State v. Jensen

• Decision Date: 03 July 1984
• Docket Number: No. C8-84-109,C8-84-109
• Citation: 351 N.W.2d 29
• Parties: STATE of Minnesota, Respondent, v. John E. JENSEN, Appellant.
• Court: Minnesota Court of Appeals

Page 29

351 N.W.2d 29

STATE of Minnesota, Respondent, v. John E. JENSEN, Appellant.

No. C8-84-109.

Court of Appeals of Minnesota.

July 3, 1984.

Syllabus by the Court

1. Where one trooper saw defendant's car swerve over the center line and another saw signs that defendant was intoxicated, their combined perceptions satisfy the presence requirement for a warrantless misdemeanor arrest.

2. A single comment by the prosecutor on the veracity of a witness was harmless error.

3. The trial court did not err in refusing to give the jury a lesser included offense instruction for "over the center line" where defendant was charged with driving with an alcohol concentration of .10 or more.

4. Admission of business records relating to the breathalyzer test did not violate defendant's constitutional right of confrontation.

Thomas J. O'Connor, Bloomington, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Marcia Rowland, Carver County Atty., Chaska, for respondent.

Considered and decided by LANSING, P.J., and FOLEY and LESLIE, JJ., with oral argument waived.

OPINION

FOLEY, Judge.

Defendant appeals a DWI conviction. We affirm.

FACTS

Trooper Charles Reinitz stopped defendant James Jensen after defendant swerved across the center line and almost hit the trooper's car. Reinitz cited defendant for "over the center line" and told him he would have to post bail on the citation because he had an out-of-state driver's license. Reinitz told appellant to follow Trooper Jeffrey Gladfelter, who had just arrived, to the Carver County Sheriff's Office.

When defendant got out of his car at the sheriff's office, Gladfelter noted that defendant wobbled and smelled of alcohol, and that his speech was slurred. Gladfelter arrested and charged defendant with violating Minn.Stat. Sec. 169.121, Subd. 1(d) (1982) (driving with an alcohol concentration of .10 or more). A breathalyzer test revealed an alcohol concentration of .11. Defendant admitted drinking eight beers in two hours.

At trial Reinitz testified that he saw defendant swerve across the center line, but could not smell alcohol on defendant's breath because he had a bad sinus condition. Gladfelter, who testified to observing that defendant was intoxicated, saw no erratic driving by defendant. The operator who administered the breath test testified and was cross examined at length about the administration and the reliability of the test.

Defendant objected to the admission of business records to show the breathalyzer was working properly, to the court's refusal to give a lesser included offense instruction for "over the center," and to the prosecutor's comment on Gladfelter's veracity.

ISSUES

1. May the collective perceptions of two troopers satisfy the presence requirement for a warrantless misdemeanor arrest?

2. Did the prosecutor's comment on the veracity of a witness constitute misconduct warranting reversal?

3. Did the trial court err by refusing to give the jury a lesser included offense instruction on over the center line?

4. Did the admission of business records relating to the reliability of the breathalyzer test violate defendant's constitutional right of confrontation?

ANALYSIS

I.

Under Minn.Stat. Sec. 629.34, Subd. 1 (1982), an officer may make a warrantless misdemeanor arrest only if the offense is attempted or committed in his presence. Defendant argues that his arrest was illegal because Gladfelter did not have a warrant and did not witness any erratic driving.

The purpose of the presence requirement is to prevent warrantless misdemeanor arrests based on information from third parties.

When the basis of the officer's belief that the defendant has committed a misdemeanor is information imparted to him by, say, victims, witnesses or informers, he must present the evidence to a magistrate and seek an arrest warrant. He may not act on his own appraisal of the reasonableness of the information.

Another police officer is not a third person within that policy. Courts in other jurisdictions have developed a "police team" qualification of the presence requirement, permitting officers who are working together on a case to combine their collective perceptions so that if the composite otherwise satisfies the presence requirement that requirement is deemed satisfied although the arresting officer does not himself witness all the elements of the offense.

People v. Dixon, 392 Mich. 691, 222 N.W.2d 749, 751 (1974) (footnote omitted).

In this case one trooper saw defendant's car swerve across the center line. Another saw signs that defendant was intoxicated. Their combined perceptions satisfy the presence requirement.

II.

Defendant argues that the trial court should have declared a mistrial because the prosecutor in his closing argument commented that he did not believe Reinitz falsified that his sinuses were acting up. The prosecutor should not have interjected his opinion. State v. Prettyman, 293 Minn. 493, 198 N.W.2d 156 (1972). However, such comments, although always wrong, are not always prejudicial. This single error was unlikely to have "played a substantial part in influencing the jury to convict." State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974). Therefore, it is not reversible error.

III.

Defendant also contends that the court should have instructed the jury on "across the center line" as a lesser included offense. A trial court "has to submit a lesser offense only if it is a so-called lesser-included offense and only if there is evidence that produces a rational basis for...