State of Minnesota v. Rip Wayne Rust ( 2016 )


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  •                           This opinion will be unpublished and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
    A15-0480
    State of Minnesota,
    Respondent,
    vs.
    Rip Wayne Rust,
    Appellant.
    Filed April 4, 2016
    Affirmed; motion denied
    Reyes, Judge
    Hennepin County District Court
    File No. 27CR1421675
    Lori Swanson, Attorney General, St. Paul, Minnesota; and
    Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
    Attorney, Minneapolis, Minnesota (for respondent)
    Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
    Public Defender, St. Paul, Minnesota (for appellant)
    Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Reyes,
    Judge.
    UNPUBLISHED OPINION
    REYES, Judge
    On appeal from his conviction of first-degree driving while impaired (DWI),
    appellant argues that the prosecutor committed prejudicial misconduct by introducing
    inadmissible evidence that deprived him of a fair trial. We affirm.
    FACTS
    On July 25, 2014, appellant Rip Wayne Rust was arrested for DWI. At his jury
    trial, both appellant and the arresting officer testified. Each offered a very different
    account of what occurred on the date of the offense.
    The officer testified that at approximately 2:50 p.m. on the date of the offense, he
    noticed a vehicle with heavy front-end damage and smoke coming from the engine
    parked at a green light. The vehicle was stopped in a traffic lane, blocking a vehicle
    behind it. As the officer neared the scene, he saw a man flagging him down. The officer
    activated his emergency lights and parked in front of the vehicle, which was running
    when he arrived. As he approached the vehicle, the officer noticed appellant was
    slumped over the steering wheel, sleeping. After waking appellant, the officer and his
    partner helped appellant out of the vehicle and had him take a seat on the curb because
    appellant was having difficulty standing.
    According to the officer, appellant stated that he was coming from work, where he
    had consumed some beer. Appellant also stated that he was on Oxycodone and believed
    that was why he fell asleep at the wheel. The officer administered field sobriety tests,
    which appellant failed. The officer concluded that appellant was under the influence of
    2
    alcohol and placed him under arrest. The officer then took appellant to the police
    department, where he was given the opportunity to consult with an attorney. The officer
    believed that appellant made three phone calls and received one call back from a lawyer.
    Appellant agreed to take a breath test, the results of which indicated that appellant’s
    alcohol concentration was 0.12.
    Next, appellant testified. Appellant stated that, while at work, he received a phone
    call from his son just before noon. He learned that his son had been involved in a hit-
    and-run accident, rendering the vehicle inoperable. Appellant left work at noon and took
    a bus to the scene of the accident. When he arrived, he looked over the vehicle but could
    not get the hood open. He called his friend who owns a tow company, but his friend was
    unable to tow the vehicle until later in the day. In exchange for a bottle of liquor, a
    gentlemen1 offered to stay with the vehicle while appellant’s son went to work and
    appellant went home. Appellant also bought himself a bottle of alcohol, which he drank
    while he was at home. He later got a ride back to the vehicle and was texting his friend
    who owns the tow company, not sleeping, when the officer arrived.
    On cross examination, the following exchange occurred regarding the phone calls
    appellant made while at the police department:
    [PROSECUTION]: All right. Now, do you recall being at the
    Robbinsdale Police Department?
    [APPELLANT]: Yes.
    [PROSECUTION]: Do you recall getting some phonebooks to
    make some phone calls?
    [APPELLANT]: Yes.
    1
    This individual is identified in the record as “Ed.” According to appellant, Ed is not a
    friend of his and was simply at the liquor store when appellant got there.
    3
    ....
    [PROSECUTION]: Do you recall actually making some calls?
    [APPELLANT]: I do, yes.
    [PROSECUTION]: Do you recall telling somebody on one of
    those calls that you hit a Cemstone cement truck?
    [DEFENSE COUNSEL]: Objection, Your Honor. May we
    approach?
    [APPELLANT]: I did not say that.
    THE COURT: Hang on.
    [REPORTER’S NOTE: Whereupon, a brief discuss[ion] was
    held at the bench, off the record, and out of the hearing of the
    jury.]
    THE COURT: I’ll reverse my ruling and overrule the
    objection. His answer that he denied making that statement
    will stand.
    [PROSECUTION]: You did make a couple of phone calls that
    afternoon, is that correct, when you were at the Robbinsdale
    Police Department?
    [APPELLANT]: Yes, ma’am.
    The jury found appellant guilty of driving with an alcohol concentration of 0.08 or
    more in violation of Minn. Stat. § 169A.20, subd. 1(5) (2012).2 The district court
    sentenced appellant to 57 months in prison. This appeal follows.
    DECISION
    I.     The prosecutor did not engage in misconduct.
    Appellant argues that the prosecutor’s prejudicial misconduct of questioning
    appellant about statements covered by the attorney-client privilege deprived him of a fair
    trial and therefore requires reversal. We disagree.
    2
    The elements of this offense are (1) physical control of the vehicle, (2) time and place,
    and (3) blood alcohol concentration in excess of 0.08. Throughout his district court
    proceedings, appellant disputed the physical control element. Appellant does not dispute
    any of these elements on appeal.
    4
    If a prosecutor engages in misconduct during trial, an appellate court must
    determine whether the misconduct denied appellant a fair trial. State v. Dobbins, 
    725 N.W.2d 492
    , 506 (Minn. 2006). When reviewing objected-to prosecutorial misconduct,
    we utilize a harmless-error test, “the application of which varies based on the severity of
    the misconduct.” State v. Carridine, 
    812 N.W.2d 130
    , 146 (Minn. 2012).3 In cases
    involving unusually serious prosecutorial misconduct, “we require certainty beyond a
    reasonable doubt that the misconduct was harmless before we affirm.” Id. at 150. In
    cases of less-serious misconduct, we will not reverse unless it is likely that the
    misconduct “played a substantial part in influencing the jury to convict.” Id.
    When reviewing a claim of prosecutorial misconduct, we must first engage in the
    threshold inquiry of determining whether the prosecutor engaged in misconduct. See
    State v. Fields, 
    730 N.W.2d 777
    , 782 (Minn. 2007). Attempting to or actually eliciting
    clearly inadmissible evidence may constitute prosecutorial misconduct. 
    Id.
     Statements
    made by a defendant to counsel over the phone, seeking legal advice, are protected from
    disclosure by the attorney-client privilege, even if overheard by the police. See State,
    Dep’t of Pub. Safety v. Held, 
    311 Minn. 74
    , 76, 
    246 N.W.2d 863
    , 864 (1976) (noting that
    “driver’s rights are sufficiently safeguarded by a rule which forbids the use in evidence of
    any statements made by defendant to his counsel over the telephone which are overheard
    by police”). But the party asserting the privilege has the burden to show that it applies.
    3
    We note, however, that the Minnesota Supreme Court has indicated that the two-tiered
    test under State v. Caron, 
    300 Minn. 123
    , 127-28, 
    218 N.W.2d 197
    , 200 (1974), is of
    questionable viability. See, e.g., State v. McDaniel, 
    777 N.W.2d 739
    , 749 (Minn. 2010);
    State v. McCray, 
    753 N.W.2d 746
    , 754 n. 2 (Minn. 2008).
    5
    Kobluk v. Univ. of Minn., 
    574 N.W.2d 436
    , 440 (Minn. 1998); see also Sprader v.
    Mueller, 
    265 Minn. 111
    , 117, 
    121 N.W.2d 176
    , 180 (1963) (“The existence of the
    privilege is a question of fact which must be proved by the one asserting it.”). “The
    availability of a privilege established under statutory or common law is an evidentiary
    ruling to be determined by the trial court and reviewed based on an abuse of discretion
    standard.” State v. Gianakos, 
    644 N.W.2d 409
    , 415 (Minn. 2002).
    Here, appellant failed to meet his burden of establishing that the attorney-client
    privilege applied. Appellant offered no proof that he was on the phone with an attorney,
    nor does anything in the record establish that appellant was speaking to an attorney.
    Furthermore, in response to the prosecutor’s question, appellant denied making the
    statement in question. The privilege cannot apply to a non-existent communication.
    Schwartz v. Wenger, 
    267 Minn. 40
    , 42, 
    124 N.W.2d 489
    , 491 (1963) (noting that
    attorney-client privilege applies to confidential communications). Therefore, the
    prosecutor did not commit misconduct by questioning appellant about statements he
    denied making while on the phone at the police department.
    Even if we were to assume that appellant did make the statement to an attorney,
    despite his denial, there is still no indication that the prosecutor engaged in misconduct.
    Appellant cites State v. Harris, 
    521 N.W.2d 348
     (Minn. 1994), and State v. Mayhorn, 
    720 N.W.2d 776
     (Minn. 2006), to support his position. But Harris and Mayhorn are
    distinguishable. First, in both cases cited, there was a pretrial ruling with respect to the
    elicited testimony, so the prosecutors were aware that the testimony sought was
    inadmissible. Mayhorn, 720 N.W.2d at 789 (noting that “the state had no good faith
    6
    basis to believe these apparent threats would have been admissible”); Harris, 521
    N.W.2d at 354 (discussing the prosecutor’s attempts to introduce evidence of prior bad
    acts, something which “the trial court had specifically instructed her not to do”).
    Conversely, here, there was no pretrial ruling and therefore no indication that the
    prosecutor knew that the inquired-about statements were subject to the attorney-client
    privilege. Additionally, the prosecutors’ conduct in Harris and Mayhorn was much more
    egregious. Mayhorn, 720 N.W.2d at 791 (discussing the prosecutor’s misconduct as a
    “pervasive force at trial”); Harris, 521 N.W.2d at 354 (stating that it seemed to be “the
    prosecutor’s single-minded determination to bring in a guilty verdict” even at “the cost of
    undermining the value of the trial as a truth-determining process”). The prosecutor in the
    instant case made only two inquiries directed at appellant’s telephone conversation at the
    police department and moved on.
    Moreover, even if we were to assume without deciding that the prosecutor in this
    case committed misconduct requiring us to apply the most stringent standard of review,
    we would nevertheless affirm because the verdict was “surely unattributable” to the
    misconduct. Dobbins, 725 N.W.2d at 506. A new trial generally is not granted if the
    misconduct was harmless beyond a reasonable doubt. Carridine, 812 N.W.2d at 146.
    Factors to be considered when evaluating the impact of the misconduct are the frequency
    of the improper remarks, strength of the state’s other evidence, and whether cautionary
    jury instructions were given. Mayhorn, 720 N.W.2d at 786 (discussing number of
    references to improperly admitted evidence as affecting the analysis of the impact of the
    prosecutor’s misconduct); Caron, 300 Minn. at 128, 
    218 N.W.2d at 200
     (discussing the
    7
    strength of the state’s other evidence); see also State v. Young, 
    710 N.W.2d 272
    , 281
    (Minn. 2006) (discussing instructions given to the jury).
    Here, the prosecutor asked only two questions aimed at the allegedly inadmissible
    statements and did not discuss them again. In addition, the state’s other evidence against
    appellant was strong. The officer testified to a reasonable series of events that occurred
    on the date of the incident. Appellant, on the other hand, provided a story that the jury
    did not find credible. Finally, the district court instructed the jury twice that questions
    and statements made by the attorneys during trial do not constitute evidence. In
    conclusion, even if we were to assume that the prosecutor’s questions were improper, the
    misconduct was harmless beyond a reasonable doubt.
    II.    Respondent’s motion to supplement the record is denied.
    Respondent filed a motion to supplement the record on appeal. Appellant opposes
    this motion. Minn. R. Civ. App. P. 110.05 provides,
    If anything material to either party is omitted from the record
    by error or accident or is misstated in it, . . . the appellate court,
    on motion by a party or on its own initiative, may direct that
    the omission or misstatement be corrected, and if necessary
    that a supplemental record be approved and transmitted. All
    other questions as to the form and content of the record shall
    be presented to the appellate court by motion.
    See also Minn. R. Crim. P. 28.01, subd. 2 (instructing that the Minnesota Rules of
    Appellate Civil Procedure apply to criminal appeals). Because respondent is not seeking
    to introduce evidence that was omitted from the record by error or accident, or to correct
    a misstatement, its motion is denied. Furthermore, the proffered evidence is unnecessary,
    8
    as it was appellant’s burden to prove that his statements were covered by attorney-client
    privilege. Kobluk, 574 N.W.2d at 440; Sprader, 
    265 Minn. at 117
    , 121 N.W.2d at 180.
    Affirmed; motion denied.
    9