This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Scott Dennis Armstrong,
Filed August 19, 2008
Douglas County District Court
File No. 21-K1-06-001341
Lori Swanson, Attorney General, Kelly O‟Neill Moller, Assistant Attorney General, 1800
Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Christopher Karpan, Douglas County Attorney, Douglas County Courthouse, 305 Eighth
Avenue West, Alexandria, MN 56308 (for respondent)
Lawrence Hammerling, Chief Appellate Public Defender, Theodora Gaitas, 540 Fairview
Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)
Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Wright,
Appellant challenges his drug-related convictions, arguing that he was deprived of
a fair trial because of prosecutorial misconduct, that evidence of his prior contact with
law enforcement was improperly admitted, and that the evidence was insufficient to
support his convictions. We affirm.
On the evening of October 30, 2006, appellant Scott Armstrong was parked in a
cul-de-sac. Because the car was running and the taillights were on for an unusual length
of time, a local resident called the police.
When the police arrived, they found
Armstrong, who was the sole occupant of the vehicle, sleeping in the driver‟s seat. He
was holding a glass pipe in his right hand and a cell phone in his left. The car was in
drive, but he had fallen asleep with his foot on the brake pedal. Fearing Armstrong
would be startled and hit the gas, the officers put the vehicle in park and took the keys out
of the ignition before waking him.
The officers asked Armstrong to perform field sobriety tests. As a result of his
performance in the tests, the officers determined that he was under the influence of a
chemical substance and placed him under arrest. Pursuant to that arrest, an officer
searched Armstrong for contraband and weapons. In addition to the glass pipe that
Armstrong had been holding, the officer found a canister containing a substance that later
tested positive for methamphetamine and an empty glass vial.
Incident to the arrest, the officers searched Armstrong‟s vehicle. In it, they found
a leather jacket with 3.4 grams of methamphetamine in one of the pockets. In a pouch on
the passenger seat, they found a small electronic scale, two prescription bottles with
Armstrong‟s name on them, and a tin that held 11 small baggies of methamphetamine.
Also on the seat, they found a day planner with $607 in cash inside. Another tin
containing four baggies of methamphetamine was discovered in the car‟s overhead
Armstrong was charged with the possession of a controlled substance with intent
to sell in violation of Minn. Stat. §§ 152.021, subds. 1, 3(a), .01, subd. 15a (1), (3) (2006)
and possession of more than six grams of a controlled substance in violation of Minn.
Stat. § 152.022, subds. 2(1), 3(a) (2006).1 He was convicted by a jury, and this appeal
The first issue is whether there was prosecutorial misconduct that requires
reversal. The prosecutor is an officer of the court charged with the affirmative obligation
to achieve justice and fair adjudication, not merely convictions. State v. Ramey, 721
N.W.2d 294, 300 (Minn. 2006).
A. Reference to Appellant’s Exercise of his Constitutional Rights
Armstrong argues that his convictions should be reversed because the prosecutor
engaged in prejudicial misconduct that infringed upon his constitutional right to counsel.
Because Armstrong complains about two lines of questioning that took place at different
times and during the questioning of two different witnesses, we consolidate consideration
of whether these questions were improper. Because one line of questioning was objected
Several other charges were brought. Because they are not at issue in this appeal, they
to and the other was not, we will analyze separately the impact of any error on the
“[I]t has long been recognized that a defendant‟s decision to exercise his
constitutional rights to silence and to counsel may not be used against him at trial.” State
v. Litzau, 650 N.W.2d 177, 185 (Minn. 2002); see also State v. Dobbins, 725 N.W.2d
492, 509 (Minn. 2006) (“[T]he state generally may not refer to or elicit testimony about a
defendant‟s post-arrest silence and/or request for counsel.”).
Such references are
prohibited because a jury “is likely to infer from the testimony that [the] defendant was
concealing his guilt.” Litzau, 650 N.W.2d at 185 (alteration in original) (quotation
omitted); see also Sizemore v. Fletcher, 921 F.2d 667, 671 (6th Cir. 1990) (“A prosecutor
may not imply that an accused‟s decision to meet with counsel, even shortly after the
incident giving rise to a criminal indictment, implies guilt. Neither may she suggest to
the jury that a defendant hires an attorney in order to generate an alibi, „take care of
everything‟ or „get his story straight.‟ Such statements strike at the core of the right to
counsel, and must not be permitted.” (alterations omitted)); State v. Billups, 264 N.W.2d
137, 138-39 (Minn. 1978) (holding that the use of counseled silence for impeachment at
trial is constitutionally prohibited). A reviewing court is more likely to find prejudicial
misconduct when the state intentionally elicits impermissible testimony.
Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974).
Armstrong‟s defense at trial was that he had driven a drug dealer to the cul-de-sac
where the police had found him, and that although some of the drugs in the car were his
own, some of them belonged to the dealer he had given a ride to. He argued that because
several grams of the methamphetamine did not belong to him, he should not be convicted
of possession of controlled substance with intent to distribute them. The prosecutor
cross-examined Armstrong regarding this defense by asking him how and when he first
brought his alternate story to the attention of the police. The questioning involved nine
questions indicating that Armstrong had not mentioned the possibility of other potential
defendants to the police upon his arrest, culminating in the prosecutor‟s statement that
“[i]n fact, you didn‟t say anything [about the other persons allegedly involved] until after
you had gotten off the phone with your attorney; isn‟t that true?” Armstrong stated “[n]o,
sir,” and responded to the prosecutor‟s other questions by stating that he had told the
police about the other potential defendants in the squad car on the way to the station.
This line of questioning was not objected to, and is therefore subject to a plain-error
Later, when questioning an officer as a witness for the state, the prosecutor again
asked several questions about Armstrong‟s timing when notifying the police that there
may be other people implicated in the drug charges and ultimately asked:
PROSECUTOR: Is it safe to say that he didn‟t mention
anything to you until after he had talked with his attorney?
WITNESS: He never spoke –
DEFENSE COUNSEL: Objection, objection to the form of
the question, the suggestion that somehow fabrication was
involved, and also privilege.
THE COURT: Sustained, as to the form of the question.
In this instance, the prosecutor‟s questions were objected to and is subjected to a
Here, the prosecutor engaged in prosecutorial misconduct by improperly referring
to Armstrong‟s decision to exercise his right to counsel for impeachment purposes. See
Dobbins, 725 N.W.2d at 509-10; Litzau, 650 N.W.2d at 185.
The entire line of
questioning regarding Armstrong‟s failure to mention any other defendants climaxes with
the prosecutor‟s inquiry about his decision to consult counsel. The prosecutor wrongfully
implied through these questions that, because Armstrong did not make any statements
regarding any other possible defendants until after he had spoken to his attorney, his story
might be a fabrication and that Armstrong‟s exercise of his right to counsel was to “get
his story straight.” This strikes at the core of a defendant‟s right to counsel, is not
permitted, and constitutes plain error.
i. Objected-to Prosecutorial Misconduct
Because the line of questioning directed at the officer, a witness for the state, was
objected-to, we analyze its impact on the verdict separately from the unobjected-to
Our supreme court has recently clarified that objected-to prosecutorial
misconduct is no longer viewed under the “two tiered” system used in earlier Minnesota
State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006). Instead,
As the state notes, the Minnesota Supreme Court has made some conflicting statements
regarding the applicable standard of review by rejecting the two-tiered standard of review
for objected-to prosecutorial misconduct embodied in State v. Caron, 300 Minn. 123,12728, 218 N.W.2d 197, 200 (1974) in State v. Mayhorn, 720 N.W.2d 776, 785 (Minn.
2006). Ordinarily, this might indicate that Caron has been overruled, and we should
adhere to the standard articulated in Mayhorn. However, not long after Mayhorn was
decided, the Minnesota Supreme Court stated that the question of whether the “Caron
two-tiered approach should continue to apply to cases involving objected-to prosecutorial
misconduct” was left for “another day.” Ramey, 721 N.W.2d at 299 n.4; see also State v.
Wren, 738 N.W.2d 378, 390 n.9 (Minn. 2007) (acknowledging Ramey’s suggestion that
reversal must occur if the misconduct, considered in the context of the whole trial,
deprived the defendant of a fair trial. Id. We will find an error to be harmless beyond a
reasonable doubt only if the verdict rendered was surely unattributable to the error.
Id.; see also Dobbins, 725 N.W.2d at 507-08 (stating that objected-to prosecutorial
misconduct is reviewed to determine whether the misconduct was harmless beyond a
reasonable doubt, i.e., whether the verdict was surely unattributable to the misconduct).
Here, because Armstrong proffered an alternate story, the credibility of the
defendant and his explanation of events is at issue. As a result, prosecutorial misconduct
is particularly troublesome. See State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (noting
that reviewing courts “will pay special attention” to prosecutorial misconduct “where
credibility is a central issue”). At trial, Armstrong contended that although some of the
drugs were his, he should not be convicted as a dealer because a large portion of the
drugs had been left in the car by someone else. Armstrong testified that: the pouch
containing methamphetamine was not his; the baggies of methamphetamine he admitted
were his matched those elsewhere in the car because he had just purchased them from the
drug dealer that owned the rest of the methamphetamine; he had cash in the car because
he had just cashed a check from working at a beet harvest; and the leather jacket, which
had 3.4 grams of methamphetamine in one of the pockets, was not his.
the standard of review was an open question but applying the standard articulated in
Mayhorn). In this uncertain situation, we adhere to the standard articulated in Mayhorn.
The application of the Mayhorn standard ensures that defendants will not be unfairly
prejudiced based on any lack of clarity involved in the issue.
However, the evidence against the defendant is overwhelming.
variety, and location of items found, including a scale, cash, and numerous baggies with
methamphetamine at different locations in the car, make his other-person explanation
dubious. Armstrong tested positive for having methamphetamine in his body. Most
importantly, Armstrong‟s version of events was directly contradicted by statements he
made in a phone call to his girlfriend shortly after his arrest. During that call, Armstrong
told her that he had been the only one involved and that no one else was in the car with
him prior to the arrest. A tape of this call was played at trial and severely damaged
Armstrong‟s account of events.
We also consider how the improper question was raised and the objection was
handled. The objection to the improper questioning of the officer was sustained at the
outset. Although the prosecutor was able to plant the seed of doubt about the integrity of
Armstrong‟s account in jurors‟ minds and imply that legal counsel suggested the
alternative story, only a hint was given. The court‟s prompt ruling brought the jury‟s
attention to the fact that an error had occurred and ended the improper questioning. See
Dobbins, 725 N.W.2d at 508 (considering that the district court timely sustained
Dobbins‟ objections as part of its harmless-error analysis).
Based on the overall record in this case, we conclude the jury‟s verdict was surely
unattributable to the prosecutor‟s objected-to misconduct posing the improper questions
to the officer.
ii. Unobjected-to Prosecutorial Misconduct
The next consideration incident to the unobjected-to questioning of the defendant
is whether the misconduct was prejudicial.
Prosecutorial misconduct that was not
objected to is analyzed under the plain-error standard, whereby an appellant must
establish that an error occurred and that the error was plain. Ramey, 721 N.W.2d at 299,
302. If the appellant does so, the burden shifts to the state to establish that the
misconduct did not prejudice the defendant‟s substantial rights. Id. at 302. The state
meets this burden if it can show that there is no reasonable likelihood that the misconduct
had a significant effect on the jury‟s verdict. Id. at 302; State v. Griller, 583 N.W.2d 736,
741 (Minn. 1998). This is not as great a burden as the state faces in establishing that the
verdict is surely unattributable to the misconduct.
Some of the considerations previously discussed in the context of our harmlesserror analysis are also applicable here. The strength, quantity, and quality of the evidence
against Armstrong, as well as his admission in a post-arrest phone call to his girlfriend
that his story was fabricated, all indicate that the prosecutorial misconduct in this case is
not likely to have prejudiced him. Additionally, we note that although the prosecutor
questioned Armstrong about the development of his story, the potential prejudice to
Armstrong‟s trial was at least partially limited by his response to those questions.
Armstrong denied the prosecutor‟s implications by insisting that he had discussed the
other two potential defendants in the squad car before contacting an attorney. While not
dispositive, this fact, in conjunction with the others, leads us to conclude that the state
met its burden of showing that the misconduct was not prejudicial.
B. Objected-to Inflammation of the Jury’s Passions
Armstrong also claims that he was deprived of a fair trial because the prosecutor
made an improper closing argument. While a state‟s closing argument is not required to
be “„colorless,  it must be based on the evidence produced at trial, or the reasonable
inferences from that evidence.‟” State v. Young, 710 N.W.2d 272, 281 (Minn. 2006)
(quoting State v. Porter, 526 N.W.2d 359, 263 (Minn. 1995)). When evaluating alleged
misconduct, we look to the closing argument as a whole. State v. Leake, 699 N.W.2d
312, 327 (Minn. 2005). A prosecutor may not make arguments calculated to inflame the
passions or prejudices of the jury. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).
Minnesota courts also object to closing arguments that use “law and order” themes. E.g.,
State v. Threinen, 328 N.W.2d 154, 157 (Minn. 1983) (stating that closing argument
suggesting that the jury represented the people of the community and that their verdict
would determine what kind of conduct would be tolerated on the streets was improper).
Here, the objected-to portion of the prosecutor‟s closing argument is as follows:
PROSECUTOR: The second thing is this: This is my final
thing at this point. This gets awfully dry. When you‟re a
prosecutor your job is to present the evidence, make sure that
it‟s tied together, and make sure that you‟ve covered the
JIGS. But this crime goes beyond that. When you see
pictures of individual bags like this, of methamphetamine,
remember each one of these bags has a person‟s name on it.
And that person who gets this methamphetamine might be a
first-time user or someone who is already addicted.
But it goes beyond that. It goes to the family and the
friends of the people who are worried about the person who‟s
going to get one of these bags and use one of these drugs, and
what methamphetamine is going to do to them.
DEFENSE COUNSEL: Objection, your Honor, improper
THE COURT: Sustained.
PROSECUTOR: Okay. I would just ask you to remember
that this goes beyond just dry evidence. Thank you.
Later, in his own closing argument, the defense counsel stated:
This is not a referendum where you go back and make
your deliberations at this time, whether you‟re for drugs or
against drugs. And in your minds you should be satisfied
with his admission, his confession, his pleading of guilty so to
speak, on the record. He‟s not walking away from here.
And . . . I don‟t think I can belabor the point that when
we have the circumstances as you do, you‟re not voting
against the police, you‟re not voting against [the prosecutor]
or the State of Minnesota when you find Mr. Armstrong not
guilty of the first degree and the two second degrees. What
you‟re doing is you‟re applying the law.
The complained-of portion of the prosecutor‟s closing argument was improper. Because
it tended to inflame the passions of the jury and is similar to “law and order themes” that
the Minnesota Supreme Court has determined are impermissible, we conclude the district
court properly sustained the objection.
Because it was objected to, the next question is whether the “verdict rendered was
surely unattributable to the error.” See Mayhorn, 720 N.W.2d at 785 (quoting State v.
Swenson, 707 N.W.2d 645, 658 (Minn. 2006)). The prosecutor‟s closing argument
spanned 24 transcribed pages, and the impermissible argument is only one page. See
State v. Powers, 654 N.W.2d 667, 679 (Minn. 2003) (considering the relative length of a
transcribed passage in determining whether, in the context of the entire closing argument,
a comment deprived the defendant of a fair trial).
Additionally, the objection was
sustained, which can help to cure any potential prejudice.
Ness v. Fisher, 207 Minn.
558, 560, 292 N.W. 196, 197 (1940) (“The jury was duty bound to disregard the
statement [where the objection was sustained.]”). Finally, the closing argument of the
defense attorney at least partially negated the improper comments of the prosecutor. We
conclude that given these circumstances, together with the strong evidence of
Armstrong‟s guilt, his conviction was surely unattributable to the prosecutor‟s improper
C. Combined Influence of the Prosecutor’s Misconduct
A court may reverse based on the cumulative effect of errors committed at trial,
even if none of them, standing alone, merit reversal. State v. Underwood, 281 N.W.2d
337, 344 (Minn. 1979); State v. Al-Naseer, 690 N.W.2d 744, 750 (Minn. 2005) (stating
that multiple problems with the trial are compounded when the erroneously admitted
evidence is used to depict the defendant to be untruthful).
In Ramey, the Minnesota Supreme Court noted that “[c]ourts have struggled to
effectively respond to the problems presented when prosecutors engage in off-limits
721 N.W.2d at 301.
We emphasize that the conduct at issue here is
impermissible and that in a closer case it would result in reversal. Prosecutors may not
flout well-established rules regarding acceptable conduct at trial; this behavior runs the
risk of depriving a defendant of his constitutional rights. See Powers, 654 N.W.2d at 678
(stating that prosecutorial misconduct can impair a defendant‟s right to a fair trial).
Nonetheless, we conclude that the cumulative effect of these errors does not merit the
grant of a new trial.
Second, Armstrong argues that his trial was impermissibly tainted by officers‟
reference to their prior experience with him. The officer‟s testimony was not objected to
at trial. As previously discussed, we review the unobjected-to testimony under the plain
error standard, which requires the finding of a plain error that impaired the defendant‟s
substantial rights. Minn. R. Crim. P. 31.02; see also Griller, 583 N.W.2d at 740. If these
requirements are met, the appellate court then assesses whether it should address the error
to ensure fairness and the integrity of the judicial proceedings. Griller, 583 N.W.2d at
References to prior incarceration of a defendant can be unfairly prejudicial. State
v. Manthey, 711 N.W.2d 498, 506 (Minn. 2006). Direct or indirect reference to a
defendant‟s prior offense or prior incarceration is inadmissible. State v. Haglund, 267
N.W.2d 503, 505-06 (Minn. 1978). The state has an obligation to caution its witnesses
against making prejudicial statements. Manthey, 711 N.W.2d at 506. A conviction is
more readily reversed when a prosecutor intentionally elicits other-crime evidence
knowing that it is inadmissible. Haglund, 267 N.W.2d at 506.
Here, the prosecutor twice asked an officer involved in the incident whether he
“recognized” Armstrong. The officer stated that he did recognize Armstrong, but merely
identified him rather than referring to any crime, wrongdoing, or bad act. Because the
officer could have recognized Armstrong from prior benign interactions and did not
indicate that he “recognized” Armstrong based on prior bad acts or for any other negative
reason, the evidence is admissible.
Armstrong also complains that, after another officer testified that he had heard the
suspicious vehicle information over dispatch, the prosecutor asked: “And what did you
do?” In response, the officer stated that he recognized Armstrong‟s name and that he
responded to the dispatch call “based on [his] past experience with that name.” This
testimony was not specifically solicited. There is no indication on this record that in this
instance, the prosecutor failed to properly prepare the state‟s witnesses, that he
intentionally solicited inadmissible testimony, or that the two fleeting statements were
prejudicial to Armstrong. Based on this record, we conclude that the officer‟s statements
did not seriously affect the fairness of the proceeding and are not a basis for reversal.
The final issue is whether there was sufficient evidence to support the jury‟s
determination that Armstrong was guilty of the intent to sell methamphetamine. On a
sufficiency-of-the-evidence claim, the reviewing court carefully examines the record to
determine whether a fact-finder could reasonably conclude that the defendant was guilty
of the offense charged.
State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).
determination must be made under the assumption that the fact-finder believed the state‟s
witnesses and disbelieved any contrary evidence, and must be made in the light most
favorable to conviction. Id. Despite the foregoing, the fact-finder must have acted with
due regard for the presumption of innocence and the necessity of overcoming that
presumption by proof beyond a reasonable doubt. State v. Combs, 292 Minn. 317, 320,
195 N.W.2d 176, 178 (1972).
When reviewing a conviction based on circumstantial evidence, this court applies
a more stringent standard. Under this standard, “evidence is entitled to the same weight
as any evidence so long as the circumstances proved are consistent with the hypothesis
that the accused is guilty and inconsistent with any rational hypothesis except that of
guilt.” Bias, 419 N.W.2d at 484; State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).
The circumstantial evidence must form a complete chain that, in view of the evidence as
a whole, leads so directly to the guilt of the defendant as to exclude beyond a reasonable
doubt any reasonable inference other than guilt. State v. Webb, 440 N.W.2d 426, 430
A person who sells a mixture containing methamphetamine of ten grams or more
is guilty of a first-degree controlled substance crime. See Minn. Stat. § 152.021, subd.
1(1) (2006). Under Minnesota law, to “sell” means: “(1) to sell, give away, barter,
deliver, exchange, distribute or dispose of to another, or to manufacture; or (2) to offer or
agree to perform an act listed in clause (1); or (3) to possess with intent to perform an act
listed in clause (1).” Minn. Stat. § 152.01, subd. 15a (2006). Evidence of possession
with intent to sell has been determined to be sufficient where drugs, packaging materials,
and a scale are evidentiary items found by officers at the scene, and are accompanied by
separate cardboard bindles of drugs found on defendant‟s person. State v. Heath, 685
N.W.2d 48, 57 (Minn. App. 2004).
Armstrong contends that he merely “possessed” illicit drugs; however, there is
evidence on the record that he possessed 12.2 grams of methamphetamine; that there
were a total of 17 individual packets of methamphetamine in his immediate surroundings;
that there was a small electronic scale, which can be associated with dealing drugs; and
that he had a significant amount of cash. His telephone call to his girlfriend discredits his
claim that much of this evidence belonged to another person. This evidence provided “a
complete chain which, in light of the evidence as a whole” indicated that Armstrong
possessed the methamphetamine with an intent to “sell . . . [it] to another” beyond a
See Minn. Stat. § 152.01, subd. 15a (1), (3) (defining “sell” for the
purposes of controlled substance statutes); Webb, 440 N.W.2d at 430 (outlining the
standard of review for circumstantial evidence). Therefore, we conclude Armstrong‟s
conviction for possession of methamphetamine with intent to sell is based on sufficient