This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
William Joseph Netz,
Anoka County District Court
File No. K300610
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Seventh Floor, Anoka County Government Center, 2100 Third Avenue, Anoka, MN 55303 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.
A jury convicted appellant of four counts of felony aggravated witness tampering in the first degree for sending a threatening letter to a prospective witness. Appellant challenges the trial court’s denial of his motion for a mistrial, claiming that the prosecutor committed prejudicial misconduct in closing argument by improperly shifting the burden of proof when he implied that appellant would not have refused to give a handwriting sample if he was innocent. In a pro se brief, appellant challenges the sufficiency of the evidence to support his conviction and the constitutionality of seizing inmate mail. Because we conclude that the prosecutor’s comments did not constitute prejudicial misconduct, and because there is no merit in appellant’s pro se challenges, we affirm.
While appellant William Netz was in Anoka County Jail pending trial on a burglary charge, the homeowner whose home had been burglarized received an unsigned letter threatening her and her family if she testified against appellant. Although the envelope had the name and return address of an Anoka County Sheriff’s Office case investigator, it clearly indicated that it had been sent from the jail.
The homeowner informed the police of the threatening letter. Appellant was suspected of witness tampering, and the trial court ordered appellant to provide a handwriting sample for a handwriting expert, but appellant refused to comply.
Appellant subsequently was convicted of the burglary charge. While he was serving a prison sentence on that conviction, the witness tampering investigation proceeded. As part of that investigation, unusual inmate mail was seized and screened. Specifically, the police seized some inmate mail containing conflicting information in which appellant’s name appeared as the author of the letters but a different inmate’s name was listed on the envelope for the return address. The subject matter of the letters included references to appellant’s witness tampering charges and his refusal to provide the police with a handwriting sample.
At the witness tampering trial, a handwriting expert who had compared the threatening letter sent to the homeowner and the unusual inmate mail containing appellant’s name testified that it was highly probable that the same person wrote both. She was unable to positively conclude, however, that appellant was the writer of both because she did not have a specific sample known to contain his handwriting.
Appellant did not testify at trial, but called two witnesses to support his claim that there was reasonable doubt that he wrote the threatening letter. The first witness testified as to the ease with which inmates are able to obtain information about other inmates. The second witness testified about another inmate who allegedly stated that appellant would “get his.”
During jury deliberations, appellant moved for a mistrial on the basis that the prosecutor, during final argument, had shifted the burden of proof to appellant. The trial court denied the motion for mistrial. The jury found appellant guilty of first-degree aggravated witness tampering, and the trial court sentenced him to 158 months in prison, to be served concurrently with his burglary sentence. This appeal followed.
D E C I S I O N
The trial court has the discretion to determine whether the prosecutor’s actions caused sufficient prejudice to warrant a mistrial. State v. Graham, 371 N.W.2d 204, 207 (Minn. 1985). Determination of whether a prosecutor engaged in prejudicial misconduct is also within the trial court’s discretion. State v. Robinson, 604 N.W.2d 355, 361 (Minn. 2000). On appeal, this court will reverse a trial court’s determination that no prosecutorial misconduct occurred only if the misconduct, “viewed in light of the entire record, was so inexcusable, serious, and prejudicial that the defendant’s right to a fair trial was denied.” State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001) (citation omitted).
Appellant asserts that he was denied a fair trial because the prosecutor’s comments during closing argument were prejudicial. 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).
During closing argument, the prosecutor, referring to the handwriting expert’s testimony, stated in part:
[Appellant] refused to give a handwriting sample. * * * She explained she was there on behalf of the prosecution. But she also explained * * * that if he gave a sample, and he was not the author of that letter, that he would be exonerated. With all of that in mind, * * * [appellant] still refused to give a handwriting sample. Common sense, ladies and gentlemen. Police come to you and say, hey, we have fingerprints at a robbery scene. You know you didn’t do it. What do you do? You give the sample. [Appellant] refused, * * * and that is key.
At this point the trial court called counsel to the bench and informed the prosecutor that his presentation of the analogy improperly referred to the individuals of the jury. The prosecutor restated his fingerprint analogy and told the jury that he did not intend to refer to them specifically when he presented the analogous scenario. Appellant’s attorney did not request a curative instruction at that time. But before the jury returned their verdict, appellant’s attorney requested a mistrial and recorded his objection that the prosecutor’s comments improperly shifted the burden of proof to appellant and would impact the jury’s decision.
“Misstatements of the burden of proof are highly improper and would, if demonstrated, constitute prosecutorial misconduct.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000) (citation omitted). But a comment regarding a defendant’s failure to subject himself to tests to prove his innocence does not impermissibly shift the burden of proof to the defendant. See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) (prosecutor’s comment in closing argument regarding defendant’s failure to subject himself to gunpowder residue and DNA tests to prove his innocence did not impermissibly shift the burden of proof to defendant). We conclude that the prosecutor’s comments did not shift the burden of proof to appellant and were not, therefore, improper or prejudicial.
But even comments suggesting that a defendant had the burden of proof may be cured by the trial court’s instruction to the jury that the defendant does not have to prove innocence. Henderson, 620 N.W.2d at 703. The trial court here clearly instructed the jury that appellant was presumed innocent and that the state had the burden to prove his guilt beyond a reasonable doubt. Likewise, the prosecutor emphasized in his closing argument that the state had the burden to prove appellant’s guilt. Thus, even if we were to assume any impropriety in the prosecutor’s comments, the jury received ample instructions that the state retained the burden of proof.
Finally, even if we were to assume the occurrence of misconduct that could not be cured by the court’s instruction, we conclude that here such misconduct would constitute harmless error. Whether prosecutorial misconduct is harmless error depends in part on the type of misconduct. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). If we were we to deem any prosecutorial comment here to be misconduct at all, we would declare it to be of a less serious type. In cases involving less serious prosecutorial misconduct, the misconduct is considered harmful if it likely played a substantial part in influencing the jury to convict. Hunt, 615 N.W.2d at 302.
The prosecutor’s comment suggesting a reason for appellant’s refusal to provide a handwriting sample was a short statement in a lengthy closing argument that generally outlined the facts relevant to the legal elements of witness tampering and the circumstantial evidence supporting the allegation that appellant sent the threatening letter. There is sufficient evidence in the record to support the jury’s conviction. We conclude that even assuming any misconduct in the prosecutor’s closing argument, that misconduct could not have played a substantial part in influencing the jury to convict. The trial court did not abuse its discretion in denying appellant’s request for a mistrial.
In his pro se brief, appellant raises two issues without supporting argument. First, he claims there was insufficient evidence linking him to writing the letter. We disagree. There is ample circumstantial evidence for the jury to convict appellant of witness tampering charges. The evidence shows that the letter was mailed from the jail at a time when appellant was jailed; the letter was written in pencil and inmates are given only pencils; the envelope was the type provided to inmates at the time the letter was sent; specific facts in the letter referenced the burglary; the series of inmate correspondence containing appellant’s name referenced the burglary and appellant’s witness tampering charges; and it was highly probable that the same person wrote the threatening letter and the seized inmate mail.
Second, appellant claims that his constitutional rights were violated when investigators at the prison seized his mail. Appellant fails, however, to specify what constitutional right was violated. Thus, we cannot address this issue.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.