This opinion will be unpublished and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,
Lawrence A. Wajda,
Filed April 13, 2004
Hennepin County District Court
File No. 02076219
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Christopher J. Dixon, 300 Metropolitan Centre, 333 South 7th Street, Minneapolis, MN 55402 (for respondent)
John Stuart, State Public Defender, Jodie Lee Carlson, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Crippen, Judge.
This appeal is from a conviction for fifth-degree assault and disorderly conduct. See Minn. Stat. §§ 609.224, subd. 1(2), .72, subd. 1(1) (2002). Appellant Lawrence A. Wajda contends that the prosecutor committed prejudicial misconduct, that the trial court abused its discretion when instructing the jury, and that the evidence is insufficient to support the conviction. We affirm.
Appellant was convicted of fifth-degree assault and disorderly conduct for assaulting Steven Rocheford outside a Minneapolis courtroom. Rocheford had just testified in a conciliation court case involving appellant and Pierre Tardif, Rocheford’s friend and employee. Appellant had left the courtroom and Rocheford, Tardif, and another witness for Tardif, Erik Gronberg, were also leaving the courtroom.
Rocheford, Tardif, and Gronberg all testified for the state, and appellant testified in his own defense. Tardif and Gronberg both testified that they were inside the courtroom when the altercation began but they heard appellant call Rocheford a “faggot colonel.” The testimony of Rocheford and appellant conflicted as to who started the physical altercation. Appellant testified that Rocheford came up to him and yelled, “You’re a god damn liar!” and that Rocheford grabbed his arm and took a swing at him.
The prosecutor in his opening statement told the jury they would hear three eyewitnesses who “are going to tell you that Wajda was the aggressor in this action.” In his closing argument, the prosecutor reiterated that three of the four eyewitnesses to the incident said that “the defendant was the aggressor of [sic] this incident.” The defense did not object to either of these statements. In his rebuttal argument, the prosecutor stated that “every, every defense argument I have ever heard always ends on this. Oh, reasonable doubt, reasonable doubt. You can find a reasonable doubt.” There was no defense objection.
The trial court instructed the jury on self-defense. But the jury returned guilty verdicts on both fifth-degree assault, involving infliction of bodily harm, and disorderly conduct.
1. Prosecutorial Misconduct
This court will reverse a conviction due to prosecutorial misconduct at trial only if the misconduct, “when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).
Appellant argues that the prosecutor misstated the evidence in his opening statement by saying that Tardif and Gronberg would testify “that Mr. Wajda was the aggressor in this action,” and in closing argument by stating that the three prosecution eyewitnesses had testified that appellant “was the aggressor.” Appellant also argues that the prosecutor improperly belittled the defense argument in rebuttal.
Appellant failed to object to any of these statements by the prosecutor, and instead defense counsel responded to the statements in his own closing argument. Generally, a defendant waives the right to challenge the prosecutor’s comments on appeal if he has failed to object or seek cautionary instructions. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). Further, a defendant’s failure to object implies that the comments were not prejudicial. Id.
Defense counsel responded to the prosecutor’s characterization of the eyewitness testimony in his closing argument. When defense counsel fails to object and instead chooses to respond, the defendant forfeits the issue on appeal. State v. Whisonant, 331 N.W.2d 766, 769 (Minn. 1983).
In his rebuttal argument, the prosecutor improperly disparaged defense arguments based on the reasonable-doubt standard. But defense counsel again failed to object, and we conclude that the prosecutor’s statements, taken as a whole, were not so unduly prejudicial as to warrant review despite appellant’s failure to object. See generally State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000). Appellant’s other claims of prosecutorial misconduct are without merit or the statements challenged were corrected by the prosecutor’s own curative comments.
2. Other Issues
Appellant argues that the trial court abused its discretion when instructing the jury on self-defense before instructing it on the disorderly-conduct charge, thereby implying that self-defense did not apply to the disorderly-conduct charge.
This court reviews the trial court’s jury instructions for an abuse of discretion. See generally State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996) (reviewing refusal to give requested instruction). The instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). Here, the trial court instructed the jury that the order in which the instructions were given “is of no significance.” And the court furnished a written copy of the instructions for reference by the jury during deliberations. Therefore, we conclude there was no abuse of discretion.
Appellant also argues there is insufficient evidence, given inconsistencies in Rocheford’s testimony, to prove he committed an assault. On this claim, this court is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). It is assumed that the jury believed the state’s witnesses and disbelieved evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The verdict will not be disturbed if the jury, acting with due regard for the presumption of innocence and the necessity of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense(s). State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Rocheford’s testimony, that appellant “sucker-punched” him without provocation, causing physical injury, was sufficient to support the conviction for fifth-degree assault. Although appellant argues that this court should nevertheless view the conviction with “grave doubt,” that argument concerns the relative credibility of the witnesses, which is a matter for the jury to determine. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980).
In his pro se supplemental brief, appellant raises a number of claims of trial error. But because there was no offer of proof at trial of any prior confrontation between Rocheford and appellant, we cannot review appellant’s claim that the trial court abused its discretion in excluding that evidence. Appellant also argues that the court abused its discretion in admitting the photographs of Rocheford’s injuries without medical testimony to verify the extent of those injuries. But the admission of photographs is within the discretion of the trial court. State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994). There is no requirement that photographs of personal injuries be supported by medical testimony. See generally Minn. R. Evid. 1002.
3. Ineffective Assistance of Counsel
In his pro se supplemental brief, appellant also argues that he was denied his right to the effective assistance of counsel at trial. But the claims of attorney error he raises cannot be assessed without a further record and can only be resolved in a postconviction proceeding. See State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). Similarly, although appellant contends that the prosecutor improperly coached his witnesses outside the courtroom, there is no record to support this claim in this appeal.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.