*1 juris- rеserved herd, duty diseased RAM’s defend and infected that was indemnification, diction over issue of cows. a final determination in the await John- misrepre- negligent claim for Because a action. stones’ occurrence, an may involve sentation de- the policy part, none of exclusions part, because Affirmed reversed re- law, manded, matter the RAM feat as a of coverage and motion denied. for such рrovides coverage
policy arguably
a claim. Fraud Act
C. Consumer con
To Johnstones’ the extent claim is based on intentional
sumer fraud misrepresentations, arguable Minnesota, Respondent, there no STATE policy, under the RAM coverage that intentional common law same reason HOPPE, Appellant. Paul Walter But, have 'con fraud is not covered. we Fraud strued the Minnesota Consumer No. C6-01-843. or unin apply negligent
Act to also Appeals Minnesota. Court misrepresentation. tentional Church of WatPro, Inc., Lord Nativity Our 19, March re (Minn.App.1991), May Review Denied (1 (Minn. Oct granted pet.) view (1 (Minn. 1991), pet.) Nov denied review
26, 1991)
tain their burden on the
purchased diseased cows based or mis negligent unintentional
Timmers’ be.required RAM would
representation, their liabili indemnify the Timmers for Act.
ty under the Consumer Fraud
DECISION sum, RAM arguably
In because indemnify against
quired to Timmers negligent claims for mis-
the Johnstones’
representation negligent violation Act, Fraud we conclude Consumer all against
RAM must defend Timmers underlying
the claims in the Johnstones’ court’s
complaint. We affirm the district But,
summary judgment this issue. claims are other
because Johnstones’ indemnifiable, we conclude arguably have limited
that the district court should issue summary judgment *3 appellant’s previous DWI convictions propensity, indicating
showed a conviction necessary to protect society, com- menting defense’s failure to rebut disparaging state’s telling appellant defense “snowing” portion and that a theory of appellant’s defense was ridicu- Appellant lous. argues also the dis- admitting trict court erred in Hoppe’s en- *4 tire driving Minnesota record because the record contained stale impаired-driving from convictions 1987. reverse We and remand.
FACTS In appellant June Walter Hoppe was arrested for driving under the influ- ence of alcohol after failed Hoppe a series sobriety of field tests a preliminary and breath test resulted in a reading. .15 tests, intoxilyzer approxi- administered mately arrest, hour one after Hoppe’s re- .165, sulted in a .163 and a which yielded an result Although official of .16. Hoppe presentеd arresting yel- officer with a Hatch, General, Paul; Attorney Mike St. low application driver’s license from the Pottratz, and E. Robert City Melrose At- Department Vehicles, of Motor the officer Melrose, torney, for respondent. ran a of Hoppe’s check Minnesota driving Stuart, Defender, John M. State Public record and discovered that his Minnesota Clippert, Charles F. Public Assistant De- driver’s license was revoked. The officer fender, Minneapolis, for appellant. also discovered that Hoppe prior has two impaired-driving convictions Minnesota LANSING, Considered and decided from 1987 and four impaired-driving con- Judge, RANDALL, Presiding Judge, and victions in Montana from 1992 to 1996. Judge.* HUSPENI
Hoppe charged gross with misde- driving meanor under the influence of alco- OPINION gross hol and driving misdemeanor with a RANDALL, Judge. R.A. blood-alcohol concentration excess of Appellant chаllenges .10, his conviction for both of which are based on two or gross DWI, misdemeanor arguing that the more convictions within ten of the prosecutor committed prejudicial miscon- current incident. Hoppe did not stipulate closing duct in argument by suggesting prior to his convictions state of- * judge VI, Retired Ap- § Minnesota Court of Minn. Const. Art. peals, serving by appointment pursuant Hoppe’s prior into convic- fered, ferring criminal the district court admitted and suggesting prior convic- evidence, driving record. tions Hoppe’s Montana propensity misde- charged gross with tions demonstrated to commit Hoppe also was with Specifically, prose- under influence crime. driving meanor prior license due to a driver’s cutor stated: revoked influence conviction. under driving things There are number of reasonably believed argued that he Hoppe get your knowledge able to in for license was not Minnesota driver’s going what has been on in Mr. about offered, the district so the state voked past, say life fif- Hoppe’s over let’s certified into court admitted it’s years. Hoppe, pretty teen Mr. obvi- driving record. Minnesota copy problem has a serious with alcohol ous entry, addition to the revocation In with motor and he vehicles also list- Minnesota record stop doing has not bеen able both from impaired-driving convictions ed stale alcohol, peo- if wants to consume we all Hoppe guilty found you go ple say, state of moved the district charges, ahead, get but don’t behind *5 that the arguing for a new trial court beg you, do wheel. Please. We don’t in his committed misconduct prosecutor that, past in the been and six times has de- closing argument. The district court We now here for number ignored. are motiоn, he appeals now nied seven. his from conviction. Although prosecutor may a refer ISSUES to prior a defendant’s criminal record to commit miscon- prosecutor I. Did the character, may the defendant’s impeach so, and, if closing argument, in his duct gratuitously to prior convictions not use trial? require a new does the misconduct a defendant’s character. State attack (Minn.1990). DeWald, 741, 745 in admit- II. Did the district err proseсutor a to inappropriate It also copy appellant’s a entire ting certified to a arguments record? calculated inflame present passions prejudices. or State v. Sal jury’s ANALYSIS itros, 815, 817 referring previous to Instead Prosecutorial Misconduct I. the ele solely to demonstrate convictions a reviewing court will not reverse crime, prosecu ments of of a new trial motion court’s denial Hopрe has a serious suggested tor prosecutorial on misconduct alleged based to and has not been able problem alcohol unless drinking driving, given previ his stop misconduct, con- considered in the implication is ous six convictions. whole, trial as was text that, guilty rendered a jury unless the the defen- prejudicial serious verdict, Hoppe continue to drink would a fair trial dant’s constitutional to prosecu We conclude аnd drive. impaired. calculated inflame comments were to tor’s Johnson, N.W.2d 727-28 passions by attacking Hoppe’s jury’s (citations omitted). (Minn.2000) character; to ab specifically inability and his drinking stain from Hoppe argues prosecutor convictions. previous improperly committed misconduct (Minn.1997) (citation omitted). Second, argues The in- prosecutor’s closing argument inflamed the ference drawn from these statements is jury’s by indicating that a passions convic jury protect should convict to necessary protect society. tion to their “loved ones” and Minnesota’s citizens jury: told the from future harm. The remarks could asking also be as trying the state Minnesota construed to We are all the other states send Hoppe message, guilty to do like are. We via ver- dict, to get people stop are to understand that it is time for him to trying drinking get designated hаve to they drivers. Such driving. remarks constitute mis- drink, fine, going If but you are trans conduct. The remarks distract portation something you now becomes duty from determining whether the somebody you. find else to do for have to state met its burden proof beyond driver, designated You to find a have reasonable doubt. cab, somebody, a you sober whatever Third, Hoppe argues pros it,
want call because we’re all out impermissibly ecutor сommented too and our the roads loved ones are out Hoppe’s failure to contradict the state’s something there and we don’t want bad prosecutor argued evidence. The happening. forty And a one percent jury: drop in fatalities since 1992— * * [*] n defense is going come and tell well, you, eyes were red because he been There’s a decrease because we got was a smoker. And something he’s get message are out trying stop n * ankles, * wrong with his that’s the balance *6 and drinking driving. job Your is problem. they And talk don’t about the to the study evidence and come to the gaze Nystagmus horizontal test. Mr. a drunk conclusion there was driver Hoppe at least to try explain didn’t why on on the road June 17th and thank God failing he was Doesn’t test. have a arresting stopped [the him officer] very good explanation any have —doesn’t got him off the roаd he any before went explanation for the .16 test result from any damage. further and did more Six intoxilyzer, the the two test results times in thirteen is time stop. to Folks, there. saying there’s an old I you do please would ask to that. if something duck, walks quacks like a Like the previous comments ad duck, duck, like a has like a feathers it’s above, dressed these statements have the a duck. It’s not something else. effect of inappropriately referring to char acter inflaming evidence and the jury’s prosecutor may challenge a passions. improper prosecutor It is for a defendant’s rebuttal theory without shift urge jury to protect society the to with its the proof the burden to defense. Duncan, 551, Race, verdict. v. (Minn. State 608 656, N.W.2d State v. 664 (Minn. 1986). (Minn.App.2000), 556 review denied it is improper prosecutor But 2000). May 16, A prosecutor must not to comment a defendant’s failure to “distract рroper the from its Porter, role of contradict testimony. v. State 526 deciding 359, (Minn.1995). whether the has state met its N.W.2d 365 A prosecu burden.” v. Ashby, State 567 may N.W.2d tor “specifically argue that there was point, Hoppe’s attorney At objected, ceived into evidence. the Even court's after objection, and the however, sustained ruling court the ruling, prosecutor the continued his prosecutor arguing facts not re- previously interrupted sentеnce.
321 clerk, well, I defense,” he told this am revoked prosecu the but merit to the no being forgot the Montana. I about revoked defense. is not allowed belittle tor Williams, my eighteen please in Minnesota take State (Minn.1994). license, give me a driver’s fifty now he can walk out the door and how he at has bad trial testified hope I not. legally he’s able to drive? sinusitis, affect bal- which his ankles and again you being are snowed and So he testified that ancing ability. He also hope happen don’t really you let that smoker, and was around allergies, is a has you. arrest, evening his which the smokers fur- eyes. He accounted for bloodshot disparage It the improper bright, flashing ther testified closing arguments. defense irritated police from the cars lights Griese, N.W.2d challenge could prosecutor eyes. by committed misconduct prosecutor theory that failed Hoppe’s rebuttal the defense via his reference disparaging than sobriety tests for reasons other field argument as “ridiculous” to the defense’s intoxication, not should but telling to be “snowed” failure to have commented defense. evidence. fute state’s argues that Finally, Hoppe prosecutorial Evidence of mis in his the defense prosecutor disparaged conduct, however, automatically does nоt response In argument. rebuttal Porter, new trial. necessitate intoxilyzer test argument reviewing at court N.W.2d inaccurate, argued the prosecutor still whether defen “must determine jury: (citation Id. was denied a fair trial.” dant showing a .10 more. or omitted). burden [T]he if the A new is warranted .16, Well, roughly have taken if we certainty cannot determine “with stop oc- forty five minutes after beyond was harmless misconduct curred, you intoxilyzer if at the look (citations .” omit reasonable doubt Id. *7 in you will have that’s test record which ted).
evidence,
a dif-
you will
that there’s
see
of air that comes with
ferent amount
a minister of
prosecutor
is
get the same
sample.
each
You don’t
at
may
who
not seek a conviction
justice
one,
you are
air with each
amount of
Salitros,
Hoppe’s defense ridiculous. admitting Hoppe’s entire Minnesota driv- ing record because the record contained argument, closing taken in state’s impaired-driving from convictions far totality, exceeded bounds an Hoppe asserts that the two convictions pros- summation. The professional ethical right were irrelevant and affected against evidence good Hoppe had ecutor the jury fair because learned оf 13 stoop to such not have tactics to and did year history impaired-driving convic- guilty supreme verdict. As the obtain a tions. years ago, repeated ten over court noted prosecution against em-
warnings no time Hoppe object At did trial tactics ploying improper “appear to the admission of the driving record. Ab Merrill, to no avail.” have State v. been specific sent objections and clear raised (Minn.1988). 373 N.W.2d “The court, before the reviewing expect a if prosecution can reversal such generally “will consider issues of the again.” used Id. If tactics are the state admissibility of evidence raised for the twice, try it wants to this case has the now Tovar, first time appeal.” chance. (Minn.2000) (citation N.W.2d prosecutor’s We conclude comments omitted). exception An to this rule exists beyond harmless were not a reasonable if Hoppe can show that admission of the Hoppe doubt and denied ato fair plain evidénce was error. See State v. trial. Bauer, plain To establish error Hoppe must show II. Record Certified (1) (2) error, there was it plain, that was Hoppe asserts the district (3) the error appellant’s affected sub plain court committed error in admitting rights. stantial See id. plain Under a entire Minnesota record analysis, Hоppe error “heavy has a burden because the record contained impaired- showing prejudicial error was driving convictions from 1987. This issue and affected the outcome of the case.” See moot now because we are granting omitted). at 364 (quotation id. newa trial based on the state’s prosecutorial misconduct. it Because that, although We note the 1987 convic- capable repetition, however, one we will are tions listed in Minnesota driv- comment it. record, speculative it is to assume that against
One the charges Hoppe was knowledge prejudiced substantially *8 gross driving misdemeanor under the in- Hoppe’s jury. Already in fluence alcohol on based the Hoppe’s state’s be- driving certified record from Hoppe’s lief that Minnesota li- driver’s Montana indicated more two previous than cense revoked. See was Minn.Stat. impaired-driving jury convictions the could § 169.129, (Supp.1999) subd. 1 (defining rely Hoppe to find guilty of the charged aggravated influence). driving under Also, the jury crimes. the was instructed that Hoppe argued Because that reasonably he in Hoppe order to guilty, Hoppe find must revoked, believed his license was not the have two or more impaired-driving convic- required state was to prove this element of years. tions within ten Beсause of the so, the charged crime. To do the state against Hoppe evidence and the district offered a copy Hoppe’s certified Minne- jury instructions, court’s the district driving sota Hoppe record. argues that court’s admission of Hoppe’s entire Minne- driving while under the influence alco- plain error. driving record was not sota chambers, have, hol. court could counsel, redact- of both with the assistаnce prove Hoppe guilty In order to was driving Hoppe’s any part ed gross charges, the misdemeanor the the That found to be irrelevant. record im- prove prior had to two or more state change our not do so does not court did years convictions within paired-driving analysis. his license charges of the current for while under the was revoked may to this stipulating consider Hoppe 169.121, § subd. influence. See Minn.Stat. the record fact the second because for .129, 3(c), 1 (Supp.1999) (defining subd. Minnesota driver’s is clear misdemeanor). Hoppe re- gross enhanced time at the license was revoked prior stipulate requisite fused to challenging If he incident. insists convictions, was re- or that his license may wish to the district court again, issue voked, offered certi- and the state avoid Hoppe’s stale convictions to redact prove necessary record fied appeal this chance to giving Hoppe the the offenses. elements of issue a second time. that he did not Hoppe’s defense was Minnesota license remember whether his DECISION reinstated, copy of that he had a clos- during statements prosecutor’s paid which he had application license Hoppe’s previ- ing implying that argument fee, and that he believed that propеnsity demonstrate a ous convictions licensed to drive Minnesota. therefore crime, suggesting to commit summation, In summation rebuttal will continue to drink Hoppe attempted persuade jury convicted, that a con- implying drive unless not credible. The defense was dis- necessary protect society, viction is prosecution not model ar- argument was by stating the defense paraging assuming the ma- But even gument. ridiculous, and Hopрe’s argument was the state- correctly characterizes jority not to snowed warning be misconduct, as prosecutorial ments constitute serious misconduct. defense do warrant a new trial. facts not prosecutor’s Hoppe denied misconduct a new trial is not entitled to defendant to a fair trial. certainty that it can be said with when Reversed and remanded. misconduct is harmless be- prosecutorial Porter, yond rеasonable doubt. LANSING, (dissenting). Judge When test, a review- harmless error applying respectfully dissent. Walter which the court looks the basis on guilty gross to three misde- pleaded and determines charges: driving under the influ- rested verdict meanor had on the first effect the statements ten what ence of alcohol within Ashby, impaired-driving more con- verdict. State prior of two or *9 surely unat- If the is victions, con- verdict driving with blood-alcohol misconduct, error ten tributable to in excess of .10 within centration doubt. Id. beyond reasonable harmless prior impaired- first of two or more possible effect of miscon- convictions, evaluate the under To duct, sup- also had the court looks evidence before his license influence driver’s theory, length defendant’s following revocation for porting been reinstated deliberations, charges whether de- verdict all three minutes it objected sought began to the conduct or after fendant deliberations. Griese, a curative instruction. See State v. position the best Porter, (Minn.1997);
565 N.W.2d unprofessional to evaluate the of an effect at 359. closing argument. Ashby, at against Hoppe The evidence was over- 27. The district court denied the new whelming. arresting officer observed and that should pros- decision stand. The Hoppe’s vehicle weave within the lanе sev- argument at inartful and ecutor’s was best the right fog eral times and touch line. record, at worst But on misconduct. stopping Hoppe’s speak- After vehicle and surely Hoppe’s convictions were unattri- him, ing immediately with the officer no- prosecutor’s butable to the inappropriate the smell alcohol. also summation, ticed He ob- af- statements in and would Hoppe’s eyes were served bloodshot firm. glassy sрeech and that his was slow Hoppe got
and slurred. After out of his the officer that Hoppe
car observed
swaying. Hoppe sobriety failed three field
tests, one-legged which included the stand- test, test, the walk-and-turn and the
horizontal Nystagmus Approximate- test. Minnesota, Respondent, STATE of ly one hour after Hoppe stopped, intoxilyzer took two breath tests. The Gary MEYER, Appellant. R. first one indicated blood alcohol- test, content was .163. The second admin- No. C9-01-1078. later, istered four produced minutes Court Appeals of Minnesotа. reading of .165. March Hoppe offered little evidence to refute proof. state’s affirmative He testified May Review Denied glass he consumed four cans and one drinking companion of beer. His testified
similarly. He suggested he failed the
field sobriety of physical tests because lim- conjectured
itations. He that the intoxi-
lyzer test product results were the of a
faulty machine inexperienced or an test attorney
administrator. His suggested to
the jury that a .16 result from the breath
test one hour after arrest could mean
that he was less than .10 at time of his
arrest, supported but no evidence this ar-
gument. Although attorney made ob-
jections, many sustained, of which were attorney objections made no
prosecutor’s comments are challenged appeal. attorney sought His no cura-
tive instruction. a guilty reached