This opinion will be unpublished and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,
David Jon Hendrickson,
Filed December 11, 2001
Kandiyohi County District Court
File No. K5-00-951
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Boyd A. Beccue, Kandiyohi County Attorney, P.O. Box 1126, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Mulally, Judge.*
Appellant challenges his convictions of second-degree assault, reckless discharge of a firearm, and reckless use of a firearm, alleging prosecutorial misconduct in the examination of witnesses and in closing argument. Because we see no prejudicial misconduct in the prosecutor’s actions, we affirm.
Appellant David Hendrickson was involved in a longstanding dispute among residents of the trailer park where he lived with his sister. One episode escalated to the point where a neighbor made an offensive and obscene remark to appellant. A witness testified that she heard appellant and his sister arguing in their trailer; appellant said he was going to “do it,” and his sister urged him not to. Appellant then discharged a shot gun. He claims that he fired the gun into the air from his porch, but witnesses testified that he fired the gun at the 13-year-old brother of one of his antagonists. Appellant then handed his sister the gun and told her that he felt better.
A jury convicted appellant of second-degree assault, reckless discharge of a firearm, and reckless use of a firearm, and he was sentenced to 36 months. He challenges his convictions, claiming that the prosecutor committed misconduct in her examination of witnesses and in closing argument. This appeal followed the denial of appellant’s motion for a new trial.
A district court’s denial of a new trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000) (citations omitted).
1. Examination of Witnesses
Appellant argues that the prosecutor committed misconduct in examining witnesses, specifically when inquiring of a police officer about the proper handling of firearms, asking a police officer if she had advised the neighbors to procure a restraining order, asking the victim if he was afraid to go outside again after the incident, and eliciting testimony that charges could have been brought against appellant’s sister. To support this argument, appellant relies on three cases that found prosecutorial misconduct during examination of witnesses: State v. Harris, 521 N.W.2d 348, 354 (Minn. 1994) (stating that questions were “not tolerable” because they were designed to elicit highly prejudicial character evidence and because they were asked despite the trial court’s prohibition); State v. Richardson, 514 N.W.2d 573, 578 (Minn. App. 1994) (citing several examples of a prosecutor’s misconduct in bringing up irrelevant matters “to inflame the passions or prejudices of the jury”); and State v. Jahnke, 353 N.W.2d 606, 609 (Minn. App. 1984) (stating that a question asked “solely for the purpose of advancing an improper inference to the jury is unethical”). All three cases are readily distinguishable.
In Harris, the prosecutor persisted in violating the trial court’s instructions that highly prejudicial character evidence of the defendant’s prior acts not come before the jury. 521 N.W.2d at 354. Here, the prosecutor was asking an officer about when guns are drawn in police work; appellant’s character and prior acts were not the subject of the testimony. And, although the trial court sustained some objections on the ground of relevance, it gave no instructions forbidding the evidence or the line of questioning.
Richardson involved “numerous instances of prosecutorial misconduct,” 514 N.W.2d at 577, including three references intended to establish the defendant’s character as a cocaine dealer, an implication of personal knowledge that the prosecution was telling the truth, a gratuitous reference to a high-profile murder of a police officer, an attempt to bring an inadmissible matter to the attention of the jury, a reference to the defendant’s failure to call particular witnesses, and a reference to the defendant’s failure to offer his alibi prior to trial.
Jahnke involved questioning, for impeachment purposes of a defendant accused of sexual abuse of a child as to whether she had been sexually abused as a child. 353 N.W.2d at 609. The inference was that one who had been abused would more likely abuse others. In summary, none of the instances of misconduct alleged by appellant is comparable to the circumstances encountered in any of the cited cases.
We see no misconduct in the prosecutor’s examination of witnesses. Moreover, even if the prosecutor’s inquiry involved misconduct, it was not prejudicial. When we examine the challenged conduct within the context of the whole record, we conclude that it would not have unfairly influenced the jury to convict appellant.
2. Closing Argument
Appellant alleges that the prosecutor committed misconduct in closing argument by referring to some of the evidence as “uncontradicted” and by asserting her own opinion of the veracity of some of the witnesses. The prosecutor argued, “Most of the evidence, as I believe you will agree, was uncontradicted.” Later, the prosecutor commented that the state’s witness, Ditmarson,“didn’t [deny making certain remarks] because he was truthful on the stand.” The prosecutor then said of appellant’s sister’s testimony, “I think [it] lacks * * * frankness and sincerity,” but said, “The [victim’s testimony was] pretty powerful and pretty believable.” There was no objection to theseremarks.
Appellant relies on three cases: State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (“A prosecutor may not comment on a defendant’s failure to call witnesses or to contradict testimony”); State v. Eling, 355 N.W.2d 286, 294 (Minn. 1984) (“An attorney may not assert his or her personal opinion as to the credibility of a witness”); and State v. Streeter, 377 N.W.2d 498, 503 (Minn. App. 1985) (prosecutor’s repeated references to “uncontradicted” testimony could have led jury to think either that defendant did not dispute the testimony or that defendant had the burden of proof).
We note first that the three cases cited by appellant are also distinguishable. In Porter, a high-profile sexual abuse case, the prosecutor repeatedly pointed at the defendant during cross-examination and referred to his failure to impeach the state’s witnesses by cross-examination. 526 N.W.2d at 364. Much of one victim’s testimony was contradicted by the defendant’s wife. Id. at 362. Here, the single reference to uncontradicted testimony was immediately followed by a reference to an uncontested fact: that appellant discharged a firearm. Both appellant’s sister and his attorney admitted that appellant discharged a firearm.
In Eling, the issue was whether defense counsel expressed an opinion as to the defendant’s guilt, thus providing the basis for a claim of ineffective assistance of counsel. 355 N.W.2d at 294. Eling did not involve a claim of prosecutorial misconduct. Finally, Streeter was a case with only one witness, the arresting officer, whose testimony could have been contradicted only by the defendant, who did not testify. 377 N.W.2d at 500. Here, there were several witnesses; their testimony was both corroborative and contradictory. None of the cases on which appellant relies indicates that there was prosecutorial misconduct, and the cases provide no support for appellant’s implication that inconsistent evidence is necessarily indicative of prosecutorial misconduct.
We see no prosecutorial misconduct either in the examination of witnesses or in closing argument. We reiterate the fundamental law that the prosecutor may not comment on the defendant’s failure to testify. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229 (1965); State v. Spencer, 311 Minn. 222, 230, 248 N.W.2d 915, 920 (1976); Minn. Stat. § 611.11 (2000). Here, appellant did not testify, and the prosecutor argued that most of the evidence was “uncontradicted.” However, there was no causal connection between these factors. The record shows thatthe witnesses agreed on many facts. Calling the evidence “uncontradicted” did not diminish the presumption of appellant’s innocence or imply that appellant had a duty to testify. We also note that it is improper for a prosecutor (or any counsel) to state a personal opinion relating to the veracity of witnesses or the guilt of a defendant. See State v. Spaulding, 296 N.W.2d 870, 876 (Minn. 1980). Therefore, prosecutors are well advised to avoid “I think” or I don’t think” phrases in final argument to a jury. State v. Curtis, 295 N.W.2d 253, 258 (Minn. 1980). Nevertheless, we feel that the prosecutor’s use of “I think” here wasmerely rhetorical.
In summary, we see no prosecutorial misconduct in the prosecutor’s examination of witnesses. In any event, even assuming without deciding that there was misconduct in the prosecutor’s expressions of her opinion in her closing argument, we conclude that theywere not so serious and prejudicial as to impair appellant’s right to a fair trial. See Johnson, 616 N.W.2d at 727-28.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Appellant’s pro se brief does not deal with prosecutorial misconduct; it alleges inconsistencies in the evidence, none of which is material to appellant’s conviction.