This opinion will be unpublished and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

CX-01-1364

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jason Karlo Anderson,

Appellant.

 

Filed May 7, 2002

Affirmed; motion granted

Robert H. Schumacher, Judge

 

St. Louis County District Court

File No. K000600448

 

 

Mike Hatch, Attorney General, Robert A. Stanich, Thomas R. Ragatz, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)

 

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

 

Considered and decided by Hanson, Presiding Judge, Schumacher, Judge, and Foley, Judge.*

 

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Jason Karlo Anderson challenges his conviction of third-degree assault. Anderson contends that he is entitled to a new trial because the prosecutor committed prejudicial misconduct in rebuttal closing argument. The state moved to strike portions of Anderson's pro se supplemental brief. We affirm and grant the motion to strike.

FACTS

At approximately 8:30 p.m. on December 2, 1999, Duluth Police Officer James Rodman was dispatched to St. Luke's Hospital regarding an assault. Upon arriving, Rodman met with Matthew Mehling, who was being treated for a broken nose and a fractured orbital rim around his right eye. Mehling told Rodman that Anderson had assaulted him in the kitchen of Sarah Modec's residence. Rodman obtained written statements from Mehling and from Christa Erickson, who was with Mehling at the hospital. Rodman also spoke with Modec that evening on the telephone, and later stopped by her residence to give her a form, upon which Modec provided a written statement. These written statements were not introduced as evidence at trial.

Modec testified at trial that after the incident, she received a telephone call from Anderson, in which he told her to "relax" and that the incident "had nothing to do with" her. Modec also testified that during subsequent telephone conversations with Anderson, he told her that "maybe [she] shouldn't talk to the police," and "that it wouldn't do any good because his girlfriend was willing to stand up for him."

On April 21, 2000, Anderson was formally charged with third-degree assault in violation of Minn. Stat. 609.223, subd. 1 (1998). A complaint and warrant were issued, and Anderson was arrested on the outstanding warrant after being stopped for a traffic offense on September 25, 2000. On October 30, 2000, Anderson's girlfriend, Jennifer Perich, contacted the police and gave a written statement that she, not Anderson, had assaulted Mehling.

On March 21, 2001, a jury trial commenced. Modec testified that Anderson and his friend, Matt Jezierski, came over to her residence between 3:00 and 5:00 p.m. on December 2, 1999. She testified that they drank some beer and talked. About two hours after Anderson and Jezierski arrived, Erickson and Mehling arrived. Mehling and Erickson testified that a few minutes later, Anderson and Jezierski got up from the couch and asked Mehling to follow them into the kitchen. Mehling testified that he had not met Anderson or Jezierski before that evening, but went with them into the kitchen, "assuming [that it was] to go get a beer or something." Modec and Erickson remained in the living room.

Mehling testified that as he entered the kitchen, he looked back over his shoulder to listen to something that Erickson and Modec were talking about, and when he turned around, Anderson punched him in the face without warning. Mehling initially fell to the ground on one of his knees but got up and tried to follow Anderson and Jezierski as they fled out the back door. Mehling made it down the stairs but had to stop because he was bleeding profusely. He testified that there was no doubt in his mind that it was Anderson who struck him.

Modec and Erickson testified that they heard a loud crack and ran into the kitchen to see what had happened. Modec testified that she saw Mehling follow Anderson and Jezierski out the back door. Modec, Mehling, and Erickson all testified that Perich was not present at Modec's residence that evening.

At trial, the defense called Perich and Jezierski as witnesses. Perich and Jezierski testified that they were both with Anderson at Modec's residence when Mehling and Erickson arrived. Perich testified that Mehling was "trying to talk" to her and attempting to get her attention "in a flirty manner." Perich testified that when she turned away from Mehling, he moved her arm to get her attention, and she then pushed his arm away. Perich then testified, "[Mehling] grabbed my shirt to pull me closer to talk to him, and that's when I pushed his hand away and then I hit him." Perich initially testified that they were in the dining room when she hit Mehling, but later testified that they were between the dining room and the kitchen. Jezierski insisted that the assault took place in the kitchen, not the dining room.

The state presented rebuttal testimony from Perich's cousin, Stacy Perich, and Perich's uncle, Daniel Perich, the assistant chief of police in Hermantown. Both testified that Jennifer Perich is an untruthful person. Daniel Perich also testified that Jennifer Perich contacted him at his office in mid-February 2001, and told him that she gave a statement to the Duluth Police Department because she did not want Anderson to go to jail. Daniel Perich testified that he gave Jennifer Perich the phone number for the county attorney's office and told her "to call them up and go down there and tell them the truth."

In closing argument, defense counsel argued that the state's witnesses had colluded to blame Anderson for the assault because Mehling was embarrassed that a woman had beaten him up. In rebuttal closing argument, the prosecutor referred to the earlier written statements the state's witnesses made to police. The jury found Anderson guilty of third-degree assault. The district court sentenced Anderson to a stayed 18-month prison term and placed him on probation for three years, on the condition that he serve one year in jail and pay restitution and $77 in fines and surcharges. This appeal followed.

D E C I S I O N

Anderson contends that the prosecutor committed prejudicial misconduct in rebuttal closing argument by referring to earlier written statements the state's witnesses made to police, which were not introduced into evidence at trial, and by arguing that the jury could infer these written statements were consistent with the witnesses' testimony at trial. Anderson argues that he was effectively denied a fair trial. Prosecutorial misconduct warrants a new trial only when the misconduct, "viewed in light of the entire record, is of such serious and prejudicial nature that appellant's constitutional right to a fair trial was impaired." State v. Robinson, 604 N.W.2d 355, 361 (Minn. 2000) (citations omitted).

Appellate courts consider many factors in evaluating the prejudicial effect of any alleged prosecutorial misconduct during closing argument. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994). One factor is whether there was a contemporaneous defense objection. Id. Here, defense counsel did not object. Anderson's appellate brief specifically points out that defense counsel chose to object at several other times during the prosecutor's rebuttal closing argument but admits that he did not object to the statements Anderson now challenges on appeal.

Defense counsel's failure to object to the comments or to seek a curative instruction has "weighed heavily" in our previous decisions not to reverse, because the trial court might have been able to ameliorate the effect of improper prosecutorial argument.

 

Id. (quotation and citations omitted). A defendant who fails to object to the prosecutor's statements or to seek specific cautionary instructions "is deemed to have forfeited his right to have the issue considered on appeal." State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). The reviewing court, however, may reverse despite the defendant's failure to preserve the issue if the court deems the error sufficient to do so. Id. Anderson's failure to object implies that he found nothing improper or prejudicial about the statements at the time. See State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983).

In State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979), the defendant did not object to the prosecutor's closing argument or seek curative instructions. The Minnesota Supreme Court held that a new trial was not warranted, stating:

If a defendant is permitted to allow an error of this nature to pass without objection and then later use it as a basis for new trial, he will be encouraged to forego objection, knowing that if he is convicted he can raise the issue subsequently and possibly obtain a new trial and acquittal. Such a rule would foster abuse of the judicial system.

 

Id. at 497.

When reviewing claims of prosecutorial misconduct, we consider the closing argument as a whole. State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000). There is less likelihood of error where potentially inappropriate remarks are brief and isolated. State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990). Here, Anderson takes issue with statements that comprised only a small portion of the complete argument. We conclude that the prosecutor's comments, when viewed in the context of the closing argument as a whole, were not so prejudicial as to have denied Anderson a fair trial.

The arguments Anderson makes in his pro se supplemental brief are without merit. Furthermore, the fifth and all subsequent paragraphs of Anderson's pro se supplemental brief pertain to material outside the record on appeal. See Minn. R. Crim. P. 28.02, subd. 8 (providing that record on appeal consists of papers filed in district court, exhibits, and transcript of proceedings). Accordingly, we grant the state's motion to strike.

Affirmed and motion granted.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.