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State v. Burnett

Minnesota Court of Appeals
Mar 23, 1999
No. C4-98-1168 (Minn. Ct. App. Mar. 23, 1999)

Opinion

No. C4-98-1168.

Filed March 23, 1999.

Appeal from the District Court, Redwood County, File No. C1-97-322.

Michael A. Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, and Michelle Dietrich, Redwood County Attorney, (for respondent).

John M. Stuart, State Public Defender, D. Adrian Bryan, Assistant State Public Defender, (for appellant).

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.


This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).


UNPUBLISHED OPINION


Following a jury trial, appellant James Lee Burnett was convicted of three counts of aiding and abetting a controlled substance crime and three counts of conspiracy to commit a third-degree controlled substance crime under Minn. Stat. §§ 152.023, subd. 1(1), 152.096, 609.05 (1996). The offenses underlying Burnett's convictions occurred in Redwood County on three separate dates, November 3, November 5, and November 25, 1996. On each date, Burnett acted as a "middle man" and assisted an undercover officer in purchasing 1.5, 3.5, and .5 grams of cocaine, respectively.

In this appeal, Burnett claims that the prosecutor committed prejudicial misconduct when she stated at the end of her closing argument: "Don't let him get away with it. Don't let him get away with helping sell drugs, sell cocaine in Redwood County." We affirm because when viewed in the context of the whole trial, the prosecutor's comments did not deny Burnett a fair trial.

DECISION

By neither objecting to the prosecutor's statements nor seeking a curative instruction, Burnett effectively "waive[d] his right to challenge [the] prosecutor's closing argument." State v. Griese , 565 N.W.2d 419, 427 (Minn. 1997); see State v. Whittaker , 568 N.W.2d 440, 450 (Minn. 1997) (while court may reverse conviction despite defendant's failure to object if prosecutor's misconduct was "unduly prejudicial," defendant's failure to object necessarily implies that comments were not prejudicial). In any event, attorneys for both sides addressed the proper burden of proof in their closing arguments and the jury instructions stated the proper burden of proof. Thus, the isolated comments of the prosecutor, which were made at the end of a three-day trial, had little or no effect on Burnett's trial. See State v. Buggs , 581 N.W.2d 329, 341-42 (Minn. 1998) (where verdict "surely" not attributable to prosecutorial misconduct, defendant not entitled to new trial); Griese , 565 N.W.2d at 428 (where misconduct was "limited" and did not permeate closing argument, court will not reverse defendant's conviction); State v. Thaggard , 527 N.W.2d 804, 812 (Minn. 1995) (although incorrect statement of burden of proof, prosecutor's repeated statement that jury's role was to "determine if the evidence was sufficient to convict" did not deny defendant fair trial).

In his pro se brief, Burnett echoes the prosecutorial misconduct claim made by the public defender and also argues that the prosecutor committed misconduct by failing to allow him "to submit information about the 1997 interview into evidence at trial." The decision whether to admit evidence at trial is made by the court, not the prosecutor. Caldwell v. State , 347 N.W.2d 824, 826 (Minn.App. 1984). Thus, Burnett's evidentiary claim is without merit.

Affirmed.


Summaries of

State v. Burnett

Minnesota Court of Appeals
Mar 23, 1999
No. C4-98-1168 (Minn. Ct. App. Mar. 23, 1999)
Case details for

State v. Burnett

Case Details

Full title:State of Minnesota, Respondent, v. James Lee Burnett, Appellant

Court:Minnesota Court of Appeals

Date published: Mar 23, 1999

Citations

No. C4-98-1168 (Minn. Ct. App. Mar. 23, 1999)

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