This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



Joseph Robert Burkey,


Filed April 22, 1997


Peterson, Judge

Nicollet County District Court

File No. K095497

Hubert H. Humphrey, III, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael K. Riley, Nicollet County Attorney, 424 South Minnesota Avenue, St. Peter, MN 56802 (for Respondent)

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

Considered and decided by Lansing, Presiding Judge, Crippen, Judge, and Peterson, Judge.



On appeal from convictions for burglary and terroristic threats, Joseph Burkey argues that he is entitled to a new trial because the prosecutor committed misconduct during trial. We affirm.


Burkey contends that the trial court erred by denying his motions for a mistrial based on prosecutorial misconduct. Burkey argues that the prosecutor committed misconduct (1) by eliciting inadmissible evidence during trial about prior assaults Burkey had committed on G.F.; (2) by raising the issue of Burkey's silence prior to trial; and (3) during closing argument.

The decision whether to grant a mistrial based on misconduct by counsel lies within the trial court's discretion. State v. Stillday, 417 N.W.2d 728, 732 (Minn. App. 1988), review denied (Minn. Mar. 18, 1988).

The decision whether to reverse and grant a new trial on grounds of prosecutorial misconduct depends on whether the misconduct was harmless error. State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974).

Whether prosecutorial misconduct was harmless depends partly upon the type of misconduct with which we are dealing. That is, the more serious the misconduct, the more certain of its effect this court has felt that it should be before labeling the error harmless. Thus, in cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.

Id. at 127-18, 218 N.W.2d at 200.

In short,

[m]isconduct is deemed harmful if it played a significant or substantial role in persuading the jury to convict. The more serious the misconduct, the more likely the misconduct was harmful.

State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993).

The error and its impact are to be examined within the context of the record as a whole, considering the strength of the state's evidence and the weaknesses of any defense evidence.


1. Evidence about prior assaults.

At trial, the prosecutor asked G.F. how her relationship with Burkey changed during the second year of their relationship, and G.F. responded that Burkey became more verbally abusive. Defense counsel objected. The trial court did not expressly rule on the objection but indicated that it would allow some evidence about the relationship between G.F. and Burkey as general background information. The prosecutor then asked G.F.:

[Y]ou were starting to talk about the second year of your relationship with [Burkey], and before we move on to that year, I just want to ask you about that first year, which you've described and ask you if there was any abuse, whether it be verbal or physical abuse, that you suffered from [Burkey] during that first year?

The court instructed G.F. not to answer the question and conducted a bench conference with counsel. The court stated that it would not allow the question because it was Spreigl[1] evidence. The prosecutor next asked G.F.:

Q. At this time we want to get an idea of your general relationship with [Burkey] over the years and so can you tell us then, again in a general sort of way, how things went--how your relationship went during the second year of your relationship with [Burkey]?

A. He got more verbally ag--aggressive, basically. That's also when the physical abuse started, and I--I mean he never really did anything to me the, you know, the first time that we were together, but when we got--we got back together the second time is when, you know, like the infidelity and--

Defense counsel objected, and the district court sustained the objection. The court instructed the jury to ignore G.F.'s statements that Burkey abused her. The prosecutor then asked:

Q. And what was the--how did your relationship end on October 25?

A. * * * [Burkey] kicked the door in, came in. I expressed to him that I was done with this--with the relationship. You know, that I--basically because of him verbally--with the verbal and with him not paying me back all the money that I had given him and at that time he--was the first time that he slapped me.

Defense counsel objected, and the court sustained the objection and instructed the jury to disregard G.F.'s answer. The court explained that Burkey was

not on trial for some type of prior conduct that's alleged by [G.F.]. We're talking about November 20th, 1995, and could be prejudicial to bring in those other incidents. The jury should not pay attention to that.

Finally, when answering a question regarding why she did not want her landlord to know about a previous incident during which her door had been damaged, G.F. referred to Burkey making threats on previous occasions.

"In presenting evidence, it is unprofessional conduct for a prosecutor to _knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury._"

State v. Richardson, 514 N.W.2d 573, 577 (Minn. App. 1994) (quoting I ABA Standards for Criminal Justice, Standard 3-5.6(b) (2d ed. 1980)).

Several procedural requirements govern the admission of Spreigl evidence. See State v. Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995) (listing requirements). Burkey argues that the evidence about prior abuse elicited by the prosecutor was inadmissible because the prosecutor failed to follow these procedures. The state argues that it was not required to follow these procedures because the evidence about Burkey's prior abuse of G.F. was not Spreigl evidence.

In State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104, 115 (1969), a murder case, the supreme court explained that Spreigl notice is not always required for evidence about a relationship between defendant and victim.

The purpose of the warning required by State v. Spreigl, * * * is to prevent a defendant from being taken by surprise and required to defend against charges of criminal conduct not embraced in the indictment or information with respect to which he has entered his plea. We are certain that this defendant was aware, as he had reason to be, that his prior relationship with the decedent, particularly in so far as it involved ill will or quarrels, would be presented by the state as a part of its case against him.

Id., 170 N.W.2d at 115; see also State v. Rediker, 214 Minn. 470, 471, 481, 8 N.W.2d 527, 528, 532-33 (1943) (in murder case, evidence about defendant's relationship with his victim, including prior physical assaults, is admissible to show course of conduct, defendant's mental attitude toward victim, and malice); State v. Kanniainen, 367 N.W.2d 104, 105, 106 (Minn. App. 1985) (following Boyce in a criminal sexual conduct case).

Under the case law, it was reasonable for the prosecutor to believe evidence about Burkey's relationship with G.F. was not Spreigl evidence. Evidence about prior physical and verbal abuse Burkey committed on G.F. was relevant to the current assault and terroristic threats charges. Cf. State v. Kutchara, 350 N.W.2d 924, 925, 926 (Minn. 1984) (in prosecution for third-degree assault, evidence about defendant's involvement in altercation at bar prior to assaulting police officer was admissible to show motive, opportunity, intent, preparation, knowledge, plan, identity, or absence of mistake or accident). The evidence also was relevant to the burglary and trespass charges in that it tended to support G.F.'s claim that she did not consent to Burkey entering her apartment. Lack of consent is an element of both first-degree burglary and trespass. Minn. Stat. § 609.582, subd. 1 (Supp. 1995) (first-degree burglary); Minn. Stat. § 609.605 , subd. 1(b)(4) (1994) (trespass); cf. also Kanniainen, 367 N.W.2d at 106 (in criminal sexual conduct case, evidence about prior physical assault relevant to show why victim ended her relationship with defendant and why she did not want him in her apartment).

Even if it was reasonable for the prosecutor to believe that evidence about Burkey's prior abuse of G.F. was not Spreigl evidence, Burkey argues that the prosecutor's misconduct was serious because the trial court ruled that the evidence was inadmissible, and the prosecutor failed to follow the trial court's ruling. But the trial court did not expressly rule on defense counsel's initial objection to evidence about verbal abuse. The court indicated that it would allow some evidence about the relationship between G.F. and Burkey as general background information. When the prosecutor then asked whether G.F. had suffered any verbal or physical abuse from Burkey during the first year of their relationship, the trial court sustained defense counsel's objection and ruled that the evidence was Spreigl evidence. Following that ruling, although some of G.F.'s answers referred to prior abuse, none of the prosecutor's questions directly referred to abuse.

The lack of clarity in the trial court's ruling on defense counsel's initial objection and the lack of clarity under the law regarding whether evidence about prior abuse is Spreigl evidence mitigates any misconduct the prosecutor committed by eliciting the evidence. In light of these mitigating factors, we conclude that any misconduct was not serious misconduct. Furthermore, the fact that the jury did not convict Burkey of assault suggests that the jury was not improperly influenced by evidence about prior abuse. Cf. State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (when jury acquits appellant of some counts, but convicts appellant of others, reviewing court views verdicts as an indication that jury was not unduly inflamed by prosecutor's comments).

Burkey also objects to the prosecutor's examination of G.F.'s landlord. When the prosecutor was examining the landlord, the trial court sustained an objection to a question about what occurred during an encounter between the landlord and Burkey. It is not clear from the record, however, that the prosecutor was attempting to elicit inadmissible evidence from G.F.'s landlord.

2. Burkey's silence.

Burkey next argues that the prosecutor committed misconduct by referring to Burkey's silence prior to trial.

When cross-examining Burkey, the prosecutor asked:

Q. * * * [T]his is the first time that you have made a statement concerning what took place--

A. Yes, it is.

Q. --on that evening?

A. Yes.

Defense counsel objected. The district court sustained the objection and instructed the jury to disregard the question and answer.

Allowing evidence about a defendant's silence following a Miranda[2] warning violates due process because the Miranda warning may have induced the silence. Fletcher v. Weir, 455 U.S. 603, 605-06, 102 S. Ct. 1309, 1311 (1982) (explaining Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240 (1976)). The record shows that following his arrest, Burkey was advised of his right to remain silent. The prosecutor asked Burkey whether his trial testimony was the first time he had made a statement about what happened on November 20, 1995. The question was phrased broadly enough to include the entire period between November 20, 1995, and trial and was therefore improper. See State v. Billups, 264 N.W.2d 137, 139 (Minn. 1978) (holding "that it was error to permit the impeachment of defendant by cross-examination which showed his failure to offer alibi evidence at any time prior to the trial").

The misconduct in asking Burkey about his silence was minor. The prosecutor asked only one question about Burkey's silence. The court promptly instructed the jury to disregard the question and answer, and there was no further reference to Burkey's silence during trial.

3. Closing argument.

Burkey next contends that the prosecutor committed misconduct during closing argument. Burkey objects to the following statements by the prosecutor during closing argument:

This relationship that we've heard about in this day and a half, has been a verbally and [sic] abusive relationship. You can tell that. You've heard the way [Burkey] call the names he called her. The epitaphs. [sic] The degrading terminology that he used. Just horrible names. That's made up. It just makes me shiver to even think about it.

* * * *

* * * And on this night in question, it was more of the ongoing continuing degrading horrible language, horrible defacing [sic] language and abuse, verbal and physical. * * *

* * * [G.F.] is finally standing up and speaking back. She didn't do that for about two--two and a half years.

* * * [G.F.] had told [Burkey] approximately one month earlier that their relationship was over. Remember, that was the incident when he struck her on or about October 25th. That was the first time he struck her and she said enough, that's it.

* * * *

* * * Hey, use your common sense. She's involved in trying to save her life. She's--doesn't know how far this is going to go. She thinks that this is it. She's doing the best she can. Is she supposed to remember every little detail? I think she did remarkably well under the circumstances--

* * * *

So this list of details--irrelevant details could go on and on and on. I don't have a chance after he's done to get up and rebut that. I don't have a chance to make another argument so you've got to just bear with it and listen to it and give it your own good common sense. I submit to you that all of this will be a great big smoke screen.

* * * I think you will come to the logical conclusion that [Burkey] is guilty of each and every count as charged. In order for it to be anything different, I guess [Burkey] would have to--would want you to believe that somehow he's being framed. That [G.F] came in here and lied. And he wants you then to believe him and not believe her, the victim. He wants you to believe part of the facts and not all the facts. Yes--yes, I threw the glass, but I threw one glass--I didn't throw two. And, yes, yes, the door came open and the frame was [h]anging there by the chain, but I tripped and stumbled into the door. Yeah, I--I was there, but it just didn't happen that way, and yeah, I--we raised our voices. We were arguing, but I didn't say all that stuff. See what I'm saying? That's totally unbelievable. Because--it's unbelievable because the statements, the credibility, the--all the information here points in the direction exactly of what this victim went through.

During closing argument, "_[t]he prosecutor may argue all reasonable inferences from evidence in the record_" but may not intentionally "_misstate the evidence or mislead the jury as to the inferences it may draw._" State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (quoting I ABA Standards for Criminal Justice, Standard 3-5.8(a) (2d ed. 1980). The prosecutor may not express a personal belief or opinion regarding witness credibility or defendant's guilt and "_should not use arguments calculated to inflame the passions or prejudices of the jury._" Id. (quoting I ABA Standards for Criminal Justice, Standard 3-5.8(c)).

Burkey objects to the prosecutor referring to verbal and physical abuse during closing argument. The court allowed some evidence about verbal abuse, so it was proper for the prosecutor to refer to it during closing argument. The state concedes that the prosecutor should not have referred to Burkey striking G.F. on October 25 because that evidence was stricken. Also, the prosecutor's statement that the degrading terminology and horrible names that Burkey used during his relationship with G.F. made him "shiver to even think about it" was improper because it expressed the prosecutor's personal opinion.

Burkey also objects to the prosecutor stating that Burkey's defense would focus on irrelevant details and that it would "be a great big smoke screen." In Salitros, the supreme court criticized the prosecutor's use of a similar argument that the defense had focused on irrelevant details to distract the jury from the facts. Id. at 818-19. Thus, the smoke screen argument in the present case was improper.

Burkey objects to the prosecutor arguing that Burkey's testimony lacked credibility and that G.F.'s testimony was credible, despite minor inconsistencies between her trial testimony and her earlier statements. A prosecutor

may indeed point to circumstances which cast doubt on a witness' veracity or which corroborates his or her testimony, but he may not throw onto the scales of credibility the weight of his own personal opinion.

State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984); see also State v. Danielski, 374 N.W.2d 322, 325 (Minn. App. 1985) (prosecutor's vigorous argument that defense witnesses and their evidence lacked credibility was proper), review denied (Minn. Dec. 13, 1985). Here, the prosecutor's argument on credibility was based on the evidence and was therefore proper.

Finally, Burkey objects to the prosecutor arguing that G.F. "thinks that this is it." Burkey contends the statement mischaracterizes G.F.'s testimony. But G.F. testified that she feared for her life.

We conclude that any misconduct by the prosecutor during closing argument was minor. The only improper statements, the prosecutor's expression of his personal opinion, the reference to physical abuse, and the smoke screen argument, occurred within a short time of each other and were not emphasized or repeated. See State v. Daniels, 332 N.W.2d 172, 180 (Minn. 1983) (prosecutor's argument must be evaluated as a whole to determine if it provides basis for reversal).

Finally, the evidence against Burkey was strong. G.F.'s testimony about what occurred on November 20, 1995 was corroborated by: (1) the state of disarray her apartment was in when the police officer arrived; (2) Burkey's admission that he caused at least some of the damage to the apartment and that he went to G.F.'s apartment to confront her; (3) Burkey's admission to Kellie Deets that he had choked G.F.; (4) the college students' testimony about G.F.'s emotional state when she arrived at their apartment shortly after the offense; and (5) the overall consistency between G.F.'s trial testimony and her earlier statements. Also, the evidence that Burkey made a threat against G.F. to Deets on November 19, 1995, which Burkey's roommate overheard, corroborated G.F.'s testimony that Burkey entered her apartment without her consent.

Considering the prosecutorial misconduct as a whole, we conclude that the prosecutor did not commit serious misconduct and that the misconduct did not play a substantial role in influencing the jury to convict. The district court properly denied Burkey's motions for a mistrial.


[ ]1State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965).

[ ]2Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).