This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Dakota County District Court
File No. K699140
Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and
James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
John M. Stuart, State Public Defender, Scott G. Swanson, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.
Appellant Vinath Xayavong seeks reversal of a second-degree assault conviction, claiming that the prosecutor committed misconduct in cross-examining appellant and in explaining the concept of reasonable doubt to the jury that decided the case. Finding no plain error, we affirm.
Ryan Keenan was using a pay phone when he was mugged by two individuals, one of whom hit him in the head with a hammer. The subsequent assault prosecution against appellant rested principally on the testimony of Keenan, who had identified appellant as one of the parties who committed the offense.
During the defense cross-examination of the investigating police officer, counsel inquired regarding information the officer had obtained from appellant’s girlfriend. This girlfriend’s observations to police arose again when appellant was cross-examined, the prosecutor asking appellant whether he disputed the girlfriend’s testimony that he had been away from their home on the afternoon of the offense and in the company of a man who drove a white sports car, similar to the car identified as the transportation for the assailants. On appeal, appellant characterizes this questioning as “were-they-lying” questions, which the supreme court has identified as impermissible in many circumstances. See State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) (“as a general rule, ‘were they lying’ questions have no probative value and are improper and argumentative,” but there may be situations where such questions have probative value and would not constitute error).
In the closing argument, the state’s attorney equated the absence of reasonable doubt as equivalent to being 75% sure appellant was guilty. The trial court had previously instructed the jury that “[p]roof beyond a reasonable doubt is such proof as ordinarily prudent men and women would act upon in their most important affairs.” The court added traditional advice that reasonable doubt is a doubt “based upon reason and common sense,” not merely “fanciful or capricious,” and that proof need not be “beyond all possibility of doubt.” The jury was also instructed that if an attorney made a statement of the law that differed from the law given by the judge, that the jury should disregard the attorney’s statements and accept the judge’s pronouncement of the law.
In both instances, the issues identified on appeal represent objections that were not presented to the trial court. As such, this court reviews only for plain error that affects substantial rights of the appellant. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).
1. Cross-examination of appellant
Appellant contends he was asked impermissible “were-they-lying” questions. Respondent correctly contends this is a mischaracterization of the questions. Unlike situations of objectionable questions of this kind, there is no evidence in this case of a conflicting stance of appellant and other witnesses, followed by an attempt by the prosecutor to highlight the contradiction by insisting the appellant accuse others of lying. In contrast, the questioning of appellant in this instance was in the nature of open inquiry, an effort to determine whether appellant took a position different from statements of his girlfriend, which earlier had been described by the police officer and were expected to be detailed in later testimony of the woman herself. Significantly, appellant elected against taking a position on the undisputed testimony of his girlfriend and withholds even on appeal any claim that her testimony needs to be questioned.
Also, under Minnesota law, there is no blanket rule that prohibits the use of “were-they-lying” questions. See Pilot, 595 N.W.2d at 518. There remains some level of trial court discretion in determining the proper scope of the cross-examination of a defendant. See id. Under the circumstances of this case, appellant has not shown a plain error that affected his substantial rights.
2. Closing argument
Appellant asserts that the prosecutor committed misconduct requiring reversal by using percentages to quantify the concept of “reasonable doubt’ during his closing argument. Except for the misstatement on the concept of percentages as reasonable doubt, the prosecutor’s argument as a whole was correct on the burden of proof.
The significance of appellant’s argument is diminished by the trial court’s instructions to the jury, both on the state’s burden of proof and on statements of counsel that conflict with the law described by the court. And where misconduct was “less serious,” the error is measured by “whether the misconduct played a substantial part in influencing the jury to convict.” State v. Coleman, 560 N.W.2d 717, 722 (Minn. App. 1997). We are to presume that the jury followed the judge’s instructions. State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998).
There was no plain error in this case that affected substantial rights of appellant. The technical error is ultimately “less serious,” and the record does not suggest that it played a substantial part in influencing the jury to convict. In addition to our recognition that the trial judge’s instructions were important, we observe that the state’s case was established by the unequivocal testimony of the victim and was corroborated by the undisputed testimony of appellant’s girlfriend that, on the day of the assault, appellant was in a car similar to that identified as used by the perpetrators of the assault.