State v. Thomas

882 N.W.2d 640

STATE of Minnesota, Respondent,

v.Quintin Lynn THOMAS, Appellant.

No. A15–0708.

Court of Appeals of Minnesota.

July 5, 2016.

Review Granted Sept. 28, 2016.

Lori Swanson, Attorney General, St. Paul, MN; and Gunnar B. Johnson, Duluth City Attorney, Joanne R. Piper–Maurer, Assistant City Attorney, Marcus E. Jones, Assistant City Attorney, Duluth, MN, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Charles F. Clippert, Assistant Public Defender, St. Paul, MN, for appellant.

Considered and decided by REYES, Presiding Judge; JOHNSON, Judge; and BRATVOLD, Judge.

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 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. 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.

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 this court to follow the reasoning stated in State v. Allen, 205 Conn. 370, 533 A.2d 559 (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). 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...