This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-402

 

State of Minnesota,

Respondent,

 

vs.

 

Allen R. Hall,

Appellant.

 

Filed January 9, 2001

Affirmed in part and remanded

Holtan, Judge*

 

Hennepin County District Court

File No. 99053726

 

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

 

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

 

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

 

            Considered and decided by Crippen, Presiding Judge, Foley, Judge,** and Holtan, Judge.


U N P U B L I S H E D   O P I N I O N

HOLTAN, Judge

            Appellant Allen Hall challenges his conviction of felon in possession of a weapon, arguing that prosecutorial misconduct denied his right to a fair trial.  Appellant also contests the trial court’s failure to consider reasons for departure from the presumptive sentence.   We affirm in part, and remand for resentencing.

FACTS

            After responding to repeated calls of shots fired at 2521 17th Avenue South, a fourplex apartment building, Minneapolis police officers John Mercil and Chuck Greaves returned later that evening to investigate further.  Mercil and Greaves hid in the bushes near the rear of the building.  While watching the building, Mercil and Greaves noticed appellant walking out the back door wearing a black leather jacket.  Appellant stopped, looked at the officers, and then continued walking down the steps.  After walking an additional ten feet, appellant looked back at the officers again, and started running.

            As Greaves chased after appellant, he noticed that appellant’s hands were in front of him.  Appellant then slowed down, crouched down, and shoveled a shiny object under a car.  When Greaves ran by the car, he shined his flashlight on an L-shaped object that looked like a handgun.  The officers found a Ruger nine-millimeter handgun under the car.  Soon thereafter, appellant surrendered to Greaves.  In appellant’s leather jacket was a loaded Ruger magazine that matched the handgun.

            Appellant’s 17-year-old sister, Nicole Hall, who lived at 2521 17th Avenue South, testified at trial.  According to Nicole, her brother William got into a fight with her ex-boyfriend Daniel outside the building.  When Daniel left, Nicole picked up Daniel’s leather coat from the ground.  Nicole checked the pockets of the coat and found a handgun inside.  Without telling anyone, Nicole took the gun outside and placed it under a car three houses down from her apartment.  Soon thereafter, appellant stopped by.  Nicole informed appellant that her boyfriend had fired shots at the building twice during the night.  Appellant agreed to accompany Nicole to the store.  As Nicole went across the street to talk to friends, appellant went into the apartment to grab a jacket.  Nicole claims that the leather jacket appellant grabbed was Daniel’s.        

            Appellant stipulated at trial that he was not allowed to possess a firearm.  Subsequently, appellant was found guilty of felon in possession of a firearm.  At the sentencing hearing, appellant’s counsel, the prosecutor, and the trial judge all agreed that the current state of the law, the Shepard case in particular, provided the judge no discretion to depart from the mandatory minimum.  The trial court stated that it would prefer to shorten appellant’s sentence or recommend probation, but it was bound by Shepard.  The trial court imposed the mandatory minimum sentence of five years.


D E C I S I O N

I.

Appellant contends that the prosecutor’s reference during cross-examination and final arguments to appellant’s defense as “routine” denied him a right to a fair trial.  We disagree.

A prosecutor is viewed as a “minister of justice,” and, therefore, may not seek convictions at any price.”  State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (quotation omitted).  To succeed on a claim of prosecutorial misconduct, a defendant must show that “misconduct occurred and that the misconduct was prejudicial.”  State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999) (citation omitted).

Appellant’s defense was that his sister, Nicole, was the person who put the gun under the car.  The prosecutor questioned Nicole on cross-examination about her possible motive to take the blame for her brother, that she would face lighter consequences as a juvenile than her brother would as an adult.  Courts may allow a wide range of inquiry on cross-examination.  Minn. R. Evid. 611(b).  During cross-examination, a prosecutor may inquire about a witness’s motive to fabricate as an explanation for differences between the testimony of witnesses.  State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (stating that a prosecutor may “explore discrepancies in testimony and the possible prejudice or bias of all witnesses”), review denied (Minn. Sept. 20, 1995).  Here, the prosecutor’s questioning was proper because it was inquiry into Nicole’s motive to lie.  Therefore, appellant’s claim of prosecutorial misconduct, based on the prosecutor’s questions about Nicole’s motive to lie, lacks merit.

The prosecutor, however, did not limit cross-examination to Nicole’s motive to lie.  The prosecutor attempted to discredit appellant’s defense as routine:

Prosecutor:                This is routine right, Ms. Hall?  Juvenile takes the fall for the adult?  You understand the routine; is that right?

 

Defense Counsel:      Objection, Your Honor.

 

The Court:                  Sustained.

Although a prosecutor can argue that a particular defense lacks merit, it is misconduct for the prosecutor to imply that a defense is “standard” in a particular case “when nothing else will work.”  Salitros, 499 N.W.2d at 818 (quotation omitted).  Here, the prosecutor committed misconduct by suggesting that appellant’s defense was routine.  But the prosecutor did not revisit the “routine” nature of appellant’s defense during the remainder of the trial.  Where the conduct is less serious, as it is here, “the test is whether the misconduct played a substantial part in influencing the jury to convict.”  State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989) (citation omitted) (applying a different standard in prosecutorial misconduct cases involving serious and less serious conduct).

We find that the prosecutor’s question did not play a substantial part in the jury’s decision.  The question about the routine nature of appellant’s defense was raised during cross-examination, and the trial court sustained appellant’s objection to the question.  Additionally, appellant did not request a curative instruction.  State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating that a defendant’s failure to seek a curative instruction weighs heavily in the decision not to reverse).  There is also less likelihood of error where potentially inappropriate remarks are brief and isolated.  State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990); State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (holding that the prosecutor’s argument “must be taken as a whole to determine if it provides a basis for reversal”).

            Moreover, the evidence against appellant is strong.  Washington, 521 N.W.2d at 40 (considering the strength of the evidence against the defendant to determine if the improper comment influenced the jury).  The evidence establishes that appellant ran after noticing police next to the apartment building.  Greaves noticed that appellant was holding something in front of him, appellant then knelt down and threw a shiny object under a car.  As Greaves ran past the car, he shined his flashlight under the car and saw an L-shaped object that looked like a handgun.  When appellant was caught, he had a Ruger magazine in his jacket pocket that matched the handgun under the car.  Placing the prosecutor’s comments challenged by appellant in the proper context and considering the strength of the evidence against appellant, we find that the comment did not substantially influence the jury to convict.

            Appellant contends that the prosecutor revisited the earlier reference to appellant’s defense as “routine” in closing argument.  The record does not support this argument.  In closing, both the prosecutor and defense counsel summarized Nicole’s testimony about taking the fall for her brother because she was a juvenile.  McDaniel, 534 N.W.2d at 294 (stating that defense counsel’s ability to respond to alleged improper conduct often allows for a conclusion that the comments are harmless in the context of the entire trial).  Additionally, there was no objection during closing argument regarding the prosecutor’s summarization.  State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984) (stating that a defendant ordinarily has a duty to promptly object or seek curative instructions if a prosecutor makes an improper statement during closing argument); Daniels, 332 N.W.2d at 180 (stating that the failure to object implies that the defendant found nothing improper in the closing argument).  Moreover, we have already found that cross-examining Nicole about her motive to lie does not constitute misconduct.

            Appellant argues that his failure to object to the prosecutor’s closing argument is not crucial because the prosecutor’s conduct was similar to conduct denounced in SalitrosSalitros involved serious prosecutorial misconduct in closing argument that was egregious.  499 N.W.2d at 818-20 (stating that court retains option of reversing prophylactically or in interests of justice).  Not only did the prosecutor in Salitros attempt to categorize the defendant’s defense as “standard,” but the prosecutor also revisited argument that had been specifically condemned by earlier caselaw.  Id. at 818-19.  Here, the prosecutor’s closing argument was nothing more than a summarization of Nicole’s testimony.  The prosecutor’s argument did not refer to appellant’s defense as routine.  Although the prosecutor drew conclusions and made inferences from Nicole’s testimony, the prosecutor “is not required to make a colorless argument” and may present “all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.”  State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998) (citation and quotation omitted).  Because the record does not show evidence of misconduct in closing argument, appellant’s allegation is without merit.

In summary, one improper question, that the trial court ruled was objectionable and that was not mentioned again, in the course of a two-day trial, does not rise to the level of denying appellant’s right to a fair trial.  We affirm appellant’s conviction.

II.

            Appellant also argues that the trial court wanted to depart from the sentencing guidelines, but failed to realize that a departure was possible because of its reliance on State v. Sheppard, 587 N.W.2d 53 (Minn. App. 1998), review denied (Minn. Jan. 27, 1999).  Respondent concedes that a sentencing remand on this issue is necessary so the trial court may evaluate departure reasons and decide if appellant should have received a departure from the five-year, mandatory-minimum sentence.  We agree.         

Sentencing decisions rest within the broad discretion of the trial court and will not be reversed absent a clear abuse of discretion.  State v. Larson, 473 N.W.2d 907, 908 (Minn. App. 1991).  The sentencing court may depart dispositionally from the sentencing guidelines if the defendant is “particularly amenable to probation or if offense-related mitigating circumstances are present.”  State v. Love, 350 N.W.2d 359, 361 (Minn. 1984).

            A conviction of felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (1998), carries a presumptive sentence of “not less than five years.” Minn. Stat. § 609.11, subd. 5(b) (1998).  Under Minn. Stat. § 609.11, subd. 8(b) (1998), a trial court has no discretion to depart downward when sentencing a defendant on a felon in possession of a firearm conviction if the defendant’s prior conviction is listed in Minn. Stat. § 609.11, subd. 9 (1998).  Sheppard, 587 N.W.2d at 55.  Unlawful discharge of a firearm, appellant’s prior conviction, is not one of the listed offenses in Minn. Stat. § 609.11, subd. 9, and therefore the trial court retained discretion to depart from the felon in possession of a firearm mandatory-minimum.  Thus, the trial court mistakenly ruled that it was bound by Sheppard.

            In State v. Curtiss, 353 N.W.2d 262, 263-64 (Minn. App. 1984), we remanded for resentencing where the trial court failed to consider possible reasons for departure from the presumptive sentence.  In Curtiss, the trial court abandoned the departure topic before it exercised its broad discretion to compare the reasons for and against departure.  Id. at 263.  Where the exercise of discretion has not occurred, remand does not interfere with the trial court’s discretion.  Id. at 264;  see also State v. Cameron, 370 N.W.2d 486, 487 (Minn. App. 1985) (“Until it is found that circumstances would permit a dispositional departure, the trial court cannot exercise its discretion to decide whether a departure is appropriate.”), review denied (Minn. Aug. 29, 1985).  Here, the trial court assumed that the Sheppard decision applied, and did not make findings to justify a departure.  Therefore, remand is necessary so the trial court may decide if departure is appropriate.

            Affirmed in part, and remanded.

 

 



*  Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

**  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.