This opinion will be unpublished and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
Severo Rosas Cuellar,
Filed August 9, 2005
Gordon W. Shumaker, Judge
Clay County District Court
File No. K9-04-10
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Lisa Borgen, Clay County Attorney, Jenny Samarzja, Assistant Clay County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)
Ira W. Whitlock, Whitlock Law Office, 300 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Willis, Presiding Judge; Klaphake, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant challenges his convictions of first-degree criminal sexual conduct, terroristic threats, and second-degree assault. He argues that he was denied his right to trial by an impartial jury when jurors who knew the prosecutor and police officers and who had daughters who had been victims of abuse sat on the jury. Appellant also argues that the prosecutor committed prejudicial misconduct by stressing her own ties to the community in voir dire, by belittling appellant on cross-examination, and by asking improper questions. Finally, appellant argues that the pretrial statement of the victim, his wife, which she recanted at trial, was insufficient to support the conviction. We affirm.
A jury found appellant Severo Rosas Cuellar guilty of criminal sexual conduct, terroristic threats, and assault against his wife, I.C. He contends that the jury was not impartial, the prosecutor committed misconduct, and the evidence was insufficient to support the verdicts.
Cuellar and I.C. went to a dance on January 3, 2004. They left their two sons, both under age two, with I.C.’s sister in an upstairs unit of the triplex in which the Cuellars lived. The event that gave rise to the prosecution of Cuellar occurred when the couple returned home at around 2:30 a.m. on January 4, 2004. The jury heard three versions of that event.
Cuellar testified that he and I.C. had “passionate, rough” consensual sex on their couch. I.C. just threw her clothes anywhere and her pants were ripped when the couple tried to remove them. After the sex, Cuellar told I.C. that he was no longer attracted to her and that he was going to leave her for a woman he worked with. He stated that I.C. looked fat and that the other woman was “skinnier” and “prettier.” The couple argued. At some point, Cuellar went to the bathroom and returned to the couch without zipping his pants. He sat on the couch watching television with his genitals exposed and fell asleep. When he awoke, police officers were in his house, and he learned that his wife had accused him of forcing sex upon her.
I.C. testified that she and Cuellar had consensual sex. Then they argued about various things. When Cuellar told I.C. that he was going to leave her for another woman, he also said he would kill himself. He took a knife from a kitchen drawer and said he would fall on it and kill himself. The couple continued to argue, and Cuellar said he would be leaving the next morning. I.C. decided that she would get him in trouble with the police because “if he didn’t want to be with me, I didn’t want him to be with nobody else.” She decided to tell the police that Cuellar threatened her and forced her to have sex with him. To make her story believable, she made red marks on her neck with her fingernails to make it look like Cuellar cut her with the knife, and she went upstairs to her sister’s apartment to call the police.
When the police arrived, I.C. told them that Cuellar had threatened to kill her with a knife; that he ripped her clothing and forced her to perform oral sex on him; that he threatened to cut off her breast and feed it to the baby; that he said he was going to stab her by pushing the knife through the baby; that he rubbed the knife against her neck; and that he forcibly penetrated her vagina with his penis and his fingers. At trial, I.C. admitted that she told all of this to the police, but she testified that none of it was true.
D E C I S I O N
1. Impartial Jury
Although Cuellar did not challenge for cause any of the jurors in his trial, did not otherwise object to any of them serving on the jury, and, in fact, affirmatively passed the entire panel for cause, he now contends that five of the jurors were not fair and impartial, and, thus, he did not receive a fair trial. The basis for his contention on appeal is that five of the jurors had “conflicts” that were not adequately explored by his attorney or by the prosecutor or presiding judge. Yet Cuellar has not raised an ineffective-assistance-of-counsel claim on appeal.
By not challenging any of the five
jurors at trial, Cuellar has forfeited a review under the Stufflebean criteria, which require a showing that (1) a challenged
juror was subject to a challenge for cause; (2) actual prejudice resulted from
the district court’s failure to dismiss that juror; and (3) the defendant made
the appropriate objection. State v. Stufflebean, 329 N.W.2d 314,
By not making a claim that his attorney’s conduct of the voir dire was so inadequate that Cuellar was denied the effective assistance of legal counsel, he has waived that issue for review. State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).
Cuellar argues that the prosecutor and the judge were obliged to ask questions about the alleged conflicts of the five jurors, but he cites no authority for such an obligation. Without authority for a proposition on appeal, we will not review the merits of that proposition. Dougherty v. State Farm Mut. Ins. Co., 683 N.W.2d 855, 858 n.1 (Minn. App. 2004).
Cuellar suggests that we apply an
implied-bias approach to this case, even though he concedes that the
It is clear that, having passed the
jury for cause, Cuellar cannot complain on appeal that cause for a challenge
existed. In State v. Thieme, 281
Even though the rule in Thieme settles Cuellar’s contention about
the lack of impartiality of five of the jurors, we have examined the record of
the voir dire process so as to clearly understand Cuellar’s claim. He complains that juror Newman knew the prosecutor
and worked with the prosecutor’s brother but that no one asked questions about
those disclosures. He notes that juror
Zollar knew police officers in the case but was allowed to remain on the
jury. He indicates that juror Hellerud
had served on a previous case in which there was a criminal-sexual-conduct
charge that was prosecuted by the same prosecutor. And he states that jurors Burnside and
We have indicated above that Cuellar
cites no authority for the alleged obligation of either of the attorneys or the
judge to remove any of the five jurors.
The record shows that the court did not in any way restrict the defense
attorney in his voir dire questions. The
defense attorney was afforded the proper number of peremptory challenges, and
the court did nothing expressly or impliedly to discourage appropriate
challenges for cause. Furthermore,
nothing in the record of the voir dire reveals that any of the five jurors
could have been successfully challenged for cause under the criteria of the
controlling rule of criminal procedure.
In its introduction of the case, the court told the venire panel that it would be necessary to ask questions to ensure “a fair trial by an impartial jury.” Defense counsel asked the entire panel if anyone would “have a problem because of the subject matter being fair and impartial in a case of this nature?” Defense counsel also asked many prospective jurors if particular things about the case or the people involved in it would cause them to be unfair or would have any bearing on the jurors’ ability to be fair and impartial. And defense counsel did ask specific questions about the alleged conflicts of some of the five jurors. He asked juror Zollar if his acquaintance with a police officer in the case would have any bearing on his fairness and impartiality. He asked juror Burnside about his prior jury experience. He also asked Mr. Burnside questions about the abuse of his daughter. The prosecutor, early in her voir dire examination, explained to one juror, “I want a fair and impartial juror, just like [defense counsel], and just like the judge wants.” It was made clear by the attorneys and the judge that the collective effort was to obtain a fair and impartial jury and that the panel members’ backgrounds and experiences were relevant to that purpose. It is a reasonable inference that any panel member who felt he or she could not be fair would have disclosed that fact.
Besides the actual voir dire
questions, each panel member gave answers to questions on a written
questionnaire. There were 15 questions
that called for yes or no answers and for explanations of yes answers. The topics covered included having been the
victim of or witness to a crime; having been physically or sexually abused or
assaulted; having held employment that required the reporting of physical or
sexual abuse; and having heard from friends or relatives who stated they had
seen persons who were physically or sexually abused. Cuellar complains that jurors Burnside and
Considering the court’s introductory explanation of the purpose and goal of voir dire; the respective attorneys’ questioning, which was replete with references to fairness and impartiality; and the written questionnaires, which called for the disclosure of substantial pertinent information, we have found nothing in the record to show, or even to suggest, that any of the five jurors with the alleged conflicts was biased in favor of the state or prejudiced against Cuellar.
2. Prosecutorial Misconduct
Cuellar contends that the prosecutor committed misconduct on voir dire, during witness examinations, and during final argument. As a result, he claims, he was denied a fair trial.
Appellate courts reviewing a claim
of prosecutorial misconduct “will reverse 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 (
a. Introduction to Voir Dire
Before she began her voir dire examination, the prosecutor told the panel that she would be asking “personal questions” and that she would begin by telling them personal information about herself. She disclosed her family and educational backgrounds. She also indicated that she was disappointed that only three panel members wore green because that day was St. Patrick’s Day. She asked some of the panel members if they were Irish, and she indicated that she herself was “mostly Italian, but a little Irish.”
Cuellar contends that the prosecutor’s statements manifested her effort to predispose jurors to be favorable to her and that this conduct was especially egregious because Cuellar is Latino. On appeal, the prosecutor argues that she was simply trying to make the panel members comfortable about making personal disclosures.
Viewed in the perspective of the entire voir dire and of the trial as a whole, we find that there was no attempt by the prosecutor to ingratiate herself with the panel members or to curry favor with them. Thus, there was no prosecutorial misconduct on voir dire.
b. Cross-examination and Final Argument
contends that the prosecutor belittled and demeaned him during cross-examination. It is improper for the prosecutor to belittle
a defense in the abstract. State v. Salitros, 499 N.W.2d 815, 818 (
The prosecutor suggested that Cuellar felt sorry for himself and asked why he was in an anger-management program. In final argument, the prosecutor referred to Cuellar’s anger-management program, his attitude toward his wife, his tendency to feel sorry for himself, and the immaturity of Cuellar and his wife, and the prosecutor stated that Cuellar was the classic example of a batterer in that he had low self-esteem. The prosecutor’s questions and final-argument comments were all clearly tied to evidence to which there was no objection, particularly the testimony of an expert clinical psychologist, who testified to characteristics of battering victims and of batterers. There were no objections to any of this testimony, and Cuellar has failed to demonstrate in what respect the questions and comments constituted prosecutorial misconduct or plain error if the behavior could be classified as prosecutorial misconduct.
c. “Were they lying” Questions
Cuellar argues that the prosecutor
asked him inappropriate questions, which Cuellar characterizes as “were they
lying” questions. “The general concern
about ‘were they lying’ questions is that asking one witness to express an
opinion as to the veracity of another witness
calls for improper comment on another witness’ testimony, and that it is
the province of the jury to determine the credibility of witnesses.” State
v. Pilot, 595 N.W.2d 511, 516 (
The focus here was on Cuellar’s tape-recorded statement to the police. He testified that not everything he said to the police appeared on the tape-recording. The prosecutor inquired as to whether Cuellar was accusing the police of turning off the tape recorder prematurely or of “doctor[ing]” the tape. These questions were follow-up questions to a topic defense counsel opened during his direct examination of Cuellar. It was proper and fair to determine precisely what Cuellar’s claim was with respect to the tape-recording, which had been played for the jury. This inquiry did not violate the rule in Pilot.
3. Sufficiency of Evidence
Cuellar argues that there was
insufficient evidence to support his conviction. In considering a claim of insufficient
evidence, this court’s review 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 that they did. State v. Webb, 440 N.W.2d 426, 430 (
Cuellar claims that the
evidence presented to the jury was insufficient to convict him because his wife
later recanted and testified that she made up the entire story. He claims that his wife was a “woman scorned”
and that once she realized the seriousness of the situation, she recanted her
story. But the jury was allowed to hear a
tape-recorded statement that I.C. gave to the police after the alleged attack
in which she gave a detailed account of what happened at her home before she
called the police. The jury also had the
opportunity to compare that account with I.C.’s trial testimony to determine
which version really happened. Essentially,
Cuellar’s claim of insufficient evidence is predicated on credibility
determinations. It is well settled that
judging the credibility of witnesses and the weight to be given to their
testimony rest within the province of the finder of fact. State
v. Johnson, 568 N.W.2d 426, 435 (