State of Minnesota v. Ronald Earle Menzie ( 2014 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A13-2092
State of Minnesota,
Respondent,
vs.
Ronald Earle Menzie,
Appellant.
Filed December 1, 2014
Affirmed
Smith, Judge
Hennepin County District Court
File No. 27-CR-12-17521
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Elizabeth R. Johnston, Assistant County Attorney, Minneapolis, Minnesota (for
respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Smith,
Judge.
UNPUBLISHED OPINION
SMITH, Judge
We affirm appellant’s conviction of first-degree driving while impaired because
appellant tacitly consented to a breath test and because the prosecutor’s improper
references to appellant’s prior bad acts did not affect appellant’s substantial rights.
FACTS
In the early morning hours of June 4, 2012, a Minnesota State Trooper observed a
minivan on a freeway with its turn signal flashing. The minivan did not turn or change
lanes as indicated by its turn signal, but the trooper did observe it drifting back and forth
in its lane, touching both lane lines. The trooper activated his emergency lights, and,
after about 30 seconds, the minivan stopped. The trooper identified the driver as
appellant Ronald Menzie. While speaking to Menzie, the trooper smelled “a strong odor
of alcoholic beverage coming from the vehicle.” He directed Menzie to exit the minvan
and stand behind it. Menzie denied having consumed any alcohol during the evening.
After Menzie informed the trooper that he was blind in one eye, the trooper
abandoned his plan to conduct a horizontal gaze nystagmus test. Instead, he conducted a
one-legged stand test, first explaining and demonstrating the test for Menzie. After some
hesitation, Menzie agreed to perform the test, and the trooper observed that “[h]e
performed pretty well.”
The trooper also had Menzie perform the walk-and-turn test, again explaining the
test and demonstrating it for Menzie. The trooper observed three indicators of
impairment in Menzie’s performance of the walk-and-turn test. The trooper then arrested
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Menzie and transported him to jail. At the jail, the trooper read Menzie the Minnesota
Implied Consent Advisory. Menzie attempted to contact an attorney, using a telephone
and directories provided by the arresting police officer, but gave up after approximately
15 minutes.
The trooper asked Menzie if he would take a breath test, but Menzie responded, “I
don’t know.” The trooper explained the test, started the testing machine, and gave
Menzie the mouthpiece. Menzie provided a 1.54-liter breath sample. The test results
showed an alcohol concentration of .131 and .134. Menzie also provided a second 1.73-
liter breath sample, and the test results showed an alcohol concentration of .131 and .133.
The state charged Menzie with first-degree driving while impaired.
Before trial, Menzie moved to suppress the breath-test results, arguing that they
were the product of an unconstitutional warrantless search. After noting that the motion
was essentially identical to other suppression motions before various district courts in the
aftermath of the United States Supreme Court’s McNeely decision,1 the district court
denied the motion.
During a jury trial, the district court admitted a certified copy of Menzie’s driving
record over his hearsay and confrontation-clause objections. Menzie’s driving record
indicated “three prior alcohol-related driver’s license revocations.”
Menzie testified in his own defense, stating that he had had only two drinks of
insufficient size to become intoxicated and that he had not been truthful about drinking
when the trooper asked. He also admitted having been convicted of a felony eight years
1
Missouri v. McNeely, 133 S. Ct. 1552 (2013).
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previously, but responded to the prosecutor’s inquiry about a 15-year-old conviction by
stating that he did not remember. When he testified that “[a]ll my felony convictions
[are] from . . . getting harassed by the police,” the prosecutor asked whether he recalled
an encounter with the police on September 18, 2011 and whether he recalled “leaving
after two days of a jury trial” in a criminal case resulting from that encounter. Menzie
denied any recollection of these events. The prosecutor asked Menzie about a warrant
issued for his arrest because of that purported flight, but Menzie refused to confirm it.
Menzie’s counsel objected at the beginning of this series of questions, but the district
court overruled the objection.
The prosecutor also asked Menzie whether his driver’s license had been revoked
for driving under the influence, and Menzie stated that he had not possessed a driver’s
license for over 20 years because of the police “pulling [him] over a thousand times.”
When the prosecutor confronted him with his certified driving record, he stated that it
was false information.
During his closing argument, the prosecutor referenced Menzie’s purported flight
from previous court hearings three times, including an implication that the allegation
could be proved by reference to information in official records. The prosecutor also
stated that Menzie had been convicted of test-refusal in 2000. Menzie’s counsel did not
object to any of these references.
The jury returned a guilty verdict, and it responded to special verdict questions by
finding that Menzie had three “qualified impaired driving incidents within 10 years
immediately preceding the current offense.” The district court sentenced Menzie to 72
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months’ imprisonment, the presumptive sentence under the Minnesota Sentencing
Guidelines.
DECISION
I.
Menzie contends that the district court erred by refusing to suppress his breath test
results. The federal and state constitutions protect citizens against unreasonable
warrantless searches. U.S. Const. amend. IV; Minn. Const. art. I, § 10. A breath test is a
search. Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1413
(1989). “But police do not need a warrant if the subject of the search consents.” State v.
Brooks, 838 N.W.2d 563, 568 (Minn. 2013), cert. denied (134 S. Ct. 1799 (U.S. 2014)).
“For a search to fall under the consent exception, the State must show by a preponderance
of the evidence that the defendant freely and voluntarily consented.” Id. “Whether
consent is voluntary is determined by examining the totality of the circumstances.” Id.(quotation omitted).
Although Menzie concedes that he consented to the search by providing breath
samples, he argues that his consent was not voluntary because the police officer coerced
him by reading the implied consent advisory and then handing him the breath-testing
mouthpiece even though Menzie had expressed uncertainty about whether to consent and
had been unable to reach an attorney. The Minnesota Supreme Court has expressly
rejected the notion that the implied-consent advisory is unconstitutionally coercive. See
id. at 569-72. The supreme court has also noted that merely submitting to a breath test is
an indication that the subject consented. See id. at 572 (“[T]he fact that someone submits
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to a search after being told that he or she can say no to the search supports a finding of
voluntariness.”).
Menzie’s inability to reach an attorney did not undermine his consent. Although
consultation with an attorney “reinforces” a finding of consent, id. at 571, Minnesota law
requires only that an individual be given the opportunity to attempt to reach an attorney;
it does not require that they succeed, see Friedman v. Comm’r of Pub. Safety, 473
N.W.2d 828, 835 (Minn. 1991) (“The right to counsel will be considered vindicated if the
person is provided with a telephone prior to testing and given a reasonable time to contact
and talk with counsel. If counsel cannot be contacted within a reasonable time, the
person may be required to make a decision regarding testing in the absence of counsel.”
(quotation omitted)); see also Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842
(Minn. App. 1992) (“[T]he relevant factors [for determining whether an individual has
been given reasonable time to contact an attorney] focus on both the police officer’s
duties in vindicating the right to counsel and the defendant’s diligent exercise of the
right.” (emphasis added)), review denied (Minn. Oct. 20, 1992). Here, Menzie was given
an opportunity to contact an attorney, but he abandoned his attempts after 15 minutes.
We therefore conclude that, when viewing the totality of the circumstances, Menzie
voluntarily consented when he abandoned his attempts to reach an attorney and provided
breath samples.
II.
Menzie argues that the prosecutor committed reversible misconduct by repeatedly
referring to inadmissible prior bad acts. Although he objected to the prosecutor’s initial
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line of questioning, Menzie did not object to the prosecutor’s continuing references to
Menzie’s purported flight to avoid court hearings. We apply a modified plain-error
review to claims of unobjected-to prosecutorial misconduct. State v. Ramey, 721
N.W.2d 294, 302 (Minn. 2006). The defendant bears the burden to “demonstrate both
that error occurred and that the error was plain.” Id. “An error is plain if it . . .
contravenes case law, a rule, or a standard of conduct.” Id. (quotation omitted). “[W]hen
the defendant demonstrates that the prosecutor’s conduct constitutes an error that is plain,
the burden would then shift to the state . . . to show that there is no reasonable likelihood
that the absence of the misconduct in question would have had a significant effect on the
verdict of the jury.” Id. (quotation and citations omitted).
Menzie contends that the prosecutor’s repeated questioning and references during
closing arguments to the allegation that Menzie had fled from a previous prosecution was
plain error. A prosecutor’s arguments “must be based on the evidence produced at trial,
or the reasonable inferences from that evidence.” State v. Porter, 526 N.W.2d 359, 363
(Minn. 1995). “Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person to show that the person acted in conformity therewith on a
particular occasion.” State v. Ness, 707 N.W.2d 676, 685 (Minn. 2006) (citing Minn. R.
Evid. 404(b)). “Further, such evidence may not be introduced if its probative value is
substantially outweighed by its tendency to unfairly prejudice the factfinder.” Id. (citing
Minn. R. Evid. 403). When the state seeks to introduce prior-bad-acts evidence, it must
provide notice, “clearly indicate what the evidence will be offered to prove,” show “clear
and convincing evidence that the defendant participated in the prior act,” demonstrate
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that the evidence is “relevant and material to the state’s case,” and the district court must
determine that the probative value of the evidence is not “outweighed by its potential
prejudice to the defendant.” Id. at 686.
The prosecutor here met none of the requirements for introducing evidence that
Menzie had fled from a prior prosecution. He provided no notice of an intention to
introduce evidence of Menzie’s purported flight, he did not explain the purpose of the
evidence or show how such evidence would be relevant to the state’s case, and he
produced no evidence at all—let alone clear and convincing evidence—to counter
Menzie’s denials. In the absence of evidence, the prosecutor resorted to insinuations of
evidence, implying that proof could be found in state databases by typing in Menzie’s
name.
The state contends, however, that the prosecutor was allowed to inquire into
Menzie’s purported flight from a prior prosecution as part of its efforts to show three
qualifying prior impaired driving incidents. It cites caselaw supporting the state’s right to
show a defendant’s guilt by pointing to flight to avoid prosecution as evidence of
consciousness of guilt. See, e.g., State v. McDaniel, 777 N.W.2d 739, 746 (Minn. 2010);
State v. McTague, 190 Minn. 449, 453, 252 N.W. 446, 448 (1934). But the cases the
state cites permit the state to use evidence of flight to show consciousness of guilt for a
present offense, not a prior offense.2 Moreover, the state did not need to show
2
The state asserts that the prosecutor was permitted to introduce both evidence of
Menzie’s flight to avoid the prior prosecution and Menzie’s flight to avoid the present
prosecution by failing to appear for his initial trial date. Although he objected to the
question on relevance grounds at the initial trial, Menzie does not challenge the
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consciousness of guilt of an offense to meet its burden to show qualified prior impaired
driving incidents because that burden could be met solely through introduction of
Menzie’s driving record, showing three prior license revocations for driving while under
the influence of alcohol. See Minn. Stat. § 169A.03, subds. 21, 22 (2012) (defining
“qualified impaired driving incident” to include alcohol-related administrative license
revocations).
The state also argues that the prosecutor was permitted to impeach Menzie’s
credibility by pointing to his purported prior flight to avoid prosecution after Menzie
denied knowledge of any other license-revocation proceedings. But although the
Minnesota Rules of Evidence allow for questions on such matters during cross-
examination, they prohibit any party from introducing extrinsic evidence of prior bad acts
other than criminal convictions to impeach the credibility of testifying witnesses. See
Minn. R. Evid. 608(b). No evidence appears in the record that Menzie had been
convicted of fleeing to avoid prosecution. Since the prosecutor’s closing arguments
“must be based on the evidence produced at trial, or the reasonable inferences from that
evidence,” Porter, 526 N.W.2d at 363, the prosecutor exceeded his bounds by repeatedly
referencing Menzie’s purported flight during his closing argument.
Menzie also argues—and the state concedes—that the prosecutor plainly erred by
referring to Menzie’s prior test-refusal conviction from 2000. But the state argues that
prosecutor’s question about his purported failure to appear for the initial trial date. And
whatever the merits of questioning about an initial failure to appear for the current trial,
they are irrelevant to the question of whether the prosecutor was permitted to question
Menzie about an alleged failure to appear in a previous trial.
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this error and any error in the prosecutor’s references to Menzie’s purported flight to
avoid a previous prosecution did not affect Menzie’s substantial rights. To determine
whether there is a reasonable likelihood that misconduct affected the jury’s verdict, “we
consider the strength of the evidence against the defendant, the pervasiveness of the
improper suggestions, and whether the defendant had an opportunity to (or made efforts
to) rebut the improper suggestions.” State v. Davis, 735 N.W.2d 674, 682 (Minn. 2007).
We find it implausible that the prosecutor’s errors affected the verdict. As
Menzie’s counsel conceded during oral argument, the evidence against Menzie was
overwhelming. The trooper conducted a proper stop after observing Menzie weaving.
The trooper obtained a consensual breath sample indicating that Menzie was under the
influence of alcohol. And Menzie’s driving record showed three prior alcohol-related
license revocations. These facts alone support each of the elements of Menzie’s
conviction, and it is unlikely that the prosecutor’s improper “digs” to Menzie’s purported
flight or his isolated reference to a 2000 test-refusal conviction had any effect on the
jury’s deliberations. We therefore conclude that the prosecutor’s misconduct did not
affect the verdict, and we decline to reverse Menzie’s conviction.
We nevertheless use this opportunity to admonish the prosecutor for his egregious
misconduct. “[A] prosecutor is a minister of justice whose obligation is to guard the
rights of the accused as well as enforce the rights of the public.” Ramey, 721 N.W.2d at
300 (quotation omitted). “We expect that prosecutors . . . are aware of our case law
proscribing particular conduct.” Id. at 301. Caselaw clearly establishes that a prosecutor
commits misconduct “by means of insinuations and innuendoes which plant in the minds
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of the jury a prejudicial belief in the existence of evidence which is otherwise
inadmissible.” State ex rel. Black v. Tahash, 280 Minn. 155, 157, 158 N.W.2d 504, 506
(1968). The prosecutor here at least three times referred to inadmissible evidence that
Menzie had fled from previous court proceedings. His insinuation that this inadmissible
evidence could be easily confirmed in state law-enforcement databases was particularly
reprehensible. Although we decline to reverse Menzie’s conviction, we share the
sentiments expressed in State v. Merrill, where the supreme court deplored “unfortunate,
inexplicable, and, even worse, totally unnecessary” conduct of the prosecutor and warned
that future instances might compel the courts to consider reversal in the exercise of their
supervisory powers. 428 N.W.2d 361, 372-73 (Minn. 1988). As in Merrill, the
overwhelming evidence of the defendant’s guilt makes the prosecutor’s misconduct more
concerning, not less. Our holding should therefore not be misunderstood as condoning
the prosecutor’s conduct. Justice deserves better.
Menzie also raises numerous additional arguments in a lengthy pro se
supplemental brief. To the extent that these arguments differ from those already
addressed, we have carefully considered them and hold that none of them warrants
reversal.
Affirmed.
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