This opinion will be unpublished and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
Frank L. Miles,
Filed June 19, 2007
Steele County District Court
File No. K2-04-897
Lori Swanson, Attorney General, 1800
Douglas L. Ruth, Steele County Attorney, Scott L. Schreiner, Assistant County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent)
John Stuart, State Public Defender, Lydia Villalva
Lijó, Assistant Public Defender,
Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from conviction of temporary theft and illegal possession of a firearm, Frank Miles argues that he was denied a fair trial by the prosecutorial misconduct of expressing a personal opinion on witness credibility and that the evidence, absent his confession, is insufficient to establish that the charged offenses occurred. We agree that the prosecutor erred by ascribing credibility assessments to the state, but in light of the record as a whole, the error did not result in an unfair trial. And because sufficient evidence independent of Miles’s confession establishes that the charged offenses occurred, we affirm.
F A C T S
Following an investigation, the Steele County Attorney charged Miles with theft of the pickup, temporary theft of a 12-gauge shotgun that was in the pickup, felon in possession of a firearm, and driving without a valid license. Miles pleaded not guilty and requested a jury trial.
trial, the state presented evidence from the homeowner, several police
officers, and Joshua Fedder, the owner of the gun and the pickup. Fedder testified that Miles was at Fedder’s
In closing arguments the prosecutor commented on the credibility of several of the witnesses. He prefaced some of his comments with the phrase, “The state believes.” The defense objected to these statements. The district court sustained the objection and instructed the jury to disregard these statements. The prosecutor acknowledged his error and told the jury that, as the judge instructed, it is not what the state believes, but what the facts show.
The jury found Miles guilty of temporary theft and illegal possession of the shotgun and not guilty of theft of the pickup. The district court dismissed the driver’s license charge because the state failed to provide evidence of a required element. Miles appeals, arguing that the prosecutor committed prejudicial misconduct in closing arguments and that the evidence, absent his own statements to the police, is insufficient to meet the requirements of Minn. Stat. § 634.03 (2002) to establish that an offense occurred.
D E C I S I O N
is improper for a prosecutor in closing argument to personally endorse the
credibility of witnesses.” State v. Porter, 526 N.W.2d 359, 364 (
Miles points to six statements in the prosecutor’s closing argument that he contends violate the personal-opinion rule. One statement describes police officers as appearing to be “very credible.” Four statements are prefaced with the phrase “the state believes” or “the state does not believe.” Two of these statements, however, express an opinion on a legal point, not on credibility. The remaining statement concludes with the phrase, “in the opinion of the state.” The state argues that the statements prefaced by the phrase “the state believes” do not express a personal opinion because the prosecutor does not say, “I believe.” We are not persuaded by this reasoning.
By imputing his own observations about credibility to the state, the prosecutor aggravates the problems that the personal-opinion rule seeks to mitigate. The state itself becomes the unsworn witness that passes judgment on the witness’s credibility, and the jurors are subject to the direct influence of the principal rather than the indirect influence of the agent. We, therefore, conclude that in four instances the prosecutor injected impermissible guarantees of a witness’s truthfulness or untruthfulness. We must now address whether this conduct entitles Miles to a new trial.
overarching problem presented by prosecutorial misconduct is that it may deny
the defendant’s right to a fair trial. State v. Ramey, 721 N.W.2d 294, 300 (
the district court sustained the objection to the prosecutor’s improper
statements on the witnesses’ credibility and specifically instructed the jury
“that the state shouldn’t argue the state believes kind of language. They should properly argue the facts shown or
the evidence shown.” The district court
then instructed the jury “to disregard that in the arguments here this
morning.” “Prosecutorial error may be
cured by the court’s instructions.” State v. Pendleton, 706 N.W.2d 500, 509
we consider the misconduct in the context of the entire closing argument. State
that the jury finds a defendant guilty on some charges but not guilty on others
suggests that the jury was not unduly influenced by the misconduct.
Miles argues that the dismissal of one of the charges and the jury’s request to hear the tape of the police interview demonstrate that the case was close and that the errors were not harmless. But the licensure charge that was dismissed relied on evidence that was distinct from the remaining charges of illegal possession of a firearm and theft of the pickup and the shotgun. Also, the record provides no reason why the jury requested the police-interview tape. Significantly, the jury’s total deliberation time of less than three hours does not support an argument that the case was close or difficult to decide.
In summary, we conclude that the prosecutor committed error by improperly commenting on witness credibility. But the prosecutor’s errors received a proper objection and the district court correctly sustained the objection and provided a curative instruction. The district court also provided general instructions that were consistent with the curative instruction. The improper references constituted only a small part of the total trial, and the split verdict confirms the jury’s independent evaluation of the testimony of the witnesses. In light of the record as a whole, the errors did not deny Miles a fair trial.
confession by a defendant is insufficient to sustain a conviction “without
evidence that the offense charged has been committed.”
Miles argues that his admission that he knew he was transporting a shotgun in Fedder’s pickup was not sufficiently established by independent evidence because the state had no direct evidence of this crime aside from his admissions to the Owatonna police officer. Miles’s contention improperly dismisses the probative value of circumstantial evidence and ignores Fedder’s testimony about Miles’s phone call in which Miles told Fedder about taking the shotgun and pickup, and that Fedder could retrieve them from the Waseca school parking lot.
substantiate a confession for purposes of section 634.03, the state need only
produce evidence that allows the jury to verify the confession’s accuracy. State
v. Brant, 436 N.W.2d 468, 471 (
state presented evidence that a Waseca homeowner heard a loud vehicle in the
early morning hours of June 29th and observed the vehicle park in a nearby
school parking lot. The homeowner then
saw a stranger on her porch looking into her house through the porch window. The homeowner called the police, who arrested
Miles as he was walking away from the homeowner’s porch. The state also presented evidence that Fedder
received a telephone call from Miles just after 5:00 a.m., telling him that Miles
had taken Fedder’s shotgun and pickup and that he had left them in a Waseca
school parking lot. Fedder drove to
Waseca later that day and found his pickup in the school parking lot and his shotgun
behind the bench seat. Fedder’s pickup
had a loud exhaust, his shotgun had been in his house when he went to bed
earlier that morning, and Fedder testified that he had not given Miles
permission to take it. Viewed as a whole
this testimony provides ample evidence that Miles took the shotgun without
permission and illegally transported it from