This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Irwin James Sam,



Filed June 12, 2001


Willis, Judge


Mille Lacs County District Court

File No. K599783


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


Janelle P. Kendall, Mille Lacs County Attorney, 525 Second Street SE, Milaca, MN  56353;  and Scott A. Buhler, Special Assistant County Attorney, 1851 Pete’s Point Lane, Alexandria, MN  56308 (for respondent)


John M. Stuart, State Public Defender,  Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN  55414 (for appellant)


            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges his convictions of second-degree murder, arguing that the district court erred by (1) precluding appellant from putting into evidence the victim’s brother’s prior incidents of assault, (2) concluding that the physician-patient privilege did not protect statements appellant made while in the hospital, (3) concluding that appellant’s Miranda rights were not violated, (4) concluding that the prosecutor’s peremptory challenge of a potential juror was not race-based, and (5) determining that the prosecutor did not commit prejudicial misconduct.  Appellant also argues that the evidence was insufficient to prove his guilt.  Because the district court did not err and the evidence was sufficient to prove appellant’s guilt, we affirm.


In August 1999, appellant Irwin J. Sam’s cousin, Remus Garbow (“the victim”), died after being hit numerous times on the head with a metal bar.  The victim and his brother, Leonard, lived together and had been drinking heavily the night of the murder.  At approximately 4:00 a.m., after receiving a report of an assault, Officer Eric Hanneken of the Mille Lacs Tribal Police Department was dispatched to the Garbows’ residence.  As he neared the house, Sam’s sister stopped Hanneken and told him that “the guys next door beat up Irwin Sam.”  Sam then exited a car parked close to his sister and Hanneken.  Hanneken noticed that Sam, who started screaming and yelling, was “bleeding from the head region.”  Sam suddenly ran toward the Garbows’ house, and Hanneken followed.

As Hanneken pulled into the Garbows’ driveway, he saw Leonard Garbow standing directly over the victim, who was lying on the ground.  Hanneken noticed the victim’s head wounds as Leonard Garbow said, “Leave him alone.  He’s okay,” and, “I did it with my fists.  I did it with my fists.”  Hanneken handcuffed Leonard Garbow and placed him in his squad car.  Hanneken testified that Leonard Garbow had no blood on his hands or clothes and that he showed no outward signs of injury.  He also testified that he saw a metal bar, later determined to be the murder weapon, near the victim’s body.

Hanneken asked Sam what had happened, and he responded, “It was self-defense, it was self-defense.  He hit me first.”  Because Sam had blood on his head, neck, and shirt, Hanneken placed him in an ambulance that had been called to the scene.

Mille Lacs County Deputy Sheriff Marc Johnson accompanied Sam to the hospital.   Johnson stood approximately four or five feet away from Sam’s bed in the emergency room.  He testified that he heard Sam say:  (1) “My fat cousin did this to me,” (2) the victim is “worse off” because “I hit him twice in the back of the head,” (3) the victim was “bullying me,” and (4) that Sam acted in self-defense.  As Sam was discharged from the hospital, Johnson arrested him.  Johnson did not advise Sam of his Miranda rights, but he testified that he did not question Sam at any time in the hospital or en route to the Mille Lacs County jail.

Later, Kurt King, a jailer at the Mille Lacs County jail, transported Sam to the Morrison County jail.  During the ride to Morrison County, Sam repeatedly said, “This is so f-cked up.”  After hearing this numerous times, King asked, “What is so f-cked up?”  Sam replied that the “whole situation” was, that he “wished it had never happened,” and that his “life is f-cked.”  He then explained to King what had happened, saying that he walked past the Garbows’ house, and the victim, who was with Leonard Garbow, began yelling at him.  A confrontation ensued and the victim hit Sam in the back of the head.  Sam told King that he then “turned around and disarmed” the victim and hit him, but according to King, Sam did not say what he hit the victim with.  Sam also asked King if, in his opinion, Sam had acted in self-defense. 

At trial, Sam testified that (1) Sam was attacked by the Garbows as he walked towards them; (2) he stomped on the victim’s head, kicked him, and hit him with his fists, but did not hit the victim with the metal bar; (3) he did not kill the victim; (4) Leonard Garbow is responsible for the murder; and (5) from the time of the fight through his booking at the Morrison County jail, he did not tell anyone that Leonard Garbow was responsible for the murder. 

In April 2000, a jury convicted Sam of second-degree intentional murder under Minn. Stat. § 609.19, subd. 1(1) (1998), and second-degree felony murder under Minn. Stat. § 609.19, subd. 2(1) (1998).  Sam was sentenced to 306 months in prison on the conviction of second-degree intentional murder.  This appeal follows.




Sam argues that the evidence was insufficient to support his conviction.  The standard for overturning a conviction for insufficiency of the evidence is “a high one.”  State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).  In considering a claim of insufficient evidence, a reviewing court’s only inquiry is whether, on the facts in the record and legitimate inferences drawn from those facts, a jury could reasonably conclude that the defendant was guilty of the offense charged.  State v. Bias, 419 N.W.2d 480, 484 (Minn. 1988).  The court must view the evidence in the light most favorable to the verdict and assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  Id.

            Further, while a conviction based on circumstantial evidence warrants stricter scrutiny, circumstantial evidence

is entitled to the same weight as any evidence so long as the circumstances proved are consistent with the hypothesis that the accused is guilty and inconsistent with any rational hypothesis except that of guilt.


State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (quotation omitted). 

Sam maintains that Leonard Garbow is responsible for the murder.  He testified that he saw Leonard Garbow kill the victim with the metal bar.  To bolster his claim, Sam argues that Hanneken found Leonard Garbow standing over the body in an “aggressive” manner, stating that he “did it with [his] fists.”  But Hanneken testified that, except for two small specks of blood on Leonard Garbow’s shoes, there was no blood on his hands, arms, or legs, nor was there any visible blood on his clothes.  And the jury heard evidence that, given the nature of the victim’s injuries, his attacker would have got a significant amount of the victim’s blood on him.  Although much of the blood found on Sam’s head, neck, hands, and chest was not tested, his shoes and socks were “soaked” with the victim’s blood.  Moreover, the jury heard that the victim was killed by a metal bar, not an attacker’s fists. 

The jury also heard that, in his statements at the hospital and to the jailer, Sam claimed that (1) the victim was bullying him; (2) the victim hit him in the head with a metal object but that the victim is now “worse off”; (3) he “disarmed” the victim and hit him;[1] and (4) he said that he wished “it” had never happened because his “life is f-cked.”  Further, with the exception of Sam himself, no one testified that he or she saw Leonard Garbow assault the victim, and before trial, Sam did not implicate Leonard Garbow in the murder.

There was sufficient evidence for the jury to reasonably conclude that Sam was guilty of murder.



Sam argues that the district court abused its discretion by excluding evidence of Leonard Garbow’s prior bad acts and by allowing Deputy Johnson to testify as to what he heard Sam say at the hospital.  The decision whether to admit or exclude evidence rests within the broad discretion of the district court and will not be disturbed “unless it is based on an erroneous view of the law or constitutes an abuse of discretion.”  State v. Stevens, 580 N.W.2d 75, 78 (Minn. App. 1998), review denied (Minn. Aug. 18, 1998).

            A defendant may seek to introduce evidence that a third person committed the crime of which the defendant is accused.  Minn. R. Evid. 404(b); State v. Hawkins, 260 N.W.2d 150, 158 (Minn. 1977).  The purpose of such evidence is not necessarily to prove that the third person committed the crime; it may be offered simply to raise a reasonable doubt as to the defendant’s guilt.  Hawkins, 260 N.W.2d at 158.  The defendant must first lay a foundation consisting of additional evidence that has an “inherent tendency” to connect the third person with the commission of the crime.  Id.

During a pretrial conference, Sam moved to admit evidence of several prior bad acts committed by Leonard Garbow.  The court reserved ruling on the admissibility of the prior acts as substantive evidence but stated that Leonard Garbow’s criminal record would not be admitted for impeachment purposes.

After Leonard Garbow testified, Sam raised the issue of admitting as substantive evidence Leonard Garbow’s prior bad acts but the court again reserved ruling.  The following morning Sam again raised the issue, and the court asked for an offer of proof and identification of the acts that Sam proposed to use.  Sam’s attorney mentioned a January 2000 incident, when Leonard Garbow pleaded guilty to assaulting Darwin Garbow, his older brother, with a frying pan.  He also referred to an assault on “RJG,” stating his belief that the victim involved in that charge was the victim here.  The court then said,

I’m leaning very strongly toward allowing the admission of [the frying-pan incident] on a * * * reverse Spreigl basis, because I believe Leonard Garbow has put into contention here by his statement his motive or at least method of how he would fight with his brothers and that the incident involving the assault with the frying pan is similar enough and recent enough that the jury ought to hear that * * * . [2]


No ruling was made with regard to the remaining acts, and Sam did not again raise the issue of the purported assault on “RJG.”  Sam could have objected at any time during the trial to the court’s failure to rule, but he did not do so.  Sam has therefore waived his right to assert this claim on appeal.  See, e.g., State v. Cromey, 348 N.W.2d 759, 760 (Minn. 1984) (holding that timely, specific objection is required to preserve an evidentiary issue for review).

            Sam next argues that the statements he made at the hospital while being treated for his head injury were protected by the physician-patient privilege.  The physician-patient privilege provides, in relevant part, that

[a] licensed physician * * * shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity * * * .


Minn. Stat. § 595.02, subd. 1(d) (2000).  The burden is on the party claiming the privilege to establish all the facts necessary to invoke it.  State v. Staat, 291 Minn. 394, 398-99, 192 N.W.2d 192, 196-97 (1971).  There must be a determination of whether the evidence establishes that (1) a physician-patient relationship existed,  (2) the  “information” acquired by the physician was of the type contemplated by the statute, (3) the information was acquired by the physician in attending the patient, and (4) the information was necessary for medical diagnosis and treatment.   Id. at 399, 192 N.W.2d at 196.   The absence of any factor is fatal.  Id. at 403, 192 N.W.2d at 198. 

            Disclosure by the patient of otherwise confidential information to a third party destroys the confidentiality of a communication and constitutes a waiver of the physician-patient privilege.  See State v. Kunz, 457 N.W.2d 265, 267 (Minn. App. 1990) (holding that privilege did not apply while a stranger to physician-patient relationship was present in examination room with patient’s acquiescence), review denied (Minn. Aug. 23, 1990).  But the privilege extends by implication to nurses or attendants who are employees acting under the direction of the physician examining or treating the patient.  Staat, 291 Minn. at 400-01, 192 N.W.2d at 197. 

            We agree with the district court that Sam’s statements were not related to his health or treatment and are therefore not privileged.  See King v. Commissioner of Pub. Safety, 366 N.W.2d 613, 615 (Minn. App. 1985) (holding that privilege did not exist when information concerning traffic accident was not necessary to enable physician to act in professional capacity).  Moreover, Sam’s assertion that Deputy Johnson served as an agent of the physician is without merit.  See Staat, 291 Minn. at 402, 192 N.W.2d at 198 (explaining that privilege extends to those who are employees acting under direction of physician examining or treating patient).  To justify application of the privilege, the district court would have had to conclude that Johnson was in the emergency room “as an aid to the attending physician * * * and only for the purposes of diagnosis or treatment.”  Id. (quotation omitted).  But Johnson was at the hospital at the direction of the police, not at the direction of the attending physician.

            The district court did not abuse its discretion in allowing Johnson to testify to what he overheard at the hospital.



Sam maintains that the district court should have suppressed the statements he made to the jailer, Kurt King, because they were obtained without a Miranda warning.  Miranda procedural safeguards apply to statements obtained through custodial interrogation or its functional equivalent.  Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90 (1980).  The district court found that Sam’s statements to King were not the product of interrogation but rather that Sam volunteered these statements.  In determining whether a defendant’s statements were obtained in violation of his Miranda rights, reviewing courts apply a totality-of-the-circumstances test to the facts found by the district court.  State v. Jackson, 351 N.W.2d 352, 355 (Minn. 1984). 

            At the omnibus hearing, King testified that Sam repeatedly said, “This is so f-cked up” and that King finally asked, “What’s so f-cked up?”  King testified that he did not ask any other questions or solicit any information from Sam.[3]  He also said that his only responses to Sam’s statements were nods and that he “didn’t respond to him in any – any verbal ways other than maybe a yes here and there or something.” 

            Examination of the record shows that Sam initiated the conversation and that Sam’s statements were volunteered and not prompted by police questioning.  See State v. Williams, 535 N.W.2d 277, 289 (Minn. 1995) (explaining that a “volunteered statement made by a suspect, not in response to interrogation, * * * is admissible with or without” Miranda warnings).  While Sam’s statements were incriminating, King’s physical and verbal responses did not rise to the level of a custodial interrogation that would trigger Sam’s Miranda rights.  See Jackson, 351 N.W.2d at 355 (concluding that comments made by arrestee that invite responses are not functional equivalent of interrogation).  We therefore conclude that the district court did not err in finding that Sam’s statements were not the product of interrogation, and, therefore, that his Miranda rights were not violated.



Sam also argues that the district court erred by permitting the state to exercise a peremptory challenge to remove the only Native American in the jury pool.  He contends that the court failed to consider whether the prosecutor’s stated race-neutral reason for exclusion was merely a pretext for purposeful discrimination.  Using peremptory challenges to exclude persons from the jury solely on the basis of race is prohibited.  Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986).

In Batson, the Supreme Court established a three-step process to determine whether a peremptory challenge is motivated by discriminatory intent.  First, the defendant must make a prima facie showing that the challenge was exercised on the basis of race.  Id. at 96, 106 S. Ct. at 1723.  Second, when such a prima facie showing has been made, the burden shifts to the prosecutor to articulate a race-neutral reason for the challenge.  Id. at 97, 106 S. Ct. at 1723.  And third, if the prosecutor establishes a race-neutral reason for the challenge, the district court must determine whether there has been purposeful discrimination.  Id. at 98, 106 S. Ct. at 1724.  If the prosecutor had a discriminatory intent for striking a juror, the defendant is automatically entitled to a new trial because harmless-error impact analysis is “inappropriate in the case of a defendant convicted by a petit jury if there was racial discrimination in the selection of that jury.”  State v. Greenleaf, 591 N.W.2d 488, 500-01 (Minn. 1999).

            After Sam’s counsel objected and argued that the state’s challenge of the potential juror in question was race-based, the prosecutor explained,

[M]y objection [to this potential juror] has nothing to do with her race.  It has to do with her response to the question of alcohol.  She stated, “Alcohol messes with your mind.”  Given the fact with that response as well as the fact that she  previously had been convicted of a DWI, she may well buy into the defendant’s intoxication defense in this case.  That’s the reason for my seeking to strike her.


The district court determined that the prosecutor had satisfactorily explained his reason for exercising the preemptory challenge.

Considerable deference must be given by a reviewing court to the district court’s finding as to whether the prosecutor acted with discriminatory intent because that finding typically will turn largely on the court’s evaluation of credibility.  State v. DeVerney, 592 N.W.2d 837, 844 (Minn. 1999).  Appellate courts generally uphold a district court’s acceptance of a prosecutor’s explanation if the record supports that explanation and there is no clear proof that the stated explanation was a pretext for racial discrimination.  State v. Moore, 438 N.W.2d 101, 107 (Minn. 1989).  Minnesota courts have held that prior involvement in the criminal-justice system and prior arrests are valid reasons for exercising peremptory challenges.  State v. Scott, 493 N.W.2d 546, 549 (Minn. 1992).  The district court, therefore, did not err in permitting the state to exercise a peremptory challenge against the potential juror.


Sam argues that his conviction should be reversed because the prosecutor committed “serious misconduct” by (1) sending to the district court materials that were outside the agreed-on record, (2) violating the rules of discovery by failing to disclose Leonard Garbow’s criminal record, (3) violating the district court’s order that witnesses be sequestered, and (4) repeatedly misstating the law regarding the state’s burden of proof.

A determination of whether a prosecutor committed misconduct and, if so, whether that misconduct was prejudicial “generally lies within the sound discretion of the district court, which is in the best position to measure its effect.”  State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999) (citation omitted).  A reviewing court must decide whether the challenged conduct was

(1) in error; and (2) so prejudicial that it constituted a denial of the defendant’s right to a fair trial.  If the misconduct is unusually serious, it must be harmless beyond a reasonable doubt, to avoid reversal.  When the misconduct is deemed less serious, an appellate court must look to whether it had a substantial influence upon the jury’s decision to convict the defendant.


Sanderson v. State, 601 N.W.2d 219, 225 (Minn. App. 1999) (quotations and citations omitted), review denied (Minn. Mar. 28, 2000).

A.         Materials outside the agreed-on record

At the omnibus hearing, Sam moved to dismiss the charges against him on the ground that there was no probable cause to charge him with the murder.  Among the materials submitted by the state was an autopsy report that referred to photographs taken during the autopsy.  After the hearing, the prosecutor sent a letter and copies of the photographs to the court and defense counsel, stating,

I have enclosed for your review photocopies of the photographs taken by the medical examiner in this case.  I just recently received these photographs and felt you might want to see them when ruling upon the defendant’s motion to dismiss the charges against him for an alleged lack of probable cause.  Some of these photographs are quite graphic, but they are highly relevant evidence of the defendant’s intent to kill the victim in this case.


            Sam filed a motion to exclude the evidence, arguing that the photographs were not part of the record that the parties agreed would be submitted to the court to assist it in its probable-cause determination.  Sam later withdrew the motion because the district court refused to view the photographs; he has therefore failed to show any prejudice.

B.         Leonard Garbow’s criminal record

The Minnesota Rules of Criminal Procedure provide that, upon request by defense counsel, the prosecuting attorney must, before the date set for an omnibus hearing, allow access to all discoverable matters within the prosecutor’s possession or control.  Minn. R. Crim. P. 9.01, subd. 1.  Further, the prosecutor

shall disclose to defense counsel the names and addresses of the persons intended to be called as witnesses at the trial together with their prior record of convictions * * * .


Id., subd. 1(1)(a).  The suppression by the prosecution of evidence favorable to a defendant violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.  Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963).  Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”  State v. Hunt, 615 N.W.2d 294, 299 (Minn. 2000) (quotation omitted).

            Sam made a written demand in December 1999, before the omnibus hearing, for Leonard Garbow’s criminal record.  Pursuant to the court’s pretrial order, in March 2000, the state disclosed that record.  Sam argues that because the prosecutor did not make the disclosure before the omnibus hearing, the prosecutor committed “serious misconduct.” 

Sam has failed to demonstrate that he suffered any unfair prejudice by the state’s failure to disclose Leonard Garbow’s criminal record sooner.  Any violation of the rule, therefore, was harmless because Sam received the information before trial.  See Minn. R. Crim. P. 31.01 (providing “[a]ny error [or] defect * * * which does not affect substantial rights shall be disregarded”); see, e.g., State v. Jackson, 346 N.W.2d 634, 638-39 (Minn. 1984) (holding prosecutor’s alleged misconduct of failing to provide defense with criminal records of state’s witnesses non-prejudicial where other witnesses’ testimony supported guilty verdict); State v. Dye, 333 N.W.2d 642, 644-45 (Minn. 1983) (holding delay in disclosing exculpatory evidence non-prejudicial).

C.        Witness sequestration

Before trial, the district court ordered that the witnesses be sequestered and that the prosecutor “admonish the witnesses not to be talking to each other about their testimony” or what happened in court.  Sam argues that the prosecutor committed misconduct by asking an investigator, who also was a witness, to speak with another witness.

The basic purpose for sequestration of witnesses is to remove any possibility that a witness waiting to testify may be influenced consciously or subconsciously by the testimony of other witnesses and “to afford opposing counsel the opportunity of bringing out in cross-examination any discrepancies in the testimony of the various witnesses.”


State v. Miller, 396 N.W.2d 903, 906 (Minn. App. 1986) (quoting State v. Ellis, 271 Minn. 345, 364, 136 N.W.2d 384, 396 (1965)). 

            Sam raised the issue of a violation of the sequestration order after learning that, before Darwin Garbow testified, the investigator-witness spoke with Garbow about how the metal bar came to be outside.  Sam requested that Darwin Garbow’s testimony regarding this issue be excluded.  The district court conducted a hearing at which the witness-investigator testified that he interviewed Darwin Garbow before he, himself, was called as a witness, that he was not in the courtroom during the testimony of any other witness, and that he had not asked Garbow any leading questions during the interview.  The district court concluded that its sequestration order had not been violated and admitted Darwin Garbow’s testimony regarding why the metal bar was outside.

            Sam has not alleged with any specificity how he was prejudiced by Darwin Garbow’s testimony.  See State v. Bergland, 294 Minn. 558, 559, 202 N.W.2d 223, 224 (1972) (stating that prejudice from a sequestration order must be shown).  Moreover, Sam failed to show that the alleged violation of the sequestration order was made in an attempt to influence Darwin Garbow’s testimony.  See State v. Erdman, 383 N.W.2d 331, 334 (Minn. App. 1986) (holding that there “must be an indication in the record that statements made in violation of a sequestration order” were intended to or actually did influence the testimony of a witness “before the trial court need even consider it as grounds for a new trial”), review denied (Minn. Apr. 24, 1986).

            Because Sam has failed to show prejudice or that the alleged violation of the order was intended to or actually did influence a witness’s testimony, we conclude that any alleged misconduct was harmless.

D.        Burden of proof


Sam argues that the prosecutor denied him a fair trial because in closing argument the prosecutor misstated the state’s burden of proof.  Sam contends that it was misconduct for the prosecutor to tell the jury that if they “do not believe the defendant, he is guilty of both counts of Murder in the Second Degree that are charged in this case.  * * *  It’s that simple.”  He also said that

[i]f you find that what he says is lying, then you can find the opposite of what he says to be true, and that is that he committed Murder in the Second Degree, both counts.


Misstatements of the burden of proof are highly improper and constitute prosecutorial misconduct.  Ashby,567 N.W.2d at 27.  Prosecutors who tell a jury that their role is to determine guilt based on a lesser standard than guilt beyond a reasonable doubt risk reversal.  State v. Thaggard, 527 N.W.2d 804, 812 (Minn. 1995).  But not every misstatement of the burden of proof warrants a new trial, and, generally, a defendant will not be granted a new trial if such misconduct was harmless beyond a reasonable doubt.  Ashby, 567 N.W.2d at 27-28.  A prosecutor’s closing argument “must be taken as a whole to determine if it provides a basis for reversal.”  State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (citation omitted).

Defense counsel has a duty to object to improper statements during closing arguments and to seek a curative instruction.  State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).  Sam’s counsel did not object to the prosecutor’s statements at trial.  Ordinarily, a failure to object constitutes a waiver of the issue on appeal, and an appellate court may infer that defense counsel did not consider the argument to be improper.  Sanderson, 601 N.W.2d at 224.  In the absence of a timely objection, appellate courts review the claim under the plain-error rule, asking whether the alleged conduct was so clearly erroneous under the law and so prejudicial to the defendant’s right to a fair trial that his right to a remedy should not be forfeited.  Hunt, 615 N.W.2d at 302 (citation omitted).

In his closing argument, the prosecutor also said,

Now, I bear the burden of proof in this case, the State of Minnesota, proving the defendant’s guilt beyond a reasonable doubt.  The defendant doesn’t have to prove anything.  All [he] has to do is plant the seeds of reasonable doubt in your mind * * * .


Additionally, before the state began its closing argument, the district court told the jury that the state bears the burden of proving Sam’s guilt beyond a reasonable doubt.  The court also instructed the jury that “the arguments or other remarks of an attorney are not evidence in this case” and that “[i]f an attorney’s argument contains any statement of the law which differs from the law which I gave you, you should disregard that statement.”  See State v. Bright, 471 N.W.2d 708, 712 (Minn. App. 1991) (holding that a similar instruction lessened effect of any error), review denied (Minn. Aug. 1, 1991). 

We conclude that, viewing the prosecutor’s statements in their entirety and read in conjunction with the district court’s explanations, Sam has not shown that he was prejudiced or denied a fair trial or that the jury based its verdict on an incorrect statement of the law.  See Daniels, 332 N.W.2d at 180.


[1] No fingerprints were found on the metal bar.

[2] During jury instructions, the court read the complaint that charged Garbow with assaulting his older brother with a frying pan.  The court explained that “the limited purpose for offering this is to put it in response” to Garbow’s testimony that he would never “fight [his] brother like that,” suggesting that the district court was allowing it in for impeachment purposes rather than as substantive evidence.  Sam does not challenge this instruction on appeal.

[3] At one point King asked Sam if anyone could corroborate his story.  At the omnibus hearing, the district court ruled that this question constituted interrogation and that the question and its response would not be admitted.