Opinion
No. C0-00-1220.
Filed June 12, 2001.
Appeal from the District Court, St. Louis County, K7993428.
Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, (for respondent)
Susan K. Maki, Assistant Public Defender, (for appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
In this appeal from convictions of second-degree murder and attempted second-degree murder, appellant Leonard Barnell Batiste argues that the prosecutor committed prejudicial misconduct by asking a rebuttal witness about the suppression of a statement that had been ruled inadmissible. Appellant also argues that the prosecutor committed misconduct during closing argument by suggesting that only a guilty verdict could prevent appellant from killing the victim who survived. We affirm.
FACTS
Batiste was charged with first- and second-degree murder and attempted murder following the June 16, 1999, slaying of Antoin Watson and the attempted shooting of Larry Taylor.
On the night before the shooting, Batiste's cousin, Terry Harris, was shot in a drive-by shooting while standing on the porch of a home in St. Paul. Harris suffered minor wounds and was treated and released from the hospital. Batiste was present during the drive-by shooting, and his rental car was damaged by the gunfire.
On June 16, while Batiste and his friends were at the house where the shooting had occurred cleaning up the mess from the night before, Watson and Taylor walked by the house. The two men customarily hung out at the house next door, and there were apparently bad feelings between the people in the two houses. Because of that, or because Watson or Taylor said something as they walked by, they were chased by Batiste and his friends. As Watson and Taylor reached their car, someone began shooting. Watson was struck in the back of the head and died. The shooter, whom Taylor identified as Batiste, then turned his attention to Taylor. But the gun was empty, and the shooter fled in a car waiting nearby.
Several people witnessed the shooting. One of them, a neighbor sitting in her yard, picked out Batiste in a photo display as the person who looked like the shooter, although she could not be absolutely certain. Another neighbor could not identify the shooter but described him as a six-foot-tall, dark-skinned black male, wearing a blue-and-white horizontally striped shirt.
Terry Harris testified that when she was shot, Batiste and several other people had come with her to the hospital. She testified that although she went elsewhere after being released from the hospital, Batiste told her he had gone back to the house where the shooting occurred and noticed that the people next door had all left the house. Harris testified that she told Batiste to "[l]et it go" and not retaliate, because a friend of Batiste's was "boosting" him to "go do something that he had no business doing."
Harris testified that the next morning, the owner of the house where she had been shot, who was also a cousin of Batiste, came to the apartment where she and Batiste had stayed the night. She testified that Batiste dressed that day in a pair of blue jeans and a "blue shirt with some different colors in it" that might have been striped and left with his cousin. Harris admitted that she called Batiste frequently that day to "make sure he didn't do anything crazy." Batiste had returned to the house where Harris was shot.
Harris testified that Batiste returned to her apartment that evening after dark. He was with a group of men. One of the men described a shooting and told how the victim fell when the bullet hit him, but none of the men claimed to be the shooter. Harris testified that two of the men changed their shirts, but she did not see Batiste change any clothes.
Harris testified that after police arrested the driver of the car that took the group from the scene of the shooting, it was decided that everyone had to leave, for fear that the driver would talk. Harris testified that it was Carnell Dunn, another of Batiste's cousins, who said they had to leave, but Harris was impeached with her statement to police that it was Batiste who said they had to leave. Harris left for Ponchatoula, Louisiana, her family home. About a month later, she got a call there from Batiste, who was in Jacksonville, Florida.
Harris testified that Batiste disguised his voice, and she did not know who was calling until he asked if her phone was tapped. Harris drove to Jacksonville to pick up Batiste and his girlfriend, Alishia, and drive them back to Ponchatoula. She testified that she knew Batiste was wanted for murder at the time, and denied that there was any conversation in the car about the shooting. She testified that Batiste told her that he had left Minnesota because Alishia told him it was time to go when both of their pictures were printed in the newspaper.
Batiste was arrested in Ponchatoula. Sergeants Findley and Munoz of the St. Paul police department questioned him there while he was in jail. The district court found that Munoz and Findley gave Batiste a Miranda warning but did not ask him whether he waived his rights. Early in the interview, Batiste stated that he would like an attorney. The officers, however, kept on talking with Batiste without honoring this request. Batiste indicated that his family was trying to get an attorney for him. This did not end the interview, but the officers eventually allowed Batiste to place a call to his family in Minnesota.
The trial court ruled that this statement was inadmissible because of the Miranda violation. The prosecutor then asked the court for a ruling that the statement could be used as a voluntary statement for impeachment purposes should Batiste testify. The court did not rule on that motion, but later, when Batiste had decided to testify, the motion was renewed. The court again reserved a ruling, and the following day ruled that it would allow the statement to be used for impeachment purposes, but the inconsistency giving the prosecutor grounds to use the statement had to come out on direct examination, not on the prosecutor's own cross-examination.
Batiste gave minimal testimony on direct examination. He testified about his height and weight in June 1999, the clothes he was wearing on the date of the shooting, and the reason he left Minnesota afterwards. He testified that when his cousin Terry Harris was shot, he was scared for her but not angry. He admitted that he had prior convictions (which the court had ruled admissible to impeach him), denied shooting Antoin Watson, and testified that he was not at the scene of the shooting.
During cross-examination, the prosecutor impeached Batiste with his Ponchatoula statement. The prosecutor brought out Batiste's statements from that interview that he was wearing a checkered or striped shirt on the day of the shooting, and that Taylor (the surviving victim) was trying to kill him. Batiste also admitted that he had told the St. Paul officers that he thought Harris's shooting was an accident.
On redirect examination, Batiste began explaining some of his statements in Ponchatoula. He explained that he did not know at the time that the description of his shirt was important. He began describing the circumstances surrounding the statement, estimating that it lasted almost three hours, and describing how he left the room to use the bathroom.
On recross, Batiste testified that he had read the Ponchatoula statement hundreds of times. He also claimed that the statement contained only half of what he had actually said. On re-recross, the questioning continued to focus on the statement, with Batiste again insisting that a lot was missing from the transcript of the statement. This culminated in Batiste stating:
A. * * * Like I told you, that's half the statement. That's not the whole statement. Everything that was said * * * is not even in there, * * *. I mean they're cutting certain parts of it out that they don't want in court or whatever.
The prosecutor followed up on this:
Q. So basically you're saying that's the reason why they don't want the statement in court today, then?
A. I don't know. I don't know what the reason is. I just know that's not the whole statement, * * *.
The prosecutor presented Sergeant Findley's testimony in rebuttal. After clarifying one point in the police investigation, the prosecutor asked Findley about the Ponchatoula statement. Findley testified that the transcript of the statement was a "fair and accurate reflection" of what was on the tape. Findley testified that he thought the tape recorder was turned off only when Batiste went to call a lawyer, although he could not be sure because the other officer had the tape recorder. Then, the following exchange occurred:
Q. And do you know why this statement is not coming into court?
[Defense counsel]: Objection, Your Honor.
[The Court]: Sustained.
[Prosecutor]: May we approach?
[The Court]: No.
[Prosecutor]: Nothing further.
The prosecutor began his closing argument by emphasizing the testimony of Larry Taylor, the surviving victim who identified Batiste as the shooter in a photo display. The prosecutor emphasized the consistency in Taylor's testimony, then asked why Taylor would "misidentify the defendant as the shooter?"
What possible reason could he have to misidentify the defendant as the person that just tried to kill him? None. There are none. Absolutely, positively none. Because what happens if he misidentifies him? The person that if he misidentified him would certainly get another chance to kill him. Don't you think? You saw Mr. Taylor didn't want to come here. * * * But he had to. Because he knows that a proper verdict that speaks to the truth in this case will prevent Mr.Batiste from trying to kill him again.
(Emphasis added.)
The jury acquitted Batiste of first-degree murder and attempted first-degree murder and found him guilty of second-degree murder and attempted second-degree murder.
DECISION
Batiste argues that the prosecutor committed prejudicial misconduct by asking why the Ponchatoula statement had been suppressed and by suggesting, in closing argument, that the jury should convict Batiste to prevent him from making another attempt to kill Taylor.
Whether a new trial should be granted due to prosecutorial misconduct lies within the discretion of the trial court, which is in the best position to assess the effect of any misconduct. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). The trial court's decision to deny a new trial based on a claim of prosecutorial misconduct will not be reversed unless the misconduct appears to be "so serious and prejudicial that defendant's right to a fair trial was denied." State v. Dillon, 529 N.W.2d 387, 392 (Minn.App. 1995) (quoting Wahlberg, 296 N.W.2d at 420).
The Ponchatoula statement was ruled admissible for impeachment purposes, and was used by the prosecutor to impeach several points of Batiste's testimony. In trying to explain inconsistencies, Batiste suggested that the statement was not properly taken and was incomplete. Batiste also suggested that the police did not want the statement admitted. That suggestion opened the door for the prosecutor to ask Sergeant Findley, in rebuttal, why the statement had not come into court. See generally State v. Willis, 559 N.W.2d 693, 699 (Minn. 1997) (holding that defense counsel's question had "open[ed] the door to the introduction of character evidence"). By suggesting to the jury that the statement was being improperly and misleadingly withheld from it, Batiste's trial testimony opened the door for the prosecutor to ask for the real reason why the complete statement was not being admitted.
Batiste's argument that the prosecutor's question was prejudicial misconduct is further weakened by the fact that the trial court sustained the defense objection to the question. See generally State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001) (treating court's sustaining objection to improper question as being equivalent to striking testimony, and not prejudicial misconduct where state had an arguable claim that the defense "opened the door" to the question). Defense counsel explained in his motion for a new trial why he did not also ask for a curative instruction that the jury disregard the question. But, as he pointed out, a question is not evidence and would not likely be considered as evidence by the jury.
Batiste's second claim of prosecutorial misconduct misconstrues the record. At the beginning of his closing argument, the prosecutor, while discussing the testimony of Larry Taylor, pointed out that Taylor had no reason to "misidentify the defendant" as the shooter. This argument was proper, as any bias or lack of bias of a witness is relevant to that witness's credibility. Taylor testified that before the shooting, he had seen Batiste hanging around the house where the shooting occurred. Thus, there was at least a possibility that Taylor could identify Batiste from the neighborhood association, rather than from the shooting, and that the neighborhood dispute could have given Taylor a motive to falsely identify Batiste as the shooter. The logic of the prosecutor's argument was that Taylor would not deliberately misidentify the shooter because, if he did, the real shooter would escape punishment and be free to assault him again. That argument, which was relevant to Taylor's credibility and did not raise any improper inference with regard to Batiste, was proper.
But the prosecutor went on to say,
Because [Taylor] knows that a proper verdict that speaks the truth in this case will prevent Mr. Batiste from trying to kill him again.
This argument improperly asked the jury to convict Batiste to prevent future harm, not because Batiste is guilty. However, the comment is a single sentence in a 37-page argument. See generally State v. Stephani, 369 N.W.2d 540, 547 (Minn.App. 1985) (noting that appellate court must consider closing argument in its entirety, not phrase-by-phrase), review denied (Minn. Aug. 20, 1985). Also, Batiste did not object to the comment. See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (holding that defendant ordinarily waives claim of improper prosecutorial argument by failing to object).
It is improper for a prosecutor to infer that the jury should convict the defendant for any reason other than that he is guilty. See generally State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (holding the prosecutor must not distract jury from proper role of deciding whether state has met its burden of proof). It was as improper to ask the jury to convict in order to protect Taylor as it would be to ask them to use their verdict to protect themselves or society in general. See State v. Post, 512 N.W.2d 99, 103 (Minn. 1994) (holding it was improper to argue jury could use verdict to protect society from "the next individual with a gun in his hand"). But in this case, the jury would have had to believe that Batiste was the shooter in order to think it necessary to protect Taylor from him.
A new trial will not be granted for prosecutorial misconduct unless one of two standards is met. For cases involving "unusually serious" misconduct, the court may affirm only if it is certain beyond a reasonable doubt that the misconduct was harmless. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974). For cases involving less serious misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict. Id.
The prosecutor's single improper comment here, taken in the context of the entire argument, was not "unusually serious" misconduct. Moreover, the evidence of Batiste's guilt, including Taylor's identification; the identification, although less than certain, of a bystander; Batiste's motive and opportunity; the abundant evidence of his presence at the scene and his later flight to Florida and Louisiana; was particularly strong. The improper suggestion that the jury should protect Taylor from Batiste did not likely play a substantial part in influencing the jury to convict.