State of Minnesota v. Lisa Dorthea Moodie

This opinion will be unpublished and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
A15-0537
State of Minnesota,
Respondent,
vs.
Lisa Dorthea Moodie,
Appellant.
Filed February 16, 2016
Reversed and remanded
Chutich, Judge
Washington County District Court
File No. 82-CR-14-1291
Lori M. Swanson, Attorney General, St. Paul, Minnesota; and
Joseph D. Van Thomme, Eckberg, Lammers, Briggs, Wolff & Vierling, PLLP, Stillwater,
Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant
Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Reilly, Presiding Judge; Worke, Judge; and Chutich,
Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Lisa Moodie appeals her third-degree conviction of operating a motor
vehicle under the influence of alcohol, see Minn. Stat. §§ 169A.20, subd. 1(1), 169A.26,
subd. 1(a) (2014), arguing that the prosecutor committed reversible misconduct by
(1) introducing and eliciting testimony and presenting video evidence that her van had
whiskey plates; (2) presenting video evidence in which officers can allegedly be heard
discussing forfeiture paperwork; (3) impermissibly shifting the burden of proof in closing
argument by suggesting that Moodie needed to present evidence; and (4) misstating the
evidence in his closing argument. Because we agree that the prosecutor committed
prejudicial misconduct in his closing argument and in introducing evidence regarding
Moodie’s “whiskey plates,” we reverse and remand for a new trial.
FACTS
At approximately 3:00 a.m. on April 7, 2014, Washington County Deputy Nicholas
Bradt found a van parked in a turning lane at an intersection. Bradt did not see anyone in
the van, but the driver’s window was down and a purse was inside. Bradt ran the license
plate number, learned the van was registered to Moodie, and called a tow truck.
Bradt then heard a rustling sound in the woods nearby. He and another officer
searched the woods and found Moodie, lying facedown. Both officers testified that Moodie
was clearly intoxicated. The officers testified that Moodie told them she “drove” to the
intersection from a bar in Maplewood, but Moodie later said that she meant she rode there
in the van while a friend drove. Bradt found keys clipped to her sweater and a cell phone.
Moodie took a breath test at approximately 5:40 a.m. that registered a blood-alcohol
content value of 0.18, and the state ultimately charged her with one count of third-degree
driving while under the influence of alcohol within 10 years of a prior impaired-driving
incident. See Minn. Stat. §§ 169A.20, subd. 1(1) (prohibiting driving while impaired),
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169A.26, subd. 1(a) (noting that a person “is guilty of third-degree driving while impaired
if one aggravating factor was present when the violation was committed”), 169A.03, subd.
3(1) (listing “a qualified prior impaired driving incident within the ten years immediately
preceding the current offense” as an aggravating factor).
Moodie stipulated to the prior impaired-driving conviction before trial because, as
her defense counsel stated at trial: “I think it’s fair to say if the jury knew you had a prior
DUI, that they might assume that you . . . are a habitual drinker and driver.” Moodie also
moved the district court to order the state to instruct all the state’s witnesses to avoid “any
reference to any prior DUI, any reference to any implied consents, any reference to
forfeiture of the vehicle.” Moodie’s counsel emphasized that this motion included the
obligation “to redact or only play portions” of the implied-consent video that “don’t
reference any of the prior DUI . . . [or] implied consent.” The district court granted her
motion. Moodie’s counsel further asked that the state redact or not elicit testimony
regarding forfeiture, and the district court agreed.
During opening statements, the state twice mentioned Moodie’s license plate
number, which begins with the letters WE and ends with four numbers. The state later
elicited testimony from Bradt about Moodie’s license plate number, to which he responded:
“WE [****].” In addition, the state played Bradt’s squad-car video, in which the jury could
see Moodie’s license plate and allegedly hear the officers discuss filling out forfeiture
forms. Moodie asserts that these references are important because a series of numbers and
letters beginning with the letter “W” indicates “whiskey plates” in Minnesota, meaning
“license plates issued to a person who had their driver's license suspended for alcohol-
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related offenses.” State v. Brooks, 838 N.W.2d 563, 573 (Minn. 2013). Apart from her
pretrial motion, Moodie did not object to this conduct.
Moodie testified that she had gone to a karaoke bar that night to sing. She did not
drink any alcohol because she was taking ibuprofen for a bad toothache. Moodie called
other witnesses who testified that she did not drink alcohol, or that she did not appear to be
drinking alcohol, and that she left the bar sometime between 12:30 a.m. and 1:00 a.m.
Moodie testified that her friend, J.T., left the bar with her because she thought her car was
“running rough;” he offered to diagnose the trouble or at least be with her if something
happened to it. Moodie testified that J.T. drove.
Moodie testified that as she and J.T. approached the intersection where the van was
found, the van “just died, lights went out [and] everything.” She testified that she and J.T.
were unable to get the van started again, so J.T. left, presumably to get help. While J.T.
was gone, Moodie testified that she found a bottle of vodka in her van. She further testified
that she took the bottle of vodka into the woods because she was alone waiting for the van
and “it was kind of creepy”; she also testified that her tooth was “killing” her, so she drank
the vodka to help with the pain. After she drank “quite a bit” of the vodka, she threw the
bottle into the woods. Then she began to worry because J.T. had not returned, so she called
another friend and asked him to come help her.
The jury convicted Moodie of one count of third-degree driving while impaired, and
the district court sentenced her to 365 days in jail, staying 326 days for five years. Moodie
appealed. The state did not file a respondent’s brief, and this court ordered that the case be
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determined on the merits. See Minn. R. Civ. App. 142.03 (providing that if respondent
fails to file a brief, the case shall be determined on the merits).
DECISION
“On appeal, an unobjected-to error can be reviewed only if it constitutes plain error
affecting substantial rights.” State v. Ramey, 721 N.W.2d 294, 297 (Minn. 2006) (citing
Minn. R. Crim. P. 31.02). Although Moodie concedes that the prosecutor’s conduct was
not objected to, we note that it may have been unnecessary to renew her objection at trial
after obtaining a clear evidentiary ruling from the district court. See State v. Word, 755
N.W.2d 776, 782 (Minn. App. 2008) (“[O]nce the court makes a definitive ruling on the
record admitting . . . evidence, either at or before trial, a party need not renew an
objection . . . to preserve a claim of error.” (quoting Minn. R. Evid. 103(a))); see also State
v. Harris, 521 N.W.2d 348, 354 (Minn. 2004) (“Questions by a prosecutor calculated to
elicit or insinuate inadmissible and highly prejudicial character evidence and which are
asked in the face of a clear trial court prohibition are not tolerable.”). But because Moodie
does not contend that harmless-error review is appropriate, and because we conclude that
she would prevail under either test, we will review for plain error. See State v. Little, 851
N.W.2d 878, 884 (Minn. 2014) (concluding that if the appellate court finds a remedy
appropriate under plain-error analysis, it need not resolve which standard applies).
This court reviews claims of unobjected-to prosecutorial misconduct under a
modified plain-error test. Ramey, 721 N.W.2d at 302. Under the modified plain-error test,
the defendant must show that the prosecutor committed error and that the error is plain. Id.
If the defendant is successful, the burden shifts to the state to demonstrate “lack of
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prejudice; that is, [that] the misconduct did not affect substantial rights.” Id. If the state
fails to carry its burden, this court must consider the fourth prong of the plain-error test:
“whether a new trial is required to ensure the fairness, integrity, and public reputation of
judicial proceedings.” State v. Watkins, 840 N.W.2d 21, 30-31 (Minn. 2013).
Plain Error
Moodie argues that the prosecutor committed plain error by introducing evidence
that she had “whiskey plates.” She contends that “it is common knowledge that whiskey
plates are issued to repeat DUI offenders,” so there was a serious risk that the jury would
infer that she had a previous impaired-driving conviction. Moodie’s argument is
persuasive. “An error is plain if it is clear and obvious at the time of appeal. An error is
clear or obvious if it contravenes case law, a rule, or a standard of conduct.” Little, 851
N.W.2d at 884 (quotations omitted).
The prosecutor was under a court order instructing it to admonish its witnesses to
refrain from “any reference to any prior DUI, any reference to any implied consents, [and]
any reference to forfeiture of the vehicle.” The parties also had an agreement that the state
would either redact or not play any portion of the squad car video that referred to the prior
DUI and that the state would redact or not elicit testimony regarding forfeiture. Despite
these clear orders, the state made two references to Moodie’s license plate number in its
opening statement and elicited testimony from one of the officers regarding her license
plate number, which starts with “W,” indicating special registration or “whiskey plates.”
Special registration plates, commonly known as “whiskey plates,” are marked by “a
special series of numbers or letters so as to be readily identified by traffic law enforcement
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officers.” Minn. Stat. § 169A.60, subd. 13(a) (2014). While whiskey plates are not issued
exclusively to violators of impaired-driving statutes, see id., in the context of a trial on an
impaired-driving charge, the risk that the jury would infer a previous impaired-driving
conviction is significant.
This risk exists even though the jury needed to infer from Moodie’s license plate
number that she had a previous impaired-driving conviction. The Minnesota Supreme
Court has found clear prejudicial error under similar circumstances. In State ex rel. Black
v. Tahash, a police officer testified that he had asked the defendant “when was the last time
he saw [the alleged accomplice], and he stated that he had only seen him once since leaving
Stillwater.” 280 Minn. 155, 157, 158 N.W.2d 504, 505 (1968). There, the supreme court
concluded that the officer’s remark was grounds for a mistrial, even though the jury needed
to make the connection between the city of Stillwater and the prison located there, to infer
that the defendant had a previous criminal conviction. Id. at 157, 158 N.W.2d at 506.
Because the prosecutor’s references to Moodie’s whiskey plates contravened a
direct court order to avoid any mention of her previous impaired-driving conviction, we
conclude that Moodie has shown that the prosecutor committed plain error. We further
note that, although we need not address it in detail here, even if the prosecutor had not
violated clear court orders, he still would have committed misconduct under settled
Minnesota caselaw. See State v. Clark, 375 N.W.2d 59, 61-62 (Minn. App. 1985) (holding
that district courts “must accept an unequivocal judicial admission of a prior DWI and let
the defendant remove from the jury the issue of whether he had prior DWI convictions”);
State v. Berkelman, 355 N.W.2d 394, 397 n.2 (Minn. 1984) (noting that if a defendant
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concedes a prior DWI conviction, evidence regarding the conviction should not be admitted
unless it is relevant to a disputed issue because of its “great potential for being improperly
used”).
In addition, Moodie argues that the prosecutor committed plain error when he
repeatedly told the jury that no evidence supported her version of events, implying that her
testimony is not evidence. She argues that the “no evidence” comment was plainly
improper because she is competent to testify on her own behalf, and her testimony was
“evidence which if believed by jurors would constitute proof of her innocence.” We agree.
The challenged portion of the prosecutor’s closing argument follows:
You’ve got her there, you’ve got her car there. You’ve
got a statement that she drove herself there. You’ve got no
evidence of a bottle. Certainly, if she’s presenting to you now
that hey, I drove and then I drank, there is no evidence of that.
[Defense Counsel] pressed the officers, said [to] the
officers you didn’t really search very thoroughly. The officer
said we were looking for somebody, we heard somebody, we
looked around. They didn’t find anything. Now she says she
pitched it. That’s a convenient fabrication. There is no
evidence she pitched it.
You can have doubt. You can say I’m not hundred
percent sure, but any doubts in this case are unreasonable.
There is no reasonable doubt that this defendant did not
commit this offense. To put it another way, this defendant
committed the offense. It’s proof beyond a reasonable doubt.
There is no other proof.
(Emphases added).
A prosecutor “may argue all reasonable inferences from evidence in the record”
during closing argument, but it “is unprofessional conduct for the prosecutor intentionally
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to misstate the evidence or mislead the jury as to the inferences it may draw.” State v.
Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (quotation omitted).
Despite a bias or interest in the outcome of the case, criminal defendants are
competent to testify on their own behalf. State v. Bergeron, 452 N.W.2d 918, 926 (Minn.
1990). Relevant evidence is defined as “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.
Here, Moodie is competent to testify on her own behalf, and her testimony was
relevant evidence. In addition to her own testimony, Moodie called witnesses to testify
that she was not or did not appear to be drinking at the bar, supporting a key element of her
testimony. Accordingly, the prosecutor erred in arguing that no evidence supported her
version of events.
Finally, Moodie also contends that the prosecutor committed reversible error by
implying that she had the burden of proving a defense of post-driving alcohol consumption,
even though the state was required to prove beyond a reasonable doubt that she was under
the influence while she was driving. See Minn. Stat. § 169A.20, subd. 1(1). Her argument
is persuasive.
The Minnesota Supreme Court has held that it is “highly improper” for a prosecutor
to imply that the defendant has the burden of proof. State v. Nissalke, 801 N.W.2d 82, 106
(Minn. 2011) (quotation omitted). “A prosecutor improperly shifts the burden of proof
when she implies that a defendant has the burden of proving his innocence.” Id. (quotation
omitted). But a prosecutor does not “improperly shift the burden” by commenting “on the
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lack of evidence supporting a defense theory.” Id. (quotation omitted). Further, a district
court can cure prosecutorial error by giving a corrective instruction. Id.
In State v. Johnson, this court found prosecutorial misconduct when a prosecutor
referred to the defendant’s failure to call a medical expert to testify regarding his
explanation that his chronic disease was the reason he appeared intoxicated when he was
arrested for a DWI. 672 N.W.2d 235, 240 (Minn. App. 2003), review denied (Minn. Mar.
16, 2004). This court noted:
This defense attempts to negate an element of the prosecutor's
case, on which the burden of persuasion rests at all times with
the prosecution. Thus, the jury could have taken the
prosecutor's comment regarding the lack of medical evidence
to mean that appellant had some burden to disprove he was
under the influence, and if this occurred, the comment would
amount to misconduct.
Id. In Nissalke, however, the Minnesota Supreme Court found that a prosecutor can
comment on the lack of evidence supporting a defense theory without committing
misconduct. Nissalke, 801 N.W.2d at 106.
Here, the prosecutor did not simply comment on the lack of evidence supporting a
defense theory, as in Nissalke, but also commented on Moodie’s failure to present
evidence, even though the burden always rested on the prosecution. The prosecutor’s
comments imply that Moodie had some burden to produce evidence to prove her version
of events, particularly the last challenged comment that “[t]here is no other proof.” Taken
in the context of the closing argument overall, we conclude that the prosecutor plainly erred
in improperly shifting the burden of proof onto the defendant.
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Prejudice
Once the defendant successfully demonstrates plain error under the modified plain-
error test, the burden shifts to the state to demonstrate that the defendant was not prejudiced
by the misconduct. Ramey, 721 N.W.2d at 302. Here, the state did not file a respondent’s
brief. Accordingly, the state waived any argument that the error did not affect Moodie’s
substantial rights and failed to carry its burden. See State v. Porte, 832 N.W.2d 303, 312-
13 (Minn. App. 2013) (holding that the state’s failure to assert a harmless-error analysis in
its respondent’s brief was waiver). Because the state failed to carry its burden, we assume
that the error was prejudicial to Moodie’s substantial rights.
Fairness and Integrity of Judicial Proceedings
We next address the fourth Ramey prong: whether reversal is necessary “to ensure
fairness and the integrity of the judicial proceedings.” Ramey, 721 N.W.2d at 298
(quotation omitted). To warrant reversal, the prosecutor’s misconduct—placed into the
context of the entire trial—must be “so serious and prejudicial” that it impairs a defendant’s
constitutional right to a fair trial. Johnson, 616 N.W.2d at 727–28. A reversal is not
required to preserve the integrity of judicial proceedings, however, if granting a defendant
a new trial would be an “exercise in futility.” State v. Griller, 583 N.W.2d 736, 742 (Minn.
1998).
Caselaw confirms that the erroneous admission of evidence of prior DUI
convictions is prejudicial error. This court stated in State v. Clark:
Nor can this error be considered harmless. Error in the
reception of evidence will only be disregarded if there is no
reasonable possibility that the evidence complained of might
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have contributed to the conviction, or when the defendant's
guilt was conclusively proven.
375 N.W.2d at 62-63 (quotations omitted). The court in Clark proceeded to conclude that
“[g]iven the highly prejudicial nature of this evidence, . . . there is reasonable doubt that
the erroneously admitted evidence contributed to the verdict.” Id. at 63.
Here, as in Clark, the physical evidence is consistent with both versions of the facts.
Moodie concedes that she was intoxicated when the police officers found her, that she left
her van in the turning lane of an intersection, and that she had gone to the bar to sing
karaoke earlier in the evening. Moodie’s testimony was largely uncontradicted; the state’s
theory of the case was principally that her version of events did not make any sense. While
the state’s theory may seem more reasonable than Moodie’s account, that does not mean
that her guilt was “conclusively proven,” see id., such that it is unlikely that “the highly
prejudicial nature of this evidence,” id., did not contribute to the verdict.
The jury need not believe Moodie’s testimony that she began drinking after her van
broke down and can draw a reasonable inference from the facts surrounding her arrest that
she had gotten drunk at the bar before driving her van home that night. But because Moodie
and the state told different versions of the events immediately preceding the arrest and
offered different interpretations of Moodie’s statement that she “drove” to the intersection,
the case turns on credibility determinations. If the jury understood the references to
Moodie’s license plates as prejudicial evidence of a prior DWI conviction, the jury could
have used it improperly as propensity evidence. The evidence is not conclusive enough
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that we can say that remanding for a new trial would be an “exercise in futility.” See
Griller, 583 N.W.2d at 742.
Given Minnesota caselaw showing that evidence of a prior impaired-driving
conviction is highly prejudicial in a current impaired-driving case, the state’s failure to
carry its burden on the third Ramey prong, and the fact that Moodie’s guilt was not
conclusively proven, we conclude that the prosecutor’s conduct was serious and prejudicial
enough to impair Moodie’s right to a fair trial. See Johnson, 616 N.W.2d at 727–28. In
addition, the prosecutor’s misconduct in closing contributes to an accumulation of errors
that deprived Moodie of a fair trial. See State v. Mayhorn, 720 N.W.2d 776, 792 (Minn.
2006) (concluding that the cumulative effect of prosecutorial misconduct and evidentiary
errors denied the defendant’s right to a fair trial). Even when evidence of guilt is strong,
multiple incidents and types of prosecutorial misconduct can deprive defendants of a fair
trial. Id. at 791.
Because the cumulative effect of these errors deprived Moodie of her right to a fair
trial, we reverse and remand for a new trial.
Reversed and remanded.
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