A “Waiver” of Error is Different from Abandonment of Asserting a Known Error For Purposes of Appellate Review

State v. Mohomoud, Minn.Ct.App., 9/14/2010.  An officer stopped Mr. Mohomoud for speeding, which deteriorated into a no license/ felony DUI charge, second degree test refusal. 

Mr. Mohomoud stipulated to his prior impaired driving offenses.  Nonetheless, the state wanted to play for the jury a video recording of the implied consent advisory, which included Mr. Mohomoud’s admission to the aforesaid stipulated prior impaired driving offenses.  Defense counsel did not object to the admission of this video recording despite the aforesaid stipulated prior impaired driving offenses.  So, has defense counsel failed to object to the introduction of this recording – a forfeiture of error; or, has defense counsel intentionally given up his client’s right to keep this evidence out the hearing of the jury – a waiver of error?

Here, defense counsel said that he knew exactly what the prosecutor was talking about when the video recording was offered, including that it included references to the aforesaid stipulated prior impairing driving offenses.  It was not a case, therefore, where defense counsel didn’t know that he could or should object; he knew damn well he could/should object but chose not to do so.  Counsel thus waived his client’s right to have the evidence of his prior impaired driving offenses excluded from the jury’s ears.  Having acceded to the admissibility of this recording, Mr. Mohomoud can’t now complain to the appellate court about it.  The appellate court does note that whether this right can actually be waived and, if so, just how to do it – by counsel or personally by defendant – is not before it; the court is mum, therefore, on these more intriguing questions.

Mr. Mohomoud also complained that the trial court misstated the law of probable cause in its jury instruction on the same, CRIMJIG 29.28.  The court of appeals recently ruled on this instruction in State v. Koppi, 779 N.W.2d 562, 566 (Minn. App. 2010), review granted (May 18, 2010).   The JIG leaves out the part that the officer’s probable cause belief be explainable by reference to objective facts and circumstances.  As in Koppi, however, any error in the instructions here was also harmless.