This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-431

 

State of Minnesota,

Respondent,

 

vs.

 

Domingo Delarosa,

Appellant.

 

Filed April 25, 2006

Affirmed

Halbrooks, Judge

 

Clay County District Court

File No. K2-04-1127

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561  (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant contends that the district court erred in instructing the jury that it could consider the impact of the verdict on the witnesses in determining their credibility, given that appellant was the only witness that the verdict could impact.  Second, appellant alleges that the district court erred by allowing the jury, during deliberations and without his presence, to review the victim’s videotaped interview with the police.  Finally, appellant claims that the prosecutor engaged in misconduct by attacking his character during cross-examination and by arguing facts not supported by the record and by improperly vouching for a witness in closing argument.  We affirm.

FACTS

            Appellant Domingo Delarosa was charged with two counts of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(a) (2004) (sexual penetration of a child under age 13), and Minn. Stat. § 609.342, subd. 1(h) (2004) (sexual penetration with force or coercion where defendant has a significant relationship with victim and victim is under age 16), for sexually assaulting B.B.  Appellant was tried before a jury, resulting in guilty verdicts on both counts.  The district court imposed a 144-month executed sentence to run consecutively to an unrelated 24-month executed sentence.  This appeal follows.

D E C I S I O N

I.

 

            Appellant’s first argument on appeal arises out of the district court’s instruction to the jury that “During your deliberations you are not to consider any possible penalty that may be imposed as a result of the verdict except as that may affect the credibility of a witness.”  This, appellant alleges, differentiated him because no other witness was facing a penalty as a result of the verdict.  As a result, appellant contends that the instruction “unfairly undercut [his] credibility by subjecting his testimony to a higher standard of scrutiny than other witnesses faced.”  With respect to our standard of review on appeal, we note that appellant did not object to this instruction at trial.

District courts are allowed “considerable latitude” in the selection of language for the jury instructions.  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002).  “[J]ury instructions must be viewed in their entirety to determine whether they fairly and adequately explained the law of the case.”  State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). 

The rule of procedure covering jury instructions states that “[n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict.”  Minn. R. Crim. P. 26.03, subd. 18(3).  If a defendant fails to object to the proposed jury instruction, he has generally waived the right to appeal the instruction.  State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998).  But “a failure to object will not cause an appeal to fail if the instructions contain plain error affecting substantial rights or an error of fundamental law.”  Id.; see also Minn. R. Crim. P. 26.03, subd. 18(3) (stating that “[a]n error in the instructions with respect to fundamental law or controlling principle may be assigned in a motion for a new trial though it was not otherwise called to the attention of the court”).

Because appellant did not object to this instruction at trial, we review this matter under the plain-error standard.  See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  “The plain-error standard requires that the [party asserting error] show: (1) error; (2) that was plain; and (3) that affected substantial rights.”  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997))).  If those three prongs are met, we assess whether the error should be addressed “to ensure fairness and the integrity of the judicial proceedings.”  Griller, 583 N.W.2d at 740.

An instruction is an error when it “materially misstate[s] the law.”  Id. (quotation omitted).  And on review, we view the jury charge as a whole.  State v. Anderson, 261 Minn. 431, 435, 113 N.W.2d 4, 7 (1962).  Here, the only witness the verdict would affect was appellant.  As a result, the instruction could be interpreted to direct the jury to view appellant’s testimony with more scrutiny that any other witness’s.  While it would have been proper for the district court to state: “During your deliberations you are not to consider any possible penalty that may be imposed as a result of the verdict,” the district court essentially combined that instruction with the instruction that the jury may consider a witness’s interest in the outcome of the case in its determination of the believability and weight of a witness’s testimony.  The combination of the two created a material misstatement of the law, which we conclude was error.

Next, we must determine whether the error was plain.  Griller, 583 N.W.2d at 740.  The term “plain” “is synonymous with clear or, equivalently, obvious.”  Johnson, 520 U.S. at 467, 117 S. Ct. at 1549 (quotation omitted).  There must be some authority, in caselaw, a rule, or a statute, stating that the instruction is erroneous in order for the alleged error to be plain.  See id. at 467-68, 117 S. Ct. at 1549. 

The applicable uniform jury instruction reads: “In determining believability and weight of testimony, you may take into consideration the witness’s:  (1) Interest or lack of interest in the outcome of the case.”  10 Stephen E. Forestell, Minnesota Practice, CRIMJIG § 3.12 (1999).  The actual instruction given by the district court was, “During your deliberations you are not to consider any possible penalty that may be imposed as a result of the verdict except as that may affect the credibility of a witness.”  Because it is well established that a jury may not consider the impact of the verdict in its deliberations, we conclude that the given instruction constitutes plain error.  See Shannon v. United States, 512 U.S. 573, 579, 114 S. Ct. 2419, 2424 (1994) (stating that it “is well established” that a jury is not to consider the consequences of its verdict).

“Plain error is prejudicial if there is a reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”  Baird, 654 N.W.2d at 113 (quotation omitted).  Based on the record in this case, the weight of the evidence of appellant’s guilt, and the fact that it was only a small part of the instructions as a whole, we conclude that there was no reasonable likelihood that the instruction had a substantial effect on the outcome of the case.

II.

 

Second, appellant challenges the district court’s decision to allow the jury, during deliberations and without appellant being present, to review B.B.’s videotaped interview with the police.  Appellant contends that he had a right to be present at that time, that it is a personal right, and that he did not waive it.  Again, appellant did not object to this decision by the district court, and in fact, he expressly consented to the method proposed by the court.

Rules of criminal procedure provide a defendant the right to “be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence.”  Minn. R. Crim. P. 26.03, subd. 1(1).  Appellate courts have construed Minnesota’s right to be present more broadly than the federal constitutional right.  State v. Thompson, 430 N.W.2d 151, 152 (Minn. 1988). 

Appellant now asserts that he had the right to be present when the jury, during deliberations, reviewed B.B.’s videotaped interview with the police.  Given appellant’s failure to timely object, we again utilize a plain-error analysis on review.  Strommen, 648 N.W.2d at 686. 

The rule of criminal procedure governing what materials may be sent to the jury room states that “[t]he court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence, or copies thereof, except depositions and may permit a copy of the instructions to be taken to the jury room.”  Minn. R. Crim. P. 26.03, subd. 19(1).  The rule governing jury requests to review evidence provides:

If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom.  The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.

 

Minn. R. Crim. P. 26.03, subd. 19(2).  “The [district] court has broad discretion under the rule.”  State v. Kraushaar, 470 N.W.2d 509, 514 (Minn. 1991).  And the supreme court has stated that a videotaped interview is not like a deposition for purposes of the rule and, therefore, may be brought into the jury room if admitted into evidence.  Id. at 515. 

            Here, the videotaped interview of the victim by the police was admitted into evidence.  When the court gathered the prosecutor, defense counsel, and defendant in open court to inform the parties of the jury’s request to review the videotape, the following exchange transpired:

[Defense counsel]: . . . I’ve got some concern about the fact that it’s getting viewed.  It’s more like testimony than most other exhibits would be, but we’re not going to object to them getting a chance to.

The Court: Would it be agreeable, what I’ve done in these kinds of cases is, is to have the equipment set up and have the bailiffs come in with the jurors and just start the equipment, and then when it’s done, turn it off, and then bring the jury back, and not have everybody else in here but just a bailiff and the jurors?

[Defense Counsel]: We would be okay with that.

[County Attorney]: That would be fine.

 

(Emphasis added.)  Appellant now contends, based on the dissenting opinions in Kraushaar, 470 N.W.2d at 517, that the district court erred in allowing the jury to review the videotape during its deliberations.

In Kraushaar, when faced with a similar request, the district court allowed the jury to review the victim’s videotaped interview in the jury room.  Id. at 514.  On review, the supreme court stated that “[w]hile it is doubtful that the [district] court abused its discretion in letting the jury review the tape, the state concedes, and we agree, that it would have been preferable for the review to have taken place in the courtroom rather than in the jury room.”  Id. at 516.  The court then listed four reasons why any potential error was not prejudicial:

(i) the videotape viewed in the jury room was no different from the videotape that the jury would have seen in the courtroom, (ii) at worst, the replaying of the tape allowed the jury to rehear what it had already heard, (iii) the testimony of the victim was positive and consistent and was corroborated by other evidence, and (iv) it is extremely unlikely that the replaying of the tape by the jury affected the verdict as by prompting the jury to convict where it otherwise would not have done so.

 

Id.

 

            Here, the district court did not permit the jury to view the videotape in the jury room, which is what the court in Kraushaar warned against.  Instead, the district court permitted the jury to review the video in the courtroom, without counsel and appellant present.  There is no requirement that the jury view the video in open court.  It is just advisable that they view it in the courtroom.  See generally id. at 513-17.  If the jury had used a TV/VCR monitor in the jury room, the possibility existed for the jury to view the videotape, or portions of it, multiple times.  That type of repetition has the potential to prejudicially emphasize one piece of evidence.  That risk does not exist when a bailiff plays a videotape once in the courtroom.

            Moreover, the factors discussed by the supreme court in Kraushaar are applicable in this case.  The jury was rehearing what it heard during trial when appellant was present; the statements made by B.B. on the video were consistent with her testimony in court; and there is no basis to conclude that reviewing the videotape caused the jury to convict when it otherwise would have acquitted.  And because it was permissive in Kraushaar for the jury to view the videotape in the jury room—where the defendant is not allowed—the fact that the jury in this case viewed the videotape outside of the presence of appellant did not violate appellant’s right.

            We therefore conclude that it was not error for the district court to allow the jury to review the videotape in the courtroom without appellant’s presence.  Because of our conclusion on this issue, we do not reach the other prongs of the plain-error analysis.

III.

 

            Third, appellant claims that the prosecutor engaged in misconduct during her cross-examination of him and in closing argument.  He asserts that the prosecutor’s line of questioning to him about power and control, violence, and drug use was misconduct because it was a character attack and was not supported by the record.  Appellant argues that the prosecutor’s statements in closing argument about power and the control that appellant exerted over the members of B.B.’s household were improper because they were an attack on his character.  He also alleges that the prosecutor improperly vouched for the credibility of the state’s witnesses during her closing argument.  Again, appellant did not object to any of these alleged errors during cross-examination or during closing argument.

There are two distinct standards for determining whether prosecutorial misconduct is harmless error; serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while “[f]or less serious misconduct, the standard is ‘whether the misconduct likely played a substantial part in influencing the jury to convict.’”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003) (quoting State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).  “If 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.”  Powers, 654 N.W.2d at 678 (citing State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999)).  When the misconduct is unduly prejudicial, relief may be granted absent a trial objection or request for instruction.  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997).

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 (Minn. 1984).  Absent the general rule, parties would be more likely to withhold objections knowing that if convicted, the issue could be raised on appeal with the possibility of obtaining a new trial.  State v. Stofflet, 281 N.W.2d 494, 497 (Minn. 1979).

A.        Questioning of witnesses.

 

            Appellant contends that the prosecutor committed misconduct by asking him, during cross-examination, whether other witnesses were lying.  In addition, he asserts that the prosecutor’s questions were improper because they were merely character attacks. 

            The supreme court has analyzed the costs and benefits of allowing or disallowing “were they lying” questions, initially looking at how other jurisdictions have dealt with this issue.  State v. Pilot, 595 N.W.2d 511, 516-18 (Minn. 1999).  The supreme court stated that “[t]he general concern about ‘were they lying’ questions is that asking one witness to express an opinion as to the veracity of another witness calls for improper comment on another witness’ testimony, and that it is the province of the jury to determine the credibility of witnesses.”  Id. at 516 (footnote omitted). 

            Before Pilot, Minnesota had no clear or definitive holding regarding the propriety of “were they lying” questions.  Id.  Thus, the supreme court looked to other jurisdictions, and found the rationale of the jurisdictions that employ the permissive approach compelling.  Id. at 517-18.  The permissive approach does not state that these questions are always proper, but rather that they are not always improper.  Id. at 517 (citing People v. Overlee, 666 N.Y.S.2d 572, 577 (N.Y. App. Div. 1997)).  For example, the supreme court cited a New York appellate court’s holding that “when the defendant himself places the credibility of other witnesses at issue, the prosecutor ‘need not tread lightly in cross-examining him or arguing his case to the jury.’”  Id. (quoting Overlee, 666 N.Y.S.2d at 577).

            Therefore, the supreme court concluded that

we have not adopted a blanket rule of law that under no circumstances is a “were they lying” question to a witness on cross-examination proper and we do not believe an inflexible rule prohibiting such questions is necessary or desirable.  Situations may arise where “were they lying” questions may have a probative value in clarifying a particular line of testimony, in evaluating the credibility of a witness claiming that everyone but the witness lied or, as in Overlee, the witness flatly denies the occurrence of events.

 

Id. at 518 (quotation omitted).

            Here, appellant testified that, on the evening prior to the sexual assault, he was partying and drinking but that he did not do any other drugs, including methamphetamine.  In addition, appellant stated that he did not even see any drugs at the house that night.  A previous witness, J.B., had testified that there were drugs present that evening, namely methamphetamine, and that appellant smoked it.  The prosecutor asked appellant, “So is it your testimony then that J.B. was lying about drugs being done at your house?”

Appellant had earlier testified that he would not do drugs because it would be a violation of his probation, stating, “I’d be an idiot to even try to cross that line.”  The prosecutor asked appellant if consuming alcohol was also a violation, which it was.  The prosecutor went on to ask appellant why he was drinking if alcohol consumption was also prohibited by the terms of his probation.  Appellant admitted that he drank because he did not think he would get caught.  This line of questioning was aimed at appellant’s credibility and truthfulness, not J.B.’s. 

Moreover, appellant’s theory of the case was that everyone else was lying and that he was telling the truth.  He implied that B.B. and her mother and father lied.  Thus, the single “were they lying” question used in this case fits within two of the three circumstances outlined in Pilot:  to “evaluat[e] the credibility of a witness claiming that everyone but the witness lied” and when “the witness flatly denies the occurrence of events.”  595 N.W.2d at 518 (quotation omitted).  As a result, we conclude that the prosecutor’s question does not constitute error.  We therefore do not reach the other two prongs of the plain-error analysis of this issue. 

            Appellant also asserts that the prosecutor badgered him during cross-examination with a character assassination.  He claims that the prosecutor improperly characterized him as someone who was “macho” and craved power in relationships.  Appellant contends that it was improper for the prosecutor to use the word “machismo” because appellant is Hispanic. 

            But appellant takes these terms out of context and fails to note that the prosecutor was merely using appellant’s own words to question him.  Appellant testified that he beat B.B.’s mother in the early morning of the day the sexual assault occurred and that he was irate, upset, and angry.  The prosecutor questioned him regarding his treatment of women in general and B.B.’s mother and other members of the household, including B.B., specifically.  The prosecutor inquired into these areas in order to support her theory of the case—that B.B. followed appellant’s instructions out of fear.  Regarding the use of the word “machismo,” appellant himself, on direct examination, used the term to explain why he beat B.B.’s mother, stating, “my machismo got in the way.” 

Additionally, appellant contends that the prosecutor’s questions were not supported by the record.  He cites State v. Walsh, 495 N.W.2d 602 (Minn. 1993), for the proposition that when a prosecutor “theorizes” during closing argument and the theory is not supported by the record, it may constitute misconduct.  That is not what occurred here.  The prosecutor asked appellant, during cross-examination, what he was thinking before, during, and after sexually assaulting B.B.  Clearly, the issue of whether appellant indeed sexually assaulted B.B. was an issue for the jury, but vigorously questioning appellant about the matter is not inappropriate and is not what Walsh warned against.  Because the prosecutor’s questions during her cross-examination of appellant do not constitute error, we need not reach the other two prongs of the plain-error analysis.

B.        Closing argument.

In order to determine whether a prosecutor’s statements during closing argument are improper, a reviewing court looks to the “closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.”  Walsh, 495 N.W.2d at 607.  In Walsh, the prosecutor made statements during closing argument that the record did not support.  Id. at 606 (holding that the “theorizing had only marginal support in the evidence”).  The supreme court has stated that statements made during closing arguments must be “justified by the evidence,” but may include proper inferences drawn from the record.  State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).

            Appellant essentially claims that it was misconduct for the prosecutor to comment in closing argument about the same issues that she inquired of him on cross-examination.  Appellant takes issue with the prosecutor painting him as jealous and controlling.  But that information was elicited during his cross-examination; therefore, the statements are supported by the record. 

            Taking the prosecutor’s closing argument as a whole, the statements about appellant were a small component of a lengthy closing argument.  The prosecutor made only three statements regarding appellant in this manner, using them as a way of weaving her theme into the closing argument.  When the prosecutor used the words “power” and “control,” she spoke of them in the context of why B.B. did what she did, rather than to emphasize appellant’s actions.  Therefore, we conclude that the prosecutor’s statements in closing arguments were supported by the record and do not constitute error under the plain-error analysis.

The appellant also claims that the prosecutor engaged in improper vouching during closing argument when she stated, “I submit to you that little girl is the only credible witness we’ve got in here besides the detective.”  “A prosecutor may not personally endorse the credibility of witnesses.”  State v. Swanson, 707 N.W.2d 645, 656 (Minn. 2006) (citing State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995)).  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 (Minn. 1998) (quotation omitted).  But when determining whether a prosecutor engaged in vouching, a reviewing court looks at “closing argument as a whole.”  Swanson, 707 N.W.2d at 656 (citing State v. Powers, 654 N.W.2d 667, 679 (Minn. 2003)).

In Swanson, the prosecutor stated that numerous witnesses were credible and believable and then said, regarding another witness, that “[t]he state believes she is very believable.”  Id.  The supreme court held that that statement was improper because the prosecutor “directly endorsed the credibility of” the witness but that the statement did not constitute plain error because it was not sufficiently prejudicial.  Id.  The supreme court held that it is not misconduct to make general statements regarding certain witnesses’ credibility, so long as the prosecutor does not place the state’s imprimatur on such statements.  Id.  In this instance, the prosecutor did not put the state’s imprimatur on the statement.  Taking the remark in the context of the entire closing argument, we conclude that it was not plain error.

            Affirmed.