This opinion will be unpublished and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 January 31, 2006
Hennepin County District Court
File No. 03048608
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Crippen, Judge.
April 2003, appellant was involved in a car accident that resulted in the death
A jury found appellant guilty of criminal vehicular homicide and child endangerment. This appeal followed.
The district court
has broad discretion in determining whether a prosecutor committed prejudicial
misconduct during closing argument. State v.
1. Shifting Burden
the burden of proof constitute misconduct.
argues that the prosecutor shifted the burden of proof when he stated that
there was no evidence to support an assertion defense counsel made during his
opening statement, the comment that appellant thought the other driver was
turning when appellant went off the road.
But the prosecutor’s statement did not shift the burden of proof; it
merely highlighted the lack of evidence to support defense counsel’s
argument. Moreover, the prosecutor was
also careful to put the statement in the context of the jury’s duty to base its
decision on the evidence rather than on the assertions of counsel. See
State v. Ashby, 567 N.W.2d 21, 28 (
Appellant also argues that the
prosecutor shifted the burden of proof when, after recounting the testimony of
three eyewitnesses, he characterized the evidence as “undisputed,” adding that
it was for the jury to decide all issues of credibility. Appellant argues that the prosecutor’s
statement implied that appellant failed to present witnesses at trial. This characterization of evidence by the
prosecutor may have wrongfully suggested a burden on the defendant to
2. Minimizing Burden
Relying on State v. Hunt, appellant also argues that the prosecutor minimized the state’s burden of proof when he told the jury that thousands of people were convicted despite the presumption of innocence and the state’s burden of proof. But in Hunt the court held that a reference to the Greek jury system, in which a stone was placed on either side of a scale for each successful argument made by one party or another, although “questionable” and “arguably confusing,” did not amount to plain error. 615 N.W.2d at 302. In this case, the reference to the fact that many people are convicted despite the state’s heavy burden of proof was neither questionable nor arguably confusing.
Significantly, the reference was immediately preceded by the prosecutor’s characterization of the state’s burden of proof as “heavy,” as “well it should be.” And the prosecutor began these comments by asking that the jury hold the state to its burden of proof and twice more observed that the state had the burden of proving the offense beyond a reasonable doubt. Accordingly, it is unlikely that the prosecutor’s statement would have caused the jury to be confused about the state’s burden of proof.
as the prosecutor’s comments constituted error, they did not prejudice
appellant. First, the district court
clearly and thoroughly instructed the jury regarding the burden of proof. See State
v. McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001) (stating prosecutor’s
attempt to shift the burden of proof is “often nonprejudicial and harmless
where, as here, the district court clearly and thoroughly instructed the jury
regarding the burden of proof”); State v.
Buggs, 581 N.W.2d 329, 341-42 (Minn. 1998)(holding erroneous comment nonprejudicial and harmless
in light of trial court’s clear and thorough instructions stating appellant had
no burden of proof or duty to produce evidence). Second, the prosecutor’s comments were
isolated. Third, the prosecutor’s
argument, as a whole, emphasized rather than minimized the state’s burden of
proof. See State v. Stewart, 514 N.W.2d 559, 564 (
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.