by David M. Reutter

The Supreme Court of Minnesota held that the prosecution committed plain error by repeatedly telling the jury during closing arguments that the defendant no longer had the “presumption of innocence,” entitling the defendant to a new trial.

Christian Portillo was charged in 2019 with two counts of second-degree criminal sexual conduct in violation of Minnesota Statutes § 609.343, subdivision 1(g), (h)(iii) (2018). The jury found Portillo guilty of one count of second-degree criminal sexual conduct, and it acquitted him on another count. Portillo timely appealed.

During Portillo’s jury trial, the prosecutor elicited testimony from the State’s witnesses regarding evidence that the trial court previously had ruled was inadmissible. Defense counsel argued to the jury during closing that the prosecution failed to prove guilt beyond a reasonable doubt because the testimony of the witnesses was “inconsistent and imprecise.”

In the State’s closing-argument rebuttal, the prosecutor said the following: “The presumption of innocence comes with an individual accused, unless and until the state proves its case beyond a reasonable doubt. [Defense counsel] correctly told you that. But it leaves him when the state has proven its case beyond a reasonable doubt. He no longer has that presumption. You’ve heard all the evidence. You’ve heard all of the state’s case against Mr. Portillo. He no longer has that presumption of innocence. He has been proven guilty beyond a reasonable doubt. We’ve gone through those elements. You’ll be able to talk and consider each other’s thoughts and the information you heard throughout the course of the case, but he no longer has that presumption of innocence.” Defense counsel did not object.

Portillo timely appealed, arguing, inter alia, that the prosecutor’s misstatement of the law violated his right to a fair trial. The court of appeals affirmed, reasoning that the misstatement of law occurred once in an 18-page closing argument, defense counsel had already explained the State’s burden of proof in its closing argument, and the trial court provided a correct statement of law on the presumption of innocence in its jury instructions.

The Minnesota Supreme Court granted Portillo’s petition for discretionary review and concluded that the prosecutor’s misstatement of the law constituted plain error that affected Portillo’s substantial rights.

The Court stated that the focus of is analysis in whether the prosecutor’s misstatement of the law deprived Portillo of his right under the Sixth Amendment to a fair trial. Because defense counsel failed to object, the Court stated that it must apply the modified plain-error test, in which “the defendant has the burden to demonstrate that the misconduct constitutes (1) error, (2) that was plain.” State v. Ramey, 721 N.W.2d 294 (Minn. 2006). If the defendant satisfies the first two prongs, the burden then shifts to the State to establish that the error did not affect the defendant’s substantial rights, the Court stated. Id. And if the State fails to satisfy its burden, the analysis shifts to the fourth and final prong—“whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings.” Id.

The Court then turned to the first prong. It stated that it’s axiomatic that criminal defendants are presumed innocent until proven guilty beyond a reasonable doubt. State v. Peterson, 673 N.W.2d 482 (Minn. 2004); In re Winship, 397 U.S. 358 (1970). Moreover, it’s also true that “[o]ne accused of crime has the right to have the jury take [the presumption of innocence] to the jury room with them as the voice of the law.” Peterson.

The State argued that the prosecutor did not misstate the law on the presumption of innocence, citing State v. Young, 710 N.W.2d 272 (Minn. 2006), a case in which the Supreme Court approved of the prosecutor’s closing argument, as follows: “When the trial began, the Court told you that that young man right there is an innocent man. He was. Until the defense stood up and rested. Because at that time the state had presented to you sufficient evidence to find the defendant guilty of all the crimes that the Court just gave you the—instructions on. He’s no long [sic] an innocent man. The evidence that’s been presented to you by the state has shown you that he’s guilty beyond a reasonable doubt. Let me tell you why.”

However, the Court distinguished Young from the current case, explaining that the prosecutor in Young “never explicitly mentioned the presumption of innocence in the portion of the State’s closing argument at issue….” Whereas, in the current case, the prosecutor told the jury during closing arguments that the defendant no longer has a “presumption of innocence” three times.

The Court explained: “The prosecutor’s statement during rebuttal is not consistent with Minnesota law because the prosecutor’s statement erroneously suggested that Portillo, at the time the prosecutor made this statement, had been proven guilty beyond a reasonable doubt and was therefore no longer entitled to the presumption of innocence.” But a defendant is only proven guilty beyond a reasonable doubt after the jury has deliberated and reached that conclusion, not before. See Peterson. The Court determined that the prosecutor’s statement was a misstatement of law that was contrary to both the U.S. and Minnesota Constitutions. Thus, the Court concluded that the statement was an error, satisfying the first prong of the plain-error test.

Turning to the second prong of the test, the Court stated that for an error to be “plain,” the issue must have been “clear or obvious.” Ramey. Typically, this is established if it contravenes a principle that is “conclusively resolved” at the time of the appeal. State v. Jones, 753 N.W.2d 677 (Minn. 2008). The Court declared that the state Supreme Court has been clear that the “presumption of innocence is a fundamental component of a fair trial” and a “bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law.” Peterson. The Court summarily dismissed the State’s argument that the law was unsettled on this issue, stating that none of the cases the State cites support its position because none of them contain language “that corresponds with the language that the prosecutor used here.” The Court concluded that the law on this issue was settled by “long-standing precedent.” Thus, the Court concluded that the error was plain, satisfying the first two prongs of the test.

The Court next addressed the third prong of the test that requires 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.” State v. Matthews, 779 N.W.2d 543 (Minn. 2010). In making this determination, courts “consider the strength of the evidenceagainst the defendant, the pervasiveness of the improper suggestions, and whether the defendant had an opportunity to (or made efforts to) rebut the improper suggestions.” State v. Davis, 735 N.W.2d 674 (Minn. 2007).

The Court agreed with Portillo that the evidence of guilt against him was not strong, relying on the credibility of a single witness without a corroborating testimony, physical evidence, or other witnesses to the alleged abuse. It also agreed with Portillo’s contention that the trial court jury instructions on the presumption of innocence were not sufficient specific to undo the harm caused by the prosecution’s plain error. Thus, the Court concluded that the State cannot meet its burden of proof with respect to the third prong.

Finally, the Court addressed the fourth prong—“whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings.” Ramey. The Court explained that the focus is not on the specific defendant a particular case, but rather: “The pivotal question is whether addressing the prosecutorial error will serve to enforce the constitutional protections afforded to all criminal defendants.” Because the plain error at issue concerns the “bedrock axiomatic and elementary principle” that forms the very foundation of the administration of the state’s criminal law, the Court concluded that the plain error “must be addressed to ensure the fairness and integrity of judicial proceedings.” Thus, the Court held that Portillo satisfied the plain-error test and is entitled to a new trial.

Accordingly, the Court reversed the decision of the court of appeals and remanded for further proceedings consistent with its opinion. See: State v. Portillo, 2023 Minn. LEXIS 625 (2023).   

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