This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Minnesota Department of Human Services,
Heritage Austen Acquisition, Inc.,
Filed March 22, 2005
Hennepin County District Court
File No. PI 02-006934
Stewart R. Perry, Perry, Perry & Perry, Parkdale 1, Suite 270, 5401 Gamble Drive, St. Louis Park, MN 55416 (for appellant)
Jerome R. Klein, Candlin & Heck, 380 St. Peter Street, Suite 603, St. Paul, MN 55102-1313 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Poritsky, Judge.*
Appellant argues the district court erred in denying her motions for mistrial, and her motion for a new trial following a jury verdict finding that appellant suffered injuries from a slip-and-fall accident but that respondent was not negligent. Because we conclude that the district court did not abuse its discretion in denying the motions for mistrial, and motion for a new trial, we affirm.
In January 2001, appellant Linda Clark slipped and fell at the Hub Shopping Center (Hub) in Richfield, sustaining injuries including the fracture of her left ankle. Appellant alleged that respondent Heritage Austen Acquisition, Inc., was negligent in failing to adequately de-ice the parking lot. Respondent denied both that appellant’s injuries occurred at the Hub and that it was negligent. The case was presented to the jury over a five-day trial. At trial, appellant’s fiancé, Arredeus Green, testified that he received a phone call from appellant’s mother that the accident had occurred and responded by running to the Hub to assist appellant. Respondent then cross-examined Green regarding prior acts of misconduct:
Q: Mr. Green, have you in the past lied and forged a check?
A: Yes, I have.
Q: You stole the check and forged your name on it?
Q: And on another occasion when you were stopped by a police officer—
Although appellant did not object to the prior-misconduct questioning of Green, the district court sua sponte recessed to discuss the matter with counsel.
During the chambers conversation, the district court told respondent’s counsel that he should have addressed the issue with the district court prior to questioning the witness but concluded that the questions were not overly prejudicial and could be corrected with a curative instruction to the jury. Following the denial of appellant’s motion for mistrial, the district court instructed the jury, “The last answer of the witness is stricken from the record. And the last two questions of [respondent’s] counsel are stricken from the record, and you’re ordered to disregard them.”
Respondent presented testimony from a security guard that the guard investigated an incident involving contact with appellant but that the incident had occurred significantly earlier in the day than appellant claimed, and that appellant told the guard that she had previously injured her leg at home. Appellant admitted to injuring herself at home but stated that she had injured her right leg.
During closing argument, respondent argued that there were many alternative causes for appellant’s slip-and-fall injury, including a pre-existing problem with her right ankle and that the incident may have occurred somewhere other than the Hub Shopping Center. Essentially, respondent argued that appellant must prove that respondent was negligent and that the incident occurred at the Hub. Following the conclusion of respondent’s argument, appellant objected that the closing argument was improper and moved for mistrial. The district court denied appellant’s motion, concluding that respondent was free to argue alternative theories of the case. Appellant’s counsel then gave his closing argument.
The jury returned a verdict in the amount of $25,000, but found that respondent was not negligent. Following the jury verdict, appellant moved for a new trial based on the questioning of Green on his prior misconduct and the statements made by respondent’s counsel during closing argument. The district court denied appellant’s motion for new trial.
The decision whether to grant or deny a mistrial or a new trial lies within the discretion of the district court and will not be overturned absent a clear abuse of discretion. Johnson v. Washington County, 518 N.W.2d 594, 600 (Minn. 1994); Steinbrecher v. McLeod Coop. Power Ass'n, 392 N.W.2d 709, 715 (Minn. App. 1986). The standard of review in granting a mistrial or a new trial based on an evidentiary or procedural ruling is whether the ruling resulted in prejudice. Johnson 518 N.W.2d at 601. We defer to the district court’s discretion on this issue because it is in a better position to determine if a party was actually prejudiced during the trial. Pomani v. Underwood, 365 N.W.2d 286, 289-90 (Minn. App. 1985). But a curative instruction will generally mitigate any prejudice arising from the misconduct. Gum v. Medcalf Orthopaedic Appliance Co., 380 N.W.2d 916, 921 (Minn. App. 1986).
Appellant contends that the district court erred in denying a mistrial and in failing to adequately instruct the jury to disregard the questions and answers of Green regarding prior acts of misconduct. Generally, a party waives errors regarding the admissibility of evidence unless the party objects to the improper questioning and requests a curative instruction. Hake v. Soo Line Ry., 258 N.W.2d 576, 582 (Minn. 1977); see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts may consider “only those issues that the record shows were presented and considered by the trial court in deciding the matter before it” (quotation omitted)). An exception to this rule exists when the misconduct is so flagrant as to require the district court to act sua sponte or is so extreme that a curative instruction would fail to mitigate the prejudice. Hake, 258 N.W.2d at 582.
Because appellant did not object to the questioning of Green on his prior misconduct our review is limited. Minn. R. Evid. 608(b) provides that a witness may be questioned regarding specific instances of conduct “concerning the witness’ character for truthfulness or untruthfulness[.]” Had appellant raised timely objection to the questioning, the district court would have had discretion to allow it. Arguably, the subject matter of the questions was within the purview of rule 608(b). Based on our review of the record, we cannot say that the questioning was so flagrant or extreme that a curative instruction would fail to mitigate any alleged prejudice. See Gum, 380 N.W.2d at 921 (stating a curative instruction will generally mitigate any prejudice arising from the misconduct).
Appellant further argues that the district court’s curative instruction was flawed because it stated that the jury should disregard the last two questions and one answer, rather than the last three questions and two answers. But a curative instruction does not need to be perfect to cure the potential for prejudice. Following a recess from the proceedings, and lacking a transcript of the proceedings, it is unlikely that the jury would recall the exact number of questions and answers. The jury would be more likely to disregard all questions and answers related to Green’s history of untruthfulness.
In determining whether appellant was prejudiced, we also consider the subject matter of Green’s testimony. Here, Green was not an eyewitness to the incident and did not testify to the disputed liability issues of the case. Instead, his testimony was limited to collateral issues and was cumulative to the testimony of other witnesses who testified for appellant. Consequently, it is unlikely that appellant was prejudiced, even if the jury discounted Green’s testimony in its entirety.
Based on a review of the record, including the district court’s curative instruction and the collateral nature of Green’s testimony, we conclude that the district court did not abuse its discretion by denying appellant’s motion for a mistrial on this issue.
Next, appellant argues that the district court erred in denying appellant’s motion for mistrial following respondent’s closing argument, in which respondent’s counsel alleged that it was possible that appellant’s injuries occurred at a location other than the Hub. We find appellant’s argument unpersuasive for two reasons. First, appellant had the opportunity to correct any misstatements of fact to the jury during his closing argument, which followed respondent’s argument.
Second, the district court’s instructions to the jury amply covered any allegedly improper statements to the jury by either counsel. See id. (stating a curative instruction will generally mitigate any prejudice arising from the misconduct). Specifically, the district court instructed the jury to disregard improper arguments made by counsel during their opening and closing statements when it stated, “Nothing the attorneys say during the trial including opening statement and closing argument is evidence.” This instruction was sufficient for the jury to disregard any arguably misleading statement made by respondent during closing arguments. In light of appellant’s opportunity to discredit respondent’s alternative theory of the case and the district court’s instructions to the jury, the district court did not abuse its discretion in denying appellant’s motion for a mistrial.
Appellant also contends the district court erred in denying her motion for a new trial in light of respondent’s questioning of Green and respondent’s closing argument. Based on a careful review of the record before us, as well as our earlier analysis, we are persuaded that appellant was not prejudiced by either respondent’s cross-examination of Green or respondent’s closing argument. Therefore, we conclude that the district court did not abuse its discretion in denying appellant’s motion for a new trial.
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.