This opinion will be unpublished and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
Melinda Jean Pudlick,
Filed November 1, 2005
Aitkin County District Court
File No. K4-03-797
Mike Hatch, Attorney General,
James B. Early, Assistant Attorney General, 1800
Thomas Murtha, Aitkin County Attorney, Aitkin County Courthouse, 217 Second Street Northwest, Aitkin, Minnesota 56431 (for respondent)
John M. Stuart, State Public
Defender, Davi E. Axelson, Assistant Public Defender,
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
Melinda Pudlick appeals from convictions of terroristic threats and fifth-degree assault, arguing that the prosecutor committed prejudicial misconduct by failing to prepare its police witness, who volunteered evidence that had been ruled inadmissible. Appellant also argues that the prosecutor committed misconduct in rebuttal argument by discussing landlord-tenant law, on which the jury was not instructed, in a case in which appellant claimed she was trying to remove an unwanted guest from her apartment. Because we conclude that any misconduct in failing to properly prepare the police witness did not play a substantial part in influencing the jury to convict appellant, and any improper statements made during closing argument did not constitute plain error affecting her substantial rights, we affirm.
A jury found appellant Melinda
Pudlick guilty of terroristic threats and fifth-degree assault for her actions
in attempting to remove her brother, Joseph Chouinard, from an apartment that
she leased. Chouinard, Pudlick, and
another person shared an apartment in
The Aitkin County Sheriff’s Department responded to appellant’s late-evening call requesting that Chouinard be removed from the apartment. Appellant had also called police earlier that evening with the same request, based on her belief that Chouinard would return to the apartment and take appellant’s possessions. Earlier that afternoon, Chouinard had learned that appellant intended to ask him to move out and request his rent money back. The deputies explained that they could not remove him from the apartment if he was paying rent.
Two sheriff’s deputies, Dan Guida and Heidi Lenk, responded to appellant’s second call around midnight. Lenk testified that when Chouinard met them at the downstairs apartment door, she saw blood dripping from his nose and mouth and marks on his neck. Chouinard and Guida then went upstairs, followed shortly by Lenk. Lenk saw appellant in the apartment bathroom; appellant did not appear to be injured but was behaving erratically, acting normally and then suddenly screaming and swearing. When Lenk left her to interview the other person in the apartment, appellant came out of the bathroom yelling and swinging her arms in the air. The other witness later testified that he heard appellant threaten to “kill” Chouinard. Lenk handcuffed appellant for her safety and then arrested her.
state charged appellant with terroristic threats under Minn. Stat. § 609.713,
subd. 1 (2002), and misdemeanor domestic assault under Minn. Stat. § 609.2242,
subd. 1(2) (2002). The district
court granted appellant’s pretrial motion in limine to exclude opinion
testimony from police officers, as well as hearsay statements from Deputy Guida,
who was unavailable to testify. The
court also instructed the state to prepare its witnesses to avoid “blurting
out” or making prejudicial comments. At
trial, in response to a question on cross-examination about the length of time between
when appellant was handcuffed and when she was arrested, Deputy Lenk testified,
“Long enough for Deputy Guida to tell me there was enough for a fifth degree
assault.” The district court declined to
give a curative instruction. During
rebuttal in closing argument, the prosecutor referred to
D E C I S I O N
Appellant argues that the prosecutor committed misconduct by improperly failing to instruct Deputy Lenk on the limits of acceptable testimony before trial. The district court’s pretrial order prohibited the introduction of “any testimonial evidence on the part of . . . Deputy Guida” and directed against presenting opinion testimony from police officers on credibility or reliability without the court’s permission. The district court asked both attorneys to prepare their witnesses to avoid prejudicial comments.
A prosecutor has a duty to prepare a
witness before trial to avoid eliciting improper testimony. State
v. Ray, 659 N.W.2d 736, 745 (
considering claims of prosecutorial misconduct, this court 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 (
Because the statement was nonresponsive
and made during cross-examination, we consider it under the less-serious Powers standard. Under that standard, we conclude that its
introduction was not so prejudicial as to require a new trial. The district court, who observed the testimony,
declined to offer a curative instruction because it considered the statement
inadvertent. See State v.
Moreover, the record contained overwhelming evidence of appellant’s guilt. See State v. McNeil, 658 N.W.2d 228, 232–33 (Minn. App. 2003) (holding that a witness’s nonresponsive answer to a cross-examination that mentioned the defendant’s drug addiction, in violation of the district court’s ruling suppressing evidence of the defendant’s drug use, did not substantially affect the jury’s decision to convict, when evidence of guilt was overwhelming). The state introduced three photographs of Chouinard taken after the incident, which showed bruises and lacerations around his head and neck area. This evidence was corroborated by Deputy Lenk’s personal observation of Chouinard’s injuries. And although appellant’s counsel presented the theory of self-defense at closing argument, appellant called no witnesses and thus did not rebut Chouinard’s testimony, as well as the other witness’s testimony that appellant threatened to “kill” Chouinard, but Chouinard did not threaten her. Thus, it is unlikely that the statement substantially affected the jury’s decision to convict appellant.
argues that the prosecutor committed misconduct by referring to
court considers a closing argument as a whole to assess claims of prosecutorial
misconduct arising from that argument. State v. Walsh, 495 N.W.2d 602, 607 (