Opinion
No. C6-02-674.
Filed February 18, 2003.
Appeal from the District Court, St. Louis County, File No. K801600756.
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, Alan Mitchell, St. Louis County Attorney, (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, (for appellant)
Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant was convicted of aggravated witness tampering in the first degree and assault in the second degree. He challenges his convictions, arguing that the prosecutor committed prejudicial misconduct. Because we conclude that any prosecutorial misconduct was not unduly prejudicial, we affirm.
FACTS
Appellant Demetrius Darcell Harris was charged with aggravated witness tampering in the first degree and assault in the second degree. The charges followed a July 2001 incident involving Harris, Kamal Fahim, and Sheena Elkins. Elkins was dating Harris at the time of the incident. She had previously dated Fahim, who is the father of her son. At the time of the July 2001 incident, Elkins was facing an unrelated manslaughter charge, about which Fahim had provided a statement to police.
At Harris's jury trial, a witness to the incident testified that she saw Harris holding a knife. Fahim testified that Harris lunged at him with a knife, telling Fahim that he knew he was "working for the police" and that Harris would "take care of that right now."
Elkins testified that Harris did not have a knife. On cross-examination, Elkins testified that she called 911 to report that Harris and Fahim were fighting. The state asked Elkins if she told the 911 operator that both men had knives, and Elkins said that she did not. The state introduced as evidence the "incident narrative report" detailing Elkins's 911 call, and defense counsel did not object. The report states that two men, both with knives, were involved in a fight. Elkins testified that the entire report was accurate except for the portion about both men carrying knives. The state inquired further, stating, "I'll ask you once more, tell us what you did with * * * Harris'[s] knife that day." Elkins denied that Harris had a knife. On recross-examination, the state returned to the subject of the knife and the 911 report, referring to the report as the "transcript of that 911 [call]."
The state also asked Elkins why her relationship with Harris had ended. When Elkins responded, "Just did," the state asked Elkins to "[t]ell us the truth why it ended" and to "[t]ell us the real reason." Defense counsel objected that the state was badgering the witness, and the district court ruled that Elkins's "answer [would] stand."
In its closing argument, the state said that "the presumption of innocence is gone" and "[Harris] is proved guilty" once the jury was "satisfied beyond a reasonable doubt" that Harris committed the charged offenses. The district court instructed the jury that
Harris is presumed innocent of the charges made and that presumption abides with [him] unless and until [he] has been proved guilty beyond a reasonable doubt.
* * * *
If an attorney's argument contains any statement of the law which differs from the law which I give you, you should disregard the statement.
For his threats and attack on Fahim, Harris was convicted of aggravated witness tampering in the first degree under Minn. Stat. § 609.498, subd. 1b(a)(4), (6) (2000), and assault in the second degree under Minn. Stat. § 609.222, subd. 1 (2000). This appeal follows.
DECISION
Harris argues that he was denied a fair trial because the prosecutor committed prejudicial misconduct by (1) attempting to impeach Elkins with the 911 report; (2) improperly cross-examining Elkins; (3) misleading the jury as to the nature of the 911 report; (4) improperly attacking Harris's character; and (5) misleading the jury as to the presumption of innocence. At trial, Harris made no objections to any of these instances of alleged prosecutorial misconduct. Criminal defendants waive their right to raise the issue of prosecutorial misconduct on appeal when they fail to object or seek a curative instruction. See State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001). In the absence of a timely objection, relief will only be granted in extreme cases involving "unduly prejudicial" prosecutorial misconduct. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).
First-degree aggravated witness tampering involves a "credible threat * * * to cause great bodily harm or death to another * * * ." Minn. Stat. § 609.498, subd. 1b (2000). Second-degree assault is assault "with a dangerous weapon." Id. § 609.222, subd. 1 (2000). Harris does not argue that the evidence was insufficient to allow the jurors to reach guilty verdicts. But in his challenges to the state's use of the 911 report and cross-examination of Elkins, Harris appears to be arguing that the alleged misconduct influenced the jury regarding the question of whether he had a knife, for purposes of the assault charge.
1. Impeachment With 911 Report
Harris argues that the state committed prejudicial misconduct by using the 911 report in its attempt to impeach Elkins because the report is not "extrinsic evidence" available for impeaching Elkins. Extrinsic evidence of a witness's prior inconsistent statement is admissible if the witness is first afforded an opportunity to explain or deny the prior statement. Minn.R.Evid. 613(b).
Here, the state asked Elkins if she had told the 911 operator that Harris and Fahim both had knives. After Elkins answered in the negative, the state questioned Elkins about the 911 report and introduced it into evidence. Harris argues that the state should have used a recording of the 911 call or the testimony of the 911 operator when it attempted to impeach Elkins. But Harris cites no authority for his contention that the state could not use the 911 report, and we will not address arguments unsupported by legal authority. See Minn.R.Civ.App.P. 128.02, subd. 1(d) (providing that appellant's argument must be accompanied by citations to relevant authority); Whalen ex rel. Whalen v. Whalen, 594 N.W.2d 277, 282 (Minn.App. 1999) (declining to address issues unsupported by citation to relevant law or legal analysis).
2. Cross-examination of Elkins
Harris argues that the prosecutor's request of Elkins to "tell us what you did with * * * Harris's knife that day" assumed facts not in evidence. Whether cross-examination concerning a "prior inconsistent statement is justified turns on whether the question is based on evidence or is simply an attempt by the prosecutor to utilize innuendo." State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979). But two witnesses, both of whom testified before Elkins, stated that Harris had a knife.
Harris also argues that the state improperly cross-examined Elkins because the questioning was argumentative. He contends that the state's questioning about the knife was argumentative because it was prefaced by "I'll ask you once more." But even if the questioning was argumentative, it was reasonably based on evidence that Harris had a knife, and it could well have assisted the jury in evaluating whether Elkins was telling the truth. See State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) (holding that "were they lying" questions, although argumentative, were not error because they had probative value in evaluating defense theory that state's witnesses were lying).
Finally, Harris argues that the prosecutor improperly expressed his opinion about Elkins's credibility by implying that Elkins was lying. It is improper for a prosecutor to express a personal opinion about the credibility of a witness. State v. Buggs, 581 N.W.2d 329, 343 (Minn. 1998). But here the prosecutor did not express an opinion; rather, he simply repeated his question about the knife after introducing evidence of Elkins's prior statement to the 911 operator.
Because the state's cross-examination of Elkins did not assume facts not in evidence, was not improperly argumentative, and did not include improper personal opinion, it did not constitute prejudicial misconduct.
3. Reference to 911 Report as "Transcript"
Harris argues that the state misled the jury by referring to the 911 report as a "transcript" of the witness's statement. He contends that the state's reference to the report as a transcript misled the jury into thinking that it was conclusive proof that Elkins had made such a statement.
The state may not intentionally misstate evidence. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993). The state's reference to the report was a misstatement and therefore error. But justice does not require an error-free trial; rather, justice requires a trial free of error that is prejudicial to the result. State v. White, 295 Minn. 217, 225, 203 N.W.2d 852, 858 (1973). Here, the state referred to the 911 report as a transcript only after questioning Elkins about the report. Elkins was given a copy of the report, and she testified about its contents, admitting that all of the information in the report was accurate except for the reference to her statement that both men had knives. Further, the jury was free to examine the report, which, on its face, does not appear to be a direct transcript of the conversation. The state's reference to the report as a transcript was not, therefore, unduly prejudicial.
4. Alleged Attack on Harris's Character
Harris argues that the state improperly implied that there was an "ominous, sinister reason" for the breakup of his relationship with Elkins. But Elkins's response to the initial question about why her relationship ended — "just did" — was clearly unresponsive. But c f. State v. Jones, 277 Minn. 174, 189, 152 N.W.2d 67, 78 (1967) (holding that state's question could only have been intended to leave jury with impression that defendant was person of bad character). The state's follow-up questioning was justified and does not, therefore, constitute prosecutorial misconduct.
5. Discussion of Presumption of Innocence
Finally, Harris argues that the prosecutor misstated the presumption of innocence in his closing argument. The supreme court has held that the state's misstatement of the presumption of innocence can constitute prejudicial error. See, e.g., State v. Jensen, 308 Minn. 377, 379, 242 N.W.2d 109, 111 (1976) (holding improper the statement that the presumption of innocence is "a shield for the innocent, * * * not a cloak that the guilty can hide behind"); State v. Thomas, 307 Minn. 229, 231, 239 N.W.2d 455, 457 (1976) (holding that the state's argument that defendant's constitutional rights protect only the innocent is ground for reversal).
Here, the prosecutor's statement regarding the presumption of innocence was markedly similar to the applicable Minnesota jury instruction. The prosecutor stated that the presumption of innocence was "gone" once the jury was satisfied beyond a reasonable doubt that Harris committed the charged offenses. The jury instruction provides:
The defendant is presumed innocent of the charge made. This presumption remains with the defendant unless and until the defendant has been proven guilty beyond a reasonable doubt.
10 Minnesota Practice, CRIMJIG 3.02 (1999). Further, defense counsel not only did not object to the prosecution's statement but also restated it in its own closing argument, noting:
As [the prosecution] discussed, * * * [Harris] is presumed innocent of these charges unless and until each and every one of you is convinced by proof beyond a reasonable doubt that the allegations are true.
Reviewing courts will presume that the jury followed the district court's instructions. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998). Further, this court has held that a prosecutor's misstatement of the presumption of innocence does not require reversal when the district court fully instructed the jury on the presumption. State v. Trimble, 371 N.W.2d 921, 926-27 (Minn.App. 1985), review denied (Minn. Oct. 11, 1985). Here, the district court instructed the jury on the burden of proof and presumption of innocence and also instructed them to disregard any statements of the law by the state and the defense that were contrary to the court's instructions. Given the similarity between the prosecutor's statement and the applicable jury instruction, as well as the district court's instructions, the prosecutor's statement was not unduly prejudicial. But we do caution prosecutors against the potential pitfalls of attempting to paraphrase the language of the criminal jury instruction guide on issues such as the presumption of a defendant's innocence.