This opinion will
be unpublished and
may not be cited
except as provided by
Minn. Stat. §
480A.08, subd. 3 (2008).
STATE OF MINNESOTA
IN COURT OF
APPEALS
A07-2334
State of Minnesota,
Respondent,
vs.
Karen J. Lucht,
Appellant.
Filed February 24, 2009
Affirmed
Kalitowski, Judge
St. Louis County District Court
File No. 69-HI-CR-06-144
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Melanie S. Ford, St. Louis County Attorney, Jeffrey M. Vlatkovich, Assistant County Attorney, 107D Courthouse, 1810 12th Avenue East, Hibbing, MN 55746 (for respondent)
Lawrence Hammerling, Chief Appellate Public Defender, 540 Fairview Avenue North, Suite 300, St. Paul, MN 55104 (for appellant)
Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.
KALITOWSKI, Judge
Appellant Karen J. Lucht
challenges her second-degree driving while impaired (DWI) conviction, arguing
that the prosecutor committed error by asking appellant “were they lying”-type
questions during cross-examination. We
affirm.
D E C I S I O N
Appellant
argues that the prosecutor’s use of “were they lying”-type questions during
cross-examination constituted prosecutorial error. Appellant contends that because these
questions amounted to plain error that resulted in her conviction, she is
entitled to a new trial. We
disagree. The record indicates that
appellant opened the door to the questions by putting the other witnesses’
credibility into central focus and that the prosecutor’s questions were
probative in clarifying a line of questioning.
Appellant failed to object
to the prosecutor’s questions during trial and, therefore, the alleged prosecutorial
error is reviewed under the plain-error standard announced in State v. Griller, 583 N.W.2d 736, 740
(Minn. 1998). To establish plain error,
appellant must show that (1) there was error, (2) the error was plain, and (3) the
error affected appellant’s substantial rights.
Id. “If these three prongs are met, the
appellate court then assesses whether it should address the error to ensure
fairness and the integrity of the judicial proceedings.” Id. On the third “prejudice” prong, the state
bears the burden of proving that there is no reasonable likelihood that the absence
of the misconduct would have had a significant effect on the jury’s
verdict. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Generally,
questions designed to elicit testimony from one witness about the credibility
of another have no probative value and are considered improper and
argumentative. See State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) (stating
that, in general, “were they lying”-type questions are improper). But the prosecutor may ask these questions
“when the defendant holds the issue of the credibility of the state’s witnesses
in central focus.” State v. Morton, 701 N.W.2d 225, 233 (Minn. 2005)
(quotation omitted). And “were they lying”-type
questions may be permissible when those questions would be particularly
probative in clarifying a line of testimony, or when the jury must evaluate
“the credibility of a witness [who claims] that everyone but the witness lied,”
or when the witness “flatly denies the occurrence of events,” and thereby
places the central focus on the credibility of the state’s witnesses. Pilot,
595 N.W.2d at 518 (quotation omitted).
Appellant was in
a rollover car accident on the evening of August 21, 2005. This accident resulted in appellant
encountering Justin Hill, David Hill, and Sergeant James McKenzie. Justin Hill was the first person at the scene
of the accident and gave appellant a ride to his family’s residence to use the
telephone. David Hill, Justin’s father,
spoke with appellant at his residence and called the police on her behalf. Justin Hill and David Hill drove appellant to
her residence and left her there while they went to appellant’s vehicle to
retrieve her house keys. While at the
car, the Hills spoke with Sergeant McKenzie, who was the first police officer
to arrive at the scene of the accident. Sergeant
McKenzie went to appellant’s residence where he spoke with her about the
accident and called an ambulance. When
appellant was eventually taken to the hospital for medical care, her blood
alcohol content (BAC) was tested approximately three hours after the accident
and found to be .20. Appellant was
charged with (1) second-degree DWI with a BAC of at least .08 at the time of driving in
violation of Minn. Stat. § 169A.20, subd. 1(5) (2006), and (2)
second-degree DWI in violation of Minn. Stat. § 169A.20, subd. 1(1). After a one-day
trial, a jury convicted appellant of the latter offense and found her not
guilty of the former offense. During
trial, the prosecutor questioned appellant about the accuracy of the statements
of three witnesses. Appellant alleges
that these questions constituted prosecutorial error.
Justin Hill
Justin Hill observed
appellant directly after the rollover accident and testified that when he asked
appellant if she needed help, the first thing she did was ask him if her breath
smelled like alcohol. On
direct-examination, appellant denied that she asked Justin Hill to smell her
breath immediately. Appellant now
challenges the prosecutor’s question to appellant on this issue. The prosecutor had asked, “So [Justin Hill]
would be inaccurate when he says that, right? Not you?” But because appellant flatly denied
the occurrence of events that Justin Hill had testified to (that appellant
immediately asked him if she smelled like alcohol), we conclude that appellant placed
the credibility of Justin Hill in central focus. Thus, the questions asked by the prosecutor were
proper and did not constitute prosecutorial error.
David Hill
David Hill
observed appellant shortly after the rollover accident and testified that
appellant did not want to call law enforcement about the accident because she
had told him that she had been in trouble with the law before. On direct-examination, appellant’s testimony
regarding whether she agreed or disagreed with David Hill’s testimony was
incoherent. The following colloquy
occurred between defense counsel, appellant, and the court during
direct-examination:
COUNSEL: Ms. Lucht, did you hear testimony from Justin
Hill and David Hill, the father, that you didn’t want law enforcement called?
APPELLANT: I said I wanted to call my friend because I
don’t always understand what –
THE
COURT: Ms. Lucht, I’m going to instruct
you to answer the question. Be
responsive, Listen to what your attorney asks you and then answer the question.
.
. . .
THE
COURT: [D]o you remember the testimony
that Mr. Hill said that you did not want to call 911. That’s essentially a yes or no answer.
APPELLANT: Well, yes and no.
COUNSEL: Did you hear Mr. Hill saying that you didn’t
want to call 911?
APPELLANT: Yes, I did hear him say that.
COUNSEL: And did you hear his father saying that you
didn’t want to call the police?
APPELLANT: Yes, I heard that also.
COUNSEL: Or the ambulance? Did you hear that
testimony?
APPELLANT: No. Well, yeah I did. But I don’t recall that, no.
COUNSEL: Why didn’t you want the police called? That’s my question.
APPELLANT: Because I was on probation.
Appellant challenges the prosecutor’s
question about the accuracy of David Hill’s testimony. The prosecutor asked appellant, “So Mr. Hill, Mr. David Hill,
would have been inaccurate about [whether appellant wanted to call law
enforcement]?” But
this question appears to be an attempt by the prosecutor to clarify appellant’s
convoluted direct testimony. Because “were they lying”-type questions are permissible when
they are particularly probative in clarifying a line of testimony, and because
the prosecutor was merely trying to elicit a clear statement from appellant
about David Hill’s testimony, we conclude that this question does not constitute
prosecutorial error.
Sergeant McKenzie
Appellant
testified that the reason her BAC was .20 three hours after the rollover
accident was because when she was outside of her residence waiting for the
Hills to retrieve her house keys from her vehicle, appellant found a quart of
vodka and drank half of it before Sergeant McKenzie arrived at her residence. Sergeant McKenzie observed appellant at both
her residence and the hospital after the accident. He testified that appellant appeared intoxicated
when he first observed her and that appellant told him that she had not consumed
any alcohol since the morning.
On direct
examination, the following colloquy occurred between defense counsel and
appellant:
COUNSEL: So why didn’t you
tell Sergeant McKenzie that you just consumed this vodka?
APPELLANT: Well, I think I did. I think I told him
I didn’t drink. I think I told him I drank. I
don’t know. I was really – I was drunk
then. I was – I was intoxicated.
(Emphasis added.) Although her testimony is somewhat confusing,
appellant did assert that she told Sergeant McKenzie that she drank vodka
before he arrived at her house. Appellant challenges the prosecutor’s questions to her about
the accuracy of Sergeant McKenzie’s testimony on this issue. But because appellant previously testified
that she did tell Sergeant McKenzie that she drank after the accident and
thereby flatly denied the accuracy of his testimony, appellant placed Sergeant
McKenzie’s credibility in central focus. It was permissible, therefore, for the
prosecutor to ask appellant about the accuracy of Sergeant McKenzie’s testimony.
Appellant
argues that her substantial rights were affected because the jury could have
believed that it could not credit appellant’s testimony without also finding
that the Hills and Sergeant McKenzie testified untruthfully. Because we conclude that there was no plain
error, appellant’s substantial rights were not affected.
Finally, even if there was
plain error, the error did not affect appellant’s substantial rights. See Griller,
583 N.W.2d at 740 (stating that for the plain error test to be met, the error
must affect substantial rights). In
criminal cases, it is well settled that judging the credibility of witnesses
and the weight given to their testimony rests within the province of the finder
of fact. State v. Johnson, 568 N.W.2d 426, 435 (Minn. 1997). And in light of the strong evidence against
appellant–testimony from three witnesses about appellant’s intoxication, the
BAC test results, and appellant’s unclear and inconsistent testimony–we
conclude that there is no reasonable likelihood that the absence of any
prosecutorial error would have significantly affected the jury’s verdict.
Affirmed.