This opinion will be unpublished and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
William Leroy Fields,
Reversed and Remanded
Dissenting, Dietzen, Judge
Otter TailCounty District Court
File No. K8-03-2290
Michael A. Hatch, State Attorney General, John B. Galus, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101; and
Hauser, Otter Tail County Attorney,
John M. Stuart,
State Public Defender, Marie Wolf, Assistant Public Defender,
Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
This is an appeal from conviction for first-degree criminal sexual conduct. Appellant argues that the district court abused its discretion in instructing the jury that the complainant’s testimony need not be corroborated, and that this instruction was prejudicial. Appellant also argues that the prosecutor committed prejudicial misconduct in cross-examining appellant about previous theft allegations that the prosecutor had not given Spreigl notice on and that had not resulted in a conviction, so as to be potentially admissible for impeachment purposes. Finally, appellant argues that the prosecutor committed prejudicial misconduct in effectively vouching for the complainant’s testimony and in arguing the defense failure to present contrary evidence.
We conclude that, standing alone, no individual issue raised by appellant would warrant a reversal, but, collectively, the cumulative prejudicial effect of the errors calls for a reversal and a remand for a new trial.
In approximately 1995, K.W.R, along with her mother, Joan Walters, and her brother and sister, moved from Baltimore to Georgia to live with her sister, Jennifer Fields, and her husband, William Leroy Fields, appellant.
Appellant and his wife later moved to
K.W.R. was thereafter diagnosed with
scoliosis which required medical treatment.
Appellant’s wife learned of K.W.R.’s condition and suggested that she
and her family move to
In 1997, K.W.R., along with her sister
and mother, relocated to
Approximately one month after K.W.R. moved in with appellant and his family, appellant started touching her inappropriately on the breast and vagina through her clothing when no one else was around. Appellant also engaged in sexual “dirty talk” with K.W.R. telling her he wanted to conduct certain sexual acts with/on her. Following these incidents, K.W.R. avoided being alone with appellant whenever possible.
Several weeks after appellant’s inappropriate touching and comments, K.W.R. alleged that appellant raped her while K.W.R.’s younger sister and appellant’s daughters played outside. The rape occurred in a bedroom of the mobile home. After the rape, appellant instructed K.W.R. to act as if nothing had happened. Appellant threatened K.W.R. by telling her that if she told anyone about the incident, he would kick her and her family out of the house and that “something else” would happen to her. K.W.R. then went outside to join the other children.
and her family remained in the mobile home for a few months following the rape
and subsequently moved to the
Following the spring of 1997, K.W.R.’s personality changed substantially. She became quiet and shy, began staying in the house and avoiding friends, and did not want to go to school. Her academic performance deteriorated and she experienced several health problems, including weight gain and acid reflux.
In September 2001, K.W.R. partially shared with her aunt, Theresa Walters, what appellant had done.
In September 2003, K.W.R. noticed appellant’s older daughter, D.F., acting in a manner similar as she had following appellant’s sexual abuse: D.F. became withdrawn, quiet, and subject to mood swings. K.W.R. was worried about D.F. and following an inquiry from her mother, broke down and told her mother that appellant had raped her. Her mother notified the police.
Appellant was eventually arrested for sexual abuse and charged with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(a), one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g), one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(a), and one count of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subd. 1(g).
During appellant’s trial testimony, he denied ever sexually abusing K.W.R. Appellant testified his work and sleep schedule would have made it difficult to be alone with K.W.R. He testified that on several occasions when he was alone with K.W.R. she never expressed any fear about being alone with him. Appellant’s wife testified, supporting appellant’s testimony that he worked a time-consuming schedule and added that she was always home, essentially testifying that K.W.R. was never alone with appellant. K.W.R also testified as to what appellant had done. The bulk of the evidence presented by both sides included the testimony of appellant, K.W.R., and witnesses.
A jury found appellant guilty of all charges. The district court ruled that all four counts involved a single behavioral incident and sentenced appellant to a presumptive 86-month prison term. This appeal followed.
Appellant argues that the prosecutor committed misconduct by questioning appellant about his prior bad acts when the evidence was inadmissible as Spreigl or impeachment evidence and the prosecutor gave no notice of her intent to question him about the prior bad acts. He also argues the district court committed prejudicial error when it instructed the jury that the victim’s testimony need not be corroborated. Finally, he argues the prosecutor committed misconduct by vouching for the credibility of her own witnesses and by implying that appellant had a duty to present evidence showing why the victim would make up the allegations against him.
D E C I S I O N
Appellant argues the prosecutor committed misconduct by questioning appellant on cross-examination about his prior bad act. He argues, because the evidence was not properly admissible and because the trial court’s attempt to give limiting instructions exacerbated any damage caused by the misconduct, he is entitled to a new trial.
district court’s denial of a new trial motion based on alleged prosecutorial
misconduct will be reversed only “when the misconduct, considered in the
context of the trial as a whole, was so serious and prejudicial that the
defendant’s constitutional right to a fair trial was impaired.” State
v. Johnson,616 N.W.2d 720,
the defendant failed to object to the misconduct at trial, he forfeits the
right to have the issue considered on appeal, but if the error is sufficient,
this court may review.”
During appellant’s cross-examination, the prosecution asked whether he had previously been in trouble for stealing money from an employer. The record shows zero notice by the prosecutor of her intent to introduce this evidence and, thus, obviously, the state had submitted no prior justification to the court, with an appropriate notice to defense counsel. Appellant’s counsel did not object to the state’s inquiry regarding this prior bad act. Appellant responded that such event had occurred and that he had, in fact, appeared in court as a result. Immediately after the state’s inquiry, the district court provided the limiting instruction that this evidence was admitted “for the limited purpose of assisting you in determining whether Defendant . . . committed those acts with which he is charged . . . .”
starting point for our discussion is that, generally, evidence of a defendant’s
other crimes or prior bad acts is not admissible to show behavior consistent
with the character of that defendant suggested by those acts. State
of other crimes, wrongs, or acts is referred to in
The law is straightforward. When it is unclear whether Spreigl evidence
is admissible, the benefit of the doubt should be given to the defendant and
the evidence should be excluded. State v. Kennedy, 585 N.W.2d 385,
Generally, other crime evidence
“should not be admitted unless, within a reasonable time before trial, the
state furnishes defense counsel with a written statement of other offenses it
intends to show the defendant committed.” State v. Bolte, 530 N.W.2d 191, 199 (
Candidly, the prosecutor admitted that she did not seek permission from the district court for admitting such evidence and conceded further that there never was any actual prior conviction for theft. Somehow, the district court still instructed the jury that it could consider appellant’s conviction “as it may affect the weight of the defendant’s testimony.”
Prior misconduct not resulting in a
criminal conviction has not undergone the “judicial refining process.” State
v. Fallin, 540 N.W.2d 518, 521 (
II. Jury Instructions
At the prosecutor’s request and over appellant’s objection, the district court instructed the jury that “[i]n a prosecution for criminal sexual conduct in the first – or second – degree, the testimony of a victim need not be corroborated.” Appellant argues this instruction is reversible error.
courts are allowed “considerable latitude” in the selection of language for the
jury instructions. State v. Baird,654
N.W.2d 105, 113 (
It is true
that Minn. Stat. § 609.347, subd. 1, states that
the testimony of a victim in a prosecution for criminal sexual conduct need not
be corroborated. But because of the
dangerousness of the weight that might be given to it, caselaw states that the
district court in a criminal sexual conduct case should not instruct the jury
that the victim’s testimony need not be corroborated. State
v. Johnson,679 N.W.2d 378, 388
(Minn. App. 2004), review denied (
This court in Williams stated:
Jury instructions must be construed as a whole and the trial court properly instructed the jury on the burden of proof and the need for the State to prove beyond a reasonable doubt that appellant was guilty. While we agree that the lack of corroboration is an evidentiary matter, not a substantive one, and should not have been included in the instructions, we do not believe that the jury was confused considering the instructions in their entirety.
363 N.W.2d at 914; see also Johnson,679 N.W.2d at 388; Erickson,403N.W.2d at 286.
Appellant argues the error is prejudicial because here the evidence was “very close” and “this instruction could well have been critical in the jury’s decision.” As the parties were discussing jury instructions with the court, respondent argued the necessity of the “no need for corroborated evidence” instruction arguing that the instruction would assist the jury by letting them know that in cases where there is a delay of reporting an incident, as was the case here, physical or other types of evidence may not be available and therefore not necessary. She further reasoned that the instruction would assist the jury “in the issue that the victim in this case and her testimony, if they find it credible and believable, would not need to be supported by any other evidence if they believe that.” Based on the previously cited cases, we are not persuaded. We conclude, as previously stated, that although this improper instruction, standing by itself, may not have been grounds for reversal, this improper instruction compounds the other errors made during the trial.
III. Closing Argument
Appellant alleges that the prosecutor committed misconduct during closing arguments by (1) repeatedly telling the jury that her witnesses were telling the truth and (2) by telling the jury that appellant had not provided a reason as to why the victim would lie. Prosecutors are not permitted to inject personal opinion about the veracity of a witness or the guilt or innocence of the defendant during closing argument. See A.B.A. Standards for Criminal Justice, The Prosecution Function, Standard 3-5.8(b); see also State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995) (improper for prosecution in closing argument to personally endorse the credibility of witnesses).
A defendant alleging prosecutorial
misconduct generally will not be granted a new trial if the misconduct was
harmless beyond a reasonable doubt. Hunt, 615 N.W.2d at 301-02. Whether the challenged misconduct was
harmless depends partly upon the type of misconduct committed.
general, a defendant’s right to raise an issue on appeal concerning the
prosecutor’s comments during closing argument is deemed waived when the
defendant fails to object or request cautionary instructions. Whittaker,
568 N.W.2d at 450. A defendant has a duty
to promptly object and seek cautionary instructions since “carefully worded
instructions by the trial court can ameliorate the effect of improper
prosecutorial argument.” State v. Brown, 348 N.W.2d 743, 747 (
Absent a timely objection a defendant is entitled to a new trial under the plain-error rule only when “the alleged misconduct was so clearly erroneous under applicable law and so prejudicial to the defendant’s right to a fair trial, that the defendant’s right to a remedy should not be forfeited.” Hunt, 615 N.W.2d at 302. “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.” Strommen, 648 N.W.2d at 686.
Appellant alleges prosecutorial
misconduct based on several of respondent’s statements made during closing
argument. When reviewing alleged misconduct in closing statements, we look at
the whole argument in context, not just selective phrases or remarks. State
v. Walsh, 495 N.W.2d 602, 607 (
Appellant argues that in closing
argument, the prosecutor personally endorsed the
credibility of K.W.R. when she stated in regards to whether K.W.R. was
violated, “and in fact, in this case, she was that.” Appellant also argues that the prosecutor
vouched for K.W.R.’s credibility. Vouching occurs “‘when the government
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 (
The prosecutor argued:
It’s clear, after you listen to the testimony, that there’s no question that in this case [K.W.R.] was, in fact, violated by [appellant] and through her testimony and the testimony of others you heard, it’s clear that he sexually penetrated her.
But she talked
about how she was violated; and in fact, in this case, she was. She was violated in such a manner by this
brother-in-law, a person she’s trusted and she’s known way back to
The prosecutor also stated in closing argument “[w]hy in the world would she [victim] say such a thing if it weren’t true.” She also argued in closing argument that appellant and his wife testified that they did not believe the victim and stated, “they could not come up with why they thought Kaylee would do this [lie].” The prosecutor then told the jury to “think about this when you go back in the room [to deliberate].”
The statements made by the prosecutor during closing argument arguably shifted the burden to appellant to prove that he was not guilty. It is always the state’s burden to prove that a defendant is guilty beyond a reasonable doubt. When the prosecutor pointed out to the jury that appellant and his witness had not “come up with why they thought” the victim would lie, it is not unreasonable to assume that the jury considered this argument in its deliberations and may have reflected why appellant “did not prove his case.” The legal standard is chiseled in stone. A criminal defendant “does not have to prove his case.” The prosecutor has to prove his. The prosecutor exacerbated the problem when she told the jury to “think about this when you go back in the room [to deliberate].”
This closing argument, while overly colorful, and bumping up against the constitutional right of all defendants not to have “to prove explanations tending toward innocence,” again, standing alone, would not warrant reversal. We analyze the issue because it is the totality of a criminal trial that may determine substantial prejudice, or the lack thereof.
As stated in
State v. Underwood, 281 N.W.2d 337,
Here, the case relied solely on the testimony of witnesses, including appellant and the victim. The credibility of those who testified was crucial to the jury’s decision. Appellant’s credibility was damaged by the cumulative effect of respondent’s errors, particularly respondent’s lack of notice to appellant of its intent to introduce Spreigl evidence concerning a past job and allegations of theft. The district court’s instruction to the jury regarding no need to corroborate the victim’s testimony should not have been given.
Taking the record as a whole, we conclude the cumulative effect of trial errors denied appellant a fair trial.
Reversed and remanded.
DIETZEN, Judge (dissenting)
Appellant challenges his conviction on three grounds, i.e., prosecutorial misconduct, improper jury instructions regarding corroboration, and vouching by the prosecutor. The majority concluded that the cumulative effect of these “errors” created substantial prejudice warranting reversal. Because I conclude that the grounds raised by appellant either do not constitute error or constitute harmless error, I respectfully dissent.
First, appellant argues that the prosecutor committed misconduct by questioning him about prior bad acts because the evidence was inadmissible, and the prosecutor failed to give notice. On cross-examination, the prosecutor elicited the following testimony:
[Prosecutor]: [I]n your past, there’s been times that you haven’t been necessarily honest. Would you say that?
[Appellant]: To a certain extent.
[Prosecutor]: And specifically, I’m just talking about a
time in the state of
[Appellant]: Yeah. But I didn’t lie about it.
[Prosecutor]: But you took from the employer.
[Prosecutor]: When was that exactly?
[Appellant]: Ninety-six I think it was maybe.
[Prosecutor]: And you went to court for that at that time?
Appellant’s counsel did not object to the questioning. Following the exchange, the district court, sua sponte, instructed the jury that the evidence “was offered for the limited purpose of assisting you in determining whether the defendant committed those acts with which he is charged in the complaint.”
The majority labels this testimony as
inadmissible Spreigl evidence;
however, the record does not support this characterization. Rather, the testimony is a classic example of
proper impeachment under Minn. R. Evid. 608(b).
See, e.g., State v. Coleman,
426 N.W.2d 889, 893 (Minn. App. 1988), review
Because the testimony did not constitute
inadmissible Spreigl evidence, there
was no prosecutorial duty to follow the notice and proof requirements
applicable to such evidence. While it is
true that the proper approach would have been for the prosecutor to give pretrial
notice of her intent to use the prior bad act for impeachment purposes,
appellant failed to object to the lack of notice at trial and, in fact,
appellant’s counsel admitted at trial that the questioning was “fair game.” See
State v. Fallin, 540 N.W.2d 518, 522 (
Appellant further argues that the alleged error was exacerbated by the district court’s use of a final jury instruction stating “you must be careful to consider any previous conviction only as it may affect the weight of the defendant’s testimony.” But the record is unequivocal that the instruction was given at the request of defense counsel. Specifically, counsel stated, “I think Your Honor quite appropriately read the limiting instruction when a prior criminal conviction is made reference to in the court, and I’d ask the Court to consider including that also now in the final jury instructions.”
Second, appellant argues that the
district court improperly instructed the jury that the victim’s testimony need
not be corroborated. This is an accurate
statement of the law under Minn. Stat. § 609.347, subd. 1. And, although it is improper to include this
statement in jury instructions, such an error is harmless where, as here, the
district court properly instructs the jury on the burden of proof and the need
for the state to prove its case beyond a reasonable doubt. See,
e.g., State v. Johnson, 679 N.W.2d 378, 388 (Minn. App. 2004), review denied (
Third, appellant argues that the
prosecutor improperly vouched for the credibility of the victim during closing
arguments. But I agree with the majority
that the prosecutor’s statements failed to rise to the level of “vouching;” and
instead, constituted permissible arguments as to the victim’s credibility. State
Because the three grounds raised by appellant either do not constitute error or are harmless, and appellant was not denied a fair trial, I would affirm the conviction.
 Joan Walters is also the mother of Jennifer Fields.