This opinion will be unpublished and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
Michael John Enright,
Filed December 20, 2005
Mille Lacs County District Court
File No. K9-04-141
Mike Hatch, Attorney General,
Janice S. Kolb,
John M. Stuart, State Public
Defender, Bridget Kearns Sabo, Assistant Public Defender,
Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from conviction for gross misdemeanor assault, appellant argues that the prosecutor committed prejudicial misconduct in closing argument by misstating the testimony of a defense witness to indicate that she had a possible bias against police and by improperly vouching for the credibility of the prosecution witnesses, in part by lauding the professionalism of the police officers. We conclude the claimed errors did not likely play a substantial role in the jury’s decision to convict. We affirm.
A jury convicted appellant
Michael Enright of fourth-degree assault of a police officer, obstructing legal
process, third-degree chemical-test refusal, and fourth-degree driving under
the influence of alcohol. The evidence
Two police officers spotted
Because Erickson was having trouble dealing with appellant, Rice took over the questioning. He asked appellant to perform a walk-and-turn field sobriety test, which he failed. Rice then indicated appellant needed to perform two more tests or he would be under arrest for DWI.
Rice testified that when
appellant refused further testing and began to leave, he advised appellant of
his arrest and reached for his hands as he walked away. Rice testified that appellant grabbed at his
arm and locked into him with a bear-hug grip; that the men engaged in a fight,
with Rice ending up on top of appellant; that appellant punched him in the
face; and that he hit appellant back. Rice then reached for his taser and
stunned appellant four times in the neck. He testified that after appellant
stated he was going to leave, Rice tasered him again, but that did not slow
appellant down. Erickson then sprayed
appellant with pepper spray, and appellant went into his car and sat down. When appellant refused to step out of his
car, Rice used his baton to break the car window. Appellant eventually came out and agreed to
the arrest. The officers transported him
At trial, Erickson corroborated Rice’s testimony on the fight and the arrest. The only defense witness, Bonita Neeland, testified that as she was walking through the parking lot of the casino, she saw appellant on the ground, with one officer hitting and the other kicking him. She testified that appellant was trying to get up, reaching out with one arm and grabbing the legs of the officer who had been kicking him. She observed the officer stun appellant with the taser four times on each side of the head, and testified that appellant stated, “Why are you doing this to me?” She did not see appellant try to kick or punch the officers. She stated that at first she thought appellant might have been her son, because he looked like him, and stated that her son had had contact with “the highway cops.”
At closing argument, the prosecutor made four references to Neeland’s possible lack of credibility based on her feelings towards law enforcement. In one reference, the prosecutor stated to the jury that after Neeland testified she suspected at first that the man was her son and that her son had been in trouble with tribal police, if her demeanor told the jury that she did not care for law enforcement, it could weigh against her credibility determination. The prosecutor also stated that the witness who initially reported appellant’s erratic driving was “clear and concise” and referred to the officers as “professional” or “professionals” five times.
The jury convicted appellant of all four charges. On defendant’s motion for acquittal of felony assault, the district court acknowledged that the jury instruction had contained only the elements for gross-misdemeanor assault and reduced the conviction to gross-misdemeanor assault. Appellant challenges the remaining convictions.
D E C I S I O N
When considering claims of
prosecutorial misconduct, this court will reverse “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 (
Appellant argues that in closing argument, the prosecutor
committed misconduct by misstating the record on Neeland’s prior involvement
with and feelings toward police officers.
In closing arguments, counsel “has the right to present to the jury all
legitimate arguments on the evidence, to analyze and explain the evidence, and
to present all proper inferences to be drawn” from the evidence. State
v. Smith, 541 N.W.2d 584, 589 (
The prosecutor in closing argument made four references to Neeland’s possible lack of credibility based on her feelings toward police. First, the prosecutor stated:
[I]f to you on the stand she appeared to be not exactly a fan of law enforcement, when she said—well, first I thought that they were beating my son, it just looked like him.
That tips you off that maybe she has some kind of a grudge against law enforcement, that is your call to make but---
Defense counsel then objected to this argument as presenting facts not in evidence, and the court overruled the objection. The prosecutor continued:
As I was saying, you hear what she said. I didn’t write it down word for word, but when she said that she suspected it was her son at first and then told you that her son had been in trouble with tribal police, if the look on her face, if her demeanor told you that she doesn’t care for law enforcement that is your call to make, and that is part of your determination as to her credibility for her entire testimony.
The prosecutor made two other references to Neeland’s possible negative feelings towards law enforcement personnel.
The prosecutor did misstate the evidence on Neeland’s son’s involvement with tribal police officers, who may differ from highway police. The record reflects that when the prosecutor asked Neeland whether she or her family had had previous involvement with the officers in Milaca, she answered “no,” and when asked, “[y]our son has not had contact with the police before?”, she answered, “[w]ith the highway cops, yeah.” And the prosecutor’s statement that Neeland “may be not only be experienced with law enforcement but also stun guns and the use of stun guns” does not reflect with accuracy her testimony that she owned two stun guns but had not been stunned nor had the opportunity to stun a person.
But we conclude these misstatements, which reflect less
serious misconduct, even if intentionally made, did not likely play a
substantial role in the jury’s decision to convict. See Powers,
654 N.W.2d at 678 (stating standard for less serious misconduct). Justice does not require the ideal, a totally
error-free trial, but does require a trial free of error prejudicial to the
defendant. State v. White, 295
Appellant argues that because Neeland was the sole
defense witness and her credibility was at issue, the prosecutor’s statements
impermissibly tended to inflame or prejudice the jury.
Appellant argues that the prosecutor unfairly vouched for the
state’s witnesses in closing argument. Because
he failed to raise this issue at trial, we may consider it waived. See State v. Steward, 645 N.W.2d
115, 121 (
Even if we were to consider
the issue, we would conclude that the
prosecutor’s statements on the professional conduct of the police and the
concise nature of the complaining witness’s observation did not constitute
serious improper vouching. A prosecutor
impermissibly vouches for a witness when he “implies a guarantee of a witness’s
truthfulness, refers to facts outside the record, or expresses a personal
opinion as to a witness’s credibility.” State
v. Patterson, 577 N.W.2d 494, 497 (
appellant argues that the cumulative effect of the prosecutor’s errors deprived
him of a fair trial.
On this record, the prosecutor’s minor misstatements of the evidence and the claimed improper vouching, even when taken together, do not constitute prejudicial misconduct requiring a new trial.