This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
State of Minnesota,
Russell Anthony Wech,
Ramsey County District Court
File No. K0981552
Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)
John M. Stuart, Minnesota State Public Defender, Chad M. Oldfather, Assistant Public Defender, 2928 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by G. Barry Anderson, Presiding Judge, Klaphake, Judge, and Harten, Judge.
G. BARRY ANDERSON, Judge
Appellant challenges his conviction for kidnapping and assault and seeks a new trial, arguing that the prosecutor committed prejudicial misconduct by (1) cross-examining appellant about his legal inability to possess guns and emphasizing this point in closing argument; (2) mocking appellant’s legal defense; and (3) injecting broad social issues into the trial. Because we conclude that the prosecutor’s actions do not rise to the level of misconduct, we affirm.
Appellant Russell Anthony Wech’s stereo system and approximately 400 compact discs were stolen from his vehicle. In an attempt to recover his stolen equipment, appellant tracked down two individuals he thought responsible for the theft. Appellant first located R.W., told him to enter his vehicle, and, according to R.W., threatened him with a .357 revolver. R.W. told appellant that he did not steal the stereo but another man, E. W., was responsible.
Appellant then located E.W. and questioned him about the stolen stereo. According to E.W., appellant attempted to put duct tape around his mouth, told him that there was more than one way to die, held a paring knife to his throat, and stabbed him in the head three times with the knife. E.W. also testified that appellant picked up a brick and threatened to hit him in the head with it.
R.W.’s girlfriend and E.W.’s mother informed the police of appellant’s actions. As a result, the police broadcasted a description of appellant and his vehicle to patrol cars in the area. Shortly thereafter, police stopped appellant’s vehicle and arrested him. While searching appellant’s vehicle, police recovered a loaded semi-automatic pistol, duct tape, a paring knife, a loaded Ruger revolver, black gloves, and a cell phone.
Appellant testified to a different version of events. He denied having a gun when driving around with R.W., and denied having a gun when confronting E.W. Appellant denied stabbing E.W. with the paring knife, denied attempting to duct tape E.W.’s mouth shut, and denied threatening E.W. with a brick. Appellant explained that his ring accidentally cut E.W.’s head during a minor altercation. When faced with questions about gun ownership, appellant admitted that even though he was legally ineligible to possess firearms, he owned the two handguns found in his vehicle. Appellant explained that he was taking them to a friend’s house for storage when police stopped him.
A jury found appellant guilty of two counts of kidnapping in violation of Minn. Stat. § 609.25, subd. 1(2) (1998), and two counts of assault in violation of Minn. Stat. § 609.222, subd. 1 (1998). Appellant challenges the convictions and asks for a new trial.
Appellant argues that the prosecutor engaged in prosecutorial misconduct by (1) emphasizing, during cross-examination and closing argument, that it was illegal for appellant to possess firearms; (2) stating that appellant’s defense theory amounts to characterizing the prosecution witnesses as liars and was “absolutely ridiculous;” and (3) injecting broad social issues into the trial. Appellant contends that the alleged instances of misconduct, taken as a whole, resulted in prejudice requiring a new trial.
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). Determination of whether the prosecutor engaged in prejudicial misconduct is within the district court’s discretion. State v. Robinson, 604 N.W.2d 355, 361 (Minn. 2000). On appeal, reviewing courts will reverse only if the misconduct is “so serious and prejudicial that a defendant’s right to a fair trial is denied.” Voorhees, 596 N.W.2d at 253(citation omitted). When assessing a claim of prosecutorial misconduct, we must first examine the challenged conduct and determine whether the prosecutor committed misconduct. State v. Bright, 471 N.W.2d 708, 712-13 (Minn. App. 1991), review denied (Minn. Aug. 1, 1991).
Appellant first contends that the prosecutor, during cross-examination and in closing argument, emphasized appellant’s knowledge that he could not lawfully possess firearms which in turn impermissibly highlighted his prior criminal record. See State v. Fallin, 540 N.W.2d 518, 521-22 (Minn. 1995) (holding prosecutor should not make insinuations on cross-examination that are not supported by admissible evidence). But defense counsel discussed appellant’s inability to possess firearms during direct examination, which allowed the prosecutor to ask responsive questions. Here, all the state did was walk through a door opened by appellant. See State v. Patterson, 493 N.W.2d 577, 580 (Minn. App. 1992) (when appellant opens door with own statements, state can respond).
Appellant, citing State v. Griese, 565 N.W.2d 419 (Minn. 1997), next claims the prosecutor’s comments about the viability of his defense theory amounted to prejudicial misconduct. We disagree. In Griese, the supreme court concluded that it is improper to disparage the defense in closing arguments or to suggest that a defense offered is some sort of standard defense offered by defendants “when nothing else will work.” Id. at 427-28 (citation omitted). But here, the state did not denigrate the type of defense used by appellant; the prosecutor simply pointed to the conflicting trial testimony.
The prosecutor “is not required to make a colorless argument” and has the right to 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 omitted). In this case, the credibility of appellant and the state’s witnesses was critical. Appellant asked the jury to believe that he was innocent because he did not threaten anyone with a gun, knife or a brick. The prosecutor sought to show that appellant’s theory of the case was implausible. Witnesses testified that appellant, looking for his stolen stereo, threatened R.W. with a gun, threatened E.W. with a paring knife, brick, and gun, and detained both men against their will. When police stopped appellant, they recovered two guns and a paring knife. These were the items appellant allegedly used in the kidnappings and assaults. The prosecutor did not disparage the legal defenses but instead argued that they were unreasonable based on the evidence, which does not constitute misconduct.
Appellant next argues that State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999) requires this court to grant a new trial because the prosecutor improperly characterized appellant’s theory of the case as an “everybody is lying” defense in closing argument. But the Pilot court concluded that where defendant's theory of defense was that state’s witnesses were lying and police officers fabricated evidence, the prosecutor did not commit misconduct by posing “were they lying” questions to defendant on cross-examination. Id. The court reasoned that the prosecutor’s questions had a probative value in evaluating the credibility of the defendant, who claimed that “everyone” lied. Id. Although the prosecutor’s comments were made in closing argument and not on cross-examination as in Pilot, we conclude that because the credibility of appellant and the state’s witnesses was, as in Pilot, critical in this case, the prosecutor’s comments did not constitute misconduct.
Appellant next alleges that the prosecutor injected social issues into closing argument, which inflamed the jury’s passions and caused prejudice against appellant by the jury. Appellant cites State v. Salitros, 499 N.W.2d 815 (Minn. 1993), which holds the prosecutor should not emphasize accountability to such an extent as to divert the jury’s attention from its true role of deciding whether the state has met its burden of proving a defendant guilty beyond a reasonable doubt. Id. at 819. The prosecutor in this case suggested to the jury that appellant took the law into his own hands, an observation as to motive more than social accountability. These statements simply do not rise to the level of misconduct.
Appellant asks this court to weigh all of the prosecutor’s comments as a whole. See State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (stating the prosecutor’s argument “must be taken as a whole to determine if it provides a basis for reversal.”). Because the prosecutor’s comments and questions have a basis in the evidence and were not improper argument, even when viewed “as a whole,” they are not misconduct. In addition, appellant failed to object to what he now considers to be inappropriate conduct by the prosecutor. A defendant has a duty to promptly object or seek curative instructions if a prosecutor makes an improper statement. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). The failure to object implies that the defendant found nothing improper. Daniels, 332 N.W.2d at 180.
By pro se supplemental brief, appellant raises five additional issues: (1) violation of his constitutional right to be free from unreasonable searches and seizures relating to the 36, 48 and 72 hour custody rules; (2) admission of allegedly unreliable evidence; (3) refusal to have an expert examine the evidence; (4) prosecutorial access to ongoing investigations not related to the current case; and (5) immunity issues.
Reviewing courts will not consider claims not argued to and considered by the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Because these issues were neither argued to nor considered by the district court, we decline to address them.