This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Charles Howard McCray, II,
Filed July 17, 2007
Stearns County District Court
File No. K9-05-4477
Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414; and
Mark D. Nyvold, Special Assistant State Public Defender, Suite W1610, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Willis, Judge.
Appellant Charles McCray, II, was convicted by a jury of second-degree criminal sexual conduct under Minn. Stat. § 609.343, subd. 1(a) (2004), for sexually touching a seven-year-old girl. He had also been charged with first-degree criminal sexual conduct based on a pretrial police interview of the child that indicated sexual penetration had occurred. When the child’s trial testimony did not support a finding of penetration, the district court dismissed the first-degree charge and instructed the attorneys not to address this issue further. The prosecutor nevertheless made repeated references to the issue of penetration during closing arguments, which appellant claims constitutes prosecutorial misconduct that mandates a new trial. We agree and reverse.
“The prosecutor is an officer of the
court charged with the affirmative obligation to achieve justice and fair
adjudication, not merely convictions.” State v. Fields, 730 N.W.2d 777, 782,
(Minn. 2007). A prosecutor may commit
misconduct by engaging in acts that “undermin[e] the fairness of a trial,” or
“violat[e] . . . clear or established standards of conduct, e.g., rules, laws,
orders by a district court, or clear commands in this state’s case law.” Id. The prosecutor “must avoid inflaming the
jury’s passions and prejudices against the defendant.” State
v. MacLennan, 702 N.W.2d 219, 235 (
The district court is in the best position to evaluate the effect of prosecutorial misconduct. State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002). A district court’s decision denying a claim of prosecutorial misconduct should be reversed only when, in view of the whole record, the misconduct is so inexcusable, serious, and prejudicial that it denies the defendant the right to a fair trial. State v. Scruggs, 421 N.W.2d 707, 716 (Minn.1988).
Appellant contends that the test for
review of cases involving unusually serious prosecutorial misconduct, where the
state must prove beyond a reasonable doubt that the misconduct was harmless,
should apply here.
In the earlier cases of State v. Mayhorn, 720 N.W.2d 776 (Minn. 2006), and State v. Swanson, 707 N.W.2d 645 (Minn. 2006), however, the supreme court streamlined the Caron approach by structuring the analysis of objected-to misconduct to a single inquiry, as follows:
If the state has engaged in misconduct, the defendant will not be granted a new trial if the misconduct is harmless beyond a reasonable doubt. We will find an error to be harmless beyond a reasonble doubt only if the verdict rendered was surely unattributable to the error.
Mayhorn, 720 N.W.2d at 785 (quoting Swanson, 707 N.W.2d at 658) (emphasis omitted).
argues that the prosecutor was not prohibited from addressing the issue of
penetration during closing arguments because the district court’s instruction
to refrain from discussing penetration was in the context of its dismissal of
the first-degree charge, and therefore the instruction did not expressly
prohibit other arguments about evidence of penetration. Respondent contends that the prosecutor
needed to bolster the victim’s credibility because the discrepancy between her
trial testimony and her police statement put her credibility at issue.
The prosecutor’s comments, however, violated the district court’s instruction, were highly prejudicial, and unfairly permeated the trial. The prosecutor made a lengthy argument regarding penetration; the trial transcript shows that the prosecutor made specific and involved arguments about penetration during four pages of his 33-page closing argument. The prejudice here is that the jury may have convicted appellant of second-degree criminal sexual conduct based on the repeated and improper references to more serious, uncharged conduct. Further, the prosecutor had the opportunity during the victim’s testimony to elicit evidence on penetration and to point out inconsistencies in her testimony, and his failure to do so should not permit the prosecutor to ignore the district court’s directive and to improperly raise an issue that was so prejudicial to the defendant. See Fields, 730 N.W.2d at 782 (prosecutor may not ignore court orders or case law).
While the prosecutor had a seemingly
innocent explanation for his prejudicial statements, other factors also
demonstrate that the misconduct denied appellant the right to a fair
trial. Looking at the argument as a
whole, the prosecutor’s statements improperly emphasized the issue of
 During trial, and in response to the defense motion to dismiss the first-degree count of criminal sexual conduct, the district court instructed the jury about its resolution of the penetration issue as a matter of law and told them that “it is irrelevant to your eventual decision relating to the issues presented to you in this case.” The district court did not further instruct the jury on this issue.