This opinion will be unpublished and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
State of Minnesota,
Jeffrey Joseph Weidell,
a/k/a Jeffrey Joseph Weddell,
Ramsey County District Court
File No. K9-04-4881
Mike Hatch, Attorney General, 1400 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender, Suzanne M.
Senecal-Hill, Assistant Public Defender,
Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.
Appellant claims that his conviction of possession of a firearm by an ineligible person should be reversed and this matter remanded for a new trial because the jury’s verdict was influenced by the prosecutor’s statements which impinged on his constitutional right to be present at his trial and his presumption of innocence. We affirm.
Appellant Jeffrey Weidell was charged with possessing a firearm as an ineligible person and tried by jury. Because the parties stipulated to appellant’s legal ineligibility to possess a firearm, the sole factual issue before the jury was whether appellant possessed a firearm at the time in question.
At trial, during cross-examination of appellant, the prosecutor asked whether appellant had the opportunity to hear all of the state’s evidence before testifying. During closing argument, the prosecutor impeached appellant’s credibility by arguing that appellant had the opportunity to sit through the entire trial and listen to the state’s case before taking the stand. Additionally, during closing argument the prosecutor described appellant’s presumption of innocence as a cloak that is taken away from appellant once the state proves appellant’s guilt beyond a reasonable doubt. Appellant did not object to the prosecutor’s statements during cross-examination or closing argument.
Appellant was found guilty by the jury and sentenced. This appeal followed.
of the issues on appeal involve allegations of prosecutorial misconduct. This court will reverse a conviction for
prosecutorial misconduct 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 (
trial appellant did not object to any of the prosecutor’s statements he now
identifies as prejudicial misconduct. Generally,
a defendant who fails to object to prosecutorial misconduct at trial waives the
issue on appeal. Rairdon v. State, 557 N.W.2d 318, 323 (
first issue is whether it was reversible error for the prosecutor to use
appellant’s constitutionally protected right to be present at trial to impeach
his credibility. The United States
Supreme Court has held that a prosecutor’s use of the defendant’s presence at
trial to impeach his credibility does not unlawfully burden his Sixth Amendment
right to confrontation. Portuondo v. Agard, 529
More recently, the court stated:
[A]lthough not constitutionally required, the better rule is that the prosecution cannot use a defendant’s exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state’s case. Without specific evidence of tailoring, such questions and comments by the prosecution imply that all defendants are less believable simply as a result of exercising the right of confrontation. The exercise of this constitutional right, by itself, is not evidence of guilt.
v. Swanson, 707 N.W.2d 645, 657-58 (
Here, the prosecutor cross-examined appellant, asking a series of questions about his presence at trial. The exchange was as follows: “Mr. Weidell, you’ve been present through all of these proceedings, correct? Yes. You’ve heard every single witness testify? Yes. And you heard all of that before you took the stand to testify, right? Yes.” Appellant asserts that the prosecutor implicitly pursued a similar line of argument during closing argument. In response, appellant’s counsel stated:
It suggested that [appellant] has the opportunity to sit through everybody’s testimony and construct [his testimony] based on what he’s heard.
Well, it’s called the “burden of proof.” The State goes first, they have to prove their case. We don’t have the opportunity to go up first and create the terms of the “it.”
Believe me, I’m sure he didn’t want to have to sit here and listen to this.
Finally, the state pursued the argument again in its short response to appellant’s closing argument, this time explicitly:
Now, [appellant’s counsel] talked about the [appellant] listening to all of the testimony before he testified and that he doesn’t really have a choice because that’s kind of how the system is set up; yup, true.
But you know what? It’s also true that he sat in the courtroom and listened to everybody else testify. He saw every piece of evidence you received by the Court and he did know all of that. He heard everything you heard before he had to take the stand.
Here, respondent does not dispute that the prosecutor’s statements regarding appellant’s presence at trial are error under Swanson. But because Swanson, according to respondent, marked a change in the law and was decided while this appeal was pending, respondent contends that the prosecutor’s statements were not plain error. Appellant agrees that Swanson marked a change in the law, but argues that the prosecutor’s statements were still plain error.
Swanson does not represent a marked
departure from precedent. Buggs makes clear that a prosecutor’s
use of a criminal defendant’s presence at trial to impeach his credibility is
misconduct. Buggs, 581 N.W.2d. at 341.
As in Swanson, the Buggs court explicitly wrote that the
prosecutor’s commentary “[rose] to the level of inappropriate conduct,” but
went on to find the “inappropriate conduct” non-prejudicial.
if Swanson did mark a departure from Buggs, respondent’s claim, that the
prosecutor’s conduct was not plain error because Swanson was decided after appellant’s trial, finds little support
in supreme court caselaw. Here,
appellant’s reliance on State v. Baird,
654 N.W.2d 105 (
Baird is directly on point and makes
clear that regardless of whether Swanson
departed from Buggs, the prosecutor’s
statements were plain error. Here, where
the prosecution put forth no specific facts to support an inference of
fabrication, and the prosecutor clearly used appellant’s constitutionally
protected right to be present at trial to impeach his credibility, the
prosecutor’s statements constitute misconduct.
Because we have determined that the prosecutor’s statements were plain error, next we must consider whether the prosecutor’s misconduct was prejudicial under the third prong of the plain error test. The defendant no longer bears the burden of persuasion on the third prong; instead the state must show that “there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.” Ramey, 721 N.W.2d at 302 (quotation omitted).
determine whether the prosecutor’s misconduct affected the jury’s verdict we
have generally considered several factors.
The standard of review provides that the failure of the appellant to
object at trial “weighs heavily” in our determination of whether to reverse for
addition, the prosecutor’s misconduct was not pervasive.
strength of the state’s case is another factor decreasing the likelihood that
the misconduct influenced the jury’s verdict.
Although we conclude that appellant is not entitled to a new trial, because of the important constitutional interests at stake, we warn that in closer cases, commenting on a criminal defendant’s presence at trial to impeach his credibility will risk reversal. The supreme court’s recent decision in Ramey makes clear that prosecutors shoulder the burden of proving plain error is not prejudicial.
second issue is whether it was reversible error for the prosecutor to describe
appellant’s presumption of innocence as a cloak that is taken from appellant
once the state proves his guilt beyond a reasonable doubt. “The presumption of innocence is a basic
component of the fundamental right to a fair trial.” State
v. Bowles, 530 N.W.2d 521, 529 (
Here, during closing argument the prosecutor said:
Now, when the Defendant walked into the courtroom at the beginning of the trial he was cloaked with the presumption of innocence. He has lost that presumption. The moment the State proved beyond a reasonable doubt that the Defendant was guilty, that cloak was taken from the Defendant.
Appellant relies principally on State v. Bohlsen, 526 N.W.2d 49 (
contrast, respondent argues that the prosecutor’s statements here are more
similar to the recent case of State v.
Young, 710 N.W.2d 272 (
When the trial began, the Court told you that that young man right there is an innocent man. He was. Until the defense stood up and rested. Because at that time the state had presented to you sufficient evidence to find the defendant guilty of all the crimes that the Court just gave you the—instructions on. He’s no long [sic] an innocent man. The evidence that’s been presented to you by the state has shown you that he’s guilty beyond a reasonable doubt.
710 N.W.2d at 280. The court concluded
that, when read in context, the prosecutor’s argument was simply that “the
state had produced sufficient evidence of Young’s guilt to overcome the
presumption of innocence, not that he was not entitled to the presumption in
the absence of proof beyond a reasonable doubt.”
is not clear that the prosecutor’s statements here are any more like the
conduct in Young than Bohlsen, or vice versa. However, insofar as the two cases are
irreconcilable, the later Young
controls. Under Young, the prosecutor’s statement regarding appellant’s presumption
of innocence was not plain error, and not misconduct. In this case, as in Young, the prosecutor’s statement was analogous to the instruction
the district court gave to the jury orally before the attorneys’ closing
arguments, and in writing prior to the jury’s deliberation: “The Defendant is presumed innocent of the charges
made against him, and that presumption abides with him unless and until he has
been proved guilty beyond a reasonable doubt.”
The prosecutor’s argument also accords with
While analogies may, in some instances, risk misstatement of the law, here the prosecutor’s description of the presumption as a cloak that is removed once the state proves the defendant’s guilt beyond a reasonable doubt is not plain error. We agree with appellant that a criminal defendant’s presumption of innocence is a fundamental tenet of our criminal justice system. We further observe that anything that encourages the jury to think that the presumption disappears during the taking of evidence or that they do not need to consider the presumption during deliberations is a threat to the application of the constitutional presumption and that the prosecutor should avoid imprecision in discussing the presumption. But we cannot conclude that a prosecutor’s description of the presumption is misconduct when it is consistent with a contemporaneous supreme court decision.
We conclude that the prosecutor’s description of appellant’s presumption of innocence did not constitute misconduct in this case.