This opinion will be unpublished and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
Hennepin County District Court
File No. 00100294
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, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
Appellant Nathaniel Smith, convicted of aiding and abetting aggravated robbery, contends that the trial court erred in dealing with the conduct of the prosecutor, who implied in his opening statement that appellant would testify. Appellant also argues that the court abused its discretion, given the nature of appellant’s involvement in the offense, when the court made an upward durational departure from the sentencing guidelines. Finding no merit in either of these contentions, we affirm.
In June 2000, 16-year-old appellant Nathaniel Smith and 19-year-old Danya McKinnie assaulted a 71-year-old security officer and stole his car. Appellant later admitted to police that he played a role in the theft of the car. Appellant told police that he and McKinnie were biking along the railroad tracks when he got a flat tire, saw a security guard approach, and asked him for a glass of water and for help fixing his bike. The guard gave appellant a glass of water and McKinnie instructed appellant to ask for another glass, telling appellant that when the guard went inside the shack again he would knock him out while appellant stole his car keys. When the guard went inside the shack for a second glass of water, McKinnie attacked the guard, punching him and throwing a fire extinguisher at his head, while appellant stole his car keys. A witness observed appellant and McKinnie approach the guard, watched the two go into the guard shack, and called 911 to report that the guard was possibly being attacked. While on the phone with the dispatcher, the witness observed appellant and McKinnie steal the guard’s car, hitting the guard shack as they sped off. The guard was found in the shack with two black eyes and a battered face. An officer apprehended appellant and McKinnie, and the witness, who observed the attack, identified them as the guard’s assailants.
Appellant was certified to stand trial as an adult. At trial, the prosecutor asserted in his opening statement, at the conclusion of a series of comments on witnesses the jury would “hear from,” that they were “going to be hearing from” appellant. Immediately upon making this statement, the prosecutor added that a police officer would testify about his conversation with appellant, but in the course of describing this conversation, the prosecutor once again alluded to what the jury was “going to hear from the defendant.” Appellant’s counsel objected to the prosecutor’s comments, and the judge asked the prosecutor what he meant by saying that “he was going to speak.” The prosecutor explained that the police officer would testify about the conversation he had with appellant.
At the close of the prosecutor’s opening statement, appellant’s counsel moved for a mistrial, arguing that the prosecutor’s conduct violated appellant’s right to remain silent. The court denied appellant’s motion, finding that “in the context of the whole statement it’s clear to the jury that what was meant was that the defendant was going to be heard from through his statement to the police.” Appellant’s counsel then moved for a curative instruction to remind the jury that the prosecutor’s statements are not evidence and to reinforce the state’s burden of proof. The judge agreed to give the instruction. The judge also offered to give an additional instruction to remind the jury that defendant has a right to remain silent, which appellant’s attorney declined.
Appellant was convicted of aiding and abetting an aggravated robbery in the first degree and sentenced to 66 months, an upward durational departure of 18 months from the presumptive sentence. The court found two aggravating factors present to justify this departure: (1) “[the guard] was a particularly vulnerable victim” because of his age, and (2) “[the guard] was treated with particular cruelty.”
Appellant argues that he is entitled to a new trial because of the prosecutor’s opening statement. Because the trial court is in the best position to determine the effect of trial conduct, we must be deferential to the trial court’s exercise of discretion on the question of whether a new trial is warranted. State v. Scruggs, 421 N.W.2d 707, 716 (Minn. 1988). An appellate court will only reverse a trial court’s denial of a new trial motion based on alleged prosecutorial misconduct when the misconduct, considered in the context of the whole trial, “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).
When it is determined that a prosecutor improperly commented on defendant’s failure to testify, the misconduct may be harmless if (1) the comment is not extensive; (2) the comment does not stress to the jury that an inference of guilt from silence is a basis for conviction; and (3) the evidence is overwhelmingly in favor of a conviction. State v. Whittaker, 568 N.W.2d 440, 451 (Minn. 1997).
The trial court denied appellant’s motion for a mistrial, finding that, although the prosecutor’s language was argumentative and “inartful,” it did not qualify as an adverse comment on defendant’s election not to testify. Specifically, the court found that “in the context of the whole statement it’s clear to the jury that what was meant was that the defendant was going to be heard from through his statement to the police.”
Although the court’s analysis of the prosecutor’s comments is plausible, we ultimately rest our decision on the additional conclusion that the comment, if it could be read as one that alludes to defendant’s failure to testify, was subject to a harmless error analysis because (1) the prosecutor only made the comments in his opening statement and did not raise them again; (2) the comments did not stress appellant’s silence as a basis for conviction; (3) there was overwhelming evidence presented of appellant’s guilt, including his confession to police and the witness’s identification of appellant; and (4) considered in the context of the whole trial, it did not hamper appellant’s defense or play a substantial role in influencing the jury to convict him. Furthermore, the court gave a curative instruction, diminishing the impact of any prosecutorial misconduct that occurred. See State v. Bright, 471 N.W.2d 708, 713 (Minn. App. 1991) (indicating impact of prosecutorial misconduct was lessened by the court’s instructions), review denied (Minn. Aug. 1, 1991). In fact, under the circumstances presented here, any error of the prosecutor may have been harmless beyond a reasonable doubt, which is the case when the ultimate verdict is surely unattributable to the error. See State v. Gates, 615 N.W.2d 331, 340 (Minn. 2000) (if serious, prosecutorial misconduct will be deemed harmless beyond a reasonable doubt if the verdict is unattributable to the error).
Appellant contends that the trial court abused its discretion by imposing a 66-month sentence, an 18-month upward durational departure from the presumptive sentence for aiding and abetting first-degree aggravated robbery by an offender with a zero criminal history score. See Minn. Sent. Guidelines IV (presumptive sentence is 48 months). The decision to depart from sentencing guidelines rests within the trial court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). “When a district court departs [from sentencing guidelines], it must articulate substantial and compelling reasons justifying the departure.” State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999) (citations omitted).
The trial court granted respondent’s motion for an upward durational departure sentence, citing as aggravating factors that (1) “[the guard] was a particularly vulnerable victim” because of his age, and (2) “[the guard] was treated with particular cruelty.” See Givens, 544 N.W.2d at 776 (victim’s vulnerability due to age and physical condition may be considered as aggravating factors although not planned by defendant, where defendant took advantage of those factors once they were apparent); see also State v. Anderson, 370 N.W.2d 703, 707 (Minn. App. 1985) (a prolonged beating and stamping on the victim’s head and body constituted an act of particular cruelty and were factors justifying a double durational departure), review denied (Minn. Sept. 19, 1985).
Appellant argues that the trial court abused its discretion by attributing the two aggravating factors, particular cruelty and victim vulnerability, to appellant, because he did not assault the victim. The trial court did not abuse its discretion. Even if appellant’s accomplice was more actively involved in the assault of the victim, appellant was involved in planning and assisting the robbery that took into account the vulnerability of the victim and the cruelty of their actions toward him. Moreover, appellant did not attempt to stop the assault or attempt to call for an ambulance. This failure to act can be considered particularly cruel. See State v. Jones, 328 N.W.2d 736, 738 (Minn. 1983) (leaving the victim without calling for medical help is particularly cruel).
Finally, we are mindful of the statutory law that an accomplice is treated the same as the principal in the commission of the crime. See Minn. Stat. § 609.05, subds. 1, 2 (2000) (a person is criminally liable for a crime committed by another if the person aids or conspires with the other to commit the crime; one need not be an active participant in inflicting any injuries that were reasonably foreseeable to be criminally liable for a crime committed by an accomplice); see also State v. Harwell, 515 N.W.2d 105, 109 (Minn. App. 1994) (holding aiders and abettors are legally responsible for the acts of their accomplices and may be sentenced accordingly), review denied (Minn. June 15, 1994) (citation omitted).
The record demonstrates that appellant’s conduct justifies the trial court’s upward durational departure.
 It might also be contended that the prosecutor, when commenting, was anticipating appellant’s testimony if he took the stand and did not anticipate the defendant’s failure to testify. Appellant argues that a prosecutor’s assertion that a defendant will testify is just as improper as a comment on a defendant’s failure to testify. See State v. Pierce, 439 N.W.2d 435, 444-45 (Neb. 1989) (court found prosecutor’s comment in his opening statement that defendant “will testify but we do not know which version of the facts to which he will testify,” where no curative instruction was given, to be a violation of defendant’s right to remain silent); see also Collins v. State, 385 So.2d 993, 1000-02 (Ala. Crim. App. 1979) (court found prosecutor’s comment in opening statement, regarding defendant’s lack of explanation for his possession of stolen goods, to be an adverse comment on appellant’s right to remain silent, but found that defendant’s refusal of the court’s curative instruction was a waiver of his original objection and affirmed appellant’s conviction), rev’d on other grounds, 385 So.2d 1005 (Ala. 1980). These cases are nonprecedential, and it is plausible to conclude that they are distinguishable from the circumstances of this case, because they deal with statements that place doubt on appellant’s credibility or otherwise more evidently impinge on appellant’s Fifth Amendment right not to testify.