State of Minnesota, Respondent, vs. Ulysses Turner, Appellant.

State of Minnesota, Respondent, vs. Ulysses Turner, Appellant. A06-822, Court of Appeals Unpublished, July 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-822

 

State of Minnesota,
Respondent,
 
vs.
 
Ulysses Turner,
Appellant.

 

Filed July 24, 2007

Affirmed

Stoneburner, Judge

 

Washington County District Court

File No. K6052175

 

Lori Swanson, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Doug Johnson, Washington County Attorney, Washington County Government Center, 14949 62nd Street North, P.O. Box 6, Stillwater, MN 55082-0006 (for respondent)

 

John M. Stuart, Minnesota Public Defender, Sara L. Martin, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Shumaker, Judge, and Dietzen, Judge.

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges his convictions of first-degree driving while impaired, first-degree test refusal, and driving while cancelled as inimical to public safety, arguing that: (1) cumulative evidentiary errors deprived him of a fair trial and (2) the evidence is insufficient to support his refusal-to-test conviction.  Because appellant was not deprived of a fair trial by evidentiary rulings, we affirm his conviction of first-degree driving while impaired, the only conviction for which appellant was sentenced.  Because the district court dismissed the convictions of refusal to test and driving after cancellation, we do not address the challenges to those convictions.

FACTS

 

Washington County Sheriff's Deputy Stephen Courtois received a dispatch concerning a 911 call from a Moto Mart employee.  The 911 caller reported that a drunk driver was driving a white Chevrolet minivan with license plate number AZY-961.  Deputy Courtois located the vehicle and observed it driving on the shoulder of the road and crossing the fog line.  The van stopped before Deputy Courtois activated his lights.     Deputy Courtois got out of his squad car and approached the driver, appellant Ulysses Turner.  When Turner opened his door, the deputy smelled a strong odor of alcohol.  The deputy also smelled alcohol on Turner's breath when they began talking.  Deputy Courtois had Turner perform several field sobriety tests and a preliminary breath test.  Turner failed all of the tests.

            Turner was arrested for driving while impaired and was taken to the Washington County Jail.  Deputy Courtois read the Implied Consent Advisory to Turner.  Turner wanted to speak to his attorney but could not reach him by telephone.  Turner did not want to contact another attorney and agreed to take a breath test.  An officer, not Deputy Courtois, took Turner to a separate room for testing, but Turner did not take the test.  There is no record of what occurred in the testing room.  Deputy Courtois checked the box on the second page of the Implied Consent Advisory form indicating a refusal, but he did not fill in the reason for the refusal.

            Turner was charged with first-degree driving while impaired, first-degree refusal to test, and driving while cancelled as inimical to public safety.  Turner's competency to stand trial was determined in a Rule 20 proceeding at which Dr. Ellen Dona testified on behalf of Turner.

            On the first day of his scheduled jury trial, Turner moved to allow Dr. Dona to testify as an expert witness about his diminished cognitive ability.  The district court reserved its ruling until the next day, at which time the district court denied the motion, concluding that Dr. Dona's testimony would not be helpful to the jury.

            At trial, Deputy Courtois was asked how he first became aware of Turner's vehicle.  The deputy began to describe a 911 call that was relayed to him by the dispatcher.  Turner objected, without stating the grounds for the objection on the record.  After an unreported bench conference, Deputy Courtois's testimony resumed.  There is no record of the district court's ruling on the objection.  Deputy Courtois testified that he had been advised by dispatch that "a white Chevy minivan with license plate AZY-961 was coming southbound [on] 61 towards Hugo and dispatch received a call from an employee at the Moto Mart that it was a drunk driver [driving] the minivan."  The deputy also testified about his personal observations and what occurred at the law-enforcement center.  Turner was found guilty of all three charges.  He was sentenced for first-degree driving while impaired and the other two counts were dismissed.  This appeal followed.

D E C I S I O N

 

I.          Evidentiary rulings

            Turner argues that the district court abused its discretion by excluding the testimony of Dr. Dona and by allowing Deputy Courtois to testify about the substance of the 911 call and that the cumulative effect of these errors denied him a fair trial.  "Cumulative error exists when the cumulative effect of the . . . errors and indiscretions, none of which alone might have been enough to tip the scales, operate to the defendant's prejudice by producing a biased jury."  State v. Penkaty, 708 N.W.2d 185, 200 (Minn. 2006) (quotations omitted).  We first examine whether the district court abused its discretion in excluding Dr. Dona's testimony and allowing testimony about the 911 call.

            a.         Exclusion of Dr. Dona's testimony

            "The admission of expert testimony is within the broad discretion accorded a trial court, and rulings regarding materiality, foundation, remoteness, relevancy, or the cumulative nature of the evidence may be reversed only if the trial court clearly abused its discretion."  State v. Ritt,599 N.W.2d 802, 810 (Minn. 1999) (citation and quotation omitted).

            If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

 

Minn. R. Evid. 702.  "The basic requirement of Rule 702 is the helpfulness requirement."  Ritt,599 N.W.2d at 811.  "If the subject of the testimony is within the knowledge and experience of a lay jury and the testimony of the expert will not add precision or depth to the jury's ability to reach conclusions about the subject which is within their experience, then the testimony does not meet the helpfulness test."  Id.

            Turner argues that Dr. Dona "should be able to testify about Turner's IQ, level of functioning, and his ability to understand information read to him" because his level of functioning is "relevant to whether Turner understood the instructions during the field sobriety tests, and would have explained why he did not appear to finish the tests."  The district court concluded that evidence regarding the tests that Dr. Dona did to determine Turner's competence to stand trial would not be helpful to the jury and expressed doubt that those tests were "really geared to what the issue is anyway."  Dr. Dona testified at the Rule 20 hearing that she "did not do a formal assessment of intelligence."           

            The purpose of the Rule 20 evaluation was to determine whether Turner had sufficient ability to consult with his defense counsel with a reasonable degree of rational understanding and was capable of understanding the proceedings and participating in his defense.  Minn. R. Crim. P. 20.01, subd. 1(1), (2).  The district court found that Turner was competent to stand trial, and that ruling has not been appealed. 

            At the criminal trial, the jury saw a videotape of the field sobriety tests and the deputy's reading of the Implied Consent Advisory, and defense counsel cross-examined the deputy about his observations of Turner's abilities.  On this record, we conclude that the district court did not abuse its discretion by excluding Dr. Dona's testimony.  Because exclusion of Dr. Dona's testimony was not an abuse of discretion, "cumulative" evidentiary errors did not occur.  Nonetheless, we will address Turner's challenge to admission of the substance of the 911 call.

            b.         911 call

            Turner argues that the deputy's testimony that the 911 caller said that a drunk driver was driving the minivan was inadmissible hearsay pointing directly to Turner's guilt of the offense of driving while impaired.[1]

            Generally, if a defendant fails to object to an error during trial, the defendant will be deemed to have waived the issue on appeal.  State v. Litzau, 650 N.W.2d 177, 182 (Minn. 2002).  In this case, Turner objected when Deputy Courtois began to testify about the 911 call, but did not state a basis for the objection on the record.  After an unrecorded bench conference, there was no ruling on the objection, and no further record was made with regard to the objection.  On this record, we conclude that Turner failed to raise a valid objection to this testimony.

            "[B]efore an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights."  State v. Ramey, 721 N.W.2d 294, 298 (Minn. 2006) (quotation omitted).  "If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings."  Id. (quotation omitted).

            Evidentiary rulings are committed to the district court's discretion, and appellate courts will not reverse a district court's evidentiary ruling absent an abuse of discretion.  Litzau, 650 N.W.2d at 182.  Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted."  Minn. R. Evid. 801(c).  "In criminal cases, evidence that an arresting or investigating officer received a tip for purposes of explaining why the police conducted surveillance is not hearsay."  Litzau, 650 N.W.2d at 182.  Because the challenged statement in this case was offered to explain why the deputy's attention was focused on Turner's vehicle, the statement is plainly not hearsay.

            But "even a limited elicitation, for nonhearsay purposes, of general testimony that a tip had been received" may be unjustified "because the potential of the evidence being used for an improper purpose [may outweigh] its very limited probative value."  State v. Hardy,354 N.W.2d 21, 24-25 (Minn. 1984).  "[T]he trial judge often may (and sometimes must) exclude such proof where it contains accusations so damaging to the accused that the risk that the jury will consider the words for their truth outweighs their probative value as an explanation of official conduct."  Id. at 24 (quotation omitted).  In Hardy,the supreme court held that admission of the contents of the tip was error because the prosecutor used the contents of the tip to tie the defendant to the crime and to others associated with the crime, "a hearsay purpose."  Id.  But because the district court gave a limiting instruction and the record contained "highly reliable scientific evidence" connecting defendant to the crime, the supreme court held that the error did not require a new trial.  Id. at 25.

            Turner argues that the case before us is similar to Litzau, in which the cumulative effect of the admission of hearsay testimony about the substance of a tip, and other errors, was held to deprive Litzau of a fair trial.  In Litzau,as in Hardy, the prosecutor used the substance of the tip to tie the defendant to the crime, making it hearsay, but unlike Hardy,the substance of the tip was the only evidence tying the defendant to the crime.  Litzau,650 N.W.2d at 184.  In this case, the prosecutor never attempted to use the substance of the 911 call to prove that Turner was driving while impaired.  Although the prosecutor referred to the tip in opening statements and elicited testimony about the statement, in both instances, the prosecutor was using the statement only to explain why the deputy focused on Turner's vehicle.  The deputy's testimony and the videotape of field sobriety tests directly tie Turner to the offence of driving while impaired.  On this record, we conclude that the district court did not abuse its discretion in admitting the substance of the tip.  The statement was not hearsay because it was not offered to prove the truth of the matter asserted, and there was no danger that the statement would be used by the jury other than for the non-hearsay purpose for which it was introduced.  Because there is no error, we do not reach the other prongs of the plain-error analysis.  Turner's argument that he was denied a fair trial due to cumulative evidentiary errors is without merit.

II.        Sufficiency of the evidence to support Turner's refusal-to-test conviction

            Turner was sentenced only on Count 1, driving under the influence.  The refusal-to-test conviction was dismissed.  Therefore, Turner's challenge to the refusal-to-test conviction is not properly before us, and we decline to address it.

            Affirmed.

[1] Although Turner does not specifically argue that admission of the statement violated his right to confrontation under Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004), he does argue that "[i]f the state wanted to introduce this evidence, it should have called the Moto Mart employee rather than introducing the statement through Courtois."  Because, as explained below, we conclude that the statement was not hearsay, it is not testimonial and Crawford is not implicated.