This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
State of Minnesota,
Richard Joseph McCorison, Jr.,
Carlton County District Court
File No. K002338
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, Thomas R. Ragatz, David M. Aafedt, Assistant Attorneys General, 1200 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Marvin Ketola, Carlton County Attorney, P. O. Box 300, Carlton, MN 55718 (for respondents)
Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Parker, Judge.*
In this appeal from convictions of terroristic threats, appellant argues that the prosecutor committed prejudicial misconduct in its closing argument by vouching for the credibility of witnesses, appealing to the passions of the jury, using appellant’s prior record as evidence of propensity, and suggesting that the jury draw inferences from the guilt of appellant’s co-defendant. Although part of the closing argument was improper, we conclude that, in the context of the entire argument and the jury’s response in convicting on one charge but acquitting on the other, it is not likely that the improper arguments substantially influenced the jury. We affirm.
On March 13, 2002, a student flagged down Cloquet police officers Scott Holman and David Hallback near the Cloquet high school. The student informed them that two men in a green car were drinking and asking students for money and cigarettes. The officers radioed in the information and minutes later Cloquet police officer Scott Beckman alerted them that he had stopped a green car after it rolled through a stop sign.
Holman and Hallback arrived at the scene while Beckman was speaking with the driver, Dean Pratt. They approached the passenger, appellant Richard McCorison, who remained in the vehicle. Holman smelled alcohol and asked McCorison, who looked young, his age. McCorison said he was 21. When Holman asked him his name and birth date, McCorison replied that he knew his rights and refused to answer. Holman told McCorison that, if he did not provide the information, they would have to take him to jail. McCorison became belligerent, got out of the car, and told the officers “to take him to the f**kin’ jail.”
After Holman and Hallback handcuffed McCorison and put him in the squad car, they assisted Beckman. Because Pratt had resisted arrest, the officers had to subdue him and use mace to get him into the other squad car. During a search of Pratt’s car, the officers found an open can of beer.
On the way to the jail, McCorison spoke continuously to Holman and Hallback. He specifically targeted Hallback, who was driving, by pushing up against the plexiglass and yelling over Hallback’s head. McCorison referred to himself as a “big fish,” suggesting he was a big catch for the police. McCorison threatened to “f**k” Hallback and his family, to make calls from jail and send people to Hallback’s home, and to find Hallback’s home himself. Hallback testified that, in his 16 years of service, he had never been threatened to this extent. McCorison threatened to come to Holman’s house and settle the score and to make Holman pay a price. McCorison’s comments put Holman in extreme fear. Due to safety concerns, Holman, Hallback, and a third officer together placed McCorison in the jail cell. Hallback was the last to leave the cell. As Hallback left, McCorison stated that he would find where Hallback lives.
McCorison was charged with possession of open bottle, in violation of Minn. Stat. § 169A.35, subd. 3 (2002); two counts of terroristic threats, in violation of Minn. Stat. § 609.713, subd. 1 (2002); and one count of obstructing legal process, in violation of Minn. Stat. § 609.50, subd. 1(1) (2002). He pleaded guilty to the open-bottle offense and proceeded to trial on the remaining charges.
At trial, McCorison admitted drinking the whole day and refusing to give information to the police. He testified that he was angry from watching the officers subdue Pratt. He admitted that he was intoxicated, had experienced blackouts, and tried to provoke the officers. But he denied having threatened the lives of the officers or their families.
The jury acquitted McCorison of obstructing legal process and terroristic threats against Holman and convicted him of one count of terroristic threats against Hallback. The district court imposed a sentence of 27 months’ imprisonment. This appeal followed.
Prosecutorial misconduct does not require a reviewing court to grant a new trial if the prosecutor’s misconduct was harmless beyond a reasonable doubt. State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996). We will reverse a conviction on this ground only if the misconduct is so serious and prejudicial that the defendant’s constitutional right to a fair trial is denied. State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).
In determining whether misconduct occurred in closing argument, we “consider the closing argument as a whole rather than focus on particular ‘phrases or remarks that may be taken out of context or given undue prominence.’” State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (citations omitted). We determine whether prosecutorial misconduct is harmless beyond a reasonable doubt based in part on the type of misconduct. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). In a case involving serious misconduct, we require certainty beyond a reasonable doubt that the misconduct was harmless before affirming. Id. If a case involves less serious misconduct, we determine whether the misconduct likely played a substantial part in influencing the jury to convict. State v. Race, 383 N.W.2d 656, 664 (Minn. 1986).
Here, McCorison alleges that the prosecutor committed misconduct by (1) vouching for the credibility of witnesses, (2) appealing to the passions of the jury, (3) using McCorison’s prior record as evidence of propensity, (4) suggesting that the jury draw inferences from the guilt of appellant’s co-defendant, and (5) unduly emphasizing the risks of being a police officer.
During his direct examination, Officer Holman testified, without objection, that McCorison’s co-defendant pleaded guilty. The prosecutor then mentioned it briefly and without objection in his closing argument, stating “[o]f course, Mr. McCorison’s buddy, Mr. Pratt, was charged with terroristic threats. He pled guilty.” The prosecutor’s remark suggests guilt by association and was improper. See State v. Cermak, 365 N.W.2d 243, 247 (Minn. 1985) (stating that, generally, evidence of accomplice’s guilty plea is not admissible to prove guilt of accused). Because it was an isolated reference and the state did not unduly emphasize it, however, it carried less influence with the jury and was not serious misconduct warranting reversal. See State v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987).
McCorison argues that the prosecutor improperly emphasized the duty of police officers to protect the public and encouraged the jury to fulfill its duty to convict regardless of the evidence. During his closing argument, the prosecutor on one occasion attempted to draw the jurors’ attention to a police memorial in the courthouse but was prevented from doing so when the district court sustained defense counsel’s objection.
Our review of the entire closing argument establishes that the prosecutor generally referred to the officers by their names or as “the” officers. While the prosecutor’s references to “our officers” risking their lives for “us” were not pervasive, such references are nevertheless improper. They suggest that the jury represents the community and must set community standards. See State v. Threinen, 328 N.W.2d 154, 157 (Minn. 1983). The district court, however, instructed the jurors regarding their obligation to consider the specific evidence before them and to apply the applicable legal standards to the evidence. Considering the closing argument in its entirety, the prosecutor’s isolated references were not serious misconduct nor did they likely play a substantial part in influencing the jury to convict.
McCorison next contends that the prosecutor argued that it was improper for McCorison to exercise his constitutional right to a jury trial. The prosecutor said in his closing argument that McCorison “is looking for a free ride here. He’s hoping for an acquittal. Roll the dice and see what happens. You never know.” When read in context, this portion of the closing argument is ambiguous as to whether the prosecutor’s suggestion that the trial was a gamble for McCorison meant that McCorison improperly exercised his right to a trial. It would not be proper for the state to tell the jurors that McCorison did not have the right to a trial. Moreover, such comments would detract from the issues properly before the jury. However, the jury’s verdict resulting in an acquittal on some counts and a conviction on others reflects full and fair consideration of the evidence, which indicates that the prosecutor’s statement did not send a strong, forceful, improper message to the jury and consequently was not serious misconduct.
Prosecutors are allowed to “vigorously argue that defendant and his witnesses lack credibility.” State v. Dupay, 405 N.W.2d 444, 450 (Minn. App. 1987) (quotations and citations omitted). But prosecutors are not allowed to endorse the credibility of their witnesses and to inject personal opinion as to the defendant’s credibility because witness credibility is to be determined by the jury. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).
The prosecutor crossed this threshold and endorsed his witnesses’ credibility when he stated that the officers were not lying. The prosecutor, however, did not belabor this point. In context, his remarks about lying were a brief comment in the closing argument and were accompanied by the district court’s admonitions that all testimony is evidence and must be evaluated as such. Both the district court and the prosecutor set out the factors to be used in evaluating that testimony. The jurors were instructed that they must decide the credibility of the witnesses. Defense counsel also cautioned the jurors during her closing argument and surrebuttal argument not to put stock in the officers’ testimony just because they are officers. Similarly, the district court instructed the jury to make its own credibility determination and decide the facts based on the evidence, not the attorneys’ arguments. We must presume that the jurors followed the district court’s instructions. State v. James, 520 N.W.2d 399, 405 (Minn. 1994). Considering the whole record, the prosecutor’s misconduct was not so serious as to warrant reversal.
McCorison’s three prior felony convictions — two burglaries and one theft of a motor vehicle — were admitted during his direct testimony. McCorison concedes that the prosecutor’s use of this evidence in the closing argument related to McCorison’s credibility, which is a proper use of prior-conviction evidence. See Minn. R. Evid. 609. He argues, however, that the prosecutor also used the prior convictions improperly to imply that McCorison had a propensity to commit crime. The prosecutor said that the prior crimes show that McCorison is “not new to this whole thing.” When considered in its context, this isolated, brief comment that does not directly allege propensity to commit crime does not constitute misconduct.
In sum, the prosecutor committed misconduct by several of his remarks. Individually and collectively, however, the remarks were not serious misconduct warranting reversal. The remarks were relatively brief within the context of the prosecutor’s 30-page closing argument and were tempered by the district court’s cautionary instructions and sustaining of the defense objection, as well as defense counsel’s arguments to the jury. On more than one occasion, the jurors were instructed to focus on the evidence and to minimize the role of argument. Furthermore, the jury verdict reflects a careful consideration of the evidence, resulting in acquittal on two counts and conviction on one. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (stating that, where jury acquits on some and convicts on some counts, it indicates jury was not unduly influenced by prosecutor). The record contains ample support for McCorison’s conviction of terroristic threats toward Hallback, whom McCorison targeted. In light of the entire record and the context in which each objectionable comment was made, the prosecutor’s misconduct did not impair McCorison’s constitutional right to a fair trial or have a substantial role in influencing the jury to convict.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.