State of Minnesota,
Angela Yvonne Lee,
Gordon W. Shumaker, Judge
Dakota County District Court
File No. K0001503
Mike Hatch, Attorney General, Suite 1100, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and,
James C. Backstrom, Dakota County Attorney, Kevin P. Shea, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (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 Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.*
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant challenges her conviction of terroristic threats, arguing that the prosecutor committed misconduct in eliciting testimony that appellant was initially arrested for second-degree assault. Because we find there was no prosecutorial misconduct, we affirm.
On the afternoon of May 21, 2000, appellant Angela Lee and her husband, Rodney Lee argued at appellant’s home. Mr. Lee took one of appellant’s duffel bags, packed clothes in it, and left the home.
Appellant, who wears a prosthesis that prevents her from running, followed Mr. Lee down the street in her vehicle at a very close distance, sometimes driving behind him onto the boulevard area, while traveling at about 15-20 miles-per-hour. As she came close to him, she would step on her brakes in order to avoid hitting him.
Witnesses called police, who responded and arrested appellant for second-degree assault. After an investigation, the state charged appellant with making terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (1998). She went to trial, and a jury found her guilty of the charge. She now appeals, arguing that her right to a fair trial was violated because the prosecutor elicited inadmissible testimony from a police officer during the trial.
D E C I S I O N
When assessing an allegation of prosecutorial misconduct, we must first determine whether the behavior was in fact misconduct. State v. Yang, 627 N.W.2d 666, 678 (Minn. App. 2001), review denied (Minn. July 24, 2001). The prosecutor’s statements must be taken as a whole in determining whether there is a basis for reversing appellant’s conviction. Id.
Appellant argues that the prosecutor committed misconduct when eliciting testimony from a police officer who was at the scene of the crime that appellant was initially arrested for second-degree assault:
Q Approximately how long were you -- excuse me, how long were you at this particular call?
A Probably at the scene from a -- from maybe a half hour I’m guessing.
Q And how did your involvement in this situation conclude that day?
A I got a statement from [appellant] about what happened and, I believe that was the conclusion of it. I just got her statement and --
Q At some point was anybody taken into custody?
A Yes, we did arrest [appellant] after conferring with [two other officers] she was arrested for second degree assault.
(Emphasis added.) Appellant’s counsel objected, and the district court then gave a curative instruction.
Considering the form and content of the prosecutor’s question, there is no basis for inferring that the prosecutor intended to elicit testimony about the crime for which the police arrested appellant. Furthermore, there is no reason the prosecutor might have anticipated the officer’s nonresponsive answer and his volunteered information about the reason for the arrest. See State v. Hagen, 361 N.W.2d 407, 413 (Minn. App. 1985) (generally, unintended responses under unplanned circumstances do not require a new trial), review denied (Minn. Apr. 18, 1985). Cf. State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001) (improper for prosecutor to ask questions calculated to elicit or insinuate an inadmissible and highly prejudicial answer); State v. Smallwood, 594 N.W.2d 144, 150 (Minn. 1999) (generally, it is misconduct for a prosecutor to knowingly offer inadmissible evidence for the purpose of bringing it to the jury’s attention) (emphasis added); State v. Huffstutler, 269 Minn. 153, 155-56, 130 N.W.2d 347, 348-49 (1964) (new trial warranted when reply to prosecution’s direct examination question slandered and disparaged a witness and reflected on character of defendant). The prosecutor did not engage in misconduct.
Appellant relies on two cases in support of her argument. However, these cases do not support her position. In State v. Ebert, 346 N.W.2d 350 (Minn. 1984), a prosecution witness “blurted out” that one of the bullets found was in a box containing “Nazi paraphernalia.” Id. at 351. The court found that although the statement was improper because it was in violation of a court order, it was only a passing reference, and the jury could have concluded that the material belonged to someone other than the defendant. Id. Here, the statement was also a passing reference, and if the jury did consider the evidence despite the district court’s curative instruction, it is possible that the jury could have concluded that the assault charge was dropped for any number of reasons, including insufficient factual support.
Appellant also cites to State v. Gegen, 275 Minn. 568, 147 N.W.2d 925 (1967) in support of her argument. In that case, the prosecution questioned the officer who arrested a drunken driver. The officer related the conversation he had with the defendant. After the officer stated that “that’s about the [gist] of the conversation,” the prosecutor asked whether the officer had “any other conversation on the way up to the police station, other than on that subject?” The officer replied: “[H]e said that he had one prior and he wasn’t going to take this lying down.” Id. at 568, 147 N.W.2d at 925. In ordering a new trial, the court concluded that it was hard to believe “that the question was not asked deliberately and that the prosecutor did not know the answer he was going to get.” Id. at 569, 147 N.W.2d at 926. However, here there were no questions that reasonably would suggest an intent to elicit testimony about the initial charge.
Thus, there was no prosecutorial misconduct during this trial, and the district court appropriately responded to the officer’s improper reference by promptly giving a curative instruction. See State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995) (stating a district court’s curative instruction can ameliorate the effect of an improper reference), review denied (Minn. Sept. 20, 1995).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.