This opinion will be unpublished and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
State of Minnesota,
Aaron Darrell Washington,
Filed July 31, 2001
Hennepin County District Court
File No. 99109984
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Hanson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant argues that (1) the district court gave an improper jury instruction, (2) because of the instruction his right to a unanimous verdict was violated, and (3) the prosecutor committed prejudicial misconduct during closing argument. Because we find no error by the district court and because there was no prejudicial prosecutorial misconduct, we affirm.
In October 1999, John Mueller, a bouncer at the Fourth Street Saloon in Minneapolis, was shot and injured while working. From a photographic lineup, two patrons identified appellant Aaron D. Washington as the gunman. A third witness, a co-owner of the bar, picked Washington’s picture as one of two possibilities. And a fourth witness, a police officer who arrived on the scene immediately after Mueller was shot, picked Washington’s picture from the lineup and identified him as the person he saw standing in the alcove where the shooting had taken place. One of the witnesses also wrote down the license number of the car in which Washington was sitting in the bar’s parking lot minutes after the shooting. From the license number, the police determined that the car belonged to Jill McKellips, Washington’s girlfriend at the time of the shooting.
Washington was charged with attempted second-degree murder and second-degree assault. At trial, the district court instructed the jury that
[t]he elements of attempted murder in the second degree are, first, the defendant attempted to cause the death of John Mueller or another. Second, the defendant acted with the intent to kill John Mueller or another.
Washington objected at trial to the “or another” language used in the instruction, arguing that there is no evidence indicating that any person other than Mueller might have been a target and that there are no facts to support a “transferred-intent type theory.”
The jury found Washington guilty of both charges, and the court sentenced him to 173 months in prison for attempted second-degree murder; the assault charge merged into the murder charge. His motion for a new trial was denied, and this appeal follows.
D E C I S I O N
Washington argues that the district court erred by including the “or another” language in the jury instruction. District courts are allowed considerable latitude in selecting the language of jury instructions. Sanderson v. State, 601 N.W.2d 219, 224 (Minn. App. 1999). A district court’s decision to give a particular instruction will not be reversed absent an abuse of its broad discretion. State v. Peou, 579 N.W.2d 471, 476 (Minn. 1998).
To establish that the court erred, Washington must show that the instruction contained “a material misstatement of law when read in the context of the instructions as a whole.” State v. Turnipseed, 297 N.W.2d 308, 312 (Minn. 1980). Reviewing courts must “examine all relevant factors to determine whether, beyond a reasonable doubt, the error did not have a significant impact on the verdict.” State v. Shoop, 441 N.W.2d 475, 481 (Minn. 1989) (citation omitted); see also State v. Olson, 482 N.W.2d 212, 216 (Minn. 1992) (concluding that erroneous instruction does not require new trial if error does not have significant impact on verdict).
Washington argues that the jury was confused by the jury instruction, contending that the jury instruction was improper because it “directed the jury to find either that Appellant intended to kill Mueller or some unspecified other person.” In addition to evidence that Washington was the gunman, Washington conceded at trial that there was no evidence that anyone other than Mueller was an intended target, and the prosecutor told the jury that Mueller was the intended target. The evidence shows that Washington intended to kill Mueller by shooting him in the head at close range. See, e.g., State v. Thompson, 544 N.W.2d 8, 12 (Minn. 1996) (concluding that intent to kill can be inferred from manner in which defendant shot victim); State v. Harris, 405 N.W.2d 224, 229 (Minn. 1987) (finding of intent to kill was supported by fact that defendant shot victim in head from close range). Thus, there is no basis to conclude that the instruction confused the jury. See Peou, 579 N.W.2d at 475 (explaining that when reviewing courts evaluate jury instructions, it is assumed that “the jurors were intelligent and practical people.”).
Further, the jury instruction does not misstate the law. The district court used the language of the second-degree murder and attempt statutes and CRIMJIG 11.25. See Minn. Stat. § 609.19, subd. 1 (1998) (providing that one who causes death of person with “intent to effect the death of that person or another” is guilty of second-degree murder) (emphasis added); Minn. Stat. § 609.17 (1998) (defining “attempt”); 10 Minnesota Practice,CRIMJIG 11.25 (1999). While on the facts of this case, inclusion of the “or another” language may have been surplusage, we conclude that Washington has failed to show that the district court abused its discretion by including that language.
Washington also argues that because of the allegedly erroneous instruction, his right to a unanimous jury verdict was violated because it cannot be determined whether the jury unanimously agreed that Washington intended to kill Mueller or rather intended to kill some other person. But Washington failed to raise this issue below. This court, therefore, will not consider it. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (stating that issues not raised below will generally not be considered on appeal).
Washington argues that the prosecutor committed prejudicial misconduct during his closing argument by (1) disparaging McKellips’s character, (2) misstating the state’s burden of proof, and (3) inflaming the passions of the jury. A district court is in the best position to determine whether a prosecutor committed misconduct and, if so, whether that misconduct was prejudicial. State v. Voorhees, 596 N.W.2d 241, 253 (Minn. 1999). A reviewing court will not reverse a district court’s determination absent an abuse of discretion. Id.
Defense counsel has a duty to object to improper statements during the state’s closing argument and to seek a curative instruction. State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984). Washington concedes that he did not object at trial. Ordinarily, 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 a claim of prosecutorial misconduct under the plain-error rule. State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). Reviewing courts must determine whether the alleged misconduct “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.” Id.
A. Disparaging McKellips’s Character
Washington argues that the prosecutor committed misconduct by disparaging the moral character of one of the state’s witnesses, Jill McKellips. In his closing argument, the prosecutor briefly mentioned the issue of paternity because McKellips testified on direct examination that Washington is her son’s father, but on cross-examination she testified that she is unsure if that is so. Washington has failed to show how this comment prejudiced his right to a fair trial. Accordingly, we need not address this issue. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (holding that appellate court will not review issue where appellant fails to develop argument other than making a general claim of error), review denied (Minn. Aug. 5, 1997); see also State v. Wilson, 594 N.W.2d 268, 271 (Minn. App. 1999) (holding that “mere assertion” of error unsupported by argument or legal authority and not raised below will not be considered on appeal), review denied (Minn. Aug. 18, 1999).
B. Burden of Proof
Washington argues that the prosecutor committed prejudicial misconduct by misstating the definition of reasonable doubt. Misstatements of the burden of proof are highly improper and constitute prosecutorial misconduct. State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). Prosecutors who tell a jury that their role is to determine guilt based on a lesser standard will risk reversal. State v. Thaggard, 527 N.W.2d 804, 812 (Minn. 1995).
Washington claims that the prosecutor committed misconduct by telling the jury that the state’s case is proved beyond a reasonable doubt if its evidence “could be acceptably assumed to be true.” But, during his closing argument, the prosecutor explained to the jury that (1) Washington was to be presumed innocent, (2) the state had the burden of proving Washington’s guilt beyond a reasonable doubt, and (3) “what the court gives you is the law you have to apply * * * .” The district court told the jury that the state had the burden of proving Washington’s guilt beyond a reasonable doubt. The court also instructed the jury that 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 law which differs from the law which I give to you, you should disregard that statement.” See State v. Bright, 471 N.W.2d 708, 712 (Minn. App. 1991) (holding that similar instruction lessened effect of any error), review denied (Minn. Aug. 1, 1991).
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). Reviewing the prosecutor’s argument as a whole, and considering it in conjunction with the district court’s instructions, we conclude that Washington was not prejudiced.
C. Inflaming Passions and Prejudices of the Jury
Washington asserts that in discussing the photographic lineup during his closing argument, “the prosecutor injected a racial argument into the trial demanding the jury assess the evidence based on racial prejudices instead of on facts” by saying:
What are the odds of two different people and nobody else identifying? I mean first off, if I hand this [photo] to you, do you recognize anybody? Any of you guys recognize anybody? What’s the odds. One out of two maybe, probably less than that because, I mean if you lived in Ely, Minnesota where it’s, you know, mostly white folks how could we even show it up there? No, I don’t recognize anybody, I don’t know any black folks. Okay? But if you live in the Twin Cities, yeah, but do you know any of these [people in the picture?] The answer is probably no. The odds of even being able to identify anybody here are one out of two. And then what are the odds of identifying one person out of a group of six [in the picture]?
We do not view the prosecutor’s statement to be an appeal to racial prejudice. Rather, we conclude that the prosecutor, however awkwardly, was attempting to explain to the jury that witnesses were able to pick Washington’s picture out of a photographic lineup of six pictures.
At most, these comments are unartful. See State v. Atkins, 543 N.W.2d 642, 684 (Minn. 1996) (“A closing argument must be proper, not perfect. Unartful statements inevitably occur in the midst of a heated and impassioned closing argument, even among the best of orators.”); see also State v. Morgan, 477 N.W.2d 527, 531 (Minn. App. 1991) (holding no reversible error even though prosecutor’s statements were “improper” and “inappropriate.”), review denied (Minn. Jan. 17, 1992). Here, in any event, the allegedly improper statements constituted only a small part of the prosecutor’s summation and likely did not play a substantial part in the jury’s deliberations. See State v. Lewis, 547 N.W.2d 360, 364 (Minn. 1996) (holding no prosecutorial misconduct where alleged error constituted only a small portion of closing argument); see also State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993) (concluding that, even where closing argument was “in some respects out-of-bounds,” it likely did not play substantial role in jury’s decision to convict).
We conclude that the prosecutor did not commit prejudicial misconduct. See State v. Sewell, 595 N.W.2d 207, 214 (Minn. App. 1999) (holding that district court’s instructions, coupled with evidence strongly supporting verdict, give assurance that prosecutor’s remarks did not prejudice defendant or deny him a fair trial), review denied (Minn. Aug. 25, 1999).