This opinion will be unpublished and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
C8-95-2017

State of Minnesota,
Respondent,

vs.

Jose Anthony Seals,
Appellant.

Filed August 6, 1996
Affirmed
Willis, Judge

Clay County District Court
File No. K4-94-901

Hubert H. Humphrey, III, Attorney General, Mary J. Theisen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Todd Webb, Clay County Attorney, Clay County Courthouse, P.O. Box 280, 807 North 11th Street, Moorhead, MN 56561-0280 (for Respondent)

Melissa Sheridan, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for Appellant)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Willis, Judge.

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

WILLIS, Judge

Arguing he was deprived of a fair trial, appellant challenges his conviction of second-degree intentional murder and second-degree felony murder. We affirm.

FACTS

At approximately 1:15 a.m. on May 29, 1994, appellant Jose Anthony Seals and his friend, Ethan Boyle, went to a party at trailer 117 in the Greenwood Trailer Park, Moorhead. When the two men arrived at the party, Joseph Michael Gallegos greeted Boyle by saying, "What's up, nigger?" [1] Appellant and Boyle were angered by the greeting. Appellant, Boyle, Gallegos, and other party guests exchanged verbal insults.

Gallegos's fiance, Anna Rocha, arrived soon after, and she and Gallegos went outside to talk by her car. Appellant and Boyle also went outside. Appellant was wearing a sheathed knife with a double-edged, 62-inch blade on his belt. Once outside, appellant continued to ask where the "tall guy" (Gallegos) had gone. Appellant grabbed Ruben Lopez, a friend of Gallegos, and asked where the big guy was "that called my friend a nigger."

Gallegos left Anna's car, walked up to appellant and Boyle, and told them to leave the party. Gallegos and Boyle engaged in a shoving match that lasted only seconds. Appellant broke in and stabbed Gallegos above his left eye. The knife angled downward, inflicted a 42-inch deep wound, and severed Gallegos's brain stem. Appellant and Boyle fled the scene. Gallegos died at approximately 7:00 a.m. that morning.

Police immediately discovered appellant's and Boyle's identities and twice searched their apartment. Among other things, police seized an AK-47 style Norinco assault rifle. The trial court eventually suppressed evidence of the rifle. Appellant was charged with second-degree intentional murder and second-degree felony murder.

During voir dire, appellant objected to a metal detector that jurors were required to pass through to enter the courtroom, arguing the security measure unfairly suggested to the jury that he was dangerous. [2] The trial court refused to remove the metal detector. Appellant did not ask for a curative instruction.

Also during voir dire, a prospective juror shared an elevator with the handcuffed and sheriff-escorted appellant. Appellant brought this incident to the court's attention, and the court warned deputies to take greater caution to prevent contact between prospective jurors and appellant.

At trial, appellant asserted the defense of self-defense and defense of others, testifying that he saw Gallegos draw a knife on Boyle. Appellant testified he did not know at the time of the incident that he had actually stabbed Gallegos, and he admitted he could have avoided the incident by retreating, but chose not to do so.

No other witness testified to seeing Gallegos with a knife. In fact, Boyle himself testified that Gallegos could not have drawn a knife because Boyle had both his hands on Gallegos's forearms. Boyle also testified that there was nothing about the situation that warranted the stabbing.

During trial, the state referred to Gallegos as a "victim" and trailer 117 as the "scene of the crime." Appellant objected and moved to strike. The trial court denied the motion.

Also during trial, the following exchange occurred during the direct examination of prosecution witness Officer Steven Kadrie:

Q You went up there [to appellant's apartment]. What did you see?

A As we got--entered into the apartment Officer Porter had a gentleman identified as Jo Pizarro laying prone on the floor laying on his stomach at gun point.

Q After that, after you saw that, what did you do after that?

A Sergeant Larson also arrived at the scene. He and I checked the apartment again for any suspects that might have came in with Mr. Pizarro.

Q Did you check for anything else?

A We didn't locate anybody. And Officer--or Sergeant Larson discovered an assault rifle in the corner of one of the bedrooms.

The trial court immediately ordered that the testimony regarding the suppressed evidence be stricken and cautioned the jury.

After Officer Kadrie's testimony, defense counsel moved for a mistrial citing the presence of the metal detector, the prospective juror's contact with the handcuffed appellant, and Kadrie's testimony regarding suppressed evidence as grounds for the motion. The trial court denied the motion.

Finally, appellant attempted to impeach prosecution witness Ruben Lopez with evidence of Lopez's 1991 felony conviction for criminal vehicular operation resulting in death. The state objected on the bases of lack of notice and lack of relevance, and the trial court sustained the objection without making findings.

The jury found appellant guilty of both second-degree intentional murder and second-degree felony murder. Appellant challenges his conviction, arguing he did not receive a fair trial.

D E C I S I O N

Appellant argues that the cumulative effect of several trial errors deprived him of a fair trial. "[A] constitutional error does not automatically require reversal of a conviction * * *." Arizona v. Fulminante, 499 U.S. 279, 306, 111 S. Ct. 1246, 1263 (1991). In cases involving a "trial error," i.e., an "error which occurred during the presentation of the case to the jury," the court must determine whether the error "was harmless beyond a reasonable doubt." Id. at 307-08, 111 S. Ct. at 1264.

Constitutional error

will be found prejudicial if there is "a reasonable possibility" that the error complained of might have contributed to the conviction.

State v. Larson, 389 N.W.2d 872, 875 (Minn. 1986) (quoting Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 827 (1967)). Errors

affecting the defendant's right to a decision by an impartial jury based only on evidence adduced in court * * * have been characterized as being "presumptively prejudicial."

State v. Sanders, 376 N.W.2d 196, 205 (Minn. 1985). However, such a presumption is rebuttable by the record on appeal. Id.

Finally, the cumulative effect of errors may compel a new trial or reversal. State v. Naylor, 474 N.W.2d 314, 321-22 (Minn. 1991); State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979). If, however, "the great bulk of evidence to which there was no objection at trial amply establishes [appellant's] guilt," it cannot be said that the cumulative effect of the errors is prejudicial so as to warrant a new trial. Naylor, 474 N.W.2d at 321.

A. Security measures.

Appellant argues he was denied a fair trial because people entering the courtroom, including jurors, had to pass through a metal detector. Generally, when considering and choosing appropriate security measures for trial,

the trial court should take a particular course of action only if it is reasonably necessary and should do everything possible to minimize the danger of prejudice and avoid creating an atmosphere inconsistent with the presumption of innocence.

State v. Aguilar, 352 N.W.2d 395, 397 (Minn. 1984).

In Aguilar, a case where the defendant, jurors, and all people entering the courtroom were subjected to metal detectors, frisks, and searches, the supreme court held:

[W]e do not believe that defendant was prejudiced by [being searched in the presence of the jury]. The fact that even jurors were searched minimized the risk that the jurors would draw an adverse inference from seeing defendant searched. The court also gave a cautionary instruction and there is no reason to believe that the jury disregarded that instruction. Finally, the evidence of defendant's guilt was strong.

Id. (emphasis added).

In this case, all persons entering the courtroom were required to pass through a metal detector. Furthermore, the metal detector was not installed specifically for this case, but permanently affixed in the courtroom. Because security measures were not employed exclusively for appellant, it seems any adverse inference drawn from the presence of the metal detector would be minimal. The trial court did not give a cautionary instruction concerning the metal detector; however, this omission is not prejudicial error because there was strong evidence of appellant's guilt.

B. Juror prejudice--viewing appellant in handcuffs.

Appellant argues he was denied a fair trial because a prospective juror joined him in an elevator to the courtroom and saw him wearing handcuffs. A defendant should not generally be required to wear "jail clothes or other physical indicia of guilt" in court because they may indicate guilt. Aguilar, 352 N.W.2d at 397. However, it is within trial court's discretion to have a defendant restrained, and such decision will not be overturned absent an abuse of discretion. State v. Widell, 530 N.W.2d 566, 568-69 (Minn. App. 1995), review denied (Minn. May 31, 1995).

In State v. Eling, 355 N.W.2d 286, 292 (Minn. 1984), the defendant appealed his conviction, arguing that while being brought in handcuffs up the elevator and through the hallway to the courtroom, he was seen by jurors. The supreme court acknowledged that "the trial court took reasonable steps to minimize defendant's exposure in handcuffs to the jury's view" and held that the defendant was not denied a fair trial. Id.

In this case, appellant was not seen wearing handcuffs in the courtroom, and the trial court instructed the deputies to minimize appellant's exposure to the jurors out of the courtroom. Further, here a prospective juror saw appellant in handcuffs. The record does not show, and appellant does not claim, that this prospective juror was selected to sit on the panel, and appellant challenged no prospective juror for cause on this issue. Because there is no evidence any members of the selected jury ever learned that appellant was wearing handcuffs during transport, the error was harmless. See Widell, 530 N.W.2d at 569 (holding that unjustified restraint was nonprejudicial error because the record did not indicate that the jury ever learned the defendant was wearing restraints in the courtroom).

C. References to "victim" and "crime scene."

Appellant argues he was denied a fair trial because the prosecutor and a prosecution witness referred to Gallegos as a "victim" and to trailer 117 as "the scene of the crime." Appellant argues that by allowing the state to use these terms, "the trial court usurped the jury's role as factfinder."

A prosecutor's improper statements made during the course of trial do not necessarily require a new trial. State v. Stewart, 514 N.W.2d 559, 564 (Minn. 1994). A new trial is necessary only if

the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that the defendant's right to a fair trial was denied.

Id. The misconduct must play a "substantial part in influencing the jury's deliberations" before a new trial is warranted. Id.

In Stewart, the prosecutor characterized defendant's testimony as "crap" and a "performance." Id. The supreme court acknowledged that these statements were improper, but because the evidence of guilt was overwhelming and because the misconduct involved isolated incidents, it denied defendant's request for new trial. Id.

In this case, which involved a seven-day trial, there were three incidents where the state either referred to Gallegos as a "victim" or trailer 117 as "the scene of the crime." First, the term "victim" does not necessarily imply that harm has resulted from a crime. See American Heritage Dictionary 1990 (3d ed. 1992) (defining victim as "[o]ne who is harmed by or made to suffer from an act, circumstance, agency, or condition: victims of war"). Second, we conclude that, in view of the whole body of evidence, any influence these three comments might have had on jury deliberations was minimal.

D. Testimony regarding the suppressed rifle.

Appellant argues he was denied a fair trial because a prosecution witness testified to previously suppressed evidence.

[T]he state is not permitted by means of * * * incompetent and improper questions to plant in the minds of the jurors a prejudicial belief in the existence of evidence which is otherwise not admissible and thereby prevent the defendant from having a fair trial.

State v. Gress, 250 Minn. 337, 348, 84 N.W.2d 616, 624 (1957). However, "[i]mproperly admitted evidence is subject to harmless error analysis" and, therefore, a new trial is not automatically required when inadmissible evidence is introduced. State v. James, 520 N.W.2d 399, 405 (Minn. 1994).

In James, the trial court ruled that the state's police witness could not testify concerning the crime with which James was charged in Florida. Id. Nevertheless, the officer's testimony implied information about the prior charge. Id. Moreover, another witness (whose testimony, unlike that of the police witness, had not been specifically limited by the trial court) spontaneously testified that James had been charged with a homicide in Florida. Id. James did not object, but the trial court instructed the jury to ignore the remarks. Id. James appealed his conviction, contending that prosecutorial misconduct resulted in the introduction of inadmissible evidence. Id. The supreme court "consider[ed] all the evidence presented at trial" and held that the errors were harmless. Id. Furthermore, the supreme court emphasized that "[j]urors are presumed to follow instructions." Id.

In this case, the trial court determined that evidence of the seized assault rifle was too prejudicial to be admissible. Officer Kadrie's testimony regarding the rifle was followed by an immediate objection by appellant, and the trial court struck the testimony from the record and gave a curative instruction that it be disregarded. In light of the entire record, we conclude that the testimony did not have a prejudicial effect on the outcome of the trial.

E. Impeachment evidence.

Appellant argues he was denied a fair trial because the trial court precluded him from impeaching Ruben Lopez, a prosecution witness, with evidence of Lopez's prior felony conviction for criminal vehicular operation resulting in death. The question of whether to exclude evidence rests within the broad discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990).

"[T]he cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness [by] * * * introduc[ing] evidence of a prior criminal conviction of that witness."

State v. Lanz-Terry, 535 N.W.2d 635, 640 (Minn. 1995) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974)).

However, "a greater case can be made for admitting the impeachment evidence" when the jury must determine who is more credible, the defendant or "one other person." State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (emphasis added). Additionally, "impeachment is not improper simply because the prior crime is not directly related to truth or falsity." State v. Bias, 419 N.W.2d 480, 487 (Minn. 1988).

In Lanz-Terry, the defendant attempted to impeach the victim's testimony with evidence of the victim's prior convictions for robbery, possession of cocaine, theft, sale of a controlled substance, and possession of a pistol by a felon. 535 N.W.2d at 638. The trial court excluded this evidence, and the supreme court affirmed, concluding that the exclusion of this prior-conviction evidence did not constitute an abuse of discretion because (1) the evidence was "marginally useful in attacking the [victim's] credibility," (2) the evidence could have "potentially led the jury to decide the case on an improper basis," and (3) it may have "confused the jury" and "prolonged the trial." Id. at 640-41.

In this case, not only was Lopez's prior conviction not directly related to his truthfulness, but also the issue for the jury was not narrowed to a choice between appellant's credibility and that of Lopez's credibility. The state presented at least five witnesses to the altercation between Boyle and Gallegos, the stabbing, and/or appellant's retreat. Each of the five witnesses corroborated Lopez's testimony. Furthermore, as in Lanz-Terry, the conviction evidence would have been only marginally useful and perhaps confusing to the jury.

F. Pro se issues.

Appellant raises several additional arguments in his pro se brief. We have carefully considered those arguments in light of the record, and we find them to be without merit.

Affirmed.


Footnotes

[1] Boyle is white. Apparently, the expression was used by the group as a general greeting, regardless of race.

[2] The metal detector was not installed for this trial, but was a permanent fixture in the courtroom.