State v. Ramey

GILDEA, Justice

(concurring).

I agree with the majority that plain error analysis applies when reviewing unobjected-to prosecutorial misconduct and that the third prong of the plain error test is the appropriate standard for determining prejudice. I write separately because I believe that the majority’s new plain error formulation, shifting the burden to the state to show that prosecutorial misconduct did not affect the defendant’s substantial rights, ignores the doctrine of stare decisis and creates unprecedented new law without compelling reason. As we have done in our prior cases, I would continue to place the burden on the defendant to show that any error that was plain affected substantial rights.

Fifty years ago we emphasized the importance of the doctrine of stare decisis to the rule of law. See State ex rel. Foster v. Naftalin, 246 Minn. 181, 205 , 74 N.W.2d 249, 264 (1956). We said:

Government by law instead of by man, which is the main bulwark to our democratic form of government, demands a decent respect for the rule of stare deci-sis in order that citizens of this state will be assured that decisions of the court are good for more than “one trip and one day only.”

Id.; see also Zettler v. Ventura, 649 N.W.2d 846, 852 (Minn.2002) (Anderson, R.A., J., dissenting) (quoting Foster and noting that “[w]hile the doctrine of stare decisis is not inflexible, it is not to be abandoned on a whim; its purpose is to provide stability in the law”). We have continued to adhere to this view and have noted that “[w]e are extremely reluctant to overrule our precedent.” State v. Lee, 706 N.W.2d 491, 494 (Minn.2005). Because of the importance of stare decisis, “we have required a ‘compelling reason’” to overrule our precedent. Id. (quoting Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn.2000)). The majority’s decision abandons our doctrine of stare decisis, creates instability in the law, rewrites our court rule, and overrules recent cases, all without compelling reason to do so.

Under the majority’s new approach, the defendant bears the burden of proof under the first two prongs of the plain error analysis, but the state would bear the burden under the third prong. This is contradictory to our court rule and our case law, which has placed the burden on the defendant to satisfy each element of the plain error analysis before an appellate court will address unpreserved error.

The result reached by the majority is at odds with Minnesota Rule of Criminal Procedure 31.02. In United States v. Olano, which we relied on as the basis for our plain error analysis, the U.S. Supreme Court explained that the basis for placing the burden on the defendant in the plain error analysis is the language of the rule itself. 507 U.S. 725, 734-35 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (“This burden shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the error *305 ‘does not affect substantial rights,’ Rule 52(b) authorizes no remedy unless the error does *affec[t] substantial rights.’ ”). Our Rule 31.02 contains the identical language and indeed our rule is based on the federal rule. See Minn. R.Crim. P. 31 emt.-1990 (“Rule 31.01 (Harmless Error) comes from F.R. Crim P. 52(a). Rule 31.02 (Plain Error) comes from F.R.Crim. P. 52(b).”). Because Rule 31.02 permits an appellate court to consider unpreserved error only if the error does affect substantial rights, it is logical to place the burden of persuasion on the defendant to show the error did affect substantial rights — and not on the state to prove the negative. This is the approach we have taken in our cases since the development of the plain error doctrine in Minnesota. 7

In State v. Griller, our controlling plain error case, we interpreted the plain error analysis in accordance with the U.S. Supreme Court’s jurisprudence:

The United States Supreme Court has established a three-prong test for plain error, requiring that before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. 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.

583 N.W.2d 736, 741 (Minn.1998) (citing Johnson v. United States, 520 U.S. 461 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997)). Citing Olano, we went on to specifically address the prejudice prong of the plain error analysis:

The third prong, requiring that the error affect substantial rights, is satisfied if the error was prejudicial and affected the outcome of the case. The defendant bears the burden of persuasion on this third prong. We consider this to be a heavy burden.

Griller, 583 N.W.2d at 741 (citing Olano, 507 U.S. at 734 , 113 S.Ct. 1770 ).

Although Griller did not specifically address unobjected-to prosecutorial misconduct, we have cited Griller for the proposition that before an appellate court will consider a defendant’s claim of unobjected-to prosecutorial misconduct, the defendant bears the burden of proof under all prongs of the plain error analysis' — -including the prejudice prong. See State v. MacLennan, 702 N.W.2d 219, 236 (Minn.2005) (“In order to show that the error has affected his substantial rights, the defendant must show that the error was prejudicial and that it affected the outcome of the case.”) (emphasis added); State v. Morton, 701 N.W.2d 225, 234 (Minn.2005) (“Under the plain error standard, a defendant may obtain relief upon demonstrating that: (1) there was error, (2) that is plain, and (3) the error affected the defendant’s substantial rights.”) (emphasis added).

Taken together, these cases form strong precedent for the proposition that the defendant, and not the state, bears the burden to show that unobjected-to prosecuto-rial misconduct affected the defendant’s substantial rights. The majority’s new rule overturns this precedent and creates a new plain error analysis applicable only to unobjected-to prosecutorial misconduct. Under the majority’s new rule, this court will address unpreserved error if it (1) is error, (2) that is plain, and (3) the state cannot show that the error did not affect *306 the defendant’s substantial rights. The burden shift amounts to a presumption that the error affected substantial rights— leaving the state to defend itself against that presumption when it was the defendant who failed to preserve the error properly during trial. This improper shift in burden is inconsistent with our precedent on prosecutorial misconduct, and it ignores the concerns we expressed in State v. Ray, that defendants might deliberately pass on an objection at trial. 659 N.W.2d 736 , 747 n. 4 (Minn.2003).

In departing from our established precedent, the majority cites authority from other jurisdictions. But this authority does not provide a compelling reason for us to depart from our precedent. The majority relies on eases from other jurisdictions that place the burden of proof on the state in the context of a harmless error analysis. See Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967); Wilson v. State, 874 So.2d 1155, 1159 (Ala.Crim.App.2003). These cases are inappo-site within the context of the plain error analysis.

The majority also cites a Wisconsin case, which appears to use a harmless error analysis “in determining whether to invoke the plain error doctrine,” and places the burden on the state to show that the error was harmless. State v. King, 205 Wis.2d 81 , 555 N.W.2d 189, 194 (1996) (“[WJhen constitutional errors are involved and plain error is alleged, the state has the burden to show that the error was harmless beyond a reasonable doubt.”). That ease explicitly recognizes that its holding is inconsistent with the relevant U.S. Supreme Court authority on the issue. Id. (“This conclusion is inconsistent with Olano , in which the Supreme Court concluded that under the plain error doctrine, ‘It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.’ ”). This same authority that Wisconsin rejects is the very foundation for our formulation of the plain error doctrine in Minnesota. See Griller, 583 N.W.2d at 741 (citing Olano, 507 U.S. at 734 , 113 S.Ct. 1770 ).

The majority arrives at its conclusion that we must overrule our precedent because it says that “placing the burden on the defendant to show prejudice has not been adequate to deter prosecutorial misconduct in the eight years since Griller was decided.” Just how placing the burden on the prosecution will deter misconduct the majority does not say. In any event, the majority’s speculative hoped-for outcome does not constitute a compelling reason to depart from precedent. Cf. Oanes, 617 N.W.2d at 405 (finding “contradictory line of cases” from Minnesota, which resulted in claims being lost before those claims could even be brought, to be a compelling reason for overruling prior precedent).

The majority suggests that public policy concerns regarding prosecutorial misconduct provide a compelling reason to depart from our established precedent. I agree with the majority that prosecutorial misconduct is a serious issue. Because the issue is a form of professional misconduct, I believe the problem of prosecutorial misconduct is better dealt with through the efforts of the Office of Lawyers Professional Responsibility than through a rejection of our precedent. See, e.g., Minn. R. Prof. Conduct 3.8 cmt. (“Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecuto-rial discretion could constitute a violation of Rule 8.4.”).

Finally, the majority claims that its new burden-shifting rule will serve policy concerns by “better allow[ing] substantive review of conduct that prosecutors should *307 know is clearly forbidden and [putting] the onus on the prosecution to defend against the prejudicial effect of its own misconduct.” It is unclear to me why a shift in burden would better allow the substantive review of prosecutorial misconduct. This court has a strong history of providing substantive review of claims of prosecuto-rial misconduct, even with the burden to show prejudice placed on the defendant. In short, the policy concerns the majority identifies do not provide a compelling reason to depart from our precedent.

I would retain our original formulation for plain error in cases of unobjected-to prosecutorial misconduct.

. In essence, the majority's result rewrites Rule 31.02. In my view, we should not rewrite our court rules in specific cases, as the majority does here, especially when the issue was not briefed. We have a process for revision of court rules, and that process should be followed before rules are changed.