This opinion will be unpublished and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
Filed October 25, 2005
Clay County District Court
File No. K7-03-1370
Hatch, Attorney General, 1800
Lisa Nelson Borgen, Clay County Attorney, Jenny Marie Samarzja, Ass’t Clay County Attorney, 807 North 11th Street, Moorhead, MN 56561-0280 (for respondent)
Michael Clinton Davis, Special Assistant State Public Defender, 332 Minnesota Street, Suite 1610 West, St. Paul, MN 55101 (for appellant)
Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
On July 21, 2003, appellant was charged with assault in the second degree with a dangerous weapon, terroristic threats, violation of an order of protection, obstructing arrest, and assault in the fifth degree for an incident that occurred on July 19, 2003, when appellant assaulted his ex-girlfriend. A jury trial commenced on September 16, 2003. During opening statements, the prosecutor made the following statement: “Now, the case is about people in our community who are not your neighbors and not your friends. You might have a difficult time understanding how people live the way they live and some of the facts that are going to be coming out in this case.” Further, during closing argument, the prosecutor stated: “[the victim] might not be the model citizen, the neighbor that you know, someone that you would associate with, but she’s a woman that deserves to be treated with respect like everybody else.” On September 17, 2003, appellant was found guilty. On appeal, appellant argues that the prosecutor engaged in prejudicial misconduct by the statements made during opening statements and closing arguments.
D E C I S I O N
Generally, a defendant waives
his right to raise the issue of prosecutorial misconduct on appeal when he
fails to object or to seek a curative instruction at trial. State v. Torres, 632 N.W.2d 609,
The Minnesota Supreme Court has held:
It is proper for a prosecutor to talk about what the victim suffers and to talk about accountability, in order to help persuade the jury not to return a verdict based on sympathy for the defendant, but the prosecutor should not emphasize accountability to such an extent as to divert the jury’s attention from its true role of deciding whether the state has met its burden of proving defendant guilty beyond a reasonable doubt.
State v. Montjoy, 366 N.W.2d 103, 109 (
While appellant contends that the statements made by the
prosecutor during the opening and closing arguments were racially motivated,
respondent argues that the statements were made merely as a way to “prepare the
jury for evidence of an unfamiliar world . . . .” State
v. Robinson, 604 N.W.2d 355, 363 (
Based on the record, there was ample evidence in this
case to convict appellant. Even if the
brief comments made during the prosecutor’s opening and closing arguments rose
to the level of misconduct, it is unlikely that the comments had a substantial
impact on the jury. See, e.g., State v. Powers, 654 N.W.2d 667, 679 (