This opinion will be unpublished and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,
Sherburne County District Court
File No. K3-04-1160
Lori Swanson, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Kathleen A. Heaney, Sherburne County Attorney, Arden Fritz, Assistant County Attorney, Government Center, 13880 Highway 10, Elk River, MN 55330 (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414-3097 (for appellant)
Considered and decided by Klaphake, Presiding Judge; Worke, Judge; and Ross, Judge.
Ozhaawaskoo Giishig appeals from his conviction of fourth-degree assault for spitting on a corrections officer while he was an inmate at the Sherburne County jail. Giishig argues that the prosecutor committed prejudicial misconduct during her opening statement and closing argument by asking the jurors to place themselves in the position of the jail staff. He also argues that the district court failed to instruct the jury on a lesser-included offense and that he received ineffective assistance of counsel because his attorney failed to call any witnesses. Because the district court did not plainly err by failing to respond to the prosecutor’s arguments, because Giishig’s counsel did not provide ineffective assistance, and because Giishig was not entitled to a jury instruction regarding a lesser-included offense, we affirm.
Mark Pixomatis and two other correctional officers were in the hallway behind inmate Ozhaawaskoo Giishig’s cell to perform minor plumbing repairs when Giishig yelled at the officers and challenged them to a fight. While Pixomatis worked on the pipes, Giishig spat through a vent between his cell and the hallway. The officers heard him spit, and Pixomatis felt what he believed to be Giishig’s spit hit his bare arm. Pixomatis shined his flashlight on his arm to show the other officers. Pixomatis wrote an incident report and returned to Giishig’s cell with another correctional officer to show Giishig the report and to have him sign it. Giishig put his mouth to the door and spat on Pixomatis’s leg. Giishig boasted, “I didn’t spit on you the first time, but I sure as hell spit on you now.”
The state charged Giishig with two counts of fourth-degree assault on a correctional employee, in violation of Minn. Stat. § 609.2231, subd. 3(2) (2002). Following a two-day trial, the jury acquitted Giishig of the first spitting incident but found him guilty for the second. The district court sentenced Giishig to 22 months’ incarceration. This appeal follows.
D E C I S I O N
Giishig argues that the prosecutor committed misconduct by asking the jurors to put themselves in the victim’s shoes. Giishig points to three statements in the prosecutor’s opening remarks and two in her closing argument. None drew Giishig’s objection during the trial. The prosecutor began her opening remarks by asking the jury, “What would it be like to be a correctional officer here in the Sherburne County Jail? What could you expect in a typical day of that kind of employment? What kind of challenges might you face?” During her closing argument, the prosecutor answered her own questions with the following: “Well, we’ve now heard it. We know what it was like to be a correctional officer back on May 15, 2004, here at the Sherburne County Jail dealing with the defendant.” Giishig claims that these statements constitute misconduct and were not harmless beyond a reasonable doubt. He concludes that he is entitled to a new trial. We conclude otherwise.
Our review of the alleged misconduct is limited in this case. Failure to object immediately or to seek cautionary instructions generally constitutes waiver of the right to challenge alleged prosecutorial misconduct on appeal, and we may infer that the defendant did not deem the argument improper. Sanderson v. State, 601 N.W.2d 219, 224 (Minn. App. 1999),review granted (Minn. Jan 18, 2000) and order granting review vacated (Minn. Mar. 28, 2000). Giishig failed to object to the alleged misconduct during trial. We apply the plain-error doctrine when examining unobjected-to prosecutorial misconduct. State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). Under that doctrine, before we remedy an unobjected-to alleged error, there must be error, the error must be plain, and the error must have affected the defendant’s substantial rights. Id. at 298. An error is plain if it was clear or obvious. Id. at 302. A plain error affects the defendant’s substantial rights if it is reasonably likely that the absence of the misconduct would have had a significant effect on the jury’s verdict. Id. When asserting prosecutorial misconduct, the defendant carries the burden of demonstrating both that an error occurred and that it was plain, after which the burden shifts and the state must show that the defendant’s substantial rights were not affected by the error. Id.
We therefore first consider whether the statements constitute error. A prosecutor has considerable latitude during closing argument, State v. Roman Nose, 667 N.W.2d 386, 402 (Minn. 2003), and need not make a “colorless argument,” State v. Bolstad, 686 N.W.2d 531, 544 (Minn. 2004). But it is generally improper for a prosecutor to invite jurors to “put themselves in the shoes of the victim.” State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1982). We are therefore troubled by the successive questioning of the jury, “What would it be like to be a correctional officer?” “What could you expect in a typical day?” and “What kind of challenges might you face?” But we find that these statements do not constitute error that is clear and obvious.
The line between effective advocacy by creating juror empathy and prohibited advocacy by inflaming jurors’ passions in asking them to stand in the place of a party or witness is not always clear. See 9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 34.3 (noting that the distinction may be “difficult to grasp”). But the line was at least stepped on here. This case is very similar to State v. Bashire, where we considered a prosecutor’s remarks that invited jurors to contemplate “what it was like to be” in the victim’s place. 606 N.W.2d 449, 453-54 (Minn. App. 2000), review denied (Mar. 28, 2000). We concluded that the remarks were improper, but not unduly prejudicial. Id. We reach the same conclusion today.
The brevity of the improper comments and the compelling evidence of guilt demonstrate the lack of prejudice. We consider a prosecutor’s argument as a whole rather than focusing on particular phrases or remarks that may be taken out of context or given undue emphasis. State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000). Additionally, we consider the alleged improper portion of an argument in relation to its total length. State v. Stufflebean, 329 N.W.2d 314, 318–19 (Minn. 1983). The portions of the prosecutor’s opening statement and closing argument that Giishig complains of were brief, comprising 7 out of approximately 150 lines of transcript. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (holding no prosecutorial misconduct in closing argument where misconduct constituted only 4 of 45 transcript pages comprising closing argument); State v. Coleman, 560 N.W.2d 717, 722 (Minn. App. 1997) (holding no misconduct where the comments at issue spanned only 2 of 65 pages). Additionally, the compelling evidence of guilt is a substantial counterbalance to the comments. Even in cases involving clear prosecutorial misconduct, we will not reverse a jury’s guilty verdict where there is strong evidence of guilt. See State v. Thompson, 578 N.W.2d 734, 742–43 (Minn. 1998) (finding that, despite clear prosecutorial misconduct by inviting jurors to put themselves in victim’s shoes, by speculating as to facts, and by comparing defendant to O.J. Simpson, overwhelming evidence of guilt rendered errors harmless beyond a reasonable doubt); State v. Whittaker, 568 N.W.2d 440, 451 (Minn. 1997) (concluding that misconduct was harmless error partly in light of strong evidence of the defendant’s guilt); see also State v. Thaggard, 527 N.W.2d 804, 812 (Minn. 1995) (finding that prosecutor’s asking jury, “how can I put you in [the victim’s] life?” was not so improper as to require new trial). The jury convicted Giishig only of the second spitting incident, concerning which Giishig had declared his responsibility: “I sure as hell spit on you now.” That sort of inculpatory declaration, bolstered by the corroborating eyewitness testimony, is compelling enough to convince us that the prosecutor’s remarks did not influence the verdict.
Giishig raises two additional arguments in a supplemental pro se brief. First, he claims that he received ineffective assistance of counsel because his court-appointed attorney did not call an equal number of eyewitnesses to counter the state’s four eyewitnesses. Second, he claims that the district court erred by not giving a lesser-included offense instruction on disorderly conduct. Giishig’s claims lack merit.
To sustain a claim of ineffective assistance of counsel, a defendant must prove that his counsel’s representation fell below an objective standard of reasonableness and that he was actually prejudiced by counsel’s deficient performance. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). But there is a strong presumption that counsel’s performance fell within the wide range of reasonable conduct, and a reviewing court will not intervene in matters related to trial tactics or strategy, such as “[w]hich witnesses to call at trial and what information to present to the jury.” State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (quotation omitted). Giishig’s counsel’s strategy and tactics were partially successful and constituted a meaningful challenge to the state’s case.
Giishig also fails to show that his preferred strategy would have led to a different outcome. He does not identify witnesses who should have been called on his behalf or describe how they would have testified. Given the overwhelming evidence and Giishig’s statement that he spat on Pixomatis, without that showing we conclude that there is no reasonable probability that the verdict would have been different.
We are also not convinced by Giishig’s argument that the district court erred by not instructing the jury on the lesser-included offense of disorderly conduct. Giishig’s claim is waived because he did not request a lesser-included jury instruction at trial or raise the issue in his post-trial motion. See State v. Dahlin, 695 N.W.2d 588, 597–98 (Minn. 2005) (emphasizing that failure to request lesser-included offense instruction impliedly waives right to receive instruction). We therefore review only for plain error affecting a defendant’s substantial rights. Id. at 598.
Because disorderly conduct is not a lesser-included offense of fourth-degree assault on a correctional employee, no instruction would have been warranted even if Giishig had requested it. A lesser offense is included in the charged offense only if it is impossible to commit the charged offense without also committing the lesser offense. State v. Angulo, 471 N.W.2d 570, 573 (Minn. App. 1991), review denied (Minn. Aug. 2, 1991). The test is not whether the defendant could have been convicted of both crimes, but whether the statutory definition of the lesser crime is necessarily included within the greater crime. State v. Abeyta, 328 N.W.2d 443, 445 (Minn. 1983). A person commits disorderly conduct when he engages in brawling or fighting, disturbs a lawful assembly or meeting, or engages in offensive, obscene, or abusive language or in boisterous or noisy conduct tending reasonably to “arouse alarm, anger, or resentment in others.” Minn. Stat. § 609.72, subd. 1 (2002). A person can commit fourth-degree assault on a correctional employee by intentionally propelling bodily fluids at or onto the employee without committing disorderly conduct. See id. § 609.2231, subd. 3(2) (2002) (defining elements of fourth-degree assault on correctional employee). Disorderly conduct, therefore, is not a lesser-included offense of fourth-degree assault. Similarly, fifth-degree assault is not a lesser-included offense of fourth-degree assault on a correctional employee because fifth-degree assault requires either an act against a person with intent to cause fear of immediate bodily harm or death, or the intentional infliction of bodily harm on another. Id. § 609.224, subd. 1 (2002).