Opinion
No. A04-293.
Filed October 25, 2005.
Appeal from the District Court, Clay County, File No. K7-03-1370.
Mike Hatch, Attorney General, and Lisa Nelson Borgen, Clay County Attorney, Jenny Marie Samarzja, Ass't Clay County Attorney, (for respondent).
Michael Clinton Davis, Special Assistant State Public Defender, (for appellant).
Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
On appeal from convictions of assault in the second degree with a dangerous weapon, terroristic threats, violation of an order of protection, and obstructing arrest, appellant argues that the prosecutor committed prejudicial misconduct during opening statements and closing arguments. Because we find no reversible error, we affirm.
FACTS
On July 21, 2003, appellant was charged with assault in the second degree with a dangerous weapon, terroristic threats, violation of an order of protection, obstructing arrest, and assault in the fifth degree for an incident that occurred on July 19, 2003, when appellant assaulted his ex-girlfriend. A jury trial commenced on September 16, 2003. During opening statements, the prosecutor made the following statement: "Now, the case is about people in our community who are not your neighbors and not your friends. You might have a difficult time understanding how people live the way they live and some of the facts that are going to be coming out in this case." Further, during closing argument, the prosecutor stated: "[the victim] might not be the model citizen, the neighbor that you know, someone that you would associate with, but she's a woman that deserves to be treated with respect like everybody else." On September 17, 2003, appellant was found guilty. On appeal, appellant argues that the prosecutor engaged in prejudicial misconduct by the statements made during opening statements and closing arguments.
DECISION
Generally, a defendant waives his right to raise the issue of prosecutorial misconduct on appeal when he fails to object or to seek a curative instruction at trial. State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001). Relief may be granted in the absence of a timely objection only in cases involving plain error: an error "so prejudicial to the defendant's right to a fair trial, that the defendant's failure to object — and thereby present the trial court with an opportunity to avoid prejudice — should not forfeit his right to a remedy." Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996). The failure to object implies that the defendant found nothing improper in the argument. State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983). Appellant did not object to the prosecutor's opening and closing arguments at the time of trial. Appellant has, therefore, waived his right to raise the issue of prosecutorial misconduct on appeal unless there was an error so prejudicial it impeded appellant's right to a fair trial.
The Minnesota Supreme Court has held:
It is proper for a prosecutor to talk about what the victim suffers and to talk about accountability, in order to help persuade the jury not to return a verdict based on sympathy for the defendant, but the prosecutor should not emphasize accountability to such an extent as to divert the jury's attention from its true role of deciding whether the state has met its burden of proving defendant guilty beyond a reasonable doubt.
State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985). In reviewing a prosecutor's statements, this court looks at the prosecutor's arguments "as a whole, rather than just selective 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).
While appellant contends that the statements made by the prosecutor during the opening and closing arguments were racially motivated, respondent argues that the statements were made merely as a way to "prepare the jury for evidence of an unfamiliar world. . . ." State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000) (holding that comments were appropriate where the jury may not be familiar with the unfamiliar world involving drugs.) While this case does not involve drugs, it does deal with the unfamiliar world of chronic alcoholism and serious domestic violence, which are concepts that can be as alien to an average jury pool as illegal drugs. The prosecutor's statements were made in the context of trying to prepare the jury for the harsh facts that were about to be presented and to explain to the jury the problems the victim suffered from — alcoholism and domestic violence.
Based on the record, there was ample evidence in this case to convict appellant. Even if the brief comments made during the prosecutor's opening and closing arguments rose to the level of misconduct, it is unlikely that the comments had a substantial impact on the jury. See, e.g., State v. Powers, 654 N.W.2d 667, 679 (Minn. 2003) (noting that the improper statement in closing argument was only two sentences in a closing argument that amounted to over 20 transcribed pages). Here, taken in the context of the opening statements and closing arguments considered as a whole, the prosecutor's remarks about appellant's responsibility did not prejudice his right to a fair trial. Finally, we have considered the arguments raised by appellant in his pro se supplemental brief and conclude that they do not provide a basis for relief