This opinion will be unpublished and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
Dodge County District Court
File No. KX-99-238
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Paul Kiltinen, Dodge County Attorney, Dodge County Courthouse, 22 Sixth Street East, Mantorville, MN 55955 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Parker, Judge.
Appellant Keith Edward Tjepkes argues that the district court erred in admitting into evidence notations made by the prosecutor to aid the victim’s testimony, and that the prosecutor committed misconduct by eliciting the opinion of the expert witness about the victim’s veracity, endorsing the credibility of the expert witness, and injecting his personal opinion of the victim’s veracity. Because we find that the district court’s error in admitting the notations into evidence was harmless and that the prosecutorial misconduct was not so prejudicial that it resulted in an unfair trial, we affirm.
L.G., the ten-year-old daughter of Tjepkes’s former girlfriend, accused him of touching her inappropriately. Tjepkes was charged with four counts of criminal sexual conduct in the second degree and one count of criminal sexual conduct in the fifth degree. A jury found him guilty of one count of criminal sexual conduct in the second degree and not guilty on all remaining counts. Tjepkes appeals.
Tjepkes argues that the district court erred in admitting into evidence notations made by the prosecutor to aid L.G.’s testimony. During L.G.’s testimony, the prosecutor wrote certain words and phrases on a large pad of paper on an easel. For example, the prosecutor asked L.G. how many times Tjepkes had touched L.G.’s vagina, and she responded, “Probably about three times.” The prosecutor then wrote down “three”:
We will put a three there, and I’ll put that same squiggly line that I did on your mom’s age up there, which means “about.” Okay? When we look at that, we are saying about three. And this one, three plus, means three or more.
The prosecutor also pointed to anatomical diagrams when L.G. referenced certain body parts. The notations totaled five sheets. Over defense counsel’s objection, the court admitted the notations into evidence and allowed them to go into the jury room during deliberations.
Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). If the district court erred in admitting evidence, the reviewing court determines “whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial. Id.
Generally, the use of models and other types of illustrative evidence to aid a witness’s testimony is within the discretion of the district court. State v. Eggert, 358 N.W.2d 156, 161 (Minn. App. 1984). “The test is whether or not the testimonial aid will likely assist the jury in understanding the witness’s testimony.” Id. In this case, the illustrations were only the prosecutor’s selective notations of responses to his own questions put to the witness, inescapably carrying as much of the prosecutor’s point of view as the witness’s. The prosecutor had selective control over what he wrote down. At best, the notations were a graphic illustration of L.G.’s testimony, but it is difficult to find any probative value in the substance of the notations that would likely assist the jury in better understanding L.G.’s testimony. Therefore, we conclude that the district court erred in admitting the notations into evidence.
Nevertheless, the notations do not unfairly summarize her testimony, nor are they cumulative or particularly probative. Consequently, we hold that there is no reasonable probability that the evidence affected the verdict, and the error, therefore, is harmless.
2. Prosecutorial Misconduct
Tjepkes argues that the prosecutor committed misconduct by (a) eliciting the opinion of an expert witness about the victim’s veracity; and (b) endorsing the credibility of the expert witness and injecting his personal opinion about L.G.’s veracity in his closing argument. When reviewing a claim of prosecutorial misconduct, we 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.” Sanderson v. State, 601 N.W.2d 219, 225 (Minn. App. 1999), review granted (Minn. Jan. 18, 2000) and review denied (Minn. Mar. 28, 2000). Whether to grant a new trial because of prosecutorial misconduct rests largely within the discretion of the district court. State v. Robinson, 604 N.W.2d 355, 361 (Minn. 2000); see State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (indicating district court is in best position to appraise effect of any misconduct).
The district court granted defense counsel’s motion in limine prohibiting any witness from testifying “as to an opinion regarding whether or not the complaint’s allegations are truthful.” The prosecutor asked the expert witness:
Are you able to form an opinion as to whether or not [L.G.] had experienced sexual abuse. * * * And what is that opinion?
The expert responded:
My opinion was that this child had made a valid statement to me about her experiences with an individual named Keith, and that she had the symptoms of . . .
At this point, defense counsel’s objection was sustained, and the district court asked the prosecutor to “ask the question again,” and the prosecutor asked the same question. The expert responded: “I believe she has been sexually abused. That is my clinical impression.”
The prosecutor’s question was not improper. He did not ask the expert witness whether the victim’s allegations against Tjepkes were truthful. He simply asked whether the expert had formed an opinion whether L.G. had been sexually abused. In addition, defense counsel’s objection was sustained, and any impropriety by the witness is harmless.
b. Endorsement of witness’ credibility and veracity
In his closing argument, the prosecutor described the expert witness’s qualifications:
Whether you know it or not, you were in the presence of greatness. Doctor Friedrich is the author of 90 journal articles, 25 chapters in books, 6 books himself, teacher of doctors, supervisor of doctors, recognized by his peers, testifying in more states as an expert witness that I’m sure I don’t know the capitols to. He is like the Michael Jordan of child psychology. The man is good.
Similarly, the prosecutor tried to bolster L.G.’s credibility by stating that she had no reason to lie, whereas Tjepkes did:
The defendant may want you to believe that children are capable of lying. Well, so are adults. But children usually lie to get out of trouble. * * * Do you think [L.G.] benefited from this? Her life has been tremendously traumatized. * * *
The defendant has the greatest interest in the outcome of the case * * * . [L.G.] is forced to trust you. What happened to her is true. She is a good person. She is an honest person. You can consider that when evaluating credibility of the witness.
Later in his argument, the prosecutor stated: “[L.G.] is telling the truth.”
“A prosecutor may argue the credibility of witnesses.” Sanderson, 601 N.W.2d at 225 (citing State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991)).
An advocate may indeed point to circumstances which cast doubt on a witness’ veracity or which corroborates his or her testimony, but he may not throw onto the scale of credibility the weight of his own personal opinion.
State v. Ture, 353 N.W.2d 502, 516(Minn. 1984); see State v. Duncan, 608 N.W.2d 551, 555 (Minn. App. 2000) (finding prosecutor’s statements that defendant was “lying” clearly crossed the line), review denied (Minn. May 16, 2000). The prosecutor’s comments in this case went beyond mere commentary on the evidence and crossed over into expression of his personal opinion. We caution the prosecutor that injecting his personal opinion into closing arguments is improper and unprofessional. Hyperbole is not acceptable in legal argument.
Once an appellate court has decided that the challenged conduct was in error, it must decide whether the conduct was
so prejudicial that it constituted a denial of the defendant’s right to a fair trial. * * * 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, 601 N.W.2d at 225 (citations omitted). In cases where the prosecutor has expressed a personal opinion of the accused’s guilt or the veracity of witnesses, it has been held that such statements were harmless where the district court cautioned the jury to consider only the evidence, where the evidence of guilt was adequate, and where the prosecutor’s argument was otherwise proper. Ture, 353 N.W.2d at 517 (citations omitted). Where there is more than adequate evidence of guilt without the prosecutor’s comments, a new trial is not warranted. State v. Morgan, 477 N.W.2d 527, 531 (Minn. App. 1991) (citing Ture, 353 N.W.2d at 517), review denied (Minn. Jan. 17, 1992).
Defense counsel failed to object to any of the prosecutor’s statements in closing argument. To preserve a claim for prosecutorial misconduct, a proper objection and request for a curative instruction must be made. Sanderson, 601 N.W.2d at 224. Although ordinarily a failure to object constitutes a waiver, an appellate court may infer that defense counsel did not consider the argument to be improper. Id. A failure to object deprives the district court of an opportunity to give a curative instruction or to declare a mistrial. Morgan, 477 N.W.2d at 531. Because defense counsel failed to object or request a curative instruction, we assume that defense counsel did not, at the time, feel the comments were prejudicial. See, e.g., Ture, 353 N.W.2d at 516 (noting failure to object suggests defendant did not consider improper comments prejudicial). We conclude that the prosecutor’s conduct was not so prejudicial that it amounted to a denial of the right to a fair trial.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.