This opinion will be unpublished and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,
Darrell Alvin Johnson,
Hennepin County District Court
File No. 0069112
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Hanson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Darrell Alvin Johnson challenges his conviction and sentence for promoting prostitution. Appellant contends that the district court (1) erred in denying the jury’s request during its deliberations for audiotapes the defense had introduced to impeach the state’s witnesses; (2) abused its discretion in ruling appellant could be impeached by four prior convictions; and (3) abused its discretion in departing upwards on the ground that appellant met the statutory definition of a repeat offender. Appellant also contends the prosecutor committed prejudicial misconduct by improperly evoking sympathy for prostitutes who were witnesses in the case and eliciting prejudicial testimony from a witness. We affirm.
Minn. R. Crim. P. 26.03, subd. 19(1), (2), grants a district court broad discretion in deciding what evidence a jury may review. State v. Kraushaar, 470 N.W.2d 509, 514 (Minn. 1991). Appellant contends the district court erred by not allowing the jurors to review audiotapes that the jury had heard during trial. We disagree.
On this record we cannot say the district court abused its discretion in denying the jury’s request to rehear the tapes. See State v. Fossen, 282 N.W.2d 496, 509 (Minn. 1979) (stating Minn. R. Crim. P. 26.03, subd. 19(1), “authorizes the [district] court, in the exercise of its discretion, to preclude some exhibits from being taken to the jury room.”). The tapes in question were never introduced into evidence but were played by the defense for impeachment purposes during the trial. Appellant concedes that the jurors would need multiple hearings of the tapes to make sense of them because they are nearly inaudible. Because multiple hearings could overemphasize the importance of the tapes, we conclude it was within the district court’s discretion to deny the jury’s request.
A district court’s ruling on the impeachment of a witness by a prior conviction is reviewed under a clear abuse of discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Appellant contends the district court abused its discretion by ruling that appellant could be impeached with four prior burglary-related offenses. We disagree.
Evidence of prior convictions may be admissible to impeach a defendant’s testimony if the underlying offenses are no more than ten years old, punishable by imprisonment in excess of one year, and the “court determines that the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a)(b). To determine whether the probative value outweighs the prejudicial effect, the court should consider:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of the defendant’s testimony, and (5) the centrality of the credibility issue.
Ihnot, 575 N.W.2d at 586 (quotation omitted).
Impeachment by prior crime assists the jury by allowing it to see the whole person and thus better judge the truth of his testimony. State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993). Here, evidence of appellant’s long criminal history could have assisted the jury on the issue of appellant’s credibility if he had testified. In addition, the district court indicated it would only allow impeachment by appellant’s four burglary-related convictions that took place within the last ten years. And the burglary-related convictions did not so closely resemble the charged prostitution-related offense that appellant would be unduly prejudiced by their introduction. Finally, although appellant claims his testimony was important to demonstrate how a legitimate escort service worked, his testimony would have contradicted the testimony of two prostitute witnesses. Because the jury would have to choose between the credibility of appellant and the prostitutes, “a greater case can be made for admitting the impeachment evidence.” Ihnot, 575 N.W.2d at 587. We conclude the district court did not abuse its discretion by determining that it would allow the state to impeach appellant with his prior convictions.
The district court’s decision to depart from the sentencing guidelines will not be reversed absent a clear abuse of discretion. State v. Dokken, 487 N.W.2d 914, 916 (Minn. App. 1992), review denied (Minn. Sept. 30, 1992). The court may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum sentence if the court
finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.
Minn. Stat. § 609.1095, subd. 4 (1998).
Appellant contends the district court erred in finding that appellant’s criminal history established the necessary “pattern of criminal conduct” to sentence him under the career offender statute. We disagree.
A pattern of criminal conduct may be demonstrated by “criminal conduct similar, but not identical, in motive, purpose, results, participants, victims or other shared characteristics.” State v. Gorman, 546 N.W.2d 5, 9 (Minn. 1996) (emphasis added). The sentencing court may consider prior felony and gross misdemeanor convictions as well as uncharged acts of criminal conduct proved by clear and convincing evidence in determining whether a criminal pattern exists. Id.
In considering whether appellant’s felony fit a pattern of criminal conduct, the district court stated:
Here, it is clear to me from the evidence presented at this trial and also from the evidence submitted as part of the County Attorney’s memorandum, that there is clearly a continuing pattern of property offenses and * * * the prostitution business that you were running was continuing to be property offenses, taking money from other people, and was for the purpose of deriving illegal income from this criminal activity, and that had been an organizing principal throughout your life[.]
We conclude the district court did not err in applying Gorman and determining that both appellant’s convictions and other criminal history, including evidence that appellant participated in stealing from his prostitutes’ patrons, demonstrate a “pattern of criminal conduct.” Thus, the district court did not abuse its discretion in sentencing appellant as a career offender.
Appellant contends he was denied his right to a fair trial because of the prosecutor’s misconduct. We disagree.
The general standard for determining whether a new trial is warranted due to prosecutorial misconduct is whether the misconduct, viewed in light of the whole record, appears “inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.” State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (quotation omitted). And this court has stated that a criminal defendant claiming prosecutorial misconduct in closing argument
has an affirmative duty to ask for a cautionary instruction because a properly worded instruction can often ameliorate the effect of an improper argument.
State v. Sewell, 595 N.W.2d 207, 214 (Minn. App. 1999) (citation omitted), review denied (Minn. Aug. 25, 1999). Here, appellant did not object to the closing argument or seek a cautionary instruction. In the absence of a timely objection, an appellate court reviews a claim of prosecutorial misconduct under the plain error rule. State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).
Appellant claims the prosecutor’s closing argument constituted misconduct because the prosecutor diverted the jury’s attention from deciding appellant’s guilt to examining society’s role in helping young women to stop prostituting themselves. But the prosecutor made no statement that this case is about society helping to stop prostitution or even to stop the prostitute witnesses from prostituting themselves. We conclude that appellant’s arguments do not show plain error so serious that appellant was denied his right to a fair trial.
Appellant also claims the prosecutor committed misconduct by eliciting testimony from a witness that police stopped appellant for driving a stolen car. This testimony was objected to, stricken from the record, and the judge instructed the jury to disregard the question and answer. We assume the jury followed the court’s instructions. State v. Ferguson, 581 N.W.2d 824, 833 (Minn. 1998). Therefore, no prejudice to appellant should have come from this stricken testimony. We conclude the prosecutor’s alleged misconduct did not deny appellant his right to a fair trial.
Finally, we note that we have carefully reviewed each of appellant’s pro se claims and find they are without merit.