State of Minnesota v. Quintin Lynn Thomas , 882 N.W.2d 640 ( 2016 )

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0708
State of Minnesota,
Respondent,
vs.
Quintin Lynn Thomas,
Appellant.
Filed July 5, 2016
Affirmed
Bratvold, Judge
St. Louis County District Court
File No. 69DU-CR-14-1834
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Gunnar B. Johnson, Duluth City Attorney, Joanne R. Piper-Maurer, Assistant City
Attorney, Marcus E. Jones, Assistant City Attorney, Duluth, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
SYLLABUS
I. Under Minnesota Rule of Criminal Procedure 26.03, the district court has discretion
to grant or deny the state’s motion to reopen its case to offer additional evidence
where the motion is made after the state has rested without proving an element of
its prima facie case and the defense has moved for judgment of acquittal.
II. In exercising its discretion on a motion to reopen, the district court should consider
(a) when the motion is made, (b) whether the evidence is material, not cumulative,
and concerns a controlling issue, and (c) whether the state had an improper purpose
for failing to offer the evidence earlier.
OPINION
BRATVOLD, Judge
Appellant, Quintin Thomas, appeals his conviction of second-degree driving while
impaired, arguing that the district court abused its discretion by allowing the state to reopen
its case on a motion made after the state had rested and the defense had moved to acquit
based on a deficiency in the state’s prima facie case. Thomas also argues that the district
court improperly instructed the jury that the police officer who testified regarding the
operation of a breath-testing machine was testifying as an expert. Because we conclude
that the district court did not abuse its discretion in allowing the state to reopen its case or
by instructing the jury as it did, we affirm Thomas’s conviction.
FACTS
On May 16, 2014, after attending a funeral, Thomas went to the Players Sports Bar
in Duluth. While at the bar, Thomas had three to four Crown Royals with a beer chaser.
Thomas, who does odd jobs for a living, received a telephone call around midnight, while
still at the bar. Thomas then walked six blocks to make repairs on a Ford F250 pickup.
After he finished the repairs, his pre-arranged ride did not come, and his cell phone died.
Thomas stood for some time outside the pickup. Because it was cold—only 39 degrees—
Thomas entered the pickup, laid down across the bench seat in front, and fell asleep. Hours
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later, he awoke and was cold, so he turned on the ignition and heater and fell asleep in the
driver’s seat.
Around 4:00 a.m., a police officer noticed the pickup with its engine running,
approached, and asked Thomas to do field sobriety tests. The police officer concluded that
Thomas failed the field-sobriety tests, arrested him, and administered a breath test at the
station. His alcohol concentration registered at 0.16.
The state charged Thomas with two counts of gross-misdemeanor driving,
operating, or being in physical control of a motor vehicle while impaired (one predicated
on an alcohol concentration of 0.08 measured within two hours and the other on being
under the influence of alcohol). Both counts were enhanced to second-degree offenses
because of two prior qualified incidents: a 2007 Minnesota conviction for driving under
the influence of alcohol and a 2006 Wisconsin conviction for operating a vehicle while
intoxicated. See Minn. Stat. § 169A.25, subd. 1(a) (2012).
On the first day of trial and outside the jury’s presence, Thomas declined to stipulate
to the prior convictions. The defense made a record of this decision, noting that Thomas
wanted to require the state to “prove the priors” and that Thomas understood the state could
do so by offering certified copies of the prior convictions. The parties stipulated to some
redactions to the state’s certified records.
During trial, there was no dispute about Thomas’s claim that he never drove or
operated the pickup. The state argued it needed to prove that Thomas was impaired while
in physical control of a motor vehicle. The state presented its case-in-chief, eliciting
testimony from two police officers regarding Thomas’s conduct and alcohol concentration.
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After this testimony concluded, the state rested without offering the certified copies of the
prior convictions. Outside the jury’s presence, Thomas moved for judgment of acquittal,
arguing that the state failed to offer proof on two aggravating factors needed to prove
second-degree DWI. The district court took a short recess then heard argument from both
sides, during which the state asked to reopen its case. Thomas opposed the state’s request.
The district court denied Thomas’s motion for judgment of acquittal at the same
time that it granted the state’s motion to reopen. Relying on caselaw and the relevant rule
of criminal procedure, the district court determined that it had discretion to allow the state
to reopen its case and present the omitted evidence. The district court also found that the
missing evidence was not a surprise to the defense, nor was it cumulative; the missing
evidence involved a controlling issue; and, the state did not have an improper purpose.
Also, the district court noted that, even if Thomas’s motion prevailed, the state could likely
amend to a misdemeanor charge.
The state then offered a certified conviction record and Thomas’s certified driving
record into evidence, which the court received. The state rested again. Outside the jury’s
presence, Thomas made a record of what he would have done if the district court had denied
the state’s motion to reopen and allowed the amendment to a misdemeanor, saying he
would not have testified. As a result of the ruling, however, Thomas testified about the
events of the evening. Based on this testimony, Thomas’s attorney argued in closing that
Thomas’s options that night were “severely limited,” he did the right thing by not driving,
and he was trying to keep warm on a cold night.
4
Before submitting the case to the jury, the state dismissed the charge of second-
degree driving while impaired. The jury found Thomas guilty of second-degree operating
and/or being in physical control of a motor vehicle with an alcohol concentration of 0.08
or more within two hours. This appeal followed.
ISSUES
I. Did the district court have discretion to grant the state’s motion to reopen that was
made after the state had rested without proving an element of its prima facie case
and the defendant had moved for acquittal?
II. Did the district court abuse its discretion in instructing the jury about expert
testimony after a police officer’s testimony about breath-test results had been
admitted without objection?
ANALYSIS
I. Motion to Reopen
Thomas argues that the district court erred, first, in deferring its decision on his
motion for a judgment of acquittal. Thomas is correct that it is error to defer ruling on a
motion to acquit following the state’s case-in-chief. See Minn. R. Crim. P. 26.03, subd.
18(2); State v. Penkaty, 708 N.W.2d 185, 208 (Minn. 2006). The transcript, however,
shows that the district court denied Thomas’s motion at the same time it granted the state’s
motion to reopen. Thus the district court did not err.
Thomas’s second argument is that the district court erred in allowing the state to
reopen its case because the state rested after failing to offer evidence of an essential element
of its case. This issue appears to be one of first impression for Minnesota. Thomas urges
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this court to follow the reasoning stated in State v. Allen, 533 A.2d 559 (Conn. 1987). The
state does not address Allen and instead argues that the district court should be affirmed
under existing Minnesota caselaw and the relevant rule of criminal procedure.
This court reviews “the disposition of a party’s request to reopen its case after the
party has rested under an abuse-of-discretion standard.” State v. Caine, 746 N.W.2d 339,
352–53 (Minn. 2008); see also State v. Jouppis, 147 Minn. 87, 89, 179 N.W. 678, 679
(1920) (“Whether a party shall be permitted to reopen his case and present further evidence
after he has rested, is generally within the discretion of the trial court . . . .”). On the other
hand, “[w]e review de novo the district court’s interpretation of the criminal rules of
procedure.” In re Welfare of T.C.J., 689 N.W.2d 787, 790 (Minn. App. 2004), review
dismissed (Minn. Jan. 26, 2005).
District courts have discretion in managing trials. State v. Blom, 682 N.W.2d 578,
609 (Minn. 2004). This discretion includes the mode and order of evidence presentation.
Minn. R. Evid. 611(a). The district court’s discretion to allow a party to reopen its case
after resting is set out in the Minnesota Rules of Criminal Procedure, as follows: “The
prosecutor may rebut the defense evidence, and, the defense may rebut the prosecutor’s
evidence. In the interests of justice, the [district] court may allow any party to reopen that
party’s case to offer additional evidence.” Minn. R. Crim. P. 26.03, subd. 12(g).
Minnesota caselaw shows that any party may be allowed to reopen. The district
court allowed the state to reopen in State v. Berg, where the Minnesota Supreme Court held
that the district court did not abuse its discretion in allowing the state to call a witness
despite the state’s failure to timely disclose the witness. 326 N.W.2d 14, 16 (Minn. 1982).
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The district court allowed the defense to reopen in Jouppis, where the supreme court
analyzed the issue, as follows:
[w]here a defendant whose liberty is at stake rests, perhaps
through the inadvertence of his attorney, and then, before the
prosecution enters upon its rebuttal or any further proceedings
are taken, asks to reopen his case and tenders material
evidence, not cumulative, upon a controlling issue, and there is
nothing to indicate any improper purpose in failing to produce
such evidence earlier, we think he should be permitted to
present it in furtherance of a fair trial.
147 Minn. at 90–91, 179 N.W. at 679. Based on this analysis, the supreme court reversed a
conviction and remanded for a new trial because the trial court had granted the defense
motion to reopen only to exclude the witness’s pertinent testimony.
From this caselaw, relevant considerations have emerged to guide the court’s
discretion in deciding a motion to reopen. In Caine, the supreme court identified three
factors: (1) when the request was made, (2) whether the evidence was material, not
cumulative, and concerned a controlling issue; and (3) whether there was an improper
purpose for failing to produce the evidence earlier. 746 N.W.2d at 353 (citing Jouppis, 147
Minn. at 89–90, 179 N.W. at 679).
Thomas argues that this caselaw is not dispositive because his case presents the
more specific issue of whether a district court errs in granting a motion to reopen after a
defendant has moved for acquittal based on the state’s failure to prove a prima facie
element. No Minnesota caselaw appears to have considered whether the discretion to
reopen extends to this specific context. In arguing that no discretion exists in this situation,
Thomas relies on State v. Allen, where the Connecticut Supreme Court considered
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strikingly similar circumstances and caselaw. Allen distinguished the caselaw because the
state’s request to reopen was made as a direct result of the defendant’s motion for acquittal.
533 A.2d at 559, 564–66. The defense moved for acquittal because the state had offered no
evidence on barrel length, as required for a violation of the weapons-possession statute. Id.
at 560–61. The district court denied the motion and, the next day, allowed the state to
reopen and offer the missing evidence. Id. at 560.
In reversing the conviction, the supreme court anchored its analysis on “the
fundamental concept that the state has the burden of proving every element of an alleged
crime beyond a reasonable doubt,” noting that “[o]ne of the greatest safeguards for the
individual under our system of criminal justice is the requirement that the prosecution must
establish a prima facie case by its own evidence before the defendant may be put to his
defense.” Id. at 562 (quotation omitted). Allen reasoned that “had the defendant remained
silent until after the verdict had been rendered, the omission of this evidence would have
required a judgment of acquittal either in the trial court or on appeal.” Id. Instead, the
defendant moved for acquittal. The court observed that “[h]aving specifically brought this
evidentiary gap to the attention of the state, the defendant was effectively victimized by his
own diligence as the state used the reopening to supply the missing element of the crime,
thus assuring the defendant’s conviction.” Id. at 563. The court concluded that allowing
the state to reopen its case under such circumstances would make motions for judgment of
acquittal a “dead letter.” Id. Allen held that it is an abuse of discretion to permit reopening
of the state’s case when the defendant has specifically identified an evidentiary gap in a
motion for acquittal and the state failed to make a prima facie case. Id. at 566.
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Allen’s reasoning has some persuasive value, but we note that Allen has not been
followed by any other jurisdiction.1 In fact, the other jurisdictions that have addressed this
issue have reached various conclusions. See State v. Collier, 438 So. 2d 652, 655 (La. Ct.
App. 1983) (holding “that it is error to allow the State to reopen its case in a bench trial to
prove an essential element of the offense charged after the State has closed, and after the
defendant has moved for a judgment of acquittal”); People v. Whipple, 760 N.E.2d 337,
341 (N.Y. 2001) (holding that the district court may allow a prosecutor to reopen its case
in response to a defense motion for acquittal if “the missing element is simple to prove and
not seriously contested, and reopening the case does not unduly prejudice the defense”).2
1
But see Lyle v. State, 987 So. 2d 948, 951 (Miss. 2008) (citing Allen approvingly but
holding that trial courts may allow the state to reopen to present evidence of an essential
element when the omission is inadvertent). In addition, since Allen was issued in 1987,
Connecticut has limited its application to cases where the defendant specifically identifies
the evidentiary gap. See State v. Mendoza, 988 A.2d 329, 335 (Conn. App. Ct. 2010)
(recognizing this limit in the Allen holding).
2
See also People v. Whitfield, 573 N.E.2d 1267, 1274–75 (Ill. App. Ct. 1991) (noting
disagreement on this issue in Illinois appellate courts); People v. Faulkner, 381 N.E.2d
321, 324 (Ill. App. Ct. 1978) (holding that district court did not abuse its discretion by
granting the state’s motion to reopen while reserving the defendant’s motion for a directed
verdict); State v. McKay, 723 N.W.2d 644, 648 (Neb. Ct. App. 2006) (holding that the
district court had discretion to grant the state’s request to reopen following the defendant’s
motion for discharge but noting that when the state seeks to reopen in order to make a
prima facie case, then a finding of abuse of discretion becomes more likely). Under federal
law, “a district judge retains wide discretion to allow the government to re-open its case to
correct errors ‘or some other compelling circumstance . . . justifies a reopening and no
substantial prejudice will occur.’” United States v. Leslie, 103 F.3d 1093, 1104 (2d Cir.
1997) (quoting United States v. Hinderman, 625 F.2d 994, 996 (10th Cir. 1980)). Federal
district courts generally allow reopening “to establish venue, identify the defendant, or
attend to other technical matters.” Id.
9
Importantly, the language of the relevant Minnesota rule supports affirmance in
light of the record in this case. The applicable rule of criminal procedure provides that,
“[i]n the interests of justice, the court [may] allow any party to reopen that party’s case to
offer additional evidence.” Minn. R. Crim. P. 26.03, subd. 12(g). The language is very
broad; it does not make a distinction between the state and the defense, it allows the district
court to consider “the interests of justice,” and it does not limit “additional evidence” to
exclude evidence required to complete the state’s prima facie case.3 Additionally,
Minnesota’s caselaw demonstrates that motions to reopen occur in a wide variety of
circumstances and district courts generally have discretion to grant or deny the motions
depending on the circumstances.
Trial is not a game of “gotcha,” and a judge may permit the state to correct
inadvertent error. Cf. Minn. R. Crim. P. 1.02 (“These rules are intended to provide a just
determination of criminal proceedings, and ensure a simple and fair procedure that
eliminates unjustified expense and delay.”); Whipple, 760 N.E.2d at 340 (“The motion for
a trial order of dismissal gave the People notice of the technical omission, and the issue
now is whether, as a matter of law, a trial court may never permit the People to act on such
notice—a sort of ‘gotcha’ principle of law.”); 6 Wayne R. LaFave et al., Criminal
Procedure § 24.6(b) (4th ed. 2015) (“Rather than treat the trial like a game of ‘gotcha,’ a
judge may permit the prosecution to remedy such an oversight.”).
3
We note that this rule may differ from the rule about reopening in Connecticut, which is
not quoted or discussed in the Allen opinion.
10
Thus we interpret Minnesota Rule of Criminal Procedure 26.03, subd. 12(g), to
provide that a district court has discretion to grant or deny a motion to reopen, even when
made by the state after the defense has pointed out deficiencies in the state’s prima facie
case in a motion for acquittal. We note, however, that the state relies on a motion to reopen
at its own peril because the district court may deny as well as grant the state’s request. See
Whipple, 760 N.E.2d at 341 (noting that, under New York law, district courts have
discretion to deny a state’s motion to reopen following a defense motion to dismiss).
In addition, we are “bound by supreme court precedent and the published opinions
of [this court].” State v. M.L.M., 785 N.W.2d 763, 767 (Minn. App. 2010). The supreme
court held in Caine that the abuse-of-discretion standard applies to the district court’s
decision to permit a party to reopen the case after the party has rested. 746 N.W.2d at 353.
The supreme court also identified the relevant factors for a district court to consider. Caine,
746 N.W.2d at 353 (citing Jouppis, 147 Minn. at 89–90, 179 N.W. at 679). Here, the district
court properly analyzed the factors. The state’s request to reopen was made immediately
after the prosecution rested; the evidence was material, not cumulative, and concerned a
controlling issue. Thomas was not surprised by the evidence and did not allege any
improper purpose for failing to produce the evidence earlier.4 Applying the relevant
4
We recognize, as Allen did, that allowing the state to reopen its case may discourage
defense attorneys from making timely acquittal motions by penalizing them for identifying
missing evidence of the state’s prima facie case. The factors identified in Caine allow the
district court to consider these concerns in exercising its discretion. The district court is in
the best position to weigh these concerns under the circumstances of each particular trial.
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caselaw to this record, this court concludes that the district court did not abuse its discretion
by allowing the state to reopen its case to offer evidence of Thomas’s prior convictions.
II. Jury Instructions
Thomas also argues that the district court improperly granted the state’s request to
have the jury instructed on expert testimony. Officer Ring, who testified regarding
Thomas’s alcohol concentration, also testified about his training and experience with the
operation of the breath-test machine—the Datamaster—that he administered to Thomas.
Officer Ring testified about the test, Thomas’s test results, and that he received no error
messages from the Datamaster. The officer did not offer any opinion testimony. Thomas
did not object to the officer’s testimony but later objected to the state’s proposed jury
instructions, which included an expert-testimony instruction, arguing that it was incorrect
to evaluate the testimony of the officer under the expert-testimony standard. The district
court agreed with the state that the officer was “an expert as to whether the machine
operated appropriately on this particular occasion” and gave the standard jury instruction
on expert testimony.
Although Thomas’s brief implies that the district court referred to Officer Ring as
an expert or vouched for his credibility, we note that the record does not support this view.
The instruction given was neutral and patterned after the standard expert-testimony jury
instruction. See 10 Minnesota Practice, CRIMJIG 3.13 (2015). The relevant jury
instruction, as read aloud by the district court at trial, is reproduced below:
Expert testimony. A witness who has special training,
education, or experience in a particular science, occupation, or
calling is allowed to express an opinion as to certain facts.
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Determining the believability and weight to be given such
opinion evidence you may consider:
One, the education, training, experience, knowledge,
ability of the witness. Two, the reasons given for that opinion.
Three, the sources of the information. Four, factors already
given you for evaluating testimony of other witnesses. Such
opinion evidence is entitled to neither more or less
consideration by you than other evidence.
This court reviews jury instructions for an abuse of discretion. State v. Koppi, 798
N.W.2d 358, 361 (Minn. 2011). A district court has “considerable latitude” in selecting the
language for jury instructions. State v. Gatson, 801 N.W.2d 134, 147 (Minn. 2011)
(quotation omitted). “Jury instructions, reviewed in their entirety, must fairly and
adequately explain the law of the case.” Koppi, 798 N.W.2d at 362. “An instruction is in
error if it materially misstates the law,” State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.
2001), but “[a] mistaken jury instruction does not require a new trial if the error was
harmless.” State v. Hall, 722 N.W.2d 472, 477 (Minn. 2006). “An erroneous jury
instruction is harmless only if it can be said that, beyond a reasonable doubt, the error had
no significant impact on the verdict rendered.” Id.
Thomas argues this jury was erroneously instructed on expert testimony based on
State v. Ards, which held that a police officer’s testimony regarding a breath-test machine
was not expert testimony and was admissible as lay testimony. 816 N.W.2d 679, 684–86
(Minn. App. 2012). Thomas also points to statutory language, noting that the state did not
need expert testimony to introduce breath-test evidence. See Minn. Stat. § 634.16 (2014)
(providing that the results of infrared or other approved breath-testing instruments are
admissible without antecedent expert testimony establishing the trustworthiness of such
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instruments). Thomas argues that he was prejudiced by the jury instruction because it was
an “improper endorsement of the testifying officer” as an “expert.”
We conclude that Ards is readily distinguishable from this case. In Ards, the issue
on appeal was whether the district court committed plain error in admitting the officer’s
testimony regarding reliability of the breath-test results. 816 N.W.2d at 682. This court
held that the district court did not plainly err because the police officer testified to his
training, did not in fact testify as an expert, and his testimony about reliability was proper
as a lay witness. Id. at 685. Like Ards, Thomas did not object to the police officer’s
testimony. Unlike Ards, Thomas does not challenge the admission of the officer’s
testimony on appeal. Under Ards and Minn. Stat. § 634.16, expert testimony is not required
to admit breath-test results. It does not follow, however, that it is error to permit expert
testimony on the operation of a breath-test machine.
The testifying officer had specialized knowledge, skill, and experience with the
DataMaster, and the jury was instructed that, as an element of the offense, it needed to
“evaluate the reliability of the testing method and the test results.” The district court has
broad discretion in assessing an expert witness’s qualifications, Ray v. Miller Meester
Adver. Inc., 664 N.W.2d 355, 365 (Minn. App. 2003), aff’d, 684 N.W.2d 404 (Minn. 2003),
and selecting jury instructions. See Gatson, 801 N.W.2d at 147. Thus, the district court did
not abuse its discretion in instructing the jury on expert testimony.
Further, even if the district court erred in giving the expert-testimony instruction
because this officer offered no opinion, “[a] mistaken jury instruction does not require a
new trial if the error was harmless.” Hall, 722 N.W.2d at 477. In light of the district court’s
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instruction that “such opinion evidence is entitled to neither more or less
consideration . . . than other evidence,” we conclude that any error would have been
harmless. Accordingly, we affirm Thomas’s conviction.
DECISION
The district court did not abuse its discretion in granting the state’s motion to reopen
when made after the state had rested without proving an element of its prima facie case and
the defendant had moved for acquittal. Because the state made the request promptly, the
evidence was material, not cumulative, and concerned a controlling issue, the omission was
inadvertent, and the defendant was not surprised, the district court properly exercised its
discretion. Additionally, the district court did not abuse its discretion in instructing the jury
on expert testimony where the police officer testified that he had specialized training and
experience with a breath-test machine, the officer testified regarding the test and the results,
and the defendant does not challenge the admission of the testimony.
Affirmed.
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