This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Lonnie Lee Evans,
Filed February 15, 2005
Hennepin County District Court
File No. 02083398
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Crippen, Judge.*
Appellant challenges his conviction of first-degree assault in violation of Minn. Stat. § 609.221, subd. 2 (2002), alleging prosecutorial misconduct and lack of sufficient evidence to convict. Because we conclude the prosecutor did not commit prejudicial misconduct and the evidence was sufficient to support the conviction, we affirm.
Appellant Lonnie Lee Evans was charged with possessing a firearm on October 16, 2002, and using it to commit an assault on two police officers. At trial, Officer Paul Gillies testified that he and his partner, Officer Cheryl Kassa, responded to a dispatch call reporting that a group of young people were “drinking and smoking drugs” outside a residence. Upon arrival, the officers parked behind a car, which was occupied by four men. While Officer Kassa typed in the license plate number on the squad car’s computer, Officer Gillies left the squad car and approached the vehicle. Meanwhile, three of the occupants exited their vehicle on their own initiative and walked back toward the squad car.
Officer Gillies testified that after seizing the suspects, he became concerned about the rear-seat passenger, appellant, who was still in the car, looking over his shoulder, with his hands out of sight. Officer Gillies testified that he walked up to the rear-passenger window, through which he could see appellant’s arms stretched out underneath the front seat. When appellant withdrew his arms, Officer Gillies could see a revolver in appellant’s left hand. Officer Gillies testified that appellant, who was looking at him, put his right hand over the revolver, turned, and held the gun up with a motion that Gillies demonstrated for the jury. At that point, Officer Gillies fired his weapon, hitting appellant with three shots.
On redirect, Officer Gillies testified that he could not see whether appellant had his finger on the trigger, but it appeared appellant was going to exit the car with a weapon in his hand. On recross, Officer Gillies testified that he did not see appellant’s gun pointed at Officer Kassa, but that it must have been pointed at her “based on the way his hands were.”
Officer Kassa testified that when she exited the squad car and approached the suspects’ car, she saw appellant holding a gun “clasped in his hand and . . . pulled close to his body,” as he started to turn. At that point, she heard Officer Gillies yell, “Gun, gun!” and then heard him fire two or three shots.
Appellant testified that Larry Moss, the driver, and Calvin Robinson, the front-seat passenger, had guns that they tossed into the back seat before getting out of the car. Appellant testified that he could not open the rear passenger-side door to get out and was sliding across the back seat to exit through the driver’s-side door when he was shot. He testified that he was just trying to get away from the guns, which he knew that, as a felon, he could not possess, and did not pick up either gun. Appellant testified that when he exited the car, after being shot by Officer Gillies, Officer Kassa then shot him twice. Appellant denied that he had a gun in his hand during the episode.
On cross-examination, the prosecutor asked a series of “were they lying” questions, eliciting appellant’s testimony that Officers Kassa and Gillies were lying in making a number of factual assertions. The prosecutor also asked whether appellant was claiming the officers committed perjury, and elicited appellant’s admission that he was mad at the officers for shooting him.
Officers Kassa and Gillies were both recalled as rebuttal witnesses. The prosecutor asked them whether appellant’s testimony that he exited the car standing up and that Officer Kassa shot him was “a lie.” Each of the officers indicated appellant had been lying.
In closing argument, the prosecutor, after briefly reviewing the elements of first-degree assault, expressed gratitude that appellant had not been allowed to complete his assaultive act, and argued that police officers do not need to be shot for there to be an assault. The prosecutor argued that appellant’s act in “swinging a gun up towards the officers” was an attempted use of deadly force, and that appellant had said the “officers are lying about that.”
The prosecutor later returned to the theme that appellant was accusing the officers of lying and committing perjury. After attacking the credibility of appellant’s own testimony, the prosecutor asked why the defense had not brought in Moss to testify if he had exculpatory statements to make. The prosecutor called appellant a “bold-faced liar,” and said appellant was lying “through his teeth,” and that “it didn’t bother him a bit.” Finally, the prosecutor referred to the dangers the officers faced on their job.
In his closing argument, defense counsel argued that the jury did not have to find that the officers lied in order to acquit appellant. He pointed to the state’s failure to call several non-police eyewitnesses. Counsel stated that the defense was not saying Officer Gillies lied, only that he was stretching the truth, telling a “fish story.” He also referred to the prosecutor’s claim that the defense was accusing police of lying as a “red herring.” In rebuttal, the prosecutor again asserted that appellant had lied to police.
During the jury’s deliberations, the trial court, in addition to denying a jury request to review transcripts, gave a curative instruction informing the jury that the defense had no burden to produce evidence. The jury convicted appellant of first-degree assault in violation of Minn. Stat. § 609.221, subd. 2 (2002), and of being a felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (2002). This appeal follows.
Appellant argues that the prosecutor committed prejudicial misconduct in his opening statement, examination of witnesses, and closing and rebuttal arguments. The determination whether a prosecutor engaged in misconduct is largely within the discretion of the trial court. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). This court will generally reverse only if the misconduct, “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). If prosecutorial misconduct is found, and the misconduct is serious, it will be considered harmless beyond a reasonable doubt only if the verdict was surely unattributable to the misconduct. State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000). For less serious misconduct, the error is harmless if the misconduct did not likely play a substantial part in influencing the jury to convict. Id.
Appellant first challenges various statements in the prosecution opening statement and closing argument, claiming that the passions and prejudices of the jury were inflamed by those statements. Specifically, appellant challenges the prosecutor’s description of the trial as a “search for the truth,” his emphasis on the dangers of police work, and his arguments encouraging the jury to focus on whether Officer Gillies was justified in shooting appellant, rather than on whether appellant assaulted the police. A prosecutor may ask the jury to reach a “true and just” verdict of guilty. State v. Bradford, 618 N.W.2d 782, 799 (Minn. 2000). A prosecutor may not, however, appeal to the passions of the jury and then urge them to reach the “right” verdict. State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995).
Appellant does not cite any authority holding it is improper for a prosecutor to describe a trial as a “search for the truth.” Cf. State v. Gates, 615 N.W.2d 331, 341 (Minn. 2000) (holding it was not improper for prosecutor to describe the goal of justice as a verdict that “confirms the truth”). There is merit, however, to appellant’s argument that the prosecutor was trying to divert at least some of the jury’s attention from the relatively limited evidence that appellant was actually “attempting to use deadly force” against the officers, as required by Minn. Stat. § 609.221, subd. 2(a) (2002). But the stressful conditions under which police officers generally, and Officers Gillies and Kassa particularly, operate when responding to calls was a legitimate background factual issue. In fact, defense counsel used this factor in claiming Officer Gillies was unable to focus on what appellant was doing.
As the state points out, defense counsel did not as a rule object to the comments and questions appellant now argues were misconduct. A defendant who fails to object to the prosecutor’s closing argument ordinarily waives the right to have the issue considered on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984). Only when the misconduct is “unduly prejudicial” will relief be granted in the absence of an objection or a request for curative instructions. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). We conclude that none of the challenged statements in the prosecutor’s opening statement and closing argument were unduly prejudicial.
Appellant also argues that the prosecutor committed misconduct during the trial in asking “were they lying?” questions and in attacking appellant’s credibility.
The supreme court has stated, “As a general rule, ‘were they lying’ questions have no probative value and are improper and argumentative because they do nothing to assist the jury in assessing witness credibility in its factfinding mission and in determining the ultimate issue of guilt or innocence.” State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999). But in Pilot, the court held that use of such questions was not error where “the focus of the defense was that the state’s witnesses were lying and that the evidence against [the defendant] was fabricated as part of a vast conspiracy.” Id.
The state argues that the defense in this case similarly justified “were they lying” questions. But appellant’s defense was based more on the theory that Officer Gillies was simply distracted, fearful, and making interpretations “in haste,” than it was on a claim that he was being untruthful. Defense counsel did emphasize that both Officers Gillies and Kassa consulted with attorneys before writing out their reports of the incident. And the prosecutor did get appellant to state that the officers were lying. But the prosecutor’s success in goading a defendant into accusing police of lying does not make the defense itself one built on a theory of fabrication, or on a claim that prosecution witnesses are lying.
In State v. Houston, 654 N.W.2d 727, 736-37 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003), this court noted the supreme court’s disapproval of “were they lying” questions in Pilot, but held that the prosecutor’s questions in the case before it, which “were merely designed to highlight the probative value of appellant’s testimony,” were, even if improper, harmless error.
In this case, unlike Pilot and Houston, the prosecutor also asked “is he lying?” questions of the police witnesses. This equally argumentative line of questioning with the police witnesses was an apparent attempt to further define the case as one involving a clash of conflicting testimony, rather than a matter of whether the state proved appellant actually pointed a gun at the officers. The prosecutor’s use of “were they lying” questions when interrogating police witness about defense witnesses is troubling. Defense counsel failed to object to these questions, however, and in fact responded to the prosecution argument by reference to these questions.
Appellant argues the prosecutor committed further misconduct in ridiculing appellant’s testimony and in shifting the burden of proof by improperly commenting on the defense failure to call Moss. We note, however, that the prosecutor’s disparagement of the defense was in response to appellant’s testimony that Officer Kassa shot him after he exited the car. We conclude that these challenged comments were proper comment on the credibility of that testimony by appellant. Also, the trial court gave a curative instruction to deal with the prosecutor’s comment on the defense failure to call Moss. Moreover, defense counsel responded to the reference to Moss by noting a number of witnesses that the state failed to call.
While each of several occasions of alleged misconduct by the prosecutor may be insufficient to require a new trial, we recognize that this court may consider the cumulative effect of prosecutorial misconduct. See generally State v. McNeil, 658 N.W.2d 228, 236 (Minn. App. 2003) (holding multiple instances of misconduct would support reversal if they substantially influenced the jury to convict, but that evidence of guilt was overwhelming). But, as discussed above, defense counsel largely failed to object to the misconduct cited on appeal. See State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984) (defense counsel ordinarily has a duty to make a prompt objection to improper argument). Although he objected to portions of the prosecutor’s argument after closing arguments had been completed, defense counsel failed to follow up, as the trial court suggested, and file a posttrial motion for a new trial based on that misconduct. We conclude that the prosecutor’s misconduct, even considered cumulatively, was not so “unduly prejudicial” as to merit reversal.
Appellant also argues that the evidence is not sufficient to prove that he attempted to use deadly force by pointing the gun at an officer.
In considering a claim of insufficient evidence, 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). We assume the jury believed the state’s witnesses and disbelieved any 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 burden of proof beyond a reasonable doubt, could reasonably find the defendant guilty. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
First-degree assault, as charged here, is committed when a person “assaults a peace officer . . . by using or attempting to use deadly force against the officer . . . while the officer . . . is engaged in the performance of a duty imposed by law.” Minn. Stat. § 609.221, subd. 2(a) (emphasis added). The state’s evidence that appellant pointed the revolver at either of the two police officers was not overwhelming. Officer Gillies demonstrated, however, the manner in which appellant was holding the gun, described appellant as holding the gun “up,” and testified that from the position of appellant’s hands the gun “must have been” pointed at Officer Kassa. It was the sole province of the jury to evaluate the demonstration made by Officer Gillies. Furthermore, although Officer Gillies admitted that he did not mention the positioning of the gun in his report, assessing the credibility of the witnesses is exclusively the function of the jury. See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). This court must assume the jury found credible the police testimony that appellant pointed the revolver at Officer Kassa. See Moore, 438 N.W.2d at 108. We conclude that the evidence was sufficient to permit the jury to determine that appellant pointed the revolver at Officer Kassa.
Appellant also argues that there is insufficient evidence to prove that he had the requisite intent under State v. Trei, 624 N.W.2d 595 (Minn. App. 2001), review dismissed (Minn. June 22, 2001), and In re Welfare of T.N.Y., 632 N.W.2d 765 (Minn. App. 2001). In T.N.Y., however, the juvenile charged did not point the gun directly at the officers, who arrived on the scene while the juvenile was still in possession of the gun. 632 N.W.2d at 770. Moreover, the juvenile made no threatening motions or comments directed at the officers. Id. Although this court held in T.N.Y. that there was insufficient evidence of intent to cause fear of immediate bodily harm, id., the facts in this case are clearly distinguishable. First, Officer Gillies testified that he saw appellant reach under the front seat to get the gun(s), an act which certainly could be construed as indicating an assaultive intent. Second, appellant made a motion toward the car door, beside which Officer Kassa was standing. This motion could have been construed, as Officer Gillies did construe it, as constituting a threat.
Nor do we see support for appellant’s argument regarding intent in Trei. In that case, this court held that the defendant’s actions in moving quickly toward the victim with knives in hand while uttering threatening words provided probable cause to believe that the defendant was attempting to use deadly force. 624 N.W.2d at 598. The defendant’s movement was stopped only when the officer drew his gun. Id. Trei involved knives, deadly weapons of a type different from firearms. Id. Arguably, merely brandishing or pointing knives is a less significant “attempt” to use force than would be the case with firearms. While we note that the issue in Trei was whether there was probable cause, id., not whether the evidence was sufficient to prove the offense beyond a reasonable doubt, our determination that Trei does not assist appellant in his argument remains unchanged. Given this court’s standard of review and the deference owed to jury credibility determinations, we conclude that there was sufficient evidence to support the conviction.
* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.