This opinion will be unpublished and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
State of Minnesota,
Benton County District Court
File No. K4-04-148
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Robert J. Raupp, Benton County Attorney, Courts Facility Building, 615 Highway 23, P.O. Box 189, Foley, MN 56329 (for respondent)
John M. Stuart, State Public Defender, Michael F. Cromett,
Assistant Public Defender,
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.
This appeal is from a conviction of third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (2002). Appellant Alfonzo Peek argues that the prosecutor committed prejudicial misconduct in closing argument and that there was insufficient credible evidence to support the conviction and to prove that he did not act in self-defense. Because we conclude the prosecutor did not commit prejudicial misconduct, and the evidence is sufficient to support the conviction, we affirm.
Appellant Alfonzo Peek was charged with assaulting a former friend and co-worker, Mark Glerup, at the site of an asbestos-removal project where Glerup was working. The complaint alleged that Peek cut Glerup’s face with a dangerous weapon – a utility knife, or “box cutter” – during a confrontation. On the day of trial, the state added a charge of third-degree assault, requiring infliction of substantial bodily harm.
Peek and Glerup testified that they had worked together on asbestos-removal
projects and interacted socially, with Glerup staying with Peek’s family for a
time and visits between their families. Peek
testified that a week or two before the assault, he heard Glerup refer to him
as a “stupid n----r” during a phone call and that he was shocked and hurt by
the racial slur. At the time of the
offense, Glerup was working on a project at the
Glerup testified that he was talking with Purinton in a former classroom when Peek entered, swearing at him and offering to fight. Glerup testified that he made it clear that he did not want to fight, but that Peek came after him, hit him in the throat with his open hand, and then pursued him around a desk. Glerup testified that he stopped and punched Peek, knocking him down and breaking his own hand in the process; that when Peek got up from the floor, he swung at Glerup; and that although Glerup did not see a knife at that point, blood began flowing from his cheek. Glerup testified that he then saw a utility knife in Peek’s hand, that Purinton called police, and that Peek left the room. Glerup denied using any racial slurs during this incident, but he admitted using the racial slur during Peek’s phone call several days or weeks earlier. Glerup also testified that after the scuffle started Purinton made no effort to stop it until Glerup was cut, when Purinton called police.
Purinton testified that on the way to the school Peek had called him on his cell phone, asking about his W-2 forms, which Purinton told him were in the mail. Purinton testified that Glerup seemed concerned about the call and that, after they arrived, Peek came in and began confronting and threatening Glerup. Purinton testified that Peek put his coffee cup down and Glerup took his glasses off. Purinton testified that Peek chased Glerup around a desk and was the first to take a swing; that Peek then went down when Glerup punched him, that when Peek got up, Purinton did not see anything in his hand; but that when he noticed that Glerup was cut, he saw a utility knife in Peek’s hand.
The investigating officer, Dan Falk, testified that he was dispatched to the scene, where he found Purinton and Glerup, who had a cut on his cheek that looked like it would need stitches. Falk did not see a utility knife at the scene or any sharp objects on which Glerup could have cut himself during the fight. Falk testified that he looked outside, around the door to the school for a utility knife but found nothing. He also returned after the snow had melted but again found no utility knife. Falk testified that he did not search a dumpster that was located near the door because it contained hazardous material.
Peek testified that he had called Purinton that morning about the W-2 forms, admitted that when he went to the school he expected to have words with Glerup, but testified that he did not expect a fight. Peek testified that Glerup spoke first, getting “in his face,” and using a racial slur. Peek further testified that he then pushed Glerup in the throat, but softly, with his coffee cup still in his hand; that Glerup then pushed and “sucker-punched” him, sending him to the floor, where Glerup stomped and kicked him; that two other men were there, and all were laughing; that when he stood up, he exchanged punches with Glerup; that he noticed that Glerup was bleeding; that he did not have a knife or a box cutter at the scene; and that when Purinton said he was calling police, Peek picked up his coffee cup and walked out.
In his closing argument, the prosecutor noted that critical details of Peek’s testimony conflicted with that of Glerup and Purinton. The prosecutor told the jurors, “As jurors, you will have to decide which side you believe.” He then stated, “I would submit if you believe the testimony of Tom Purinton who wasn’t one of the two people involved, then you must find the defendant guilty in this case.” Later, the prosecutor argued that “[t]his is going to be one [of] those cases where again you just need to decide who you can believe.” Peek was convicted and appeals.
D E C I S I O N
1. PROSECUTORIAL MISCONDUCT
The first issue is
whether the prosecutor engaged in prejudicial misconduct in his closing
argument by misstating the burden of proof and by injecting his personal
opinion. Defense counsel did not object
to any of the statements that Peek now argues were misconduct. Failure to object or seek a curative
instruction generally waives any challenge to the alleged misconduct on
appeal. State v. Ture, 353 N.W.2d 502, 516 (
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 (
Peek claims three types of statements were improper. First, he argues that the prosecutor presented the case as a credibility contest between Peek and the state’s witnesses in which the jury merely had to decide whom to believe, and that this diluted the state’s burden of proving guilt beyond a reasonable doubt.
The prosecutor may
not distort the burden of proof. State v. Costello, 646 N.W.2d 204, 210 (
Second, Peek challenges the prosecutor’s argument that the jury had to decide “what is the more plausible story here.” This statement is more questionable, because plausibility suggests a lower standard of proof. However, unlike the statement in Strommen, the argument by the prosecutor, here, was not phrased in terms of a burden of proof. Furthermore, defense counsel did not object to it, but instead responded to it in her closing argument, suggesting that the state needed to present witnesses, in addition to Glerup and Purinton, to meet its burden of proof. We conclude that, even if the prosecutor’s “choosing who is credible” argument was error, it was not plain error or so prejudicial that a new trial is required.
Third, Peek argues
that the prosecutor committed misconduct in making a number of “I” statements,
such as “I submit” or “I think,” thereby injecting his personal opinion. See
Ture v. State, 681 N.W.2d 9, 20 (
But the use of “I”
statements is not misconduct if the statements are merely ways of phrasing
arguments from the evidence rather than arguments based on the prosecutor’s
personal opinion. In State v. Bradford, 618 N.W.2d 782, 799 (
In Blanche, 696 N.W.2d at 375, the court
addressed the prosecutor’s use of “approximately 18 statements in closing
argument [prefaced] with phrases such as ‘I suggest to you,’ ‘I think,’ ‘I ask
you,’ and ‘I submit to you.’”
A prosecutor’s use of phrases such as “I suggest to you” and “I think” to interject personal opinion into a closing argument is improper. Prosecutors must not interject their personal opinions into a case. This is so in order to prevent “exploitation of the influence of the prosecutor’s office.” Here, the postconviction court concluded that the prosecutor’s use of these phrases was inadvertent and rooted in the prosecutor’s rhetorical idiosyncrasies and that “[t]he prosecutor’s comments were not such that a jury would view the prosecutor as taking on the role of a witness.” We conclude that the language, while poorly chosen, was not, under the facts and circumstances of this case, plain error.
Here, the prosecutor’s “I” statements were almost entirely rhetorical introductions to arguments tied strictly to the evidence presented. Statements such as “I think the evidence shows,” used by the prosecutor here at one point, are verbal tics preceding proper argument from the evidence. Other of the prosecutor’s “I” statements were not as innocuous, and some may have implied a personal opinion to some degree. But they were not so “unduly prejudicial” as to warrant reversal despite Peek’s failure to object. See generally Whittaker, 568 N.W.2d at 450-51.
In addition to concluding that the three types of statements are not individually prejudicial, we conclude that they are not cumulatively prejudicial so as to require reversal.
2. SUFFICIENCY OF THE EVIDENCE
The second issue is whether the record supports Peek’s conviction of third-degree assault. Peek challenges the credibility of Glerup and Purinton, the state’s two key witnesses, and argues that the state failed to prove that he did not act in self-defense, or, at least, with the victim’s consent.
In considering a
claim of insufficient evidence, this court undertakes 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 (
The testimony of
Glerup and Purinton established that Peek was the aggressor, that he had an
opportunity to withdraw from the confrontation and did not do so, and,
therefore, that he did not act in self-defense.
There were some inconsistencies in their testimony. But the inconsistencies, such as the exact
sequence of events, Peek’s words preceding the assault, and whether Purinton
had answered Peek’s earlier phone calls, do not concern “crucial” details, as
Peek argues. In any event,
inconsistencies in the testimony of the state’s witnesses do not require
Peek also argues
that because Glerup agreed to fight, there could be no assault. The general rule is that the consent of the
victim is not a defense to a crime unless the crime is so defined that the
victim’s consent would negate one of the elements of the crime.
It is also
noteworthy that the “reasonable use of force” statute, Minn. Stat. § 609.06, subd. 1, lists ten
situations in which force may reasonably be used “without the other’s
consent.” Many of these are highly
specialized situations involving teachers and pupils, public officers effecting
arrests, common carriers expelling passengers, and those acting to restrain the
The state presented sufficient evidence to support the
conviction, and Peek has not shown that
 Peek adopts this language from State v. Baker, 280