State of Minnesota v. Duane Edwin Koski ( 2015 )


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  •                            This opinion will be unpublished and
    may not be cited except as provided by
    Minn. Stat. § 480A.08, subd. 3 (2014).
    STATE OF MINNESOTA
    IN COURT OF APPEALS
    A14-0812
    State of Minnesota,
    Respondent,
    vs.
    Duane Edwin Koski,
    Appellant.
    Filed May 18, 2015
    Affirmed
    Smith, Judge
    Pine County District Court
    File No. 58-CR-11-159
    Lori Swanson, Attorney General, John D. Gross, Assistant Attorney General, St. Paul,
    Minnesota; and
    John K. Carlson, Pine County Attorney, Pine City, Minnesota (for respondent)
    Bradford Colbert, Assistant State Public Defender, St. Paul, Minnesota (for appellant)
    Considered and decided by Larkin, Presiding Judge; Halbrooks, Judge; and Smith,
    Judge.
    UNPUBLISHED OPINION
    SMITH, Judge
    We affirm appellant’s conviction because the district court did not plainly err by
    admitting a law enforcement officer’s testimony that appellant was intoxicated and
    because the prosecutor did not solicit improper testimony.
    FACTS
    On February 4, 2011, Pine County Sheriff’s Deputy Dan Kunz pulled over
    appellant Duane Koski after seeing Koski’s pickup drifting in its lane and crossing the
    fog line. While talking to Koski, Deputy Kunz noticed that Koski had bloodshot, watery
    eyes and that his breath smelled of alcoholic beverages. Koski admitted that he had
    consumed three beers.
    Deputy Kunz asked Koski to perform three field sobriety tests: the horizontal
    gaze nystagmus test, the walk-and-turn test, and the one-legged stand test. Deputy Kunz
    noted multiple indicators of impairment while Koski performed each test. A preliminary
    breath test yielded a result indicating a .16 alcohol concentration.         Deputy Kunz
    subsequently arrested Koski for driving while impaired (DWI).
    The state charged Koski with first-degree DWI, first-degree DWI with an alcohol
    concentration of .08 or more within two hours, and driving after a suspension. Koski
    pleaded guilty to driving after a suspension and not guilty to the DWI charges.
    At trial, Deputy Kunz testified that when he ran Koski’s driver’s license during the
    traffic stop, it came back as suspended. Koski objected, and the district court sustained
    the objection and instructed the jury to disregard the testimony. In addition, Deputy
    Kunz testified that, based on his observations of Koski during the traffic stop, he believed
    that Koski was intoxicated. Koski did not object.
    The jury found Koski guilty of first-degree DWI and not guilty of first-degree
    DWI with an alcohol concentration of .08 or more within two hours.
    2
    DECISION
    I.
    Koski argues that the district court erred by allowing the deputy to testify that he
    believed Koski “was under the influence of alcohol.” Koski contends that this testimony
    was an expert opinion as to an ultimate issue that was unhelpful to the jury because:
    (1) the jurors were as capable as Deputy Kunz of making that determination, and (2) it
    reached a legal conclusion. In addition, Koski argues that the error was plain because the
    rule prohibiting expert testimony on ultimate facts is long-settled law and that the error
    affected his substantial rights because the deputy’s expert opinion was the “lynchpin of
    the State’s case.”
    We review the admission of unobjected-to testimony for plain error. State v.
    Medal-Mendoza, 
    718 N.W.2d 910
    , 919 (Minn. 2006). Under this standard, an appellant
    “must show that the district court’s failure to sua sponte exclude the testimony at issue
    constituted (1) an error; (2) that was plain; and (3) that affected [appellant’s] substantial
    rights.”   
    Id. at 919
    .   “[A]n error affects substantial rights if there is a reasonable
    likelihood that the error had a significant effect on the jury’s verdict.” State v. Vance,
    
    734 N.W.2d 650
    , 656 (Minn. 2007). If all three requirements are met, we may reverse
    “to ensure fairness and the integrity of the judicial proceedings.” 
    Id.
    Deputy Kunz testified that, “I believe that [Koski] was, based on my observations
    and the tests that I administered to the driver, that he was under the influence of alcohol.”
    Because one of the elements of the charged offenses was that Koski was under the
    influence of alcohol when the deputy stopped him, this testimony went to an ultimate
    3
    issue to be determined by the jury.            Testimony about an ultimate issue is not
    objectionable if otherwise admissible, Minn. R. Evid. 704, but an expert should not
    testify about a mixed question of law and fact if the testimony “would merely tell the jury
    what result to reach,” State v. Lopez-Rios, 
    669 N.W.2d 603
    , 613 (Minn. 2003). In
    contrast, a lay witness may offer opinions or inferences which are “(a) rationally based on
    the perception of the witness and (b) helpful to a clear understanding of the witness’s
    testimony or the determination of a fact in issue.” Minn. R. Evid. 701.
    Minnesota courts have permitted law enforcement officers to testify as to their
    opinion of a defendant’s intoxication. See, e.g., State v. Peterson, 
    266 Minn. 77
    , 80, 
    123 N.W.2d 177
    , 180 (1963). Such testimony is not expert opinion testimony merely because
    the officer has training and experience in the subject of the testimony. See State v. Ards,
    
    816 N.W.2d 679
    , 682-83 (Minn. App. 2012) (stating that testimony based on “personal
    observations” of the defendant is not “expert opinion testimony”). We conclude that
    because the deputy’s testimony was based on his personal observations of Koski, the
    deputy was not testifying as an expert. Therefore, the district court did not plainly err by
    failing to exclude the testimony sua sponte.
    Even if the testimony was improper expert opinion testimony, the district court’s
    failure to exclude it did not affect Koski’s substantial rights. There was significant,
    properly admitted evidence supporting the conviction, including testimony about Koski’s
    driving conduct, the smell of alcohol on Koski’s breath, his bloodshot and watery eyes,
    his admission that he had consumed alcohol, his poor performance on all three field
    4
    sobriety tests, and the results of his urine test.       Therefore, there is no reasonable
    likelihood that any error significantly affected the verdict.
    II.
    Koski also argues that the prosecutor committed misconduct by intentionally
    eliciting evidence regarding appellant’s suspended driver’s license and that the
    misconduct was not harmless because it “was a close case.” Koski contends that there
    was little evidence of obvious intoxication while Koski was driving and that the
    testimony was particularly prejudicial because it invited the jury to speculate as to why
    Koski’s license had been suspended.
    We review objected-to prosecutorial misconduct for an abuse of discretion. See
    State v. Henderson, 
    620 N.W.2d 688
    , 702 (Minn. 2001). “We will not disturb a district
    court’s conclusion that no misconduct occurred unless the misconduct, viewed in the
    light of the entire record, was so inexcusable, serious, and prejudicial that the defendant’s
    right to a fair trial was denied.” 
    Id.
    While questioning Deputy Kunz about the traffic stop, the prosecutor asked,
    “What happened next?” Deputy Kunz replied, “I walked back to my patrol vehicle and
    ran his driver’s license which came back suspended, and then when I walked back up and
    gave him his license—.” Koski objected, and the district court sustained the objection,
    struck the answer, and instructed the jury to disregard it.
    First, we must clarify whether the testimony was inadmissible. Koski states in his
    brief that evidence of his suspension was suppressed. Koski brought a pretrial motion to
    suppress, but it did not cover Koski’s suspended driving privileges. Instead, Koski
    5
    pleaded guilty to driving after suspension, removing the issue from the jury’s
    consideration.   Because the issue was irrelevant to the elements of driving while
    intoxicated, the testimony would generally be inadmissible, but not suppressed. See
    Minn. R. Evid. 402 (“Evidence which is not relevant is inadmissible.”).
    The record does not, however, support Koski’s claim that the prosecutor
    intentionally elicited the testimony. “A reviewing court is much more likely to find
    prejudicial misconduct when the state intentionally elicits impermissible testimony.”
    State v. McNeil, 
    658 N.W.2d 228
    , 232 (Minn. App. 2003). The testimony was given in
    response to an open-ended question. Nothing in the phrasing of the question indicated an
    intention to elicit testimony about the suspension. The prosecutor also never referenced
    the testimony in later questioning or closing argument.       Based on the record, the
    elicitation of the testimony appears inadvertent.
    Where the prejudicial impact of improper testimony is “speculative and minimal”
    and there is other strong evidence supporting conviction, the appellant has not been
    denied his right to a fair trial. See, e.g., State v. Bonn, 
    412 N.W.2d 28
    , 30 (Minn. App.
    1987), review denied (Minn. Oct. 21, 1987). Here, the prejudicial impact was speculative
    and minimal because the jury was instructed to disregard the remark, and we presume
    that a jury followed instructions. See State v. Miller, 
    573 N.W.2d 661
    , 675 (Minn. 1998).
    In addition, there was other strong evidence supporting conviction, as outlined above.
    Therefore, Koski was not denied his right to a fair trial as a result of the alleged
    misconduct.
    Affirmed.
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Document Info

Docket Number: A14-812

Filed Date: 5/18/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021