Court Declines to Consider Harmlessness of Error in Instructions When The State Did Not Assert Harmless Error

State v. Porte, Minn.Ct.App., 6/24/2013.  A jury convicted Mr. Porte of a number of counts of controlled substances offenses.  Officers stopped a van that Mr. Porte was driving.  The officers found dope in various places inside the van.  Mr. Porte told the jury that he was in the process of buying the van and that none of the drugs in it were his.  As part of the jury charge, the trial court gave the jury a “permissive-inference instruction:

In determining whether or not it has been proven beyond a reasonable doubt that defendant was in knowing possession of cocaine, you should consider all of the evidence presented. The law allows, but does not require, you to find knowing possession from proof beyond a reasonable doubt that defendant was the driver or in physical control of a passenger automobile and cocaine was present in the automobile.

On appeal, the court rejected a claim that the state had failed to present sufficient evidence to support the conviction. 

The “permissive-inference” instruction is a no-no:  State v. Litzau, 650 N.W.2d 177 (Minn. 2002).  The state, curiously, thought otherwise and only argued that the instruction was just fine.  It did not make even the alternative argument, “but, if the instruction was error it was harmless error.”  The court of appeals said, in that case, the state has waived that argument unless it was obvious that the error was harmless.  Barnes v. State, 768 N.W.2d 359 (Minn. 2009). 

It was not so obvious.  The court applied a test that the Seventh Circuit Court of Appeals articulated back in 1991 in the case of United States v. Giovannetti, 928 F.2d 225 (7th Cir. 1991).  Essentially, the Seventh Circuit said writing about an issue that no one raised is a lot of work; the judges (or their clerks) have to actually read the trial record.  Such a practice might even be harmful to an appellant who would not have had the chance to weigh in on the harmlessness of the error.  So, the court of appeals said it was just not going to do it.  The upshot of the waiver is that Mr. Porte get a new trial.