The Minnesota DWI Case Of The Week is State v. Nichols (Decided January 4, 2021, Minnesota Court of Appeals, Unpublished), which stands for the proposition that an inadmissible comment made by a state's witness will not usually lead to a reversal of the conviction.
In Nichols, the Defendant was stopped by the police after receiving cell phone call from a citizen complaining about the Defendant's driving conduct. The Defendant was ultimately arrested for DWI and taken to the Yellow Medicine County Jail.
Nichols was read the breath-test advisory at the jail, which informed her that refusal to take a test is a crime and that if she wished to contact an attorney she would have the opportunity to do so. Nichols indicated that she wanted to contact an attorney and she was provided with a telephone and phone books, including phone directories with contact information for DWI attorneys in the area. Nichols was very argumentative for the first ten minutes and did not make any attempt to contact an attorney. She then stated that she had her own attorney and asked to search her purse for the attorney’s business card. The officers checked her purse for her but were unable to locate the business card. Nichols attempted to contact one attorney over the course of the next 35 minutes, but only reached an answering service. The officers then asked Nichols numerous times if she would consent to a test; she stated that she was not refusing to take a test but never consented to one. Nichols also repeatedly claimed that she was not driving that morning. After approximately 45 minutes, Nichols’s actions were deemed a refusal to consent to testing.
The State of Minnesota charged Nichols with one count of second-degree test refusal and gross misdemeanor DWI. The case was tried to a jury, and the jury found Nichols guilty on both counts.
On Appeal, Nichols argued that the prosecutor committed misconduct by failing to adequately prepare the officer to testily and that this misconduct requires reversal of her convictions and a new trial. She cites to two specific statements, the officer made that she asserts impermissibly referenced her prior criminal convictions and contacts with law enforcement. The first statement, which Nichols objected to at trial, relates to her “not being new to the system.” Nichols has two prior convictions for DWI-related offenses— one for driving with an alcohol concentration of 0.08 or higher and one for test refusal, which the state sought to admit into evidence. The district court initially reserved ruling on the issue but, during trial, determined that the evidence of Nichols’s prior convictions was inadmissible due to the “tremendous opportunity for prejudice” and comparatively little probative value.
The Court of Appeals affirmed her conviction noting:
"For objected-to prosecutorial misconduct, there are two harmless-error standards of review taken from State v. Caron. 218 N.W.2d 197, 200 (Minn 1974). The harmless- error test for “unusually serious” misconduct requires an analysis of whether the misconduct was “harmless beyond a reasonable doubt.” State v. Nissalke, 801 N.W.2d 82, 105 (Minn 2011) (quotation omitted). An error is harmless beyond a reasonable doubt “only if the verdict rendered was surely unattributable to the error.” Id. at 105-06 (quotation omitted). The harmless-error test for less serious misconduct requires an analysis of “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. at 105 (quotation omitted)."
"For allegations of prosecutorial misconduct that were not objected to during trial, we utilize a modified plain-error standard of review. Stale w Ramey, 721 N.W.2d 294, 302 (Minn 2006). The defendant bears the burden of establishing an error that is plain, but upon doing so the burden shifts to the state to prove that there is no reasonable likelihood that the absence of the misconduct would have had a significant effect on the jury’s verdict. Id."
"The state concedes that the officer’s statement that Nichols was “not new to the system” was inadmissible testimony and we agree. As such, this could be construed as a failure on the part of the prosecution to adequately prepare the officer. Thus, we will next consider whether the inadmissible statement deprived her of a fair trial. In doing so we must determine “whether the misconduct likely played a substantial part in influencing the jury to convict.” Nissalke, 801 N.W.2d at 105 (quotation omitted). We conclude that it did not."
"The inadmissible statement that Nichols was “not new to the system” was brief, general, and the district court immediately instructed the jury to disregard the statement. See State v. Atkinson, 774 N.W.2d 584, 596 (Minn. 2009) (noting that references to appellant’s previous arrests were not unfairly prejudicial where the references were “fleeting” and “nonspecific”); see also State v. Budreau, 641 N.W.2d 919, 926 (Minn. 2002) (stating that there is a presumption that the jury follows the district court’s instructions). Moreover, the prosecutor did not emphasize or repeat the statement, which lessens the chance of unfair prejudice. State v. Hall, 764 N.W.2d 837, 842-43 (Minn. 2009). Finally, the jury heard testimony about Nichols’s driving and subsequent conduct from S.M. and the three officers involved, and viewed the video that was recorded during the breath-test advisory process. This provided the jury with ample evidence on which to base its convictions. On this record, we conclude that the state satisfied its burden of demonstrating that it is not likely that the inadmissible statement played a substantial part in influencing the jury to convict. Consequently, Nichols is not entitled to a new trial with regard to the first statement."
The second statement, which was not objected to at trial, relates to the officer's testimony that he had observed the Defendant drive her vehicle earlier in the day. The officer testified"
"We’re going into towards the casino and we saw a female driving a Honda SUV. She is sitting next to [defense counsel]. Her name is Olga Nichols and then we shortly after we were pulling into the casino, we had a driving complaint dispatched from Yellow Medicine County.
Q. All right. When you say that you saw Ms. Nichols driving, you’re referring to the individual sitting next to [defense counsel]?
Q. Okay. At the time you saw her, did anything at that time strike you as noteworthy or unusual or anything?
A. Not at that time. I mean there was a brief passing and we turned in and she was going west."
"Because defense counsel did not object to this testimony, Nichols bears the burden of establishing that it constitutes plain error that affected her substantial rights. Ramey, 721 N.W.2d at 302. 'An error is plain if it was clear or obvious.' Id. (quotation omitted). Nichols argues that the statement suggests that the officer recognized her from prior contacts with law enforcement. But the officer did not testify that he recognized her from such contacts, he merely stated that he observed her driving earlier in the day on the date of the offense. This statement does not clearly or obviously refer to her prior contacts with law enforcement. And as the state points out, this was potentially relevant to rebut Nichols’s previous assertions that she was not driving on the date in question. Accordingly, we discern no plain error in the officer’s testimony that he saw Nichols driving on the date of the offense and conclude that neither of the two challenged statements deprived Nichols of her right to a fair trial."
Moral Of The Story: A person is entitled to a fair trial; not a perfect one.
If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.