This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-95-1788

State of Minnesota,

Respondent,

vs.

Douglas Eugene Morse,

Appellant.

Filed June 11, 1996

Affirmed

Parker, Judge

Hennepin County District Court

File No. 94064614

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Lyonel Norris, Assistant Public Defender, 2829 University Avenue South, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant Douglas Eugene Morse was convicted of criminal sexual conduct in the third degree, Minn. Stat. '' 609.344, subd. 1(d). Morse appeals, alleging that the prosecutor's closing argument to the jury contained improper comments so prejudicial that a new trial should be ordered. We affirm.

D E C I S I O N

Whether a new trial should be granted because of prosecutorial misconduct rests within the discretion of the trial court, which is in the best position to appraise its effect. State v. Scruggs, 421 N.W.2d 707, 716 (Minn. 1988). We will reverse the trial court's determination only where the misconduct "viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied." State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).

  1. In his appeal, Morse alleges several instances of prosecutorial misconduct. He contends that, taken as a whole, the prosecutor's closing argument was so unfair to his case that he was denied a fair trial. We note that Morse failed to object to the prosecutor's remarks at trial; however, improper remarks may require reversal even if no objection was made at the time. See State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993). For clarity, we will address the arguments in the order in which they arose.

A. Juror Knowledge of Heavy Sleepers

Morse argues that the prosecutor committed misconduct by asking jurors to draw upon their own experiences with heavy sleepers to decide whether he could have violated the victim without her knowledge. He specifically objects to the following:

In any event, in probing this point a little bit during the jury selection process I asked you if you have any personal experience and there were a few others who were heavy sleepers and some of you related that--I think somebody mentioned a friend from the army, somebody else--I can't recall those specifically mentioned--another individual who was the type of person who virtually bombs could go off next to this person and he or she didn't wake up. Someone had a wife, and I'm not sure if this person is on the jury or not, but several of you related experiences that were similar in the sense that you were familiar with someone who was a heavy sleeper. * * * Also, just a probably more common occurrence, I don't know how many of you have teenagers * * * who don't wake up with customary alarm clocks; we can probably all point to teenagers in our lives who have situations like that one. I know I do.

Morse claims that this line of argument improperly requested that jury members put themselves in the victim's shoes. Morse argues that this was misconduct. We disagree.

Jurors are free to * * * bring their own experiences to bear in assessing the credibility of a defendant's claim *  *  *. But it is improper for the prosecutor to urge the jurors to look at their own experiences as proof that the defendant's defense is not credible.

State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994). When the argument is not made in a way "calculated to cause the jury to decide the case on the basis of passion rather than reason, and there is no reason to believe that defendant was prejudiced by the argument," there is no misconduct. State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1982).

We cannot say that this portion of the prosecutor's argument constitutes any more than somewhat disjointed remarks within a lengthy, but reasonably constructed, closing argument. The prosecutor's comment was nothing more than a prompt to the jury to apply common sense principles to evaluate the factual circumstances leading to the victim's assault. We are not directed to any evidence to support the assertion that the prosecutor intended that the jury rely on "passion rather than reason" to decide this case. On review of the record, we cannot say that this comment of the prosecutor was so prejudicial as to constitute grounds for a new trial.

B. Morse's "vulgar little fantasy" and "911 sales job"

Morse argues that several comments by the prosecutor during closing argument unfairly inflamed the passions of the jury and disparaged his credibility:

Contrast [the victim's] credibility with the defendant's. As much as I don't want to dignify his vulgar little fantasy, there are some facts and some things that I need to point out.

*  *  *

Did [appellant] treat me in my questions the same as he did his counsel's or did he use virtually every single one of my questions in cross-examination to spin off in some way a non-answer to the question * * * ?

* * * 

Did you just hear an effort of a sales job with the 911 operator? It was also his testimony before you, a sales job, tap dancing around the facts.

Morse contends that because his credibility was a central issue in this case, the prosecutor's comments were clearly improper.

A prosecutor is not prevented from arguing the credibility of certain witnesses. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). A prosecutor is also free to argue that there is no merit to a particular defense, and prosecutors are free to make arguments that reasonably anticipate arguments that defense counsel will make in closing argument. Salitros, 499 N.W.2d at 818 (citations omitted).

On review of the record, we do not believe that the prosecutor's reference to Morse's 911 call as a "sales job" or describing his testimony as a "vulgar little fantasy" rises to the level of such impropriety as to warrant a new trial. These comments were all part of a lengthy closing argument that must be viewed as a whole. The prosecutor's description of Morse's testimony as a "vulgar little fantasy" is colorful at worst. We are cited to no authority to support the idea that a prosecutor's closing argument is required to be colorless. We also note that much of Morse's 911 call consisted of admissions tantamount to a confession. It is clear from the record that it was Morse's intention to try to quell the reaction of the 911 operator in anticipation of a complaint by the victim. Referring to Morse's 911 call as a "sales job" may seem harsh, but in light of the record before us, we cannot say that it constitutes an unfair characterization.

The trial judge gave the jury proper instructions to weigh the facts presented and not to consider the attorney's arguments as evidence. We cannot conclude, therefore, that the prosecutor committed misconduct with these comments.

C. Accountability

Morse argues that the prosecutor improperly stated that his testimony indicated an unwillingness to take responsibility for attacking the victim:

I submit to you probably the truest statements [appellant] makes on that tape is that he is looking out for himself. One of the more disturbing aspects of the case is this defendant's refusal to accept any responsibility or any blame for what happened that night.

Morse contends that the prosecutor improperly raised the issue of accountability. He argues that the Minnesota Supreme Court has expressly held this line of argument to be impermissible. See State v. Montjoy, 366 N.W.2d 103, 108-09 (Minn. 1985).

A prosecutor should not emphasize accountability to the extent that the jury is diverted from its proper role of deciding whether the state has proved the defendant guilty beyond a reasonable doubt. Montjoy, 366 N.W.2d at 109. This court must look at the prosecutor's closing argument "as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence." State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

Although the prosecutor's comment may have been of minimal pertinence, we note that it was merely a passing reference. We do not believe that the prosecutor's comment was so prejudicial as to divert the jury from its appropriate function. On review of the prosecutor's closing argument, we cannot say that the cumulative effect of the noted remarks was so inflammatory or prejudicial as to warrant a new trial, or that any of the remarks constituted misconduct of such a degree as to require a "harmless beyond a reasonable doubt" analysis. We conclude, therefore, that the trial court did not abuse discretion in denying Morse's motion for a new trial.

Affirmed.