This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Samuel Flowers, Jr.,
Olmsted County District Court
File No. K9013466
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Raymond F. Schmitz, Olmsted County Attorney, James S. Martinson, Criminal Division Head, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)
John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
Appellant Samuel Flowers, Jr. argues that prosecutorial misconduct during voir dire, cross-examination of appellant, and closing argument was so serious and prejudicial that appellant’s right to a fair trial was denied. We affirm.
A defendant is entitled to a new trial if the court determines both that the prosecutor’s challenged actions were improper and that the improprieties deprived defendant of a fair trial. State v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987). And in cases where credibility is the central issue, special attention must be paid to statements that may prejudice or inflame the jury. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). The test for determining whether prosecutorial misconduct warrants reversal depends on the type of misconduct. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). For serious prosecutorial misconduct, “the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error.” State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000) (citation omitted). For less serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. (citation omitted).
Although appellant argues several instances of misconduct, at trial, appellant only objected to the prosecutor’s statements while cross-examining appellant. And criminal defendants waive their right to raise the issue of prosecutorial misconduct on appeal when they fail to object or seek a curative instruction. See State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001). In the absence of a timely objection, relief will only be granted in extreme cases involving “unduly prejudicial” prosecutorial misconduct. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (citation omitted).
1. Statements During the Voir Dire
The first instance of misconduct claimed by appellant occurred during the voir dire. The prosecutor introduced himself to the jury and said that he had been a prosecutor in Minnesota for eight years. The prosecutor then stated “I’m a former FBI special agent. So basically my background is in the criminal prosecution investigation end of this business.” Appellant argues that such statements were improper because: (1) the statements attempted to improperly establish a rapport with the prospective jurors; (2) the prosecutor injected his own personality into the trial in a way that enhanced his own credibility and that of the state’s law enforcement witnesses; and (3) the statements may have encouraged a bias toward the police.
But the transcript of voir dire is over 70 pages long, and appellant complains about two sentences involving the prosecutor’s introduction of himself to prospective jurors. See Powers, 654 N.W.2d at 679 (noting that the improper statement was only two sentences in a closing argument that amounted to over 20 transcribed pages). While the prosecutor’s statement that he was a former FBI special agent may not have been proper, given the absence of a timely objection, such a statement did not amount to an extreme case involving “unduly prejudicial” prosecutorial misconduct.
2. Statements During Closing Argument
Appellant also argues that statements made by the prosecutor during closing arguments constituted misconduct.
First, appellant takes issue with the statement by the prosecutor that because appellant was present throughout the trial, appellant was able to conform his testimony to what others had said before him. Appellant claims that the prosecutor’s remarks amounted to misconduct because they encouraged the jurors to draw an adverse inference from appellant’s decision to exercise his constitutional right to be present at his own trial. Appellant argues that this amounted to an improper attack on appellant’s credibility.
A similar issue was addressed in State v. Grilli, 369 N.W.2d 35, 37 (Minn. App. 1985), review denied (Minn. Aug. 30, 1985), and State v. Buggs, 581 N.W.2d 329, 341 (Minn. 1998). In Grilli, the prosecutor began his cross-examination of defendant by asking defendant if he had heard the testimony of all the other witnesses and whether he had the benefit of hearing their version of the events in question. Grilli, 369 N.W.2d at 37. On appeal, defendant argued that his Sixth Amendment right to be present at trial was being used against him and that the prosecutor engaged in misconduct during closing argument when the prosecutor argued that defendant’s version was an attempt to fashion a defense to fit the evidence presented by the state. Id. This court rejected defendant’s argument and held that the prosecutor’s cross-examination and closing argument were not improper and that the prosecutor was “free to argue and attack [defendant’s] credibility.” Id.
And in Buggs, the prosecutor argued in the closing argument that the defendant took advantage of his opportunity to observe the full presentation of the case in the courtroom and then took the witness stand and concocted a story exonerating himself. Buggs, 581 N.W.2dat 341. The supreme court held that the prosecutor’s unobjected-to remarks did not amount to prejudicial error, although the court warned prosecutors against “extensive dwelling on a defendant’s presence during the trial * * * .” Id.
As in Grilli and Buggs, the prosecutor’s statements here concerning appellant’s presence at the trial do not constitute prejudicial error.
Second, appellant claims the prosecutor committed misconduct during the closing argument by referring to appellant as a “particularly reprehensible form of drug dealer” for selling drugs near an elementary school. Appellant argues that such statements improperly inflamed the passions and prejudices of the jury against appellant.
But reviewing courts in Minnesota have repeatedly held that similar characterizations of a defendant in closing arguments have not constituted reversible error. See, e.g., State v. Merrill, 428 N.W.2d 361, 371-73 (Minn. 1988) (deciding not to reverse a conviction because the court could not find that the prosecutor’s comments had any effect on the jury even though the prosecutor made “unfortunate” remarks and unnecessarily referred to the defendant as an animal and personally vouched for the credibility of the state’s witnesses); State v. Ture, 353 N.W.2d 502, 516-17 (Minn. 1984) (referring to the defendant as a “rapist and murderer”); State v. Kelley, 295 N.W.2d 521, 523 (Minn. 1980) (referring to the defendant as a “cancer of society” who should be “taken off the streets”). Given these decisions and the absence of a timely objection, we conclude that the prosecution’s characterization of appellant as a “particularly reprehensible form of drug dealer” does not warrant reversal.
In addition, although the prosecutor misstated the facts by stating that appellant chose to sell the drugs near the elementary school, with respect to claims of prosecutorial misconduct arising out of closing argument, this court must consider the closing argument as a whole. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). And again, out of a lengthy closing argument, appellant is complaining about a brief comment. Powers, 654 N.W.2d at 679 (noting that the improper statement was only two sentences in a closing argument that amounted to over 20 transcribed pages). Further, there was not a timely objection, and such a statement does not amount to an extreme case involving “unduly prejudicial” prosecutorial misconduct. Considering the overall thrust of the argument, we conclude the alleged misstatement did not play a substantial part in the jury’s deliberation.
3. Statements During Cross-Examination
Appellant’s final claim of prosecutorial misconduct involves remarks made during the prosecutor’s cross-examination of appellant, and is the only claim of prosecutorial misconduct that was raised to the district court. The prosecutor asked appellant if appellant understood that the crime of perjury carried with it a potentially less serious penalty compared to the penalty for first-degree aiding and abetting of a controlled substance. Appellant’s attorney objected and moved for a mistrial on the ground that sentencing did not fall within the jury’s province, and therefore, any comments about the penalties that may accompany a conviction were improper. The district court agreed that the prosecutor’s statements were improper. But the court denied appellant’s request for a mistrial and instead instructed the jury to disregard any evidence or testimony pertaining to perjury and any punishments or penalties that may attach to either perjury or to first-degree aiding and abetting of a controlled substance.
When a jury is exposed to potentially prejudicial material, the accused’s right to an impartial jury has been threatened. State v. Scruggs, 421 N.W.2d 707, 716 (Minn. 1988). Here, although the prosecutor’s statements alluding to possible penalties for perjury and first-degree aiding and abetting were improper, appellant was not denied his right to trial by a fair and impartial jury based upon the prosecutor’s statements.
First, the district court issued a curative instruction. The district court is the first line of defense against misconduct and should be given the opportunity to issue a curative instruction or grant a mistrial. State v. Morgan, 477 N.W.2d 527, 531 (Minn. App. 1991). And reviewing courts will presume that the jury followed the district court’s instructions. State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998).
Second, the overwhelming weight of the evidence was against appellant. See State v. Ives, 568 N.W.2d 710, 714 (Minn. 1997) (stating that any misconduct committed by the prosecutor’s comments must be viewed against the overwhelming evidence of appellant’s guilt.) This was a controlled drug buy. Police officers used audio and video surveillance to monitor the drug purchase. The police informant used to purchase the drugs had been used by this police department numerous times before. And the testimony of the informant and the observing officers concerning the details of the drug buy were consistent. We therefore conclude that the prosecutor’s remarks, while improper, were not “so serious and prejudicial that defendant’s right to a fair trial was denied.” State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (citation omitted).
In conclusion, even considering all the allegations of misconduct cumulatively, given the overwhelming evidence of appellant’s guilt, we conclude that a reversal is not required. State v. Rose, 353 N.W.2d 565, 570 (Minn. App. 1984), review denied (Minn. Sept. 12, 1984).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.