State v. Leutschaft, No. A07-1844.

• Decision Date: 13 January 2009
• Docket Number: No. A07-1844.
• Citation: 759 N.W.2d 414
• Parties: STATE of Minnesota, Respondent, v. Larry LEUTSCHAFT, Appellant.
• Court: Minnesota Court of Appeals

759 N.W.2d 414

STATE of Minnesota, Respondent, v. Larry LEUTSCHAFT, Appellant.

No. A07-1844.

Court of Appeals of Minnesota.

January 13, 2009.

Lori Swanson, Attorney General, St. Paul, MN; and Robert M.A. Johnson, Anoka County Attorney, Robert D. Goodell, Assistant County Attorney, Anoka, MN, for respondent.

Eric L. Newmark, Birrell & Newmark, Ltd., Minneapolis, MN, for appellant.

Considered and decided by PETERSON, Presiding Judge; SHUMAKER, Judge; and STAUBER, Judge.

OPINION

SHUMAKER, Judge.

In this appeal from his conviction of assault in the second degree and possession of a small amount of marijuana, appellant argues that the prosecutor committed misconduct sufficient to deny him his right to a fair trial by (1) impeaching his credibility through an allegation of tailoring his testimony; (2) asking "were they lying" questions; (3) eliciting and arguing irrelevant but prejudicial information; (4) impermissibly vouching for the state's main witness; and (5) injecting public-policy arguments into the state's closing argument. We affirm.

FACTS

At approximately 8:30 a.m. on July 29, 2005, T.B. was driving her minivan northbound on Highway 65 in Anoka County. She was in the left lane in heavy traffic and was traveling five to ten miles per hour over the speed limit.

T.B. noticed in her rearview mirror a pickup truck that was "a car length distance behind" and appeared to be tailgating her. She felt that the driver of the pickup was being impatient and aggressive and appeared to want her to move into the right lane so that he could go by. Because of the heavy traffic, she was not able to change lanes.

Eventually, the pickup, driven by appellant Larry Leutschaft, passed her in the right lane. According to T.B., as Leutschaft passed, he pointed a handgun at her and then sped away. She called 911 and reported the occurrence as a "road rage" incident.

Two police officers stopped Leutschaft. One officer found a fanny pack containing a handgun on the passenger seat. The other officer removed three live rounds and two shell casings from the gun. The officers also found marijuana and drug paraphernalia in the fanny pack. They arrested Leutschaft.

The state charged Leutschaft with second-degree assault, possession of marijuana, and carrying a gun without a permit. Before the trial, the state dismissed the latter charge.

Both T.B. and Leutschaft testified at trial. T.B. testified to the facts related above. Leutschaft did not dispute the driving conduct but contended that he never pointed a gun at T.B. but rather made a pointing hand gesture so as to tell her to move over for traffic.

The jury found Leutschaft guilty on both counts. Contending that the prosecutor engaged in various types of misconduct, Leutschaft brought this appeal.

ISSUE

Did the prosecutor commit misconduct by suggesting that appellant "tailored" his testimony; by asking "were they lying" questions; by vouching for the complainant; and by inflaming the passions and prejudices of the jury by referring to "road rage" incidents?

ANALYSIS

Leutschaft argues that the prosecutor committed five instances of misconduct that had the effect of depriving him of a fair trial. The state takes issue with Leutschaft's characterization of the prosecutor's performance as "misconduct," which, the state argues, implies ethical violations, and suggests that we view the issue instead as one of prosecutorial "error." We agree that there is an important distinction to be made between prosecutorial misconduct and prosecutorial error. The former implies a deliberate violation of a rule or practice, or perhaps a grossly negligent transgression. The latter, on the other hand, suggests merely a mistake of some sort, a misstep of a type all trial lawyers make from time to time. Even with this valid distinction, prosecutorial error theoretically can be egregious enough to deprive a defendant of a fair trial.

The standard for prosecutorial misconduct (which would seem equally applicable to prosecutorial error) is that "we reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant's right to a fair trial." State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006). Furthermore, when, as here, there has been no objection to the alleged improprieties, we apply the plain-error standard of review. Under that standard, "there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights." State v. Griller, 583 N.W.2d 736, 740 (Minn.1998). "An error is `plain' if it is clear or obvious," usually because it clearly "contravenes case law, a rule, or a standard of conduct." State v. Jones, 753 N.W.2d 677, 686 (Minn.2008). The appellant has the burden of showing that plain error occurred. If he is able to do so, the burden shifts to the prosecution to demonstrate that the misconduct which constitutes the plain error did not prejudice the appellant's substantial rights. State v. Ramey, 721 N.W.2d 294, 299-300, 302 (Minn. 2006). "[E]rror affects substantial rights if there is a reasonable likelihood that the error had a significant effect on the jury's verdict." State v. Vance, 734 N.W.2d 650, 656 (Minn.2007).

Leutschaft alleges three types of prosecutorial misconduct during cross-examination, namely, (1) impeachment by suggesting Leutschaft tailored his testimony to that of T.B.; (2) asking "were they lying" questions; and (3) asking questions about a gun permit and illegally carrying a gun, which questions were irrelevant and prejudicial. Leutschaft also contends that the prosecutor committed misconduct during his final argument by vouching for T.B.; "inflam[ing] the jury's passion and prejudices by referring to `road rage' incidents"; and referring to the gun permit issue.

Tailoring and Confrontation Violation

T.B. testified during the state's case-in-chief and offered her version of the incident underlying the charges. On cross-examination of Leutschaft, the prosecutor asked about his presence during T.B.'s testimony:

Q. You got to listen to the testimony here of [T.B.], right?

A. Yes, I did.

Q. She didn't get to listen to yours, right?

A. I don't know that.

The implication of the prosecutor's question is obvious: Leutschaft had an opportunity to adjust his version of the incident after hearing the state's evidence, but T.B. had no similar opportunity. The inference to be drawn is that T.B. testified truthfully but Leutschaft possibly did not.

So-called "tailoring" occurs when a witness shapes his testimony to fit the testimony of another witness or to the opponent's version of the case. This obviously would be improper and dishonest, and surely would be fair game for attack if the evidence shows that it has occurred. But an attack without substantiation is seriously improper because it impugns the defendant's exercise of his right of confrontation, classified as a basic constitutional right. Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970). The Minnesota Supreme Court has noted that "the right to be present at trial is protected by the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment." Swanson, 707 N.W.2d at 657.

The Swanson court also pointed out that the exercise of the right to be present during the state's case is not evidence of a defendant's guilt. Id. at 658.

Considering the potential constitutional implications of a tailoring attack, the Swanson court fashioned the rule that "the prosecution cannot use a defendant's exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state's case." Id. at 657-58.

The state argues that there was evidence of tailoring. Leutschaft did not tell the arresting officers that T.B. was wearing sunglasses or using her cell phone on that day. And T.B. testified that she neither wore her sunglasses nor used her cell phone that day. But when Leutschaft testified, after having heard T.B.'s testimony, he said that T.B. was wearing sunglasses and was having difficulty trying to use her cell phone. This evidence would relate to T.B.'s ability to distinguish a pointed gun from a pointed finger and to the degree of attention she was paying to Leutschaft.

Although the prosecutor's brief questions on this point came dangerously close to violating the rule announced in Swanson, there was at least an arguable suspicion of tailoring because the facts omitted by Leutschaft in his statements to the police were significant enough that it would be reasonable to expect an arrested person to disclose them if they were true. Thus, if the questions were error, they were not plain error. For future guidance, prosecutors must adhere to the Swanson rule and their failure to do so surely will be in the realm of prosecutorial misconduct rather than prosecutorial error.

"Were They Lying" Questions

Leutschaft contends that the prosecutor committed misconduct by asking him to state whether he thought T.B. was lying in her allegations against him. That was the focus of two segments of the prosecutor's cross-examination.

First, this exchange occurred:

Q. So, you believe [T.B.] is lying in several respects, don't you?

A. Yes, I do.

Q. She is making it up, right? Well, you just said she was lying, didn't you?

A. I believe she is.

Later, the prosecutor continued with a similar line of questioning:

Q. She didn't know you. She didn't know you carried a gun, right?

A. No.

Q. But she apparently really believed that you had a gun that, as she described to your own investigator, was black, gray or silver in color[,] right?

A. I believe that's what his report indicated.

Q. That's what she apparently believed[,] right?

A. Apparently.

Q. Or was she lying about that?

A. I have no way of knowing that.

Because Leutschaft's defense attorney failed to object to these questions, we review their...