Opinion
No. C4-02-1094.
Filed May 13, 2003.
Appeal from the District Court, Olmsted County, File No. K901597.
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, and Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, (for respondent)
John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
On appeal from a conviction for kidnapping and aggravated robbery, appellant argues that the prosecutor committed prejudicial misconduct during closing arguments by impermissibly commenting on his post-arrest silence, inflaming the passions of the jury, and denigrating his theory of defense. Because the prosecutor's comment regarding appellant's post-arrest silence was harmless beyond a reasonable doubt, and because no other comments by the prosecutor during closing arguments constitute prejudicial misconduct, we affirm.
FACTS
Charles Bigelow rented a room in his home to Christine Webster. Webster, her boyfriend Jesse Pahl, and Pahl's friend appellant Patrick Eggerichs went to Bigelow's home in the early morning of February 21, 2001, to help Webster prepare to move out of Bigelow's home. Around 7 a.m., Bigelow awoke to find Webster in his bedroom asking for money. Bigelow gave her $100, but refused Webster's requests for more money.
According to Bigelow's testimony, a verbal and physical altercation then took place. Webster, Pahl, and Eggerichs threatened Bigelow and at some point Pahl shoved Bigelow to the floor. Bigelow attempted to escape by moving toward an exit and Eggerichs shoved him and Pahl punched him multiple times. Bigelow testified that Eggerichs then obtained a large knife from the kitchen and stood a few feet away from him while holding the knife blade down in his clenched fist. When Eggerichs put the knife down, Bigelow tried to escape from the home again but Eggerichs grabbed Bigelow and prevented him from leaving. Eggerichs and Paul then punched and kicked Bigelow in the face, stomach, back, and sides. Eggerichs took Bigelow's ATM card and obtained cash from two nearby ATM locations. Bigelow testified that when Eggerichs returned, Webster, Pahl, and Eggerichs took him to the basement and tied him to a chair.
After Webster, Pahl, and Eggerichs left the house, Bigelow was able to escape and he called the police from a neighbor's home. Webster and Pahl were arrested a few days later and they implicated Eggerichs in the crime. An arrest warrant was issued for Eggerichs and he was arrested in West Virginia and extradited to Minnesota. A jury convicted Eggerichs of first-degree aggravated robbery, terroristic threats, false imprisonment, and kidnapping. The district court vacated the terroristic threats and false imprisonment convictions and sentenced him to fifty-eight months for both the robbery and kidnapping offenses, to be served concurrently. Eggerichs appeals from the judgment of conviction on the basis of prosecutorial misconduct.
DECISION
The determination of whether a prosecutor engaged in prejudicial misconduct is largely within the discretion of the district court, and we will reverse only where the misconduct, viewed in light of the entire record, is of such serious and prejudicial nature that appellant's constitutional right to a fair trial was impaired. See State v. Johnson, 277 Minn. 230, 235-36, 152 N.W.2d 768, 772 (1967); see also State v. Guevara, 270 Minn. 356, 360, 133 N.W.2d 493, 495 (1965). If an argument is improper, its prejudicial effect is reviewed using a two-tier analysis that varies with the seriousness of the alleged improper argument. State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989). In cases involving serious prosecutorial misconduct, this court must determine beyond a reasonable doubt that the misconduct was harmless. Id. If the claim of misconduct arises out of the closing argument, this court considers the closing argument as a whole rather than focusing on particular "phrases or remarks that may be taken out of context or given undue prominence." State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993) (citing State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984).
Eggerichs alleges three instances of prosecutorial misconduct, only one of which triggered an objection. That objection was raised during the prosecutor's closing argument to a reference concerning Eggerichs's failure to give a complete post-arrest statement to police. Specifically, the prosecutor stated that it was "important to know" that Eggerichs chose not to give the police a complete statement after he was arrested. Post-arrest silence is ambiguous because a defendant has the right to remain silent. State v. Billups, 264 N.W.2d 137, 139 (Minn. 1978). Thus, it is fundamentally unfair for a prosecutor to comment on a defendant's failure to tell an arresting officer the version of events to which the defendant testifies at trial, because such a comment violates due process. Id. at 139.
The prosecutor's statement concerning Eggerichs's post-arrest silence was prosecutorial misconduct because it could lead a jury to infer that if Eggerichs was innocent he would have given the police a complete post-arrest statement about his involvement in the crimes committed against Bigelow. If the statement caused the jury to infer that Eggerichs was guilty of a crime, the jury may have disbelieved Eggerichs's testimony at trial that he was forced to participate in the crimes out of fear of harm from Pahl. Because Eggerichs had a fundamental right to remain silent after his arrest, the prosecutor's statement was serious misconduct. See State v. Combs, 292 Minn. 317, 322, 195 N.W.2d 176, 179 (1972) (stating that it is generally impermissible to comment on fundamental rights such as the defendant's decision to remain silent).
In determining whether prosecutorial misconduct during closing arguments constitutes harmless error beyond a reasonable doubt, this court has considered the following factors: (1) defense counsel's failure to object; (2) the district court's instructions; (3) the jury's verdict on other counts against the defendant; (4) the non-objectionable part of the closing argument; and (5) the strength of the evidence relating to the defendant's guilt. State v. Coleman, 560 N.W.2d 717, 722 (Minn.App. 1997). A prosecutor's misconduct is harmless beyond a reasonable doubt if the guilty verdict was surely unattributable to the misconduct. State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997).
The prosecutor's comment regarding Eggerichs's post-arrest silence was harmless error beyond a reasonable doubt. The defense did object to the statement, but the district court overruled the objection. The district court instructed the jury that it did not intend to indicate the weight to be given to evidence received over objection, and that the arguments or other remarks of the attorneys were not evidence. The court also instructed the jury that they must consider all of the evidence presented at trial, that Eggerichs should be presumed innocent unless he was proven guilty, and that the state had the burden of proving him guilty beyond a reasonable doubt. In addition, the prosecutor made the objectionable statement only once during the prosecution's 43 page closing argument.
Finally, there was ample evidence to sustain Eggerichs's conviction. Eggerichs admitted to participating in the assault against Bigelow, but claimed he only did so because he was afraid of Pahl. He specifically testified that he put his arms out twice when Bigelow tried to leave the home, and that one of those times Bigelow ran into his arms. Eggerichs also admitted that he helped tie Bigelow up, and that he used Bigelow's ATM card to obtain cash. Eggerichs testified that he never considered calling the police during the altercation and that he fled to West Virginia when it was over.
Bigelow testified in detail about Eggerichs's involvement in the incident, including that he prevented Bigelow's escape twice, physically assaulted him multiple times, and held a knife in a threatening manner during the altercation. In addition, a certified copy of Webster's guilty plea transcript was read into evidence. Webster states that Eggerichs encouraged her to obtained money from Bigelow, and that Eggerichs assaulted Bigelow. Webster also corroborated Bigelow's testimony that Eggerichs held a large knife during the altercation.
Because the district court adequately instructed the jury, the comment occurred only once during the prosecutor's lengthy closing argument, and because there was ample evidence in the record to support Eggerichs's conviction, the jury's guilty verdict was surely unattributable to the prosecutor's misconduct. Thus, the prosecutor's comment regarding Eggerichs's post-arrest silence was harmless beyond a reasonable doubt and a new trial is not required.
Eggerichs also argues that it was prejudicial misconduct for the prosecutor to refer to Eggerichs, Pahl, and Webster as a pack of wolves because the statements inflamed the passions and prejudices of the jury. A prosecutor may not inflame the passions and prejudices of the jury against a defendant. State v. Porter, 526 N.W.2d 359, 364-65 (Minn. 1995). But Eggerichs failed to object to these statements. When a defendant fails to object to a prosecutor's statement, the defendant forfeits their right to have the issue considered on appeal. State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999). A reviewing court may still reverse a conviction, however, if the prosecutor's comments were unduly prejudicial. State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984).
The prosecutor did refer to Eggerichs, Pahl, and Webster as a pack of wolves at the beginning of his closing argument. Specifically, the prosecutor described Pahl and Webster as the alpha male and female of a wolf pack, and Eggerichs as a member of the pack. The prosecutor used this analogy to suggest that just because Eggerichs was not the leader initiating the crimes, he was still liable for participating.
But Eggerichs's own attorney also used the wolf-pack analogy in his closing argument. His attorney stated that it was a "good analogy" because during the assault Pahl and Webster were "crazed," and "acting like wild animals" due to their drug use. In her closing, the defense attorney used the wolf analogy four times to suggest that Pahl, the "alpha wolf," would have harmed Eggerichs, the "weaker" member of the wolf pack, if Eggerichs did not participate in the crimes. While case law suggests that the jury's passions may be inflamed by an image of a defendant as a crazed animal that assaults another person, which is how the defense depicted Pahl and Webster, the prosecution did not depict Eggerichs in this manner. See State v. Merrill, 428 N.W.2d 361, 372 (Minn. 1988) (stating that characterizing a defendant as an animal is improper). Reading the closing argument as a whole, it is clear that the prosecutor was using the wolf-pack analogy just to illustrate for the jury that Eggerichs could still be criminally liable for participating in the crimes against Bigelow, even if he did not initiate them, because he was a willing participant in the group assault. The prosecutor's use of the wolf-pack analogy, therefore, was not misconduct.
Finally, Eggerichs argues that the prosecutor impermissibly denigrated his theory of defense. A prosecutor may "specifically argue that there was not merit to the defense," but the prosecutor is not allowed to belittle the defense in the abstract. State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994). The disputed statements occurred when the prosecutor said:
And the comment about the alpha dog and the alpha male, I did use that analogy. And the comment was, well, you know, in the wolf pack the alpha male kills the weak dogs. What would the defendant say? He wouldn't say he was killed. In fact, he said that he wasn't threatened by [Pahl] to do what he did until he says, well, you better get back or I'll get you. Well, that's kind of like you leave, drive away in the car and come back, [Pahl is] not killing him. [Pahl] never killed Patrick Eggerichs and in fact they left together, they went to another ATM machine, they tried to get more money. They tried to score drugs together. Then [Pahl] dropped him off at his cousin's house. That's not the alpha dog killing a weak dog. We know the pack wouldn't be a pack if the alpha dog killed all the weak dogs. And in fact, that is the definition of the alpha male. He's the strongest, but he doesn't kill all the weak dogs. And he didn't in this case.
Eggerichs also failed to object to these statements and a closer analysis shows that the statements were not misconduct. Through these statements, the prosecutor was merely trying to illustrate how Eggerichs's claim that he participated in the crimes out of fear of Pahl has no merit. The prosecutor pointed out that Eggerichs was not threatened by Pahl until he left to obtain Bigelow's money from an ATM, which was after Bigelow had been assaulted by Pahl and Eggerichs multiple times. The prosecutor also pointed out that Pahl and Eggerichs were getting along after they left the scene of the crime, as evidenced by their attempts to steal more money from Bigelow, obtain drugs together, and Pahl's willingness to drop Eggerichs off at his cousin's house. The prosecutor used the evidence presented at trial to show that Eggerichs was a willing and equal participant in the crime, rather than a person operating out of fear of imminent harm from Pahl. Because the statements do not belittle Eggerichs's theory of defense in the abstract, they were not misconduct.