[1]

Appellant also alleges that the medical technician admitted during the first trial that she was not certified when she performed the blood draw.  Putting aside the fact that this argument cites documents outside the trial record, the medical technician discussed certain types of “licensure or certification” that she planned to reacquire. She also stated that she had been employed at the Cambridge Medical Center as a medical technician for six years, and appellant provides no legal support for the notion that Minn. Stat. § 169A.51 imposes any specific standard of certification for medical technicians.

Finally, appellant argues that without the testimony of the medical technician, the state failed to properly prove the chain of custody with respect to the blood.  Minn. Stat. § 634.15, subd. 2 (2002), provides that:

[A]n accused person or the accused person’s attorney may request, by notifying the prosecuting attorney at least ten days before the trial, that the following persons testify in person at the trial on behalf of the state:

(a)       A person who performed the laboratory analysis or examination for the report described in subdivision 1, clause (a); or

(b)       A person who prepared the blood sample report described in subdivision 1, clause (b).

 

Appellant maintains that the medical technician was required to testify because his attorney made such a request prior to the second trial.  The “person who performed the laboratory analysis” per subdivision 2(a), an employee of the Minnesota Bureau of Criminal Apprehension, did testify at trial.  But the medical technician would not have been required to testify under subdivision 2(b) because she did not prepare a blood-sample report as described in Minn. Stat. § 634.15, subd. 1(b) (2002).  Technically, the sample was not “withdrawn under the implied consent law.”  As previously noted, the officer concluded that appellant was incapable of providing consent at the time.  The chain of custody is further established by the officer’s testimony regarding the circumstances of the blood draw, from which the district court could presume that he was in constant presence of the evidence until its remittance to the BCA and that the sample was drawn from appellant.

            The district court did not abuse its discretion by admitting evidence with respect to the blood draw.  We are also convinced that the state met its prima facie burden to establish the reliability of the blood test.  Based on this evidence, the district court could have reasoned that the state had established that the test was reliable and had been administered in conformity with a reliable procedure.

III

Appellant challenges the district court’s denial of his motion for a mistrial based on the prejudicial comments of a witness.  An appellant has the burden of establishing that the district court abused its discretion in its evidentiary rulings and that appellant was thereby prejudiced.  Amos, 658 N.W.2d at 203; State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998) (“The standard of review for denial of motion for a mistrial is abuse of discretion.”).  If the district court erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.

During direct examination of a state witness for the purpose of determining the identity of the driver of the truck, the witness stated that he had said, “Why isn’t [appellant] in jail,” in response to a question about his conversation with a private investigator hired by appellant. After appellant’s attorney objected and an in camera conference with the judge, the prosecutor proceeded with this line of questioning, and the witness corroborated his statement that he had heard Troy Anderson tell appellant, “You better hope you didn’t kill somebody.”  Appellant’s attorney later requested that the witness’s testimony be stricken in its entirety, but the district court only affirmed the admissibility of prior statements under hearsay rules and never addressed the prejudicial impact of the specific comment.

Appellant maintains that the prosecution’s solicitation[2] of the statement violated his right to due process of law and a fair trial.  State v. Haney, 222 Minn. 124, 125, 23 N.W.2d 369, 370 (1946) (stating “conduct, either by argument or by the asking of irrelevant questions, the effect of which is to inflame the prejudices or excite the passions of the jury against the accused,” is a threat to a fair trial).  A statement that implies that a defendant should be in jail implicates the ultimate issue of a criminal trial and is prejudicial in the most literal sense.  A district court confronted with a prejudicial statement should exercise its discretion “promptly to right the wrong at the time it occurs.”  State v. White, 295 Minn. 217, 224, 203 N.W.2d 852, 858 (1973).  The district court should have, at the very least, instructed the jury to disregard the statement about jail, and its failure to do so was erroneous.

Therefore, we must consider “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict[.]”  Post, 512 N.W.2d at 102 n.2.  The witness in question was a resident of a nearby home and one of the first people to arrive at the scene of the accident.  The “jail” comment, while certainly inflammatory, was also corroborative of the witness’s testimony indicating that appellant was the driver and thus did not introduce a distinct theory or idea.  See State v. Orfi, 511 N.W.2d 464, 470 (Minn. App. 1994) (finding error harmless when erroneously admitted testimony was “generally cumulative” and other evidence against defendant was substantial).  The jurors were instructed that they alone must make a determination of guilt.  In light of the trial record and the substantial proof that appellant was the driver, we find no reasonable possibility that the “jail” statement affected the verdict.  Therefore, the district court did not abuse its discretion by denying the motion for a mistrial.

IV

A district court’s denial of a new-trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.”  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).  There are two distinct standards for determining whether prosecutorial misconduct is harmless error: (1) serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error”; and (2) less serious misconduct will be found by determining “whether the misconduct likely played a substantial part in influencing the jury to convict.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (citing State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)). 

In moving for a new trial, appellant alleged three examples of misconduct in the prosecutor’s closing argument: disparagement of the defense attorney, vouching for witness credibility, and comparing appellant and his friends to the Mafia.  Appellant presents several other examples of misconduct to this court but he did not raise these issues in his posttrial motion, and he did not object during trial.  See State v. Clow, 215 Minn. 380, 387, 10 N.W.2d 359, 362 (1943) (error not specified in motion for a new trial and is not reviewable); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that claims not presented to and decided by the district court are deemed waived); see also Powers, 654 N.W.2d at 678 (“If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review”) (citing State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999)). 

We use the following standard to evaluate the propriety of a prosecutor’s closing argument:

(a)      The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw.

(b)      It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

(c)      The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.

(d)      The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict.

 

State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).  When reviewing alleged misconduct in closing arguments, we must look at the whole argument in context, not just selective phrases or remarks.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

A prosecutor should not disparage the defense in closing arguments.  State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997).  Appellant’s first example of disparagement of the defense is the prosecutor’s anticipatory characterization of reasonable doubt as a “mystical standard”—counsel essentially disparaged the burden of proof to thwart any attempt by the defense to do so.  While defense counsel did not ultimately use this characterization himself, he also did not object to its use by the prosecution, and we do not find this statement to have been misconduct, let alone misconduct sufficient to trigger review absent an objection at trial.  See Salitros, 499 N.W.2d at 818 (stating that “prosecutors are . . . free to make arguments that reasonably anticipate arguments defense counsel will make in closing argument”). 

Appellant also complains about the prosecutor twice using the word “slick” during rebuttal closing argument to describe defense tactics.  Appellant’s objection following the second use of the word was sustained by the district court.  The district court also sustained defense counsel’s objection to the prosecutor’s statement.  “We are at a bit of a disadvantage here.  Mr. Ross gets to come in here and smile at you all and tell you what a great job he has, we don’t—”, at which point he was cut off by the objection.  These statements were disparaging, but even if they amounted to “less serious” misconduct, we cannot see how they could have played a substantial part in influencing the jury to convict.

A prosecutor engages in misconduct if he expresses his personal opinion of the defendant’s credibility as a witness.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  “In cases . . . , where credibility is the central issue, special attention must be paid to statements that may prejudice or inflame the jury.”  State v. McNeil, 658 N.W.2d 228, 234 (Minn. App. 2003).  Appellant argues that the prosecutor improperly compared him and his friends to the Mafia, and the statement was an impermissible reference to race and ethnicity.  Defense counsel did not object to the statement.  The immediate context of that statement was the prosecutor’s admission to gaps in his case:

Now we failed here in one way as a prosecution, I can’t tell you how this stuff went down, how these girls ended up behind Mr. Ross and Mr. Anderson on Flamingo Street, don’t know what happened. And I tell you this group of friends would make the Mafia jealous with the way they don’t discuss this.

 

Appellant provides no explanation of how the prosecutor was making an insinuation about appellant’s race or ethnicity, or that of his friends.  In the full context of the argument, this statement was much less an expression about appellant’s credibility than it was an admission to the difficulty of assembling a case from reluctant eyewitnesses.

Appellant also argues that the prosecution committed misconduct by vouching for the credibility of the accident reconstructionist in comparison to other witnesses.  Defense counsel objected to the following statement:

I really don’t like putting people like Troy Anderson on the stand, no prosecutor would.  He comes off as abrasive, not real polished, had cocaine in his system doesn’t add anything to the mix.  I recall—you know I wish every witness I could call would be Sergeant Drevnick.  But guys like Sergeant Drevnick don’t hang around with [appellant].  This was [appellant’s] friend, he chose this witness for me.

 

The prosecutor may have spoken about perceptions of credibility, but he did not directly vouch for the truthfulness or falsity of the testimony of any of these witnesses.  In the full context of the closing argument, we find such a statement to be acceptable as an attempt by the prosecutor to explain a weakness of his case.  

In light of the prosecutor’s entire closing argument, appellant’s constitutional right to a fair trial was not impaired.  The district court’s denial of a new trial with respect to appellant’s allegations of prosecutorial misconduct was, therefore, appropriate.

V

A district court has broad discretion in determining whether to depart from a presumptive sentence under the sentencing guidelines.  State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993).  In determining whether to depart from a presumptive sentence, the sentencing court should: “(1) consider whether any mitigating or aggravating factors are present; (2) determine whether these circumstances are substantial and compelling circumstances justifying departure; and (3) if there are substantial and compelling circumstances, decide whether or not to depart.”  State v. Leibfried, 309 N.W.2d 36, 36 (Minn. 1981).

The district court sentenced appellant to 48 months in prison plus restitution.  As an alternative to the arguments we have heretofore addressed, appellant maintains that the district court abused its discretion by denying his motion for a downward dispositional departure because it used improper reasoning and failed to implement the proper legal standard. 

Appellant points to ample support from the presentence investigation for his claim that he was amenable to probation and would remain a sober and productive citizen, offers statistical data that suggest that incarceration for similar crimes is the exception, and cites a variety of cases affirming downward departures.  But his characterization of the district court’s determination is misguided.  Appellant argues that “the court used offense-related factors to deny the departure.”  Factors, in this context, are what the court would use to depart downward or a jury would use to justify an upward durational departure.  The court did not need to provide factors to impose a presumptive sentence—appellant had the burden to prove to the court that he should not be incarcerated for criminal vehicular homicide while under the influence of alcohol under Minn. Stat. § 609.21, subd. 1(2)(i) (2002). 

The district court stated that it gave “quite a bit of thought” to the possibility of probation with correctional placement imposed only if appellant committed another violation.  The court stated that it believed appellant’s position that he had no memory of the incident, but stated that his conduct had been “unconscionable.”  Given the broad discretion that we afford sentencing courts when deciding whether to depart from the guidelines, we affirm the district court’s sentencing decision.

            Affirmed.