may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Willie Garard Scott,
Filed July 1, 1997
Hennepin County District Court
File No. 95103407
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, Bradford S. Delapena, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for Appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Holtan, Judge.[*]
Willie Garard Scott appeals from his convictions of attempted first-degree murder and second-degree assault, arguing the prosecutor committed serious misconduct during closing argument by (1) emphasizing urban violence and accountability; (2) expressing a personal opinion of guilt; and (3) improperly characterizing reasonable doubt. We affirm.
Scott was tried and convicted of attempted first-degree murder and second-degree assault. He was sentenced to 240 months for the attempted murder conviction and a consecutive 36 months for the assault conviction. Scott appeals, arguing he is entitled to a new trial because of prosecutorial misconduct during closing arguments.
In reviewing claims of misconduct, this court will reverse
only where the misconduct, viewed in 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). This court looks at the misconduct in terms of the whole closing argument and not just isolated phrases or remarks. See State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984).
First, Scott argues the prosecutor committed misconduct by insinuating that the jury was there to right a social wrong and stop violence in the gang-infested inner-city. The prosecutor stated:
Your Honor, counsel, ladies and gentlemen. Not that it was your choice, but you've just been exposed to a brief and I would suggest compelling story about urban violence, a story of a totally senseless, brutal shooting that left a young man at death's door. * * * You've been summoned here to see to it that justice is done, that there's accountability for that kind of conduct.
(Emphasis added.) See generally State v. Salitros, 499 N.W.2d 815, 819-20 (Minn. 1993) (stating prosecutors should avoid discussing "accountability" and jury's duty to uphold law and order).
We conclude these statements were improper. The comment about "urban violence" conjures up stereotypes and images of a dangerous society and implies the jury can battle this growing problem. The accountability comment could shift the jury's focus away from the state's burden of proof and onto making Scott an example of society's intolerance of violence.
Second, Scott argues the prosecutor improperly expressed his personal opinion to the jury by stating:
* * * I can start by telling you that the judge, of course, is the expert on the law in this case. * * * I understand she's going to provide you with a copy of her instructions so * * * you probably won't have to take any notes. * * * I would ask that rather than take notes maybe you should listen to the explanation and the law and the facts and see how they mesh to bring you to what I think is an inevitable conclusion.
(Emphasis added.) See id. at 817 (noting it is professional misconduct for prosecutor to express personal opinion on guilt of defendant); see also State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991) (personal opinion rule prevents prosecutor from becoming "unsworn witness" and avoids exploiting "influence of the prosecutor's office"). The prosecutor's statement, "what I think is an inevitable conclusion," was improper.
We conclude, however, that any improper conduct by the prosecutor, as noted in (1) and (2) above, was not so prejudicial that Scott was denied a fair trial. Failure to object or seek a curative instruction weighs heavily against granting a new trial. State v. Langley, 354 N.W.2d 389, 401-02 (Minn. 1984). Scott's counsel did neither.
Moreover, there was strong evidence implicating Scott. According to the evidence introduced at trial, Lewis and Parker picked Scott out of a police photo lineup after the shooting. Lewis identified Scott at trial as the shooter, and Parker identified Scott as being in the area immediately before the shooting. Officer Richard Gearhart, who arrived at the scene within minutes, testified that Lewis told him "Zubby" shot him, spelled the name, and told Gearhart where Zubby lived. Both Lewis and Parker testified that "Zubby" was Scott's street name.
Third, Scott argues the prosecutor mischaracterized the reasonable doubt standard by saying the jury had to have some reason to find Scott not guilty. The prosecutor stated:
* * * the State has to prove someone is guilty beyond a reasonable doubt. Proof beyond a reasonable doubt.
Briefly what that means is that if you have doubt about his guilt it should be based on reason. * * * You just don't say well, maybe he didn't do it. That doesn't work. There has to be a reason, so I would ask you all to look at that law that the judge will give you on proof beyond a reasonable doubt with some care.
(Emphasis added.) We note, however, that the trial court properly instructed the jury on reasonable doubt and instructed the jury to disregard anything the attorneys said that differed from the instructions. We conclude the prosecutor's comments on reasonable doubt were not misconduct as much as they were an unartful attempt to explain the concept.
After a review of the record, we conclude that even if there was misconduct plain enough to overcome Scott's failure to object, such misconduct is insufficient to vacate Scott's convictions when viewed in light of all the evidence and in the context of the prosecutor's entire closing argument.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.