*1 nоthing improper argu- who finds it fense found in the is a man The defendant Marquetti, ment. v. 322 N.W.2d See State tell the truth. easier to lie than to (Minn.1982). Finally, the less serious were reasonable inferenc- These statements here re- challenged nature of the conduct The state- es from evidence in the record. that, reversal, the misconduct quires appellant’s propensity ments regarding in influenc- likely played рart substantial appellant’s to lie were drawn from the This standard was ing jury to convict. past lies. The ref- during missions trial met. clearly not prompted erence witness Barrow was is that the Appellant’s argument final statement, that, opening the fact in its at trial not suffi- presented was jury informed the that Barrow would state identification of defendant support cient to changed Her testimo- testify for the state. Palmer. Bridges as the man who shot called the defense. ny caused her to be whether the The issue for this court is explanation permissible. for this Some reasonably have found the defendant could Nevertheless, prosecutor we believe viewing light the evidence in the guilty proper argument went beyond scope the verdict. v. most favorable to State discretion injected when he prеstige (Minn. Spaulding, 296 N.W.2d of the office as a reason for city attorney’s 1980); v. 296 N.W.2d Wahlberg, State failure to call Barrow. (Minn.1980). however, prosecutor’s argument, A incon Appellant points to numerous to determine if it must be taken as a whole testimony in the of the various sistencies v. provides a basis for reversal. See State sup witnesses and stresses Gulbrandsen, 57 N.W.2d appellant’s version of events. ports was statеd (1953). The standard of review The fact re argument unpersuasive. 123, 127-28, Caron, v. State as the mains that Palmer identified Daniels (1974): version of the man who shot him. His prose- determining whether The test of night supported by por of that events harmless de- cutorial misconduct was testimony, as is tions of other witnesses’ type jury apparently of misconduct version. The pends partly upon appellant’s Palmer, Daniels, reа is, and could believed dealing. That with which we are is not sonably have done so. The evidence misconduct, the more more serious the law. insufficient as a matter of has felt this court certain of its effect the error labeling that it should be before are affirmed. convictions Thus, involving usual- harmless. in cases this serious misconduct ly prosecutorial certainty beyond a required
court has misconduct was
reasonable doubt that the * * * affirming. harmless before On hand, involving less
the other in cases prosecutorial serious misconduct Minnesota, Respondent, STATE whether the applied court has the test of a substantial likely played misconduct WILLIS, Appellant, Wayne William to convict. influencing Thus, portions argu though Endrizzi, Appellant. Alexina M. no reversible error improper, ment were First, the defense did not was committed. No. C9-82-1054. thus for
object during closing argument, Supreme Court of Minnesota. con feiting the to have the issue Lloyd, appeal. sidered on (Minn.1981); Spears State, Second, (Minn.1980). the de- object implies
the failure *2 Office,
Patterson-Restovich Law George Lund, Rochester, F. Restovick and Kevin A. for Willis. Suk,
Dingle, Wendland & Walters and Walters, Rochester, Terrence M. for Endriz- zi. III, Gen., Humphrey, Atty.
Hubert H. St. Paul, Mattson, DeWayne County Atty., P. Rochester, Suhler, Jr., Frederick S. Roches- Rochester, City respondent. ter Atty., 169.- portion Is that of Minn.Stat. § SCOTT, Justice. 2(b) (1982), the certification of involves appeal This the introduction of evi- certain limitations District County by the Olmsted questions tests, usurpation of the absence dence and doubt- important court as Court to this reserved to powers ful under Minn.R.Crim.P. Constitution, Minnesota branch William Willis Wayne Defendants *3 Const, art. 1? Minn. § gross charged M. Endrizzi are Alexina 169.121, 3(a) subd. (3) Is Minn.Stat. § driving un- prosecutions misdemеanor a violation of Minn. (1982), which makes the influence in violation Minn.Stat. der prior of a years 169.121 within five § Stat. 169.121, 1(a) (1982). They and 3 subds. § gross misde- under that section conviction the challenging brought pretrial motions meanor, post ex facto law impermissible an of the Act of constitutionality provisions constitutions, state and federal under the 19, 1982, 1982 Minn.Laws ch. March Const, Const, 11, and art. U.S. Minn. § of evi- (1) permit the introduction 10? art. § tests in certain of the absence of dence en- circumstances, for an provide and 3 of the Act of March 1. Section violating 169.- for those penalty § hanced prior conviction. years within five 169.121, 2(b) subd. § amended Minn.Stat. motions. We court denied these The trial following language: the by adding (1980), affirm. is ad- the absence of tests Evidence of facts, are as disputed, which are not sec- under this prosecution in а missible observed on Defendant Willis was follows: and with a without comment tion vehicle, 23,1982, driving a improperly instruction, applicable, where stopped. intoxicated when appeared as to the speculation be no there shall rights of his under He was advised Miranda no infer- the absence and that reason for Arizona, absence. drawn from the ence is im (1966), and the Minnesota the admission of аrgue Defendants §, 169.123, statute, Minn.Stat. plied consent blood, breath or that there are sobriety (1982). He failed a field! 2(b) subd. their constitutional urine tests will violate blood, breath or refused apparently test and self-in- compulsory free from urine tests. reason that evidence They crimination. May on Endrizzi was observed Defendant required jury and the absence of tests appeared driving erratically, jury’s attentiоn on will focus instruction gener- was stopped. when She intoxicated will, tests and that the the absence of and abusive. She ally uncooperative instruction, draw disregard of the implied rights advised of her exist because the that no tests inference blood, breath or and refused consent statute It refused to take them. defendants urine tests. once evidence of argued that further had been convicted Each defendant introduced, they will as a of tests is absence five 169.121 within violating Minn.Stat. § to take the stand matter be forced practical which from years alleged violations were taken. why no tests explain is taken. appeal ab- of evidence of the The introduction ques- the certified paraphrased We have accord with Minn.Stat. of tests in sence as follows: tions amended, 169.121, 2(b), does not subd. as § right to a defendant’s constitutional 169.121, 2(b) violate (1)Does Minn.Stat. § self-incrimination. be free from with certain limita- (1982), permits, decisional statutory the A review of the tions, of evidence of the introduction a de- authority concerning the admission of under prosecutions tests absence blood, or refusal to take a breath fendant’s constitu- violate defendant’s appropriatе. urine test is against self-incrimination? privilege tional McCarthy, guilt. By refusing test, 104 ence prejudicial held it was defendant is in effect testifying against prosecution error under 169.121 for himself.
the state to offer defendant Schlinger, In State v. had offered a been test and that no test was court declined to taken, implication because clear of such again overrule Andrews and held testimony is that the defendаnt had refused mission of evidence that a defendant refus- test. The decision was based in prejudicial ed a test to be error. the state provision against application part upon self-incrimination and in stat- violate a defendant’s constitutional utory requirement be volun- self-incrimination as tary. spelled out above. The statute does not Following McCarthy decision leg- the introduction of evidence that a islature 1961 amended Minn.Stat. 169.- defendant refused chemical testing, and it *4 by adding following the lan- safeguards contains sufficient to insure that guage: “but the refusal to the tak- jury the will not draw such an inference. ing specimens of for such analysis chemical designed The statute is to provide a method shall not be admissible evidence.” Act of by may which the jury be informed that the April 20,1961, 454, 9,1961 ch. Minn.Laws proseсution by has no tests and which the 7, 1971, Act June By of legal effect of the absence of such tests can 2,1971 1811,1813, legisla- the jury. be made clear to a ture deleted this provision from § The nothing per- statute does more than subd. 2. prosecution mit the to tell jury directly the Andrews, In State v. 297 Minn. will to what be obvious them at the end of cert, denied, N.W.2d 863 (1973), in any trial case—that the state has no 95 S.Ct. the evidence in the form of chemicаl tests. again court held that the introduction in a danger jury, There is a that a whether it prosecution DWI of that evidence a defend- directly learns or indirectly that there are ant refused to submit to chemical testing tests, speculate no will as the why to reason violated his state and federal1 constitution- no test results were offered. Under the al right not be any to criminal statute, however, the risk that a jury may against case to be a witness himself. The draw an inference adverse to the defendant court held that the to refusal submit to is requirements (1) minimized the that testing was testimonial in nature analo- no comment be made the concerning ab- gized the situation one to where the state sence of the jury tests and be offers a improperly defendant instructed to to reason speculate not as rights was advised his of Miranda and chose that no therefor and inference is to be to remain silent. Just as defendant’s procedure drawn from the absence. The right assertion of his constitutional to re- contemplated by the statute does not vio- main to an attorney silent or cannot be used privilege late self-incrimination against him, neither can his assertion his jury likely because the is not to infer that statutory to test refuse the be used as refused to testing. defendant submit to Cf., guilt. Roberts, evidence of his 347,208 any (1973); Minn. Neither is there merit defendants’ Beck, argument is 289 Minn. statute irrational. (1971). test, argument, The refusal take like at appealing a Defendant’s first speak, give refusal to would is glance, rise an infer- the statute irrational is argument 1. After oral in this case the United to such a test does not violate Fifth Amend- States Court decided South Dakota v. ment to the United States Constitution. - Neville, -, interpret 103 S.Ct. 74 Whether we would our state constitu- (1983), holding L.Ed.2d 748 that the admission not tional in the same manner is into evidence of a refusal defendant’s to submit before us. Company Esperson, Power the introduc- States in one breath that it tests, (1966). that there are no tion of evidence (1982 Supp.), 7a requires Wigmore the next breath Evidence 75-6, judicial inferеnce from instructed not to draw function states that that fact. constitutionally empowers the courts procedure, own rules of includ- make their not, sug- as defendants The statute does evidence, prerogative and this ing rules of meaningless for the introduc- gest, provide alter rules of of the courts to formulate and of the absence tests. tion of evidence ought doubted. a curative purpose. statute serves tests to practice administering chemical respect coequal branches Due driving, particu- persons suspected of drunk the court to exer government requires breath, analysis is larly chemical striking great restraint before down cise generally public of which the matter unconstitutional, particularly statute as simply provides statute aware. The a determination what when involves fully can be means is a function. legislative what absence of legal vised of effect Hatfield, Sharood at trial. results (1973). determined that correctly The trial court in this case The statute involved application func way judiciary’s interferes with not violate a defendant’s applying the ascertaining facts and tion against self-incrimination. *5 merely It to facts established. law 2. Endrizzi clаims Defendant enhancing the likeli provides a method for 169.121, separation violates the subd. § impermissibly a will not hood that powers of of the Minnesota Constitu- clause to reason no test results speculate as Const, 3, 1, it tion, art. because § prosecutions under 169.121. § are offered power to restrict the of courts purports comity a of we will enforce As matter relevancy and admissibili- determine the statute, nor it neither interferes with since tests. The ty of evidence of absence of a function. impairs should not be invalidated statute basis. 3. Willis claims Defendant 169.121, viola 3(a), which makes a subd. § clearly ac Although legislature has a years five of tion of 169.121 within § authority of this court to knowledged the gross that section a prior conviction under both civil regulate evidentiary matters in misdemeanor, pоst the ex facto violates actions,2 upheld this court has criminal the state and federal constitu clauses of authority to establish cer legislature’s 3 the 1982 Act amended tions. Section of rules, such as types evidentiary tain 3, following adding the § prima certain items facie those which make language: regulate the proof of a fact or otherwise See, of a proof. e.g., following guilty Lоtt David are persons burden The son, 130, 141-2, 336, (a) person who 261 Minn. A gross misdemeanor: (1961) (legislature power has create or ordinance violates this section an presumption negli of due in certain years care within five conformity therewith Lacock, 41 Minn. gence actions); Burke v. or an under this section prior a conviction * 250, 253-4, therewith; (1889) (legis N.W. conformity *. ordinance can make sheriff’s certificatе of sale lature mortgage prima proof foreclosure facie date the effective April Prior to sale). of valid subsequent above-quoted provision, was a misde- under 169.121 pow courts have conviction
Inherently, § meanor, punishment with a maximum er Northern to establish rules of evidence. (1982). 2. See Minn.Stat. 480.0591 § $500,
fine
days imprisonment,
It is
time
for us to overrule State v.
suspension of the driver’s
The
license.
Andrews,
260,
maximum
penalty
gross
for
misdemeanor
denied,
(1973),
881,
cert.
$1,000
imprisonment
fine of
up
for
(1974),
ty)- nal be a against case to witness himself. The majority said that it did not. Two I concur in the result the court reaches on (Peterson Otis) dissenting justices said all three of the questions certified but state should; Knutson, con- Chief Justice on separately my views the first question: curring specially, McCarthy said that in 2(b) whether Minn.Stat. Andrews it was a mistake to base decision (1982), which introduction of grounds (rather than on evidence of prosecu- the absence tests in construction statutes in effect at influencе, for driving tions while under the decisions). times of those ais violation of a defendant’s constitutional privilege against self-incrimination. Court, Supreme Dakota in de- South unconstitutional, Supreme claring
The United
has
its own statute
re-
States
Court
State,
question
Dudley
answered the same
lied on Andrews and
v.
South
Neville,-U.S.-,
Dakota v.
(Tex.Cr.App.1977), expressing
S.W.2d 706
S.Ct.
negative.
L.Ed.2d 748
view1
minority
that the refusal to sub-
courts,
Supreme
against
Many
As the
United States
Court noted:
self-incrimination.
fol-
Traynor’s opinion
lowing the lead of Justice
applying general
Most courts
Fifth Amend-
Supreme
People
for the
v.
California
Court
principles
ment
refusal to take a blood
Suddah,
65 Cal.2d
Cal.
[Sudduth ]
[55
test have found
violation of
able,
requested
mit to a
blood test is “a tacit or
now reaches the astounding figures
expression
overt
and communication оf de-
only
battlefield”);
heard of on the
Tate
Neville,
thoughts,”
fendant’s
Short,
U.S.
S.Ct.
[91
at 726. Whatever
may
doubt
(1971) (BLACK-
highways, most of which should be avoid-
join
I
Justice Peterson’s concurrence.
denied,
at-,
Rptr. 393],
testimonial), sympathize ers.’ evidence of refusal to take a I but potentially justify advisory incriminating it does rendition of an is similar to opinion other circumstantial evidence of conscious on a constitutional issue.” guilt, escape custody ness of such as from suppression of evidence.