This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-591

State of Minnesota,
Respondent,

vs.

Abdallah Adam Osman,
Appellant.

Filed February 29, 2000
Affirmed
Randall, Judge

Hennepin County District Court
File No. 98091374

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

Appellant challenges his conviction for attempted second-degree murder and first- and second-degree assault, arguing the prosecutor engaged in serious misconduct during closing argument. Appellant contends that the prosecutor pursued an implicit theme that appellant bore some burden of proof by stating that certain facts presented by the state were uncontroverted. We affirm.

FACTS

Appellant Abdallah Adam Osman lived with his girlfriend in an apartment complex in Minneapolis. They lived just below Richard Leffler and his long-time girlfriend, Diane Brutger. The two couples were occasional social guests of one another.

On September 9, 1998, Leffler and his friend Dave Anderson stopped by a local bar for a few beers. They purchased an 18-pack and then went to Leffler's apartment. Brutger stated that Leffler and Anderson arrived at the apartment at approximately 8:00 p.m., and Leffler did not appear to be intoxicated at the time. The three sat at the kitchen table, drinking beer and talking.

During the conversation, Brutger informed Leffler that three nights earlier, she awoke to find Osman sitting on her bed. She yelled at Osman, and when he stood up, his pants fell down. Brutger escorted Osman to the door, telling him that he had scared her. According to Brutger, Leffler was calm when she told him the story. After hearing the story, Leffler told Brutger that they would no longer socialize with Osman and that he wanted to go down and speak with him. Leffler then left the apartment.

The state presented evidence that Leffler went to Osman's door and asked him to come out. Osman replied that he would speak only behind a closed door. According to Brutger, who testified that she could hear what ensued between Osman and Leffler, she heard no additional conversation, no slamming doors, and no scuffling or fighting between the two men. She estimated that Leffler was gone for only a few minutes and that he was calm when he returned.

Brutger and Anderson testified that shortly after Leffler returned to the apartment, Osman came to the door and began yelling that he was ready to fight. Leffler left the apartment. Approximately thirty seconds after Leffler left the apartment, Anderson followed him into the hallway. Anderson stated that he saw Leffler standing on the steps just above the landing between the second and third floors and that Osman was standing on the landing. Osman yelled, "I kill you, I kill you!" and then stabbed Leffler twice in the mid-section. Osman fled, taking the knife he had used, but losing the hat that he had been wearing. Anderson described the knife as a butcher knife with a blade 8-10 inches long. Brutger testified that as she entered the hallway, she saw Leffler turning towards her with blood streaming from his upper thigh region. Osman was standing nearby, holding a knife.

Anderson helped Leffler back to the apartment, where Brutger called 911. When the police arrived they were unable to find Osman after searching the building and his apartment. A short time later, neighbors spotted Osman walking toward the apartment and informed the police. He was then arrested. The police did not find a knife on Osman's person, and they did not search his apartment or the area surrounding the building for the knife. The only knife recovered by police was a folding knife with a four-inch blade that they found on a table in Leffler's apartment.

During trial, Osman introduced evidence indicating that he acted in self-defense. According to one of the arresting officers, a neighbor yelled, "Abdallah, why did you do that[?]" Osman responded, saying that he had a right to defend himself and "they busted down my door and they tried to beat me up." As Osman was being transported to the jail, Osman stated that Leffler and Anderson were drunk; they came to his apartment and beat on the door; when he opened the door, they began yelling "get the nigger"; they brought knives to his apartment; he got the knife away from Leffler, chased him out of the apartment, and then stabbed him; and he fled the apartment building after Anderson jumped on his back.

During questioning the next morning, Osman stated that he had been visiting friends and when he returned, Leffler, who sounded drunk, came banging on his door to the point it cracked. Leffler stood outside, yelling racial epithets and telling him to come out so he could kill him. When Osman opened the door, Leffler punched him, knocking him backwards. Osman pushed Leffler back and chased him out of the apartment with a stick he used for protection. As the two ascended the stairs, Anderson tossed a long, wooden folding knife to Leffler, stating, "get the nigger." Leffler turned, knocked Osman to the ground, and jumped on him. Osman then grabbed the knife and stabbed Leffler with it.

The evidence at trial showed that Leffler sustained four stab wounds. He suffered a left groin puncture to his bladder that partially transected his femoral vein, which would have been fatal if untreated; a wound to the abdomen that required the removal of a portion of his large intestine and his right kidney; a wound to his lateral thigh that damaged the peronal nerve, causing his foot to drag as he walked; and a wound to the arm. Leffler spent nearly a month in the hospital and at the time of trial was in a nursing home receiving physical and occupational therapy.

D E C I S I O N

Osman argues that the prosecutor engaged in serious misconduct during closing argument by improperly characterizing the state's evidence as "uncontradicted." Osman contends this impermissibly burdened his right to remain silent under the federal and state constitutions.

During his closing argument, the prosecutor stated:

What occurred there on September 9, 1998, here in Minneapolis, Hennepin County, was a stabbing; a ruthless, brutal stabbing of Richard Leffler by the defendant, Abdallah Osman. There is no evidence in this case suggesting to the contrary. There is no evidence to suggest that anyone else stabbed Richard Leffler. There is no evidence to suggest that Mr. Leffler was stabbed less than four times. There's no evidence in this case to suggest that Mr. Leffler suffered anything less than great catastrophic bodily injury.

Later, the prosecutor commented regarding the stick Osman claimed he used to defend himself from Leffler and the credibility of Brutger's and Anderson's testimony:

"And then I took the stick and I run upstairs." That is the defendant talking. "Then I took the stick and I run upstairs." Where's the stick? You didn't hear any testimony about a stick. I suppose it's possible that Brutger and Anderson hid the stick. Why? It's not their stick. Where's the stick? How does the defendant get hit while he's holding a stick?

* * * *

And when you are left with it, when you listen to it, what you decide is, is that yeah, Diane Brutger's testimony is factual. Dave Anderson's testimony is factual. They donít have an agenda against the defendant. You didn't hear any testimony about any kind of motive to lie against him, to come in here and make up some story, to try to make the defendant accountable for something. You didn't hear anything about that. What you did hear though, is that the medical and physical testimony is entirely consistent with what they said, but the physical testimony as presented at the scene is not consistent with what the defendant said, and there are remarkable inconsistencies in his statement and remarkable improbabilities and impossibilities pertaining to his statement.

These comments comprised six sentences in 20 pages of transcript.

Although Osman contends these comments were improper, defense counsel failed to object. "[D]efense counsel has a duty to promptly object and ask for a curative instruction when the prosecutor makes improper statements in closing arguments." State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). Generally, the right to raise the issue of prosecutorial misconduct is waived by a defendant on appeal if he fails to object or to seek cautionary instructions. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). The failure to object implies the defense found nothing improper in the argument. State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983). The fact that no objections were made below and no curative instructions were requested "weighs heavily in [the reviewing court's] decision whether or not to reverse on the basis of prosecutorial misconduct in closing argument." Brown, 348 N.W.2d at 747.

A reviewing court may, however, reverse a conviction even when the defendant failed to preserve the issue on appeal if the prosecution's comments are unduly prejudicial. Parker, 353 N.W.2d at 128. The question asked is "whether the improper comment likely played a substantial part in influencing the jury to convict." State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988) (footnote omitted) (citation omitted).

First of all, as argued by appellant, it is improper for a prosecutor to describe the state's evidence as "uncontradicted." "A prosecutor may not comment on a defendant's failure to call witnesses or to contradict testimony." State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (citation omitted). A jury can regard this as a direct reference to the defendant's silence when the defendant is the only person who could be expected to challenge the state's evidence. State v. Streeter, 377 N.W.2d 498, 501 (Minn. App. 1985). That somehow conveys an inference to a jury that a defendant is obligated to prove facts. State v. Streeter, 377 N.W.2d 498, 501 (Minn. App. 1985); State v. Snyder, 375 N.W.2d 518, 523 (Minn. App. 1985), review denied (Minn. Dec. 13, 1985). Nevertheless, such comments do not always mandate a reversal "if they were not extensive and did not emphasize defendant's silence per se as a basis for conviction." Id. (citation omitted). When reviewing the claim, a reviewing court will ask whether "'absent the prosecutor's allusion to the failure of the defense to proffer evidence to rebut the testimony of the victims,'" it is clear beyond a reasonable doubt the jury would have returned a guilty verdict. State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991) (quoting United States v. Hasting, 461 U.S. 499, 510-11, 103 S. Ct. 1974, 1981 (1983)).

In Snyder, the prosecutor made comments nearly identical with those found in the present case. In that case, defendant was convicted of second-degree assault for pointing a loaded gun at a police officer. Snyder, 375 N.W.2d at 520-21. During closing argument the prosecutor stated that "'[t]here is no testimony to contradict that direct testimony [of the police officer].'" Id. at 523. The prosecutor continued, stating, "'In considering that you should consider the evidence of the officer and the lack of evidence of any other witness.'" Id. This court concluded that the prosecutor's comments regarding "uncontroverted" evidence were not so prejudicial as to constitute reversible error. Id. In effect, error, but not reversible error.

Osman contends it was improper for the prosecutor to comment that there was no testimony to the contrary that the stabbing was ruthless and brutal, Osman was the only person who could have stabbed Leffler, and Leffler suffered "great catastrophic bodily injury." However, these facts are basically not in dispute. Osman conceded the fact that he stabbed Leffler, and argued self-defense. It is within the bounds of closing argument by a prosecutor to characterize an act as ruthless or brutal. Here it was proper to argue that Osman was the only person to have committed the act charged. During closing argument, Osmanís defense counsel conceded the element of great bodily harm

But for sheer luck, Mr. Osman ended with the knife, stabbed Mr. Leffler in such a way that did harm [Leffler], great bodily harm. We do not dispute that.

The comments with regard to Brutger and Anderson go to any motive they might have had to testify against Osman. The comment regarding the stick Osman claimed he used to fend off Leffler was an attempt by the prosecutor to point out that Osman's version of events did not explain the lack of physical evidence at the scene of the crime.

The evidence against Osman was there. Anderson testified that he saw Osman stab Leffler twice in the midsection. Brutger testified that she recognized the knife held by Osman as one she had used three weeks earlier to cut pizza when she and Leffler were visiting Osman's apartment. In addition, Leffler, Brutger, and Anderson all testified that it was Osman who came to Leffler's apartment and instigated the altercation and not Leffler. The arresting officer also testified that Osman stated that he stabbed Leffler after chasing him out of his (Osman's) apartment. Given the strength of the overall case, it is unlikely that the improper comment by the prosecutor substantially enhanced the possibility that a not guilty verdict was turned into a guilty one.

Osman argues that the prosecutor's comments improperly shifted the burden of proof on his claim of self-defense. Once the issue of self-defense is raised, the state has the burden of proving beyond a reasonable doubt that defendant did not act in self-defense. State v. McKissic, 415 N.W.2d 341, 344 (Minn. App. 1987). Osman contends that the prosecutor's comments led the jury to believe that it was his burden to prove that he acted in self-defense. We conclude that the prosecutor's comments did not impermissibly shift the burden of proof. Osman relies primarily on the testimony of the arresting officer to support his claim of self-defense. The officer testified that while being transported to the jail, Osman stated that Leffler assaulted him in his apartment, but that he was able to fend Leffler off using a stick. According to the officer, Osman stated that he then chased Leffler out of the apartment and stabbed him. The fourth element of self-defense requires that the defendant lack "a reasonable possibility of retreat to avoid the danger." Id. By chasing Leffler into the hallway and stabbing him, the jury could conclude that Osman had a "safe harbor" but chose to become the aggressor. This weakens Osman's claim that he acted in self-defense. We conclude a new trial is not warranted. See Porter, 526 N.W.2d at 365 (holding defendant is not entitled to new trial if misconduct is harmless beyond reasonable doubt).

In conclusion, some of the prosecutor's comments complained about were improper, but they were not extensive. They did not emphasize Osman's silence as the basis on which to convict him. Further, the fact that defense counsel did not object to the comments or seek a curative instruction weakens Osmanís argument that the comments were substantially prejudicial and should mandate a new trial.

Affirmed.