may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
State of Minnesota,
Darrin John Johnson,
Scott County District Court
File No. 9812265
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Thomas J. Harbinson, Scott County Attorney, Diane Hanson, Assistant County Attorney, Erika Schneller, Assistant County Attorney, Scott County Government Center, 200 Fourth Avenue West, Shakopee, MN 55379-1220 (for respondent)
John M. Stuart, State Public Defender, Chad M. Oldfather, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Forsberg, Judge.
On appeal from convictions of first-degree criminal sexual conduct and kidnapping, appellant Darrin John Johnson argues that he should be granted a new trial because the prosecutor committed misconduct during opening and closing arguments by describing a trial as a “search for the truth” and because the trial court erred in instructing the jury that the term “verdict” comes from a Latin term meaning “to tell the truth.” Johnson argues that the prosecutor’s statements and the jury instruction were inconsistent with the requirement that proof of guilt must be beyond a reasonable doubt. We affirm.
D E C I S I O N
1. “In reviewing a trial court’s jury instructions, we examine the record for abuse of discretion and errors of law.” State v. Lory, 559 N.W.2d 425, 427 (Minn. App. 1997), review denied (Minn. Apr. 15, 1997). This court will not find an abuse of discretion when jury instructions fairly and adequately state the applicable law. State v. Flores, 418 N.W.2d 150, 155-56 (Minn. 1988). “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.” Id. at 155.
At the end of closing instructions, the trial court stated:
So in the final analysis, we are talking about verdicts in this case, and verdict comes from a Latin term which means literally “to tell the truth.” So the verdict that you folks will deliver in this case is going to speak the truth of what is involved in this particular case. So we ask that you exercise your duties as you have up to this point responsibly, without fear or favor to either side. We ask that you be absolutely fair, be absolutely honest, deliberate without any prejudice, without any biases, sympathy, or without regard to any personal likes or dislikes and don’t consider possible imposition of punishment * * * .
Johnson argues that this instruction was inconsistent with the state’s burden to prove his guilt beyond a reasonable doubt. We disagree. “A trial is a search for the truth.” State v. Borden, 455 N.W.2d 482, 484 (Minn. App. 1990), review denied (Minn. July 13, 1990). In State v. Dunkel, 466 N.W.2d 425, 429-30 (Minn. App. 1991), the trial court instructed the jury to “[d]etermine what you think the truth of the matter is and act accordingly.” The trial court also instructed the jury regarding the presumption of innocence and repeatedly instructed the jury on the proof beyond a reasonable doubt standard. Id. at 430. This court rejected defendant’s argument that the instruction to determine the truth was inconsistent with the beyond a reasonable doubt burden of proof standard and held that the jury instructions, read as a whole, properly directed the jury to search for the truth and apply the “beyond a reasonable doubt” standard. Id.
Here, as in Dunkel, the trial court repeatedly instructed the jury on the presumption of innocence and the proof beyond a reasonable doubt standard. In opening instructions, the trial court instructed the jury regarding the presumption of innocence and the state’s burden of proving Johnson’s guilt beyond a reasonable doubt. In closing instructions, the trial court gave the standard jury instructions on the presumption of innocence and proof beyond a reasonable doubt. 10 Minnesota Practice, CRIMJIG 3.02-.03. When instructing the jury regarding the elements of the crimes with which Johnson was charged, the trial court reiterated that to find Johnson guilty, the jury had to find that each of the elements had been proven beyond a reasonable doubt. The trial court’s instructions, read as a whole, properly instructed the jury to apply the reasonable doubt standard and determine the truth of what happened.
2. Johnson also objects to the prosecutor’s description of a trial as a “search for the truth.” The prosecutor stated during her opening statement:
Like any trial, this trial is a search for the truth. That search is likely to take you back a few years to the earlier evidence of sexual abuse by the defendant through the earthquake of the sexual assault on July 11 and through the aftershocks which led to [K.B.’s] attempt to recant and finally to this courtroom today.
In closing argument, the prosecutor stated:
I told you in my opening statement that a trial is a search for the truth. If you look up truth in Webster’s Dictionary, one of the definitions states “that the truth is the body of real things, events and facts.” The truth in this trial is found in the evidence. The evidence comes from the testimony of the witnesses along with the physical exhibits.
The prosecutor’s reference to a “search for the truth” during opening statement was made in the context of discussing witness credibility. Just before referring to a “search for the truth,” the prosecutor had explained why the jury should believe K.B.’s testimony. The prosecutor went on to explain that it was the jury’s role to sort out fact from fiction and reminded the jury to listen very carefully to all of the evidence in the case. Similarly, the prosecutor’s reference to a “search for the truth” during closing argument was made in the context of explaining why K.B.’s testimony was credible. When the prosecutor changed topics, from K.B.’s credibility to the elements of the crimes defendant was charged with, the prosecutor stated that she had the burden of proving Johnson’s guilt beyond a reasonable doubt. Under these circumstances, the prosecutor did not commit misconduct by describing a trial as a “search for the truth.” See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (concluding that the prosecutor did not commit misconduct by telling the jury to “‘keep its eyes on the prize’ of truth” when the statement was made in the context of describing the jury’s role in evaluating the credibility of witnesses); see also Rairdon v. State, 557 N.W.2d 318, 323-24 (Minn. 1996) (implicitly rejecting argument that prosecutor’s request to jury to search for the truth subverted standard of proof beyond a reasonable doubt).
3. Even if the prosecutor’s remarks constituted misconduct and the jury instruction was erroneous, Johnson did not object to the prosecutor’s comments describing a trial as a “search for the truth” and made only a general objection for the record to the jury instructions as a whole. An objection to jury instructions must specifically state the grounds for the objection. Minn. R. Crim. P. 26.03, subd. 18(3). Normally, an appellate court will not review for error an issue that was not objected to at trial, but we do have discretion to consider an unobjected-to issue on appeal if the issue represents plain error affecting substantial rights. State v. Hage, 595 N.W.2d 200, 204 (Minn. 1999).
The United States Supreme Court has established a three-prong test for plain error, requiring that before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.
Id.; see also State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (this court may reverse a conviction due to prosecutorial misconduct despite the defendant’s failure to object or seek cautionary instructions if the prosecutor’s comments were unduly prejudicial).
The trial lasted almost two weeks. Neither the trial court’s instruction nor the prosecutor’s remarks regarding the truth were emphasized, and together they amounted to only a few sentences out of 40 pages of jury instructions and 38 pages of prosecutorial argument. Given the context in which the prosecutor’s statements were made and the jury instruction was given, during discussions regarding witness credibility and the jury’s responsibility to decide the case based on the evidence, and given the instructions regarding the burden of proof and the presumption of innocence, it would be unreasonable to conclude that the statements and instruction about truth confused the jury regarding the proof beyond a reasonable doubt standard. If Johnson was concerned about the possibility, he could have sought a curative instruction. Neither the trial court’s instruction nor the prosecutor’s comments, nor their cumulative effect, were unduly prejudicial or deprived Johnson of his right to a fair trial.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.