                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-0504

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                               Eric Christopher Bakke,
                                     Appellant.

                              Filed February 29, 2016
                              Reversed and remanded
                                Cleary, Chief Judge

                             Becker County District Court
                               File No. 03-CR-13-1826


Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota; and

Gretchen D. Thilmony, Becker County Attorney, Detroit Lakes, Minnesota (for
respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Cleary, Chief Judge; Jesson, Judge; and Kalitowski,

Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

CLEARY, Chief Judge

       On appeal from his conviction of a first-degree controlled substance offense,

appellant Eric Christopher Bakke argues that he should be granted a new trial because the

prosecutor improperly elicited testimony regarding the state’s failed attempts to subpoena

a key witness to testify at trial, and improperly elicited testimony concerning inadmissible

statements that the unavailable witness made to the police. Because the prosecutor’s

conduct constituted clear error affecting appellant’s substantial rights, we reverse and

remand.

                                           FACTS

       On August 29, 2013, a Minnesota state patrol trooper received a tip that a nearby

vehicle was driving erratically. The trooper located the vehicle, turned his emergency

lights on, pulled in front of the vehicle, and gestured for the driver to pull over. The trooper

then pulled over to the shoulder. The vehicle, driven by appellant, continued past the

trooper’s car and accelerated away. Appellant accelerated to about 95 miles per hour. The

trooper pursued appellant while appellant traveled about two miles before pulling over and

complying with the trooper’s arrest. Appellant’s passenger, Salina Clement, was found in

possession of a marijuana pipe but no other drugs or paraphernalia were found.

       Appellant was arrested and charged with fleeing a peace officer in a motor vehicle

in violation of Minn. Stat. § 609.487, subd. 3 (2012), and with driving after cancellation in

violation of Minn. Stat. § 171.24, subd. 5 (2012). While in jail, appellant made several




                                               2
telephone calls that were recorded. Appellant made statements such as “I don’t want

people looking,” and “[A]ll it’s going to do is . . . get me into a lot of trouble.” Based on

these conversations, officers believed that appellant had thrown something of interest from

his car during the chase. On September 4, 2013, six days after appellant’s arrest, officers

searched the area along the road where appellant had driven during the police chase. In a

ditch near where the chase began, officers discovered a cylinder containing approximately

27 grams of crystal methamphetamine. On October 22, 2014, the complaint against

appellant was amended to add one count of first-degree possession of a controlled

substance in violation of Minn. Stat. § 152.021, subd. 2(a)(1) (2012).

       At appellant’s jury trial, the prosecutor elicited testimony regarding the passenger,

Clement. Initially, in response to a question as to why the cylinder was not submitted for

forensic testing for evidence to connect it to appellant, a police officer responded that police

felt they already had sufficient confirmation. The officer stated that, “[we] felt it wasn’t

necessary to conduct any other analysis on it, based upon the conversations that we had

with Salina Clement, and the jail cellphone calls, and information that [another officer] had

received.” Defense counsel objected to the response and asked that it be stricken. The

court sustained the objection but the jury was not instructed to disregard the comments and

the court did not state that the comments were stricken from the record.

       Later, another officer described law enforcement’s repeated, unsuccessful efforts to

subpoena Clement to testify at trial. Defense counsel objected to the officer’s narrative

description of these efforts and the objection was sustained. The court asked the jury to




                                               3
disregard the answer and had it stricken from the record, but allowed the prosecutor to

rephrase. The prosecutor was permitted to pursue a similar line of questioning establishing

and reinforcing that police repeatedly attempted to locate Clement to subpoena her for trial

but were unsuccessful. The defense did not object further. Appellant was subsequently

found guilty on all three counts. He was sentenced to 158 months in prison. This appeal

followed.

                                      DECISION

       Appellant contends that the prosecutor committed prejudicial misconduct. At trial,

the prosecution introduced evidence in its case-in-chief of a police officer’s belief that

inadmissible statements made by an unavailable witness connected the appellant to the

canister of drugs, making DNA testing of the canister unnecessary, and of another police

officer’s efforts to produce that witness for trial. Appellant argues that this constituted an

improper effort to deprive him of a fair trial by referring to a non-appearing witness and

suggesting this witness would have testified to his guilt. He argues that this prosecutorial

misconduct entitles him to a new trial as to his conviction of first-degree controlled

substance offense.

       Appellant objected to the officer’s testimony regarding efforts to subpoena Clement,

but the record does not reflect the grounds on which the objection was sustained. Because

the prosecution was then permitted to pursue this line of questioning without objection,

and because both parties argued this case under a plain error standard of review, this court

will regard the alleged misconduct as unobjected-to error.




                                              4
       “On appeal, an unobjected-to error can be reviewed only if it constitutes plain error

affecting substantial rights.” State v. Ramey, 721 N.W.2d 294, 297-98 (Minn. 2006) (citing

Minn. R. Crim. P. 31.02). Minn. R. Crim. P. 31.02 states: “Plain error affecting a

substantial right can be considered by the court on motion for new trial, posttrial motion,

or on appeal even if it was not brought to the trial court’s attention.” Appellant has the

burden of demonstrating that there was error and that the error was plain. Ramey, 721

N.W.2d at 302. An error is plain if it is “clear or obvious.” Id. (quotation omitted). If

these first two elements are established, the burden shifts to the state to show that there is

no “reasonable likelihood that the absence of the misconduct in question would have had

a significant effect on the verdict of the jury.” Id. (quotations omitted).

Plain error

       Appellant argues that eliciting inadmissible testimony referencing a non-appearing

witness constituted plain error. “It is improper for a prosecutor to ask questions that are

calculated to elicit or insinuate an inadmissible and highly prejudicial answer.” State v.

Henderson, 620 N.W.2d 688, 702 (Minn. 2001). “We have made it clear that [t]he state

will not be permitted to deprive a defendant of a fair trial by means of insinuations and

innuendos which plant in the minds of the jury a prejudicial belief in the existence of

evidence which is otherwise inadmissible.” State v. Harris, 521 N.W.2d 348, 354 (Minn.

1994) (alteration in original) (quotations omitted). “Use of such insinuation and innuendo

is reversible error whether the [reference to inadmissible evidence] is contained in the




                                              5
question which the prosecutor asks or in the answer which the witness gives.” Id.

(quotation omitted).

       “It is [also] improper conduct for a prosecutor to refer to a witness who was not

called.” State v. Page, 386 N.W.2d 330, 336 (Minn. App. 1986), review denied (Minn.

June 30, 1986); see also State v. Shupe, 293 Minn. 395, 196 N.W.2d 127 (1972) (reversing

based on prosecutor’s reference to uncalled witness). In Shupe, the defendant alleged that

the prosecutor erred during his closing argument by discussing witnesses he did not call

during trial. Id. at 395, 196 N.W.2d at 127. The Shupe court found that the statement

discussing absent witnesses who could add testimony related to defendant’s guilt amounted

to prejudicial error. Id. at 396, 196 N.W.2d at 128. The court explained that this prejudice

is not necessarily cured by a limiting instruction, stating, “[w]e cannot assume that the jury

was not influenced by the prosecutor’s reference to the asserted fact that there was other

testimony bearing upon defendant’s guilt.” Id. Conversely, reference to witnesses who

were not called but whose testimony would have been duplicative of other evidence has

been found to not amount to prejudicial error. State v. Thomas, 305 Minn. 513, 517, 232

N.W.2d 766, 769 (1975).

       Here, the prosecutor elicited inadmissible testimony that investigators declined to

do further forensic testing based on Clement’s statements. This testimony insinuated that

Clement’s statements confirmed investigators’ suspicion that the canister belonged to

appellant. Then, the prosecutor furthered the implication that Clement’s testimony would

have provided additional evidence of guilt by eliciting testimony from a different officer




                                              6
about the great efforts that the state expended to subpoena Clement. The evidence of these

efforts suggested to the jury that Clement’s testimony would have bolstered the

prosecution’s case.

        Under certain circumstances, it may be permissible to present evidence explaining

a witness’s absence. See, e.g., State v. King, 622 N.W.2d 800, 807-08 (Minn. 2001)

(reviewing evidence about the state’s failed efforts to produce a witness at trial to determine

whether that witness was unavailable in the context of the Confrontation Clause).

However, the state has not demonstrated what relevance the prosecution’s questions about

subpoenaing Clement had to the case, beyond the impermissible implication that Clement

could have provided testimony of additional evidence of guilt.

        Although the court sustained an objection to testimony regarding Clement’s

statements to police, it gave no instruction to the jury to ignore the statement. Moreover,

even where a court does give instructions to ignore inadmissible evidence, it may be

insufficient. State v. Reardon, 245 Minn. 509, 513, 73 N.W.2d 192, 195 (1955) (stating

that where “the impact of the prejudicial remark may be such as to impart to the minds of

the jury substantial prejudicial evidence not properly a part of the case, it is taking too much

for granted to say its effect can be removed by an instruction from the court”). The

prosecutor elicited highly prejudicial, inadmissible testimony. It is difficult to unring the

bell.

        Finally, this testimony was not merely duplicative of other evidence. Clement was

the only person in the car with Bakke and the only witness who could have testified that




                                               7
appellant possessed the canister or that appellant threw the canister out of the moving car,

as the prosecution alleged. The suggestion that she would testify for the prosecution

implied the existence of significant, additional evidence. The prosecution committed plain

error when it elicited this testimony.

Plain error affecting substantial rights

       Where appellant has shown prosecutorial misconduct constituting plain error, the

burden shifts to the state to demonstrate the plain error did not affect appellant’s substantial

rights. Ramey, 721 N.W.2d at 302. “Prosecutorial misconduct affects substantial rights if

there is a reasonable likelihood that the absence of misconduct would have had a significant

effect on the jury’s verdict.” State v. Davis, 735 N.W.2d 674, 681-82 (Minn. 2007). When

considering the misconduct’s effect on the jury’s verdict, the court “consider[s] the strength

of the evidence against the defendant, the pervasiveness of the improper suggestions, and

whether the defendant had an opportunity to (or made efforts to) rebut the improper

suggestions.” Id. at 682.

       These factors indicate that the state has not demonstrated that the plain error in this

case did not affect appellant’s substantial rights. Generally, when the prosecution presents

its efforts to procure a witness for trial to the jury, it implies that this witness would have

provided favorable testimony. The supreme court has explained the significant prejudice

to a defendant when the prosecution creates the impression that an uncalled witness would

have provided supplemental evidence of guilt. Shupe, 293 Minn. at 396, 196 N.W.2d at

128.




                                               8
       The prosecutor elicited highly prejudicial testimony from police that investigators

declined to perform further investigation based on Clement’s comments. The prosecution

went on to document the great efforts investigators went through in order to subpoena

Clement, which suggested to the jury that Clement’s testimony would have strengthened

its case. These two pieces of testimony combine to leave the unmistakable impression that

a prosecution witness with direct knowledge of the crime would have inculpated appellant

had she appeared at trial. A prosecutor cannot insinuate the existence of evidence in order

to overcome the inability to produce that evidence at trial. The prosecution’s implication

that the witness it had hoped to call at trial gave statements to police inculpating appellant

created a strong prejudice that appellant could not rebut.

       In addition, the evidence against appellant was not strong.          The prosecution

essentially produced two types of evidence indicating appellant’s guilt: the canister found

six days later along the stretch of highway appellant had traveled while being chased by

police, and the calls appellant made from prison referencing a search for something. The

canister was not tested for fingerprints or DNA, so there was no physical evidence

connecting it to appellant. The pursuing officer did not observe anything thrown from the

car nor was anything visible on the squad car video. At trial, no witness testified to first-

hand knowledge of appellant possessing the canister.         Appellant’s statements in the

telephone calls referenced a search for something that would get him into trouble.

However, appellant’s statements were vague and he never made any unambiguously

incriminating statements. Because the evidence was not particularly strong, the implication




                                              9
that a witness made a statement connecting appellant to the canister was extremely

significant.

       In cases where courts found no substantial prejudice, evidence of the defendant’s

guilt was much stronger than was presented in this case. See Davis, 735 N.W.2d at 682

(“[T]he evidence against Davis was substantial and compelling and included his admission

that he had shot Allan and Morocho during an attempt to rob them.”); State v. Dobbins,

725 N.W.2d 492, 513 (Minn. 2006) (“[T]he state’s case against Dobbins was very strong,

and the evidence, both in the form of witness testimony and forensic evidence,

overwhelmingly indicates that Dobbins shot and killed Lavender.”); State v. Swanson, 707

N.W.2d 645, 658 (Minn. 2006) (“[T]he state’s case was very strong. Hansen and House

both testified that they saw Swanson shoot Schultz. DNA evidence linked both Swanson

and Combs to a cigarette butt found at the Schultz residence, and also linked Swanson and

Schultz to a blood stain . . . .”).

       References to Clement appearing as a witness were not pervasive in the

prosecution’s case, but the references that were made were crucial to the successful

prosecution of appellant. The implication that the only witness with direct knowledge of

the alleged crime inculpated appellant in statements to police is highly influential. This

implication can color the jury’s perception of the circumstantial evidence presented.

Although appellant addressed Clement’s absence in closing argument, this was done out

of necessity in response to the prosecution’s prejudicial misconduct. The prosecution




                                           10
implied the existence of significant evidence, which created strong prejudice that appellant

could not effectively counter.

Fairness and integrity of judicial proceedings

       When the three prongs of plain-error review are met, “the court then assesses

whether the error should be addressed to ensure fairness and the integrity of the judicial

proceedings.” Ramey, 721 N.W.2d at 302. “Appellate courts should not hesitate in a

suitable case to grant relief in the form of a new trial.” Id. at 303 (quotation omitted).

       Here, a new trial must be granted to preserve the fairness and integrity of the judicial

proceedings. All three prongs of plain-error review are satisfied in this case. Creating the

impression that a non-appearing witness would have testified to key evidence of guilt

constituted plain error. This improperly elicited evidence was not duplicative but essential

to the prosecution’s case. The plain error created prejudice that significantly affected the

fairness of the proceedings. A new trial must be granted.

       Reversed and remanded.




                                              11
