State v. French
| Decision Date | 23 November 2020 |
| Docket Number | A20-0262 |
| Parties | State of Minnesota, Respondent, v. Percy Leonard French, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2018).
Affirmed in part, reversed in part, and remanded
Becker County District Court
Keith Ellison, Attorney General, Edwin W. Stockmeyer, III, Assistant Attorney General, St. Paul, Minnesota; and
Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard A. Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Gaïtas, Judge.
UNPUBLISHED OPINION
On appeal from his convictions of driving while intoxicated (DWI) and fleeing a peace officer in a motor vehicle, appellant argues that (1) he was denied his constitutional right to confrontation when respondent presented the opinion testimony of an expert that was based on data produced by a machine but the expert was not present when the machine produced the data; (2) the evidence was insufficient to prove his guilt for fleeing a peace officer in a motor vehicle; and (3) he is entitled to be resentenced because there were numerous errors in the calculation of his criminal-history score. We affirm appellant's convictions, but reverse and remand for resentencing.
On November 27, 2018, appellant Percy French was arrested on suspicion of DWI. French was then transported to the Becker County Jail where law enforcement applied for a search warrant to obtain a sample of French's blood or urine. The search warrant was granted and the results of French's blood test revealed the presence of amphetamine and methamphetamine. Respondent State of Minnesota subsequently charged French with felony DWI—driving while under the influence of a combination of alcohol and a controlled substance; felony DWI—driving with any amount of a controlled substance; and fleeing a peace officer in a motor vehicle.
Prior to trial, it became known that D.Z., the Bureau of Criminal Apprehension (BCA) scientist who analyzed French's blood, had retired and was unavailable to be called as a witness at trial. French then moved in limine to exclude the introduction of D.Z.'s labreport if D.Z. was unavailable to testify. The state responded by arguing that a different expert could review D.Z.'s reports and testify at trial about "their own opinion" formed about the contents of the report.
The district court concluded that "the BCA lab report prepared by [D.Z.] is inadmissible unless [D.Z.] herself testifies at trial." But the court "reserve[d] ruling as to whether another BCA scientist may testify as an expert witness at trial, and will seek clarification from the state on the morning of trial as to how this expert's testimony will assist the trier of fact without simply impermissibly introducing the lab report into the record."
At trial, French stipulated to prior convictions that enhanced the DWI charges to felonies. The state then presented evidence that, at about 11:30 p.m. on November 27, 2018, Deputy Matt Gerving observed a pickup traveling northbound on County Road 21 with only one headlight illuminated. After Deputy Gerving turned around to get behind the pickup, he observed the pickup run through a stop sign. Deputy Gerving then activated his emergency lights, but the pickup did not stop. Instead, the pickup swerved into the opposing lane of traffic and began "to weave within its lane back and forth." According to Deputy Gerving, the pickup was traveling between speeds of 20 and 25 miles per hour (mph) as it "was going from lane to lane," which was "very slow, especially for a vehicle that's not stopping."
As Deputy Gerving followed the pickup, it eventually turned left onto Bear Clan Drive and immediately sped up, reaching speeds of approximately 69 mph. The pickup then proceeded onto Pike Trail, which "is a dead-end into a residence." Deputy Gervingtestified that, instead of stopping, the pickup drove through a private yard and eventually struck a boulder and crashed into a ditch alongside an adjacent street.
After the pickup crashed, Deputy Gerving approached the vehicle on foot and observed an individual, later identified as J.G., exit the driver's side door and flee the scene. Deputy Gerving also observed two individuals that remained seated in the pickup. According to Deputy Gerving, French had been sitting in the driver's seat, but "bounce[d] to the center seat"; M.W. was seated in the "far passenger seat." French and M.W. were then detained, and M.W. was placed in the back seat of another squad car that had arrived at the scene; French was placed in the back seat of Deputy Gerving's squad car.
As French was placed in the back seat of the squad car, Deputy Gerving smelled an odor of alcohol. Deputy Gerving then began to question French, and in an audio recording that was played for the jury, French repeatedly denied driving the pickup. But after repeatedly telling French that he knew that French was driving, Deputy Gerving asked French if "that's why you didn't want to get caught driving," to which French replied, "Yeah."
During his interview of French, Deputy Gerving observed that French's eyes were red and glassy, and that his "pupils were pinpoint when in the dark they should have been more dilated." And according to Deputy Gerving, French "became extremely drowsy." French then admitted that he is a "user" and that he was "probably" on both heroin and methamphetamine. But when asked by Deputy Gerving to complete standard field sobriety tests, French refused.
French was arrested and a warrant was obtained for a sample of his blood or urine. Over French's objection, BCA scientist J.S. testified that French's blood had been tested for the presence of controlled substances, but that she was not the analyst who conducted the testing. Although D.Z.'s report was not admitted into evidence, J.S. testified that she independently reviewed the raw data in the file associated with French's case and concluded that French's blood sample showed the presence of amphetamine and methamphetamine.
J.G. and M.W. also testified on behalf of the state. Both claimed that French was the original driver of the pickup, but that French forced J.G. to switch seats and take over as the driver after they saw Deputy Gerving's squad car. In addition to M.W.'s testimony, M.W.'s recorded statement given to Deputy Gerving was played for the jury. M.W.'s statement corroborated his trial testimony that French was driving the pickup when Deputy Gerving activated his squad car lights. M.W. claimed that French switched spots with J.G. because he did not want to go to prison.
The jury found French guilty of the charged offenses. The district court then adjudicated French guilty on count I, felony DWI—driving while under the influence of a combination of alcohol and a controlled substance, and count III, fleeing a peace officer in a motor vehicle. The district court did not adjudicate French guilty on count II. Based on a criminal-history score of 9, the district court sentenced French on count I to 70 months in prison, with five years of conditional release, and a concurrent term of 22 months in prison for count III. This appeal follows.
French argues that the admission of J.S.'s opinion testimony, that French's blood tested positive for a controlled substance, violated his Confrontation-Clause rights because "the BCA scientist who actually performed the test did not testify." This court generally reviews evidentiary decisions for an abuse of discretion. State v. Burrell, 772 N.W.2d 459, 465 (Minn. 2009). But whether the admission of evidence violates a criminal defendant's rights under the Confrontation Clause is a question of law that we review de novo. Hawes v. State, 826 N.W.2d 775, 786 (Minn. 2013). A violation of the Confrontation Clause is subject to the constitutional harmless-error analysis and does not require reversal if the error is harmless beyond a reasonable doubt. State v. Caulfield, 722 N.W.2d 304, 314 (Minn. 2006).
The Confrontation Clause of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The Minnesota Constitution's Confrontation Clause is nearly identical, and the same analysis is applied to both the United States and Minnesota versions of the clause. State v. Holliday, 745 N.W.2d 556, 564 (Minn. 2008); see also Minn. Const. art. I, § 6. "[T]he primary objective behind the adoption of the Confrontation Clause was to regulate the admission of testimonial hearsay by witnesses against the defendant." State v. Lopez-Ramos, 929 N.W.2d 414, 417-18 (Minn. 2019) (). This means that theConfrontation Clause "prohibits 'admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'" State v. Warsame, 735 N.W.2d 684, 689 (Minn. 2007) (quoting Crawford, 541 U.S. at 53-54, 124 S. Ct. at 1365).
Whether a statement is testimonial in nature turns on the primary purpose or reason for the statement. See Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273-74 (2006). The Supreme Court in Crawford described the class of testimonial statements that are subject to the Confrontation Clause as follows:
Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or...
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