State v. Berkelman, C9-83-559

• Decision Date: 21 September 1984
• Docket Number: No. C9-83-559,C9-83-559
• Citation: 355 N.W.2d 394
• Parties: STATE of Minnesota, Respondent, v. James Phillip BERKELMAN, Appellant.
• Court: Minnesota Supreme Court

Page 394

355 N.W.2d 394

STATE of Minnesota, Respondent, v. James Phillip BERKELMAN, Appellant.

No. C9-83-559.

Supreme Court of Minnesota.

Sept. 21, 1984.

Syllabus by the Court

Trial court, in prosecution of defendant for aggravated DWI, erred in refusing to accept stipulation and let defendant remove from the jury the issue of whether defendant had a prior DWI conviction, but the error was not so prejudicial as to require a new trial.

C. Paul Jones, Public Defender, Ann Remington, Asst. Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Alan Mitchell, St. Louis County Atty., Duluth, for respondent.

Considered and decided by the court en banc without oral argument.

AMDAHL, Chief Justice.

Defendant was found guilty by a district court jury of the gross misdemeanor offense of driving with a blood alcohol concentration of .10 or more within 5 years of a prior conviction under the DWI statute, ¹ and was sentenced by the trial court to 6 months in jail, with execution of the term stayed pending appeal. On appeal, defendant argues that the trial court erred in admitting evidence of his prior conviction because (a) a prior conviction is not an element of the offense of aggravated DWI and (b) in any event his offer to stipulate to the prior conviction eliminated the need for admitting the evidence. We hold that a prior conviction is an element of the offense of aggravated DWI, that the trial court erred in not letting defendant use the stipulation procedure to remove the element from consideration by the jury, but that the error was not prejudicial.

The prosecution was based on an act occurring shortly before midnight on May 29, 1982. A state trooper stopped defendant after observing defendant driving in a "very erratic" manner, "weaving" into the lane of oncoming traffic. After talking with defendant and observing multiple signs of intoxication, the officer arrested defendant. A blood test to which defendant consented revealed that his blood alcohol concentration at the time was .185.

The evidence of defendant's prior DWI conviction consisted of testimony by a deputy court clerk that defendant was convicted and sentenced for DWI in 1980. The prosecutor did not try to use the prior conviction improperly in either his opening or closing statement. The court gave the following cautionary instruction as part of its final instructions:

Now, evidence has been introduced concerning an alleged prior conviction of the defendant for driving while under the influence. This evidence was received because I have ruled that such proof is an essential element of the offense charged in the complaint in this case. You may not consider this evidence as evidence that the defendant was driving or had an alcohol concentration of more than 0.10 in his blood on May 29th, 1982.

In State v. Nordstrom, 331 N.W.2d 901 (Minn.1983), we held that a prior misdemeanor DWI conviction based on an uncounseled plea of guilty cannot be used to convert a subsequent DWI offense into a gross misdemeanor absent a valid waiver of counsel on the record. We stated that whether a prior misdemeanor DWI conviction was based on an uncounseled plea and whether there was a valid waiver of counsel are legal issues to be decided by the trial court in a pretrial proceeding. We did not address the issue whether a prior conviction is an element of the gross misdemeanor offense. However, in stating that the issues of whether the prior conviction was uncounseled and whether counsel was properly waived should be decided by the trial court before trial, we also stated: "The burden [at the hearing] is then on the state, as we determined it to be in other constitutional challenges to the admissibility of evidence in State ex rel. Rasmussen v. Tahash, 272 Minn. 539, 554, 141 N.W.2d 3, 13-14 (1965), to show that the contested evidence, in this case the prior conviction, was obtained consistent with constitutional requirements." 331 N.W.2d at 905. In other words, our opinion contemplated that the prior conviction would be admitted in evidence at the trial.

Defendant relies on a Wisconsin case, State v. McAllister, 107 Wis.2d 532, 319 N.W.2d 865 (1982). At issue in that case was whether the prior conviction is an element of the Wisconsin statute which makes it a misdemeanor for a person to drive while under the influence and provides for a harsher sentence if the person has a prior DWI conviction. The defendant argued that the prior conviction was an element of the offense and that the state should have been required to prove the prior conviction at trial. The Wisconsin Supreme Court rejected this argument, ruling that the statute did not change the nature of the crime if there was a prior conviction, but just provided a harsher penalty. 107 Wis.2d at 537, 319 N.W.2d at 868.

Our statute is different in that it changes the nature of the crime from a misdemeanor to a gross misdemeanor if the defendant has a prior conviction. It follows from this that the prior conviction is an element which the state must prove at trial and which defendant has a right to have a jury decide.

However, it does not follow that the defendant can do nothing to keep the potentially prejudicial evidence of his prior conviction from the jury.

In State v. Davidson, 351 N.W.2d 8 (Minn.1984), we held that in a prosecution of a defendant for being a felon in possession of a handgun, the trial court erred in refusing to accept a stipulation and let the defendant remove from the jury the issue of whether the defendant was a felon. We stated:

In State v. Wiley, 295 Minn. 411, 421, 205 N.W.2d 667, 675 (1973), we stated the general rule that a criminal defendant's judicial admission or offer to stipulate did not necessarily take away the state's right to offer evidence on a point but that "[c]ases may arise where unduly prejudicial evidence, which is without relevance beyond the defendant's judicial admission, should not be received." 205 N.W.2d at 675. The reason for the general rule is that a defendant should not be able to unilaterally control the issue of the need for relevant evidence by offering to stipulate, "particularly where the evidence sought to be excluded would bear in any way upon any other issues not covered by the stipulation." 2 D. Louisell & C. Mueller, Federal Evidence Sec. 126 at 27 (1978).

* * *

Minn.R.Evid. 404(b) deals with the admission of other-crime evidence to prove relevant facts distinct from the general propensity of the accused to commit crimes. Rule 403 is the general balancing rule that trial courts must follow in deciding whether to admit relevant evidence that carries with it a danger of unfair prejudice. We believe that generally in a prosecution for being a felon in possession of a weapon the defendant should be permitted to remove the issue of whether he is a convicted felon by stipulating to that fact. In the vast majority of such cases the potential of the evidence for unfair prejudice clearly outweighs its probative value. However, the door should be left open so that in appropriate cases where the probative value of the evidence outweighs its potential for unfair prejudice, the evidence may be admitted. One such case might be where the facts underlying the prior conviction are relevant to some disputed issue, making the evidence admissible under Rule 404(b). Prior convictions would still be useable under Minn.R.Evid. 609 to impeach the defendant if he testified.

In this case the defendant's previous conviction of arson had very little relevance to the issue of possession; at best, it is possible that the fact that he was a felon might conceivably explain why he acted so suspiciously when he saw the police and why he wanted to avoid being caught with the gun. Any limited relevance of the evidence to other issues was clearly outweighed by its potential for unfair prejudice, that is, the potential of the evidence for convincing the jury to find defendant guilty for the wrong reason.

The trial court concluded that it had no authority to grant defendant's motion * * *. As we have indicated, the correct approach under the Rules of Evidence in a case such as this one is to compare the potential of the evidence for unfair prejudice with the relevance of the evidence to issues other than the issue to which the stipulation relates. In this case we believe that the potential of the evidence for unfair prejudice clearly outweighed the relevance, if any, that the evidence had to other issues. The court should have granted the defendant's motion and should have instructed the jury to the effect that defendant had stipulated that under Minnesota law he was not entitled to possess a pistol and that therefore the jury should direct its attention to the issue of whether or not the state had established beyond a reasonable doubt that he possessed the pistol, either actually or constructively. The error in this case, however,...