This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







State of Minnesota,





Richard Raynell Kelley,




Filed August 1, 2000


Anderson, Judge


Hennepin County District Court

File No. 99027487


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


Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C2000 Government Center, Minneapolis, MN  55487 (for respondent)


Rochelle Winn, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of third-degree assault, arguing that the prosecutor engaged in serious misconduct during cross-examination.  Appellant contends that he did not receive a fair trial because the prosecutor attempted to elicit evidence of prior bad acts.  We disagree and affirm.


In March 1999, appellant Richard Kelley lived at Pursuit House, a boarding house that prohibits disorderly conduct and the use of drugs or alcohol.  On March 22, 1999, appellant misplaced his keys and asked the security guard for a replacement set.   The guard refused but offered to unlock appellant’s apartment door.  Appellant was upset, but agreed.  On the way to the apartment, appellant continued to complain about not being given a replacement set of keys.  The guard then decided to put appellant out for the night because of his confrontational behavior.  When they arrived at the apartment, appellant stood with his face two inches from the security guard’s face and refused to leave.  The security guard pushed appellant away from him and a fight ensued.  Appellant choked the security guard with a baton and hit him on the back of the head twice. 

The state charged appellant with of third-degree assault in violation of Minn.Stat. § 609.223, subd. 1 (1998).  At trial, the prosecutor asked appellant the following question: “From November of 1998 to the time of this incident, March 22, 1999, had you had any other incidents with security staff at Pursuit House?”  The judge sustained an objection by defense counsel.  Defense counsel refused the court’s offer for a curative instruction and moved for a mistrial, which the court denied.  The jury found appellant guilty.  Appellant challenges his conviction and requests a new trial.


Appellant asserts that the prosecutor committed misconduct by asking a question designed to elicit evidence of prior bad acts.  The determination of whether a prosecutor committed misconduct and whether any misconduct was prejudicial generally lies within district court’s discretion because the district court is in the best position to measure the effect of the alleged misconduct.  State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999).  The district court's determination should be reversed where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied.  State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (citation omitted).

Appellant contends that the prosecutor committed misconduct by asking the following question: “From November of 1998 to the time of this incident, March 22,1999, had you had any other incidents with security staff at Pursuit House?”  Appellant argues that (1) there was no factual basis for this question; (2) the prosecution asked this question to improperly elicit evidence of other bad acts; and (3) although unanswered, this question left the impression that appellant had been involved in other altercations with Pursuit House security.

It is prejudicial when a prosecutor “makes damning accusations in the cross-examination which are wholly unsupported by the evidence * * *.”  State v. Flowers, 262 Minn. 164, 170, 114 N.W.2d 78, 82 (Minn. 1962).  Further, a prosecutor should not knowingly and for the purpose of bringing inadmissible evidence to the attention of the jury “offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.”  State v. Richardson, 514 N.W.2d 573, 577 (Minn. App. 1994) (citation omitted).  The prosecutor’s question refers to appellant’s statement to the police made on the day of the assault.  In that statement appellant told the police that he had previous interactions with Pursuit House security guards; one incident involved appellant observing the security guards with another tenant and the second incident dealt with tenant harassment.  The record shows that the prosecutor’s question had a basis in fact and was not asked for an improper purpose.  

 Additionally, respondent did not ask for a curative instruction and refused a curative instruction when it was offered by the district court.  The Minnesota Supreme Court has explained that:

[c]arefully worded instructions by the trial court can ameliorate the effect of improper prosecutorial argument.   Therefore, a defense counsel's failure to object or to request curative instructions normally weighs heavily in our decision whether or not to reverse on the basis of prosecutorial misconduct *** .


State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984) (discussing prosecutorial misconduct during closing arguments).  Appellant argues that the question was so egregious that a curative instruction would not have been sufficient to remedy the damage.  We disagree.  The question had a basis in the record and was asked to rebut appellant’s reliance on the doctrine of self-defense.  A curative instruction would have been sufficient to remedy any improper inferences that the jury might have drawn.

 We do not believe that the prosecutor’s actions constituted misconduct, but even if we had, his actions do not rise to the level requiring a new trial.  Prosecutorial misconduct alone does not require that the defendant be granted a new trial.  State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).  If misconduct has been established, we must then determine whether the defendant was denied a fair trial.  IdIn cases involving “unusually serious prosecutorial misconduct,” a reviewing court must be certain beyond a reasonable doubt that the misconduct was harmless before it will affirm.  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).  In cases involving less serious prosecutorial misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict.  Id.  If it can fairly be said that the misconduct was harmless beyond a reasonable doubt the defendant is not entitled to a new trial.  Porter, 526 N.W.2d at 365.

Appellant has not established misconduct, much less misconduct that requires a new trial.  The prosecutor’s question in no way rises to the level of serious misconduct.  See State v. Streeter, 377 N.W.2d 498, 503 (Minn. App. 1985) (finding serious misconduct when “the persistent, improper characterization of the evidence [a police officer’s testimony] as ‘uncontradicted’” when the defendant, who is not required to present evidence, was the only person who could contradict the evidence).  Further, appellant is unable to show that the prosecutor’s question had a substantial impact on the jury’s decision.  Appellant admitted to hitting the security guard but claimed to have done so in self-defense.  Appellant testified that he maintained his hold on the baton and that the struggle caused him to press the baton against the security guard’s throat.   Appellant also testified that he only hit the security guard on the head as a defense to the guard elbowing him in the stomach.  But the evidence shows that appellant hit the security guard on the back of the head, twice.  There is sufficient evidence in the record to support the conviction and any misconduct was harmless beyond a reasonable doubt.