State of Minnesota v. Robbin Alexander McNeil ( 2015 )

This opinion will be unpublished and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
A14-0554
State of Minnesota,
Respondent,
vs.
Robbin Alexander McNeil,
Appellant.
Filed January 26, 2015
Affirmed
Johnson, Judge
Becker County District Court
File No. 03-CR-12-2934
Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul,
Minnesota; and
Gretchen Thilmony, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)
Mark D. Nyvold, Fridley, Minnesota, Bruce N. Ringstrom, Sr., Detroit Lakes, Minnesota
(for appellant)
Considered and decided by Johnson, Presiding Judge; Cleary, Chief Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
JOHNSON, Judge
A Becker County jury found Robbin Alexander McNeil guilty of fifth-degree
possession of a controlled substance based on evidence that a state trooper found four
pounds of marijuana in a vehicle he was driving. We conclude that the district court did
not err in its evidentiary rulings and that McNeil is not entitled to a new trial due to
prosecutorial misconduct. Therefore, we affirm.
FACTS
McNeil’s conviction arises from a traffic stop in Becker County in December
2012. Trooper Steve Jepson stopped McNeil for speeding. When Trooper Jepson
approached McNeil’s vehicle, he noticed an odor of burning marijuana. He asked
McNeil to give him the marijuana. McNeil gave the trooper a small Tupperware
container full of marijuana. While standing near the vehicle, Trooper Jepson saw a bong
on the rear floorboard, directly behind the front passenger seat, and asked McNeil to give
him the bong. McNeil reached over to the front floorboard and grabbed a different bong,
which he handed to Trooper Jepson.
Trooper Jepson asked McNeil to exit the vehicle and told him that he intended to
search the vehicle. McNeil told the trooper that he would find four pounds of marijuana
in the vehicle. Indeed, Trooper Jepson found a black duffle bag in the vehicle that
contained approximately four pounds of marijuana. Trooper Jepson arrested McNeil and,
during the booking process, found approximately $4,000 of cash on his person. At the
Becker County jail, Trooper Jepson placed the items seized from McNeil (the cash, the
marijuana, and the bongs) on a table and photographed them.
The state charged McNeil with fifth-degree possession of a controlled substance,
in violation of Minn. Stat. § 152.025, subd. 2(a)(1) (2014). The case was tried in March
2014. Trooper Jepson testified about the traffic stop and the items seized during the stop.
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The state introduced into evidence a video-recording of the traffic stop and the
photograph depicting the evidence seized from McNeil and his vehicle. McNeil testified
in his own defense, with emphasis on his belief that the possession and use of marijuana
should not be generally unlawful.
The jury found McNeil guilty. The district court imposed a sentence of 19 months
and executed the sentence at McNeil’s request. McNeil appeals.
DECISION
I. Right to Complete Defense
McNeil argues that the district court erred by sustaining some of the state’s
objections to his testimony, which he contends is a denial of his constitutional right to
present a complete defense.
Before trial, the state filed a motion in limine to prevent McNeil’s trial attorney
from arguing for jury nullification. The district court ruled that defense counsel may not
“suggest to the jurors that they can ignore the law.” Nonetheless, the district court
permitted McNeil to give a substantial amount of testimony that seems to challenge the
law that makes marijuana a controlled substance. For example, McNeil testified that
marijuana “can’t be deadly,” that other controlled substances are more dangerous than
marijuana, and that he believes marijuana should not be a controlled substance. After one
of the state’s objections, the district court and counsel discussed the matter outside the
presence of the jury. McNeil’s attorney made an offer of proof that, if allowed, McNeil
would continue his testimony by stating his belief that marijuana was improperly
classified as a Schedule I controlled substance and by challenging certain findings of the
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Federal Drug Administration regarding marijuana. The district court sustained the state’s
objection and explained, “the Court feels that what’s being attempted here is to
essentially ask the jury to decide this is an invalid law.” But the district court ruled that
McNeil could testify about “his personal opinion about whether or not something ought
to be legal or illegal” even though it “may ultimately not be relevant.” Thereafter, the
state asserted additional objections whenever McNeil exceeded the scope of the district
court’s rulings, and the district court sustained most of the objections. For example,
McNeil tried to offer testimony, over the state’s objections, about certain scientific
studies about the effects of marijuana, about fatality rates associated with the use of
various controlled substances, and about the opinions of various physicians regarding
marijuana use. McNeil also testified further that he has a medical-marijuana card and
that he smokes marijuana to alleviate the symptoms of various physical ailments.
The Due Process Clause of the United States protects a criminal defendant’s right
to a meaningful opportunity to present a complete defense. State v. Jenkins, 782 N.W.2d
211, 225-26 (Minn. 2010). Specifically, an evidentiary rule that “infringes upon a
weighty interest of the accused and is arbitrary or disproportionate to the purposes the
rule is designed to serve” violates the defendant’s constitutional right to present a
complete defense. State v. Pass, 832 N.W.2d 836, 842 (Minn. 2013) (quoting Holmes v.
South Carolina, 547 U.S. 319, 324-25, 126 S. Ct. 1727, 1731 (2006)) (alterations
omitted). On the other hand, “evidentiary rules designed to permit the exclusion of
unfairly prejudicial, confusing, or misleading evidence are unquestionably
constitutional.” Id. (quotations omitted). In other words, there is no constitutional right
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to present irrelevant evidence. See id.; see also State v. Woelfel, 621 N.W.2d 767, 773
(Minn. App. 2001), review denied (Minn. Mar. 27, 2001). We apply an abuse-of-
discretion standard of review. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).
In this case, the district court did not err by excluding McNeil’s proffered
testimony on the grounds that it had limited relevance in light of the offense charged.
The state was required to prove that McNeil knowingly possessed marijuana. See Minn.
Stat. § 152.025, subd. 2(a)(1). The state was not required to prove that the legislature
acted wisely when it decided that possession of marijuana should be generally unlawful.
In another case in which a defendant was charged with fifth-degree controlled substance
crime, this court recently held that the district court did not err by excluding the
defendant’s proffered testimony that he holds a medical-marijuana card issued by the
State of California. State v. Thiel, 846 N.W.2d 605, 614-15 (Minn. App. 2014), review
denied (Minn. May 27, 2014). We explained that the proffered testimony “may have
helped appellant to explain his conduct to a jury [but] would not have excused his
conduct and it also would have served to confuse and mislead the jury.” Id. at 615.
In this case, the district court allowed McNeil to give testimony that went far
beyond the scope of what we approved in Theil. McNeil testified that he has a medical-
marijuana card and that he uses marijuana for medicinal purposes. And he also was
allowed to express his personal opinions about the laws criminalizing marijuana. The
most notable aspect of the district court’s evidentiary rulings concerning McNeil’s
testimony is not what the district court excluded but what it permitted. Considering all
relevant circumstances, McNeil cannot establish that the district court’s rulings
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“infringed upon a weighty interest of the accused” or applied a rule of law that is
“arbitrary or disproportionate to the ends that the rule is designed to promote.” See Pass,
832 N.W.2d at 842 (citation omitted).
Thus, the district court did not err by limiting McNeil’s testimony and did not
violate McNeil’s constitutional right to present a complete defense.
II. Cash and Photograph
McNeil also argues that the district court erred by admitting evidence that the
police found $4,000 in cash on McNeil’s person and by admitting a photograph that
depicts the marijuana, cash, and bongs that Trooper Jepson seized from McNeil’s person
and his vehicle. McNeil contends that this evidence is irrelevant and is unfairly
prejudicial because it tended to portray McNeil as a “drug dealer.”
“‘Relevant evidence’ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Minn. R. Evid. 401. With some
exceptions, “[a]ll relevant evidence is admissible,” and “[e]vidence which is not relevant
is not admissible.” Minn. R. Evid. 402. Furthermore, relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.” Minn. R. Evid.
403. “Photographs are admissible if they accurately portray anything that a witness may
describe in words, or the photographs are helpful as an aid to an oral description of
objects and conditions, provided they are relevant to some material issue.” State v.
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Morton, 701 N.W.2d 225, 237 (Minn. 2005). This court applies an abuse-of-discretion
standard of review to a district court’s weighing of relevance and undue prejudice. State
v. Morrow, 834 N.W.2d 715, 726 (Minn. 2013).
McNeil first challenged the state’s evidence concerning the cash in a motion in
limine. The district court denied the motion on the ground that the money was “relevant
to the issue of whether or not he knowingly possessed the items.” McNeil also objected
when Trooper Jepson was on the witness stand, and the district court overruled the
objection. In allowing the trooper’s testimony, the district court expressly identified the
relevance of the evidence, namely, that the evidence tends to prove that McNeil
knowingly possessed the marijuana that was discovered in his vehicle. The district court
also expressed awareness of the potential for undue prejudice arising from the possible
inference that McNeil possessed the marijuana with intent to sell. The district court
conducted a deliberate and thoughtful balancing of these considerations and concluded
that the evidence should be admitted. We conclude that the district court acted within its
discretion by admitting the testimony about the cash.
McNeil also challenged the photograph in a motion in limine. The district court
denied the motion on the ground that the photograph was relevant and not unduly
prejudicial. The district court reasoned that the presence of a bong tends to prove
knowing possession of marijuana because a jury could infer that “the reason to have a
bong would be because you may have some marijuana you intend to smoke.” The district
court also explained that the photograph was helpful because it would help the jury
understand the items that were seized from McNeil’s person and his vehicle. The district
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court acknowledged that the photograph was “staged” but noted that the state would be
required to establish a foundation for the photograph. McNeil also objected to the
photograph when it was offered through Trooper Jepson’s testimony, and the district
court overruled the objection.
In allowing the trooper’s testimony, the district court expressly identified the
relevance of the evidence. The district court also expressed awareness of the requirement
for foundational testimony. Although photographic exhibits of tangible evidence should
be used with caution, see, e.g., State v. Friend, 493 N.W.2d 540, 544 (Minn. 1992), we
agree with the district court that the photograph in this case had a relatively small
potential for undue prejudice. Jurors were unlikely to be misled by the photograph
because they heard Trooper Jepson’s testimony about the traffic stop and about the taking
of the photograph. Furthermore, the potential prejudice was lessened by the fact that the
jury already had received other evidence about all the items shown in the photograph.
See VanHercke v. Eastvold, 405 N.W.2d 902, 906 (Minn. App. 1987). We also are
mindful of the fact that the district court’s evidentiary rulings were permissive toward
both parties throughout the trial. For these reasons, we conclude that the district court
acted within its discretion by admitting the photograph.
Thus, the district court did not err by admitting evidence of the cash and admitting
the photograph.
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III. Prosecutorial Misconduct
McNeil next argues that the prosecutor engaged in misconduct in two ways: first,
by questioning McNeil about the potential criminal penalties that might apply to him and,
second, by misstating the presumption of innocence during closing argument.
A. Potential Penalties
During his direct examination, McNeil gave the following testimony in the form
of a question: “If marijuana has never killed anybody, why am I going to prison for it?”
The district court sustained the state’s objection, though the testimony was not stricken
from the record. During cross-examination, the prosecutor asked McNeil whether he was
aware of the Minnesota Sentencing Guidelines and whether he would “acknowledge that
. . . if the jury were to convict you of this offense, you wouldn’t be going to prison under
the Minnesota Sentencing Guidelines?” McNeil answered this question by stating, “I
don’t know how I wouldn’t go to prison,” in light of mandatory minimum sentences.
McNeil’s trial counsel did not object. On appeal, McNeil contends that the prosecutor
engaged in misconduct by asking the question because evidence of potential criminal
penalties generally is inadmissible. See State v. Grose, 387 N.W.2d 182, 188 (Minn.
App. 1986), review dismissed (Minn. Jan. 16, 1987). Because McNeil’s trial counsel did
not object, the plain-error test applies. See Minn. R. Crim. P. 31.02; State v. Ramey, 721
N.W.2d 294, 302 (Minn. 2006).
Despite the general rule that evidence of potential criminal penalties is
inadmissible, such evidence may be admissible if a party “opens the door” to the
evidence. See State v. Valtierra, 718 N.W.2d 425, 436 (Minn. 2006). “Opening the door
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occurs when one party, by introducing certain material, creates in the opponent a right to
respond with material that would otherwise have been inadmissible.” Id. (internal
quotations omitted). The rationale of the doctrine is that “one party should not have an
unfair advantage” by offering testimony on a particular subject without giving the other
party an opportunity to respond. Id. (quotation omitted).
In this case, McNeil opened the door to the subject of potential criminal penalties
by giving testimony on the subject and, more specifically, wrongly suggesting that he
must go to prison if the jury were to find him guilty. In addition, the district court
instructed the jury “not to consider any possible penalties that might attach in this case
regarding any decision that you make.” Thus, the prosecutor did not engage in
misconduct by questioning McNeil on the subject of criminal penalties for the purpose of
rebutting his earlier testimony.
B. Presumption of Innocence
During his closing argument, the prosecutor stated that McNeil was presumed
innocent “up until the point when I call my first witness and the second witness and the
point when the defendant testified.” McNeil’s trial counsel objected, and the district
court sustained the objection. The prosecutor then restated his argument as follows: “The
defendant is presumed innocent throughout this trial. I would submit to you that the
evidence introduced in this case has overcome that presumption.”
On appeal, McNeil contends that the prosecutor engaged in misconduct by
misstating the presumption of innocence. In general, a prosecutor engages in misconduct
by incorrectly characterizing the presumption of innocence. State v. Salitros, 499
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N.W.2d 815, 818 (Minn. 1993). If a defendant has preserved an objection at trial, this
court applies a harmless-error test to a prosecutorial-misconduct argument that “varies
based on the severity of the misconduct.” State v. Wren, 738 N.W.2d 378, 389-90 (Minn.
2007) (citing State v. Ramey, 721 N.W.2d 294, 299 n.4 (2006)). The supreme court has
set forth a two-tiered test:
[I]n cases involving unusually serious prosecutorial
misconduct this court has required certainty beyond a
reasonable doubt that the misconduct was harmless before
affirming. . . . On the other hand, in cases involving less
serious prosecutorial misconduct this court has applied the
test of whether the misconduct likely played a substantial part
in influencing the jury to convict.
Id. at 390 n.8 (quoting State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200
(1974)); see also State v. McCray, 753 N.W.2d 746, 754 n.2 (Minn. 2008)
(“leav[ing] . . . for another day” the question whether the two-tiered approach should
continue to apply). McNeil’s argument implicates the lower standard for less-serious
misconduct. See State v. Trimble, 371 N.W.2d 921, 926-27 (Minn. App. 1985), review
denied (Minn. Oct. 11, 1985); see also State v. Carradine, 812 N.W.2d 130, 148 (Minn.
2012).
In this case, the prosecutor quickly acknowledged his misstatement and corrected
himself by accurately stating that the presumption of innocence lasts throughout the
entire trial. The jury likely understood that the prosecutor had made a mistake and, thus,
had not made a statement on which they should rely when deciding whether McNeil is
guilty or not guilty. Furthermore, the district court accurately stated the presumption of
innocence when giving instructions to the jury, both before and after the presentation of
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evidence. See Trimble, 371 N.W.2d at 926-27. Moreover, there was overwhelming
evidence that McNeil possessed marijuana, including his own testimony, which
essentially admitted his possession but attempted to justify it. Thus, the prosecutor’s
misstatement is harmless because it likely did not play a substantial part in influencing
the jury’s decision.
IV. Cumulative Error
McNeil last argues, in the alternative, that even if none of the three issues raised
on appeal independently requires a new trial, the cumulative effect of the district court’s
asserted errors requires a new trial. If an appellant establishes that a district court
committed two or more procedural errors, none of which individually requires a new
trial, the appellant nonetheless may be entitled to a new trial “if the errors, when taken
cumulatively, had the effect of denying appellant a fair trial.” State v. Jackson, 714
N.W.2d 681, 698 (Minn. 2006) (quotation omitted). We have concluded, however, that
the district court did not commit a single error, let alone multiple errors. Accordingly, the
cumulative-error doctrine does not apply.
Affirmed.
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