Hennepin County District Court File No. 02054512
Considered and decided by Randall , Presiding Judge; Minge, Judge; and
1. Where a defendant asserts an affirmative defense, it is proper for the prosecutor to comment on the defendant's failure to produce evidence in support of that defense, provided the comments do not have the tendency to shift to the defendant the burden of persuasion with respect to an element of any offense for which the defendant is on trial.
2. The district court has discretion to admit or preclude expert testimony, and an appellate court reviews such rulings on a very deferential standard.
3. The district court has significant discretion in crafting jury instructions, and an appellate court reviews instructions in their entirety to determine whether they fairly and adequately state the law.
The opinion of the court was delivered by: Poritsky, Judge*fn1
Appellant Grant Gregory Johnson was convicted of the misdemeanor offenses of (1) third-degree driving while impaired(under the influence of alcohol (DWI) and (2)árefusal to submit to a chemical test. On appeal, he argues (a) that the prosecutor committed misconduct and (b) that the district court erred in (i) denying appellant's motion for mistrial, (ii) precluding testimony from a medical expert, and (iii) instructing the jury about the defense of reasonable refusal. We affirm.
Appellant was involved in a fight at his friend's apartment complex. Bloomington police officers were called to the scene. One officer talked with appellant and noticed three indicia of intoxication: appellant's breath smelled strongly of alcohol, his eyes were bloodshot and glassy, and his speech was slurred. Appellant was warned not to drive. Despite a cut above his left eye and dried blood by his lip, apparently as a result of the fight, appellant refused offers of medical assistance.
Approximately two hours later, the same officer responded to a report of a pickup truck smashing into a tree at the apartment complex, and he recognized appellant, who had been driving the pickup. The officer again noticed the same three indicia of intoxication, and also noticed a fourth:
appellant had difficulty standing in one spot without swaying. Appellant failed three standard field sobriety tests. During the testing, he did not mention any medical problems. Although appellant's left eye was swollen, he again refused offers of medical assistance.
The officer then administered a preliminary breath test to appellant; the test reading was 0.101. Appellant was arrested and brought to the Bloomington police department, where he was read the Minnesota Implied Consent Advisory. After appellant made two phone calls, he told the officer that his attorney advised him to take the test. But when asked to take the test, appellant refused, stating that he did not believe he needed to give a reason for refusing. Appellant was charged with third-degree DWI and refusal to test.
At trial, appellant admitted that he had consumed approximately six beers prior to the fight, but had not felt intoxicated. Appellant could not remember getting into his pickup truck or driving it into the tree, but agreed that it had happened. He also testified that, roughly four years earlier, he had been diagnosed with Addison's disease, that he takes prescription medications every day and can suffer an adrenal crisis without it, and that, during a crisis, he will "go through stages of disorientation." Appellant's mother testified that, during a crisis, appellant's behaviors resemble those of someone intoxicated. Appellant admitted that he did not mention his medical condition to the officers. He also stated that he did not know why he refused to take the breath test, but that he had made a clear decision not to. When asked what he attributed his confusion to, he said it was due both to the fight he had been in earlier and to his "disease which makes [him] very disoriented."
At trial, appellant tried to introduce testimony on Addison's disease from an emergency room doctor who had not examined appellant and was not qualified as an Addison's disease expert. The ...