This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Jody L. Griffith,
Filed January 16, 2007
File No. K0-04-601091
Lori Swanson, Attorney General, Tibor M. Gallo,
Assistant Attorney General, 1800
Melanie S. Ford, St. Louis County Attorney, St. Louis
John Stuart, State Public Defender, Theodora Gaïtas,
Assistant Public Defender,
Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Dietzen, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Jody Griffith guilty of six criminal charges stemming from an armed assault in which Griffith’s parents sustained gunshot wounds. In this appeal from his conviction, Griffith argues that he is entitled to a new trial because the prosecutor’s rebuttal argument contained plain error that affected his substantial rights. He also argues that the district court abused its discretion by denying his request for a Schwartz hearing. Because the prosecutor’s comments, to which Griffith did not object at trial, are not plain error, and, because Griffith has not presented a prima facie case of juror misconduct, we affirm. The nine additional arguments that Griffith raises in his supplemental pro se brief do not provide a basis for reversal.
F A C T S
Following an investigation of Jerry and Paula Griffith’s gunshot injuries, the St. Louis County Attorney charged Jody Griffith (Griffith) with two counts of attempted first-degree murder, two counts of attempted second-degree murder, and two counts of second-degree assault. At trial, the state presented evidence that Jerry and Paula Griffith were asleep in their home when their bedroom door burst open. A person standing in the doorway fired all the rounds in a six-shot revolver at them. When the cylinder had been emptied, the person pulled the trigger a few more times and then left. Jerry and Paula Griffith then called 911 for help. During the call, Griffith’s parents identified him as the person who entered their bedroom and shot them.
trial testimony established that, following the shooting, Griffith drove his parents’ truck to the neighboring
Proctor police station and then returned to his parents’ home, where he was
stopped by a state trooper who had been dispatched in response to the 911
call. The trooper, who had his shotgun
trained on the truck, testified that Griffith
leaned out the window and said, “I need help.
I just shot my parents.” Griffith was transported to the
Police interviewed Jerry Griffith at the hospital the following morning, and he again identified his son as the assailant. A revolver belonging to Griffith’s grandfather, and kept at his parents’ residence, was missing. Also a swab taken from Griffith’s hands on the night of the shooting revealed four particles of primer gunshot residue.
In closing argument, defense counsel aggressively attacked the prosecution’s case. He said that the prosecutor was creating an illusion of evidence, an illusion of qualification, and an illusion of adequate testimony. He referred to this as a common prosecutorial trick of which he was aware because of his fourteen years of experience. He warned the jury not to “fall for” or “buy” the argument because the job of the prosecutor and the prosecution witnesses was “to convict.” He returned to this theme several times in the argument, saying at one point, “keep in mind their job is convictions, don’t ever think otherwise. That’s their job, convict, convict, convict.” He also told the jury, “Believe me, if law enforcement didn’t get convictions, they wouldn’t be around anymore.”
In rebuttal, the prosecutor responded to defense counsel’s allegations about the prosecutor’s improper motives for charging and prosecuting the case and the allegations about the police officers’ testimonial bias. The prosecutor stated that he was offended at the accusation that he was trying to create illusory evidence or that he would intentionally bring a case to trial knowing there was insufficient evidence. He also said that the police were not involved in a conspiracy to convict and were only attempting to do the best job that they could. He concluded the rebuttal by apologizing for being agitated by the personal attacks and told the jury that the police were there to bring forth the evidence to let the jury decide, based on reason and common sense, what the evidence proves. Neither the prosecutor nor the defense counsel objected to any statements that were made in the closing arguments.
jury began deliberations shortly before noon on a Friday. At about 6:00 p.m., the district court called
the jurors back to the courtroom and told them that, because
one month later, Griffith submitted a juror’s affidavit alleging that she felt
pressured by the other jurors, that the outcome could have been different if
they were not “going to have to go all the way to Grand Rapids for the night,”
that other jurors “verbally abused” her by screaming at her, and that no one
listened to her when she suggested “that if everyone thought Jody Griffith did
it that maybe the conviction should only be one count.” The district court heard oral arguments on the
allegations of juror misconduct and denied
D E C I S I O N
standard for review on allegations of prosecutorial misconduct that was not objected
to at trial is governed by the plain-error doctrine. State
v. Ramey, 721 N.W.2d 294, 299 (
Folks [defense counsel] talks about he’s been doing this for 14 years. Well, I’ve been doing it a lot longer. I tried my first criminal case in 1978. You can do the math. I don’t know how many cases I’ve tried, I really don’t, a lot, but I have never had my personal integrity so attacked and I find it offensive and hope you do, too, because this is my life’s work. The criminal justice system is my life’s work.
We agree that an attorney should not
resort to personal attacks on opposing counsel in closing argument. The
We do not agree, however, that the comments amounted to a personal attack
on defense counsel. The comments were
obviously aimed at rebutting defense counsel’s accusations that the prosecutor
was creating illusions of evidence, engaging in common prosecutorial tricks, had
called expert witnesses who told him whatever he wanted to hear, and that
defense counsel recognized these tricks because he had been practicing for
fourteen years. A prosecutor’s improper
argument in response to defense counsel’s improper argument is still improper
and may constitute reversible prosecutorial misconduct. See
United States v. Young, 470
In this case, the prosecutor’s personal comments were directed at himself. The prosecutor stated that he felt defense counsel’s attacks on his integrity were offensive and that he was only doing his job. And while the prosecutor did say that he had been doing his job longer, he did not say it in a way that questioned defense counsel’s abilities. We conclude that the comments do not constitute misconduct.
And what does he say? Oh, it’s just some kind of conspiracy to create an illusion where no facts exist. I’m sorry folks, I am sorry, but that is offensive and that’s not what happened here.
Keep your eye on the ball, folks. This is not a case built on illusion or conspiracy or anything else. It’s a case built on the facts and [defense counsel] doesn’t like the facts so we’ll blame the prosecutor, we’ll blame the cops.
prosecutor cannot suggest that a defense is being used because it is the only
defense that “might work.” State v. Williams,
525 N.W.2d 538, 549 (
But it’s not enough to attack me, then he attacks the cops. You know, the cops, if you listen to him, the cops are out there with some big conspiracy to convict innocent people. If I sound angry, I am. I’m sorry, I am. We send these cops out there day in, day out, to protect us, do the best job you can, and they do. And they come in here and they do a good job and they tell you what their qualifications are and their experience.
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.” In re Welfare of D.D.R., 713 N.W.2d 891,
the better response would have been for the prosecutor to object to the defense
counsel’s argument or for the district court to intervene. Young,
Folks, I’m going to end right now. I’m sorry if I got a little agitated and upset here in the last couple of minutes. I am. I am because my personal integrity has been attacked by [defense counsel]. I find that terribly offensive. I’m here to do my job. The cops were here to do their job and that is to bring forth the evidence to you and let you decide, based upon reason and common sense, what that evidence proves.
A prosecutor must refrain from
inflaming the passions of the jury and prejudicing the defendant. State
v. Porter, 526 N.W.2d 359, 363 (
The prosecutor’s remarks in his initial summation demonstrated careful attention to his prosecutorial role of “guard[ing] the rights of the accused as well as [enforcing] the rights of the public.” Salitros, 499 N.W.2d at 817. But, after defense counsel concluded his summation, the prosecutor requested and received a five-minute recess. Apparently affected by what he perceived as an unwarranted attack on his integrity, the prosecutor’s statements on rebuttal suggest that he was struggling to maintain composure. His rebuttal acknowledges his emotional response, but he mitigates it to some extent by his apologies for his response. His comments are more inappropriate than improper and his emotional response is not disproportionate to the provocation. But more importantly, the comments do not display an attempt to have the case decided on the basis of extraneous matters rather than on the evidence relevant to the issues and reasonable inferences from that evidence. In fact, the prosecutor closes his rebuttal argument with a reminder to the jury that their job is to reach a decision based on the evidence presented. The prosecutor did not commit error that was plain because his comments were not inflammatory statements that attempted to distract the jury from its function of determining whether the state had met its burden of proof.
review the denial of a Schwartz hearing
under an abuse-of-discretion standard. Opsahl v. State, 677 N.W.2d 414, 421 (
purposes of determining whether a verdict is valid, a juror may testify to “whether
extraneous prejudicial information was improperly brought to the jury’s
attention, or whether any outside influence was improperly brought to bear upon
any juror, or as to any threats of violence or violent acts brought to bear on
jurors, from whatever source, to reach a verdict.”
district court concluded that the juror affidavit that
the polling of the jury that followed the reading of the verdict, each juror affirmed
the verdict. The alleged verbal threats
and the adverse effect of remote overnight accommodations do not establish a
prima facie case of juror misconduct because they are inadmissible under the
rules of evidence. Therefore the
district court did not abuse its discretion in denying