State v. Crane

OPINION

HALBROOKS, Judge.

Before his trial for third-degree driving while impaired (DWI), Kenneth William Crane moved the district court to order the prosecution to disclose the computer source code for the Intoxilyzer breath-test machine. The district court denied that motion on the basis that the state did not possess or control the source code, and a jury found Crane guilty on two counts of third-degree DWI. On appeal, Crane argues that the district court erred in its discovery ruling. We conclude that the district court’s ruling was erroneous under the supreme court’s recent ruling in State v. Underdahl, but we affirm the conviction because the ruling was not prejudicial to Crane.

FACTS

On the evening of January 18, 2007, emergency medical personnel in Mankato found Kenneth Crane passed out in a vehicle that was stopped with its engine running. A police officer from the Mankato Department of Public Safety observed that Crane appeared to be intoxicated. Crane failed a field sobriety test and was arrested. At the Mankato Law Enforcement Center, Crane consented to a breath test. An officer administered a breath test using the Intoxilyzer 5000EN, which is the breath-test machine approved for use in Minnesota. See Minn. R. 7502.0420, subp. 3 (2005). The test revealed that Crane had an alcohol concentration of .14.

The state charged Crane with two counts of third-degree DWI. In April 2007, Crane moved the district court under Minn. R.Crim. P. 9.01, subd. 2(1), to order the state to disclose the computer source code for the Intoxilyzer. The district court deferred ruling on that motion until the supreme court issued its decision in Underdahl v. Comm’r of Pub. Safety (In re Comm’r of Pub. Safety), 735 N.W.2d 706 (Minn.2007) (Underdahl I). After the supreme court issued its decision in Un-derdahl I, the state submitted an affidavit of Glenn Hardin, Toxicology Supervisor at the Minnesota Bureau of Criminal Apprehension Forensic Science Laboratory (BCA). Hardin stated in his affidavit, “The source code for the Intoxilyzer 5000EN is not now, nor has it ever been, in the possession of the BCA” and that the only person in “actual possession” of the source code is the manufacturer, CMI, Inc.

In August 2007, the district court considered Crane’s motion in light of Under-dahl I and the Hardin affidavit. Based on the affidavit, the district court concluded that no governmental agency possessed or controlled the source code and therefore denied Crane’s motion. But the district court noted that it would agree to issue a subpoena to CMI if Crane requested it.

The case was tried to a jury in October 2007, and the jury found Crane guilty on both counts of third-degree DWI. Without specifying which count it sentenced on, the district court sentenced Crane to 180 days in jail and a $900 fine, with 150 days stayed and work release granted. Crane appeals.

ISSUE

Did the district court err- in denying Crane’s motion for disclosure of the Intoxi-lyzer source code?

ANALYSIS

I.

Crane argues that the district court abused its discretion in denying his motion to order disclosure of the Intoxilyzer source code. A district court has “wide discretion” in ruling on discovery requests and will not be reversed absent a “clear abuse of that discretion.” Underdahl I, 735 N.W.2d at 711 (quotation omitted). But when a district court’s pretrial order is based on factual findings, we review those factual findings for clear error. State v. Gauster, 752 N.W.2d 496, 502 (Minn.2008). Interpretation of the rules of criminal procedure is a question of law reviewed de novo. State v. Johnson, 744 N.W.2d 376, 379 (Minn.2008).

A. Discovery Ruling

The rule of criminal procedure under which Crane moved for disclosure of the source code provides:

Upon motion of the defendant, the court for good cause shown shall require the prosecuting attorney ... to assist the defendant in seeking access to specified matters relating to the case which are within the possession or control of an official or employee of any governmental agency, but which are not within the control of the prosecuting attorney. The prosecuting attorney shall use diligent good faith efforts to cause the official or employee to allow the defendant access at any reasonable time and in any reasonable manner to inspect, photograph, copy, or have reasonable tests made.

Minn. R.Crim. P. 9.01, subd. 2(1) (emphasis added). Thus, some official or employee of a government agency must possess or control the source code in order for Crane to obtain relief under rule 9.01, subdivision 2(1). Our analysis of the possession issue is guided by the supreme court’s recent decision in State v. Underdahl, 767 N.W.2d 677, 2009 WL 1150093 (Minn. Apr.30, 2009) (Underdahl IP, pet. for reh’g filed (Minn. May 5, 2009). In Underdahl II, the supreme court considered a consolidated appeal by the state from two district court orders granting motions for discovery of the source code. 767 N.W.2d at 679-80, 2009 WL 1150093, at *2. The supreme court framed the issue on appeal as “whether the district courts’ findings that the State had possession or control of the source code were clearly erroneous.” Id. at 686, 2009 WL 1150093, at *8. Although it acknowledged the ongoing federal court litigation between the state and CMI regarding the parties’ rights to the source code, the supreme court concluded that the district courts’ findings in both cases that the state had possession or control of the source code was not error. Id. at 687 & n. 7, 2009 WL 1150093, at *8 & n. 7. The supreme court based its ruling on two grounds. First, the supreme court noted, as it did in Underdahl I, that based on the language of the requests for proposal (RFP), which contained the terms of the agreement between the state and CMI, “any copyrightable material would ‘be the property of the State and are by this Contract assigned to the State.’ ” Id. at 686 & n. 6, 2009 WL 1150093, at *8 & n. 6 (quoting Underdahl I, 735 N.W.2d at 708). Second, the supreme court reasoned that the defendants’ alternative means of accessing the source code, if any existed, were irrelevant for the purpose of ruling on the motion because “Rule 9.01, subd. 2(1), only speaks to the State’s obligation to assist a defendant in seeking access to material the State possesses, aside from the defendant’s possible access.” Id. at 687, 2009 WL 1150093, at *8.

In this case, the district court made a factual finding that the source code was not within the possession or control of an employee of any governmental agency because “the manufacturer won’t provide it.” The district court based its finding solely on the Hardin affidavit, which avers that the state had not been able to obtain the source code from CMI. But this affidavit does not satisfy the state’s burden, because in Underdahl II, the supreme court concluded that the state possessed the source code, notwithstanding the fact that the state was engaged in ongoing litigation with CMI over access to the source code. Id. at 687 & n. 7, 2009 WL 1150093, at *8 & n. 7. As noted above, the supreme court based this conclusion in part on the same language in the RFP that the supreme court had relied on in Underdahl I to affirm the denial of the commissioner’s petition for a writ of prohibition. 735 N.W.2d at 713. Underdahl I was decided one month before the district court in this case ruled on- Crane’s motion. Thus, we conclude that the district court’s finding regarding possession of the source code was clearly erroneous. Neither Under-dahl II nor our ruling forecloses a different result in future cases based on further developments in litigation between the state and CMI. See Underdahl II, 767 N.W.2d at 687 n. 7, 2009 WL 1150093, at *8 n. 7 (permitting state to supplement record with proposed settlement agreement in federal lawsuit between state and CMI).

Because the district court’s ultimate ruling on Crane’s motion was based on an erroneous factual finding, the district court’s denial of Crane’s motion was an abuse of discretion.

B. Remedy

We turn next to consider the proper remedy for the district court’s erroneous discovery ruling. In some cases when a criminal defendant has improperly been denied discovery, appellate courts have reversed the conviction and remanded for a new trial after determining that the denial of discovery prejudiced the defendant. See State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000); State v. Zeimet, 310 N.W.2d 552, 553 (Minn.1981). In other cases, appellate courts have applied the harmless-error test, holding that a new trial is not necessary unless the denial of discovery is “prejudicial [to] the defendant’s right to a fair trial.” State v. Miller, 754 N.W.2d 686, 705-07 (Minn.2008); see also State v. Roan, 532 N.W.2d 563, 571 (Minn.1995) (“Even if the trial court erred in quashing the subpoena, á new trial is required only if the ... nondisclosure was material to the outcome of the verdict.”)

In light of the fact that cases addressing the denial of a defendant’s right to discovery consistently address the prejudice to the defendant in crafting an appellate remedy, we examine whether the district court’s erroneous discovery ruling in this case was prejudicial error. Error related to discovery rulings is harmless beyond a reasonable doubt if the jury’s verdict “was surely unattributable to the error.” State v. Palubicki, 700 N.W.2d 476, 489 (Minn.2005); see also Miller, 754 N.W.2d at 705.

In this case, Crane was convicted of third-degree DWI in violation of Minn. Stat. § 169A.26, subd. 1 (2006). Under subdivision 1, a person is guilty of third-degree DWI upon proof of a violation of MinmStat. § 169A.20, subd. 1 (2006), and one aggravating factor as defined by Minn. Stat. § 169A.03, subd. 3 (2006). Minn. Stat. § 169A.20, subd. 1, provides that no person may

drive, operate, or be in physical control of any motor vehicle within this state or on any boundary water of this state:

(1) when the person is under the influence of alcohol; [or]

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(5) when the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is 0.08 or more[.]

The jury found Crane guilty of third-degree DWI under both subsection 1 and subsection 5. We cannot conclude that the jury’s verdict with respect to third-degree DWI under subsection 5 was “surely unattributable” to the district court’s denial of the source code because it is possible that obtaining the source code would have enabled Crane to challenge the reliability of the Intoxilyzer breath-test result, the state’s only evidence regarding his alcohol concentration. Palubicki, 700 N.W.2d at 489.

With respect to the verdict under subsection 1, the jury was presented with a considerable amount of evidence apart from the Intoxilyzer breath-test result to prove that Crane was “under the influence of alcohol.” Minn.Stat. § 169A.20, subd. 1(1). At trial, a fire fighter who responded to the 911 call testified that Crane was slumped in the driver’s seat of his car while it was running. The arresting officer testified that upon arriving at the scene, he observed Crane exhibiting several indicia of intoxication, including a “strong odor of an alcoholic beverage,” bloodshot and watery eyes, and slurred speech. Crane told the officer that he had been drinking at a bar for at least one hour earlier that evening and that he had parked his car to “sober up.” Upon administering the Horizontal Gaze Nystag-mus test, the officer observed all six indicators of impairment.

Based on the strength of this evidence, we conclude that the jury’s guilty verdict for third-degree DWI under Minn.Stat. § 169A.26, subd. 1, was “surely unattributable” to the district court’s discovery ruling. Palubicki, 700 N.W.2d at 489. Therefore, the district court’s erroneous ruling does not warrant a new trial. See Miller, 754 N.W.2d at 705-07; Roan, 532 N.W.2d at 571.

II.

Crane raises several pro se arguments regarding his conviction and sentence. Each is addressed in turn.

A. Reasonable Articulable Suspicion for Stop

Crane argues that the state did not present sufficient evidence at the Rasmussen hearing to demonstrate that the stop of his vehicle was lawful. “A stop is lawful if it is based on a reasonable and articulable suspicion of ongoing ’ criminal activity.” Knapp v. Comm’r of Pub. Safety, 610 N.W.2d 625, 628 (Minn.2000) (quotation omitted). Indicia of intoxication give an officer reasonable articulable suspicion that a driver is operating a vehicle while under the influence. See Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn.1981). “Generally an officer responding to a call to investigate someone unconscious or sleeping in a vehicle is justified in investigating the welfare of that individual.” State v. Lopez, 698 N.W.2d 18, 23 (Minn.App.2005).

The complaint, which was admitted at the Rasmussen hearing, indicates that the investigation leading to Crane’s arrest was prompted by a 911 call from a concerned citizen who observed Crane unconscious in a parked car that was running. The complaint also indicates that Crane exhibited several indicia of intoxication. Crane did not introduce evidence to contradict the information in the complaint. Consequently, the evidence was sufficient to support the district court’s conclusion that the officer’s investigation was lawful.

B. Prosecutorial Error

Crane argues that the prosecutor engaged in misconduct by referring to him as a “slumper” during the trial. A prosecutor should not “refer to facts not in evidence,” State v. McArthur, 730 N.W.2d 44, 53 (Minn.2007), and a prosecutor’s statements may not be “calculated to inflame the passions or prejudices of the jury,” State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993) (quotation omitted). Nevertheless, a prosecutor may make “reasonable inferences from [the] evidence” presented at trial. State v. Young, 710 N.W.2d 272, 281 (Minn.2006) (quotation omitted).

During opening statement, the prosecutor stated, “this is what we typically call in law enforcement ... a slumper case where [a] person has consumed alcohol and then either fallen asleep at the wheel or just passed out.” The prosecutor’s characterization of the facts mirrors the evidence presented at trial. Indeed; one of the citizens whose concern prompted the 911 call testified that she made her report after seeing Crane “slumped over the steering wheel” of his car.

Because the prosecutor’s statement was a reasonable inference based on the evidence presented at trial and was not “calculated to inflame the passions or prejudices of the jury,” it was not misconduct. Salitros, 499 N.W.2d at 817 (quotation omitted).

C.Sentencing

Crane argues that the district court improperly imposed a harsher sentence on him because he exercised his right to a trial. At sentencing, Crane’s counsel opposed the recommended sentence, arguing that Crane believed he was making the right decision by sleeping in his car rather than driving. In response, the district court stated, “My memory’s a little bit foggy. Isn’t ... the sentence that’s recommend by [the probation officer] substantially the plea offer that was provided before we had the trial? I can’t recall.”

Based on the context of this comment, it appears that the district court was explaining to Crane that his sentence was similar to the sentence he would have received had he pleaded guilty. Thus, the record does not support Crane’s argument that he received a more severe sentence for having exercised his right to a trial.

DECISION

The district court’s denial of the discovery motion was an abuse of discretion because it was based on the erroneous finding that the state did not possess the Intoxilyzer source code. Nevertheless, a new trial is not warranted because Crane was not prejudiced by the error.

Affirmed.