IN COURT OF APPEALS
State of Minnesota,
David S. Hobbs,
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 04048710
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Benjamin J. Butler,
Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.
The submission to a jury of the issue of dangerousness to public safety under former Minn. Stat. § 609.1095, subd. 2 (2002), was error because it was not authorized by the language of the statute in effect at the time of the offense.
Appellant challenges his conviction on the basis of prosecutorial misconduct and challenges his sentence on several grounds. Because any prosecutorial misconduct was not unduly prejudicial and because appellant failed to object at trial, we affirm appellant’s conviction. But because we conclude the district court erred by submitting interrogatories on the statutory sentencing factors to the jury, we reverse and remand appellant’s sentence.
a home break-in, appellant David S. Hobbs was found close by, recognized by
police as the intruder, and charged with burglary in the first degree, a
violation of Minn. Stat. § 609.582, subds. 1(a), 1a (2002). At a pretrial hearing the day before trial,
the state indicated its intention to request that appellant be sentenced under
Minn. Stat. § 609.1095, subd. 2 (2002), authorizing upward durational
departures for offenders who have a history of violent crime. Based on
Blakely v. Washington, 542
During the trial, the prosecutor criticized a defense witness, spoke favorably of a state’s witness, discussed the jury’s role as fact-finder, and urged conviction. Appellant did not object to the prosecutor’s statements. The jury found appellant guilty of burglary in the first degree. The district court indicated that it would reconvene the jury to consider factors set forth in Minn. Stat. § 609.1095, subd. 2 (2002), that affect the length of the sentence. Appellant again objected to the sentencing jury procedure and moved for imposition of the presumptive sentence. The motion was denied and the jury was reconvened. The jury found that appellant met the requirements for an upward durational sentence departure as a danger to public safety, and the district court sentenced appellant to 90 months in prison, an upward durational departure. This appeal follows.
1. Did unobjected-to, improper statements of the prosecution impair appellant’s right to a fair trial?
2. Did the district court err in reconvening the jury to consider a sentencing issue?
The first issue is
whether appellant’s conviction should be reversed because of prosecutorial
misconduct. This court will reverse a
conviction due to prosecutorial misconduct at trial only if the misconduct,
“when considered in light of the whole trial, impaired the defendant’s right to
a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (
appellant did not object at trial to any of the conduct that he now asserts as
grounds for reversal. Generally, a party
waives any challenge to the alleged misconduct on appeal by failing to object
or seek a cautionary instruction. State v. Ture, 353 N.W.2d 502, 516 (
first argues that the prosecutor improperly belittled appellant’s defense. Disparaging the defense or its witnesses is
prosecutorial misconduct. State v. Bailey, 677 N.W.2d 380, 403-04
next argues that the state misstated the burden of proof and implied its shift
to the defense. The Minnesota Supreme
Court has held that it is prosecutorial misconduct to indicate that the jury
should make its decision based on which version of the facts is the most
“reasonable.” State v. Strommen, 648 N.W.2d 681, 690 (
Here, the prosecutor stated in his closing argument, “You have a choice to make here.” Nothing about this statement improperly implies an incorrect standard the jury should use. The prosecutor also discussed the possibility of disbelieving one of the state’s witnesses and stated that the jury should
consider the significance of [disbelieving the state’s witness] with the utmost care, because that is a major, major leap of faith to take on behalf of a defendant whose witness who testified is somebody who has got three prior felonies.
Neither of these statements constitutes prosecutorial misconduct, and even if they did, appellant was not so prejudiced as to require reversal.
also argues that the prosecutor improperly inserted his opinion into his
closing argument. It is misconduct for a
prosecutor to state his personal opinion in his argument to the jury because of
the potential for “exploitation of the influence of the prosecutor’s
office.” State v. Blanche, 696 N.W.2d 351, 375 (
Appellant finally argues that the prosecutor improperly reinforced the credibility of a state witness. It is prosecutorial misconduct to bolster the credibility of the state’s witnesses with the prosecutor’s own opinion: an advocate “may not throw onto the scales of credibility the weight of his own personal opinion.” Ture, 353 N.W.2d at 516. In Ture, the prosecutor referred to his own witnesses as
being ‘honest,’ ‘a woman of integrity,’ ‘honest detectives,’ and ‘honest police officers.’ [That prosecutor] extolled the police officers as ‘not the kind of officers who are going to get up here, take the stand, take the oath and tell you something if it isn’t true.’
Here, the prosecutor commented on the credibility of one of the state’s witnesses, a police officer:
She is a police officer who has no interest in the outcome of this case. She came in, she told you the truth. She told you what she saw, what happened. . . . Well, she came in here and she testified very clearly and subject to cross-examination what it was she saw.
Merely arguing that the witness has no interest in the case and highlighting that the witness’s testimony was subjected to review under cross-examination is not interjecting the prosecutor’s opinion into the credibility analysis. But under Ture, the statements “she told you the truth” and “she told you what she saw” were improper and constitute prosecutorial misconduct. See id. at 516. Credibility determinations are to be left to the jury. See id. But based on appellant’s failure to object to the statement, we conclude that appellant was not so prejudiced that reversal of appellant’s conviction is required. We further conclude that to the extent the various statements were improper, their cumulative effect was not so prejudicial as to require reversal.
second issue is whether the district court erred by submitting interrogatories
to the jury on the findings required for an upward durational departure under
Minn. Stat. § 609.1095, subd. 2 (2002). In Blakely
v. Washington, the United States Supreme Court held that, under the Sixth
Amendment, a district court can only impose the maximum sentence warranted by
facts determined by a jury or admitted by the defendant. 542
application of Blakely in this setting
Minn. Stat. § 609.1095, subd. 2 (2002) authorizes upward durational departures in sentencing if
(1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and
(2) the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding . . . .
The district court attempted to avoid
the obvious constitutional problem with section 609.1095, subdivision 2, by
submitting questions regarding the enhancement factors to the jury. But the Minnesota Supreme Court considered
the remedy of remanding an unconstitutional sentence for the district court to empanel
a sentencing jury and stated: “For us to engraft sentencing-jury or
bifurcated-trial requirements onto the Sentencing Guidelines and sentencing
statutes would require rewriting them, something our severance jurisprudence
does not permit.” Shattuck, 704 N.W.2d at 148.
The Shattuck court explicitly
stated that it did not “foreclose the district court from considering any
constitutionally applicable and/or available laws on remand.”
thus reverse appellant’s sentence and remand for sentencing consistent with the
presumptive sentence in the Minnesota Sentencing Guidelines. We note that this decision will have a
limited impact for two reasons. First,
the legislative amendments to Minn. Stat. § 609.1095, subd. 2(2),
effective August 1, 2005, authorize the trier of fact, as opposed to the court,
to determine the enhancement factors.
Appellant also argues that he received insufficient notice of the state’s intent to seek a sentence under section 609.1095, subdivision 2, that the district court should have declined to define burglary as a violent crime under the statute, and that the district court should have defined “danger to public safety.” Because we reverse on the basis that it was improper for the district court to submit interrogatories to the jury on the section 609.1095, subdivision 2 enhancement factors, we do not reach these arguments.
D E C I S I O N
We conclude that in considering the trial as a whole, the prosecutorial misconduct was not unduly prejudicial and did not substantially influence the verdict. We further conclude that the district court could not avoid the Blakely infirmity in Minn. Stat. § 609.1095, subd. 2 (2002) by empanelling a sentencing jury. The matter is remanded for
resentencing to the presumptive sentence under the Minnesota Sentencing Guidelines without consideration of an aggravating factor.
Affirmed in part, reversed in part, and remanded.
 Cf. State
v. Montjoy, 366 N.W.2d 103, 110-11 (