This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Andre Deushawn McDonald,


Filed November 17, 1998


Shumaker, Judge

Hennepin County District Court

File No. 97014971

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

John M. Stuart, Minnesota State Public Defender, Theodora Gaitas, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.



Appellant Andre Deushawn McDonald challenges his convictions of aggravated robbery and first-degree burglary on the ground of prosecutorial misconduct. We affirm.


On the evening of January 29, 1997, appellant and a male companion visited Christopher Yorkson at his condominium. Yorkson and appellant had been social friends for about one and one-half years, having met through a mutual acquaintance named Michael Harris.

During the visit, appellant attacked Yorkson, put him into a headlock, dragged him into the bedroom, and pushed him onto the bed. Appellant's companion gagged Yorkson and both men then tied him with electrical cords and masking tape. As Yorkson lay on the bed, he could hear the men rummaging through his condominium.

After the men left, Yorkson freed himself and inspected his residence. He noted that several items of personal property were missing. He called the police and they arrested appellant. Appellant was charged with aggravated robbery and first-degree burglary, to which he pleaded not guilty.

At a pretrial hearing, appellant's attorney moved to exclude Spreigl evidence and any references during trial to appellant being a suspect in two homicides. The attorney asked the judge to instruct the state's witnesses accordingly. The prosecutor responded that she did not intend to offer evidence of the homicides or related investigations, and she agreed to tell her witnesses not to comment on them. The judge deferred her ruling on the Spreigl issue and granted the defense motion as to the homicides, stating:

The court finds no relevance to any reference to any homicide at all, in this case, so is specifically ruling that none be made. And Ms. Hawley, I will ask you to instruct each of the witnesses regarding that, and that it's not something to be discussed or brought up.

During the trial, the prosecutor offered evidence through one of the detectives assigned to the case. She elicited from him that he was a homicide investigator who had previously been in the robbery division of the police department. She asked him to differentiate the official duties of patrol officers and robbery and homicide investigators. She then asked questions about the nature, extent, and results of his investigation of the Yorkson incident.

On cross-examination, defense counsel questioned the detective about his investigation and, from time to time, intimated or stated that the investigation had lacked thoroughness. Each time, however, the detective supplied additional details of his investigation.

On redirect examination, the prosecutor asked questions about Michael Harris and immediately followed with background questions regarding appellant:

Q. And you ran Harris's criminal history?

A. Yes, I did.

Q. And that's where you learned he had a number of other arrests for violent crimes?

A. Correct.

Q. Including the beating of the 89-year old man in 1996 you referred to?

A. That's correct.

Q. And you also attempted to do a background check of this defendant, correct?

A. Correct.

Q. And that would be obtaining any public records that you could with respect to this defendant?

A. Correct.

Q. And did you confer with other investigators about this defendant?

A. Yes, I did.

Q. Did you confer with Detective Rick Zimmerman, also from Minneapolis Police homicide --

A. Yes, I did.

Q. -- about this defendant?

A. Yes, I did.

Q. Did you speak to other people who had incidents with this defendant?

MR. PALM [defense counsel]: Objection, Your Honor. We need to approach.

At a bench conference that followed this objection, the prosecutor argued that her questions were intended to rehabilitate the witness as to the thoroughness of his investigation, an issue defense counsel raised on cross-examination. The judge sustained the objection, noted that the prosecutor had gotten into areas precluded by the pretrial ruling, and repeated the ruling that there were to be no references of any sort to homicide. Defense counsel requested no cautionary instruction to the jury.

The jury found appellant guilty of both crimes. Appellant contends prosecutorial misconduct requires reversal.


The standard of review in an appeal for prosecutorial misconduct is well established. A defendant is entitled to a new trial if the court determines both that the challenged actions were improper and that the improprieties deprived defendant of a fair trial. State v. Washington, 521 N.W.2d 35, 39-40 (Minn. 1994). The determination of whether a prosecutor acted improperly is normally left to the sound discretion of the district court. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984); see also State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980) (whether new trial should be granted not governed by fixed set of rules but committed to sound discretion of district court, which is in best position to appraise effect of misconduct).

The prosecutorial misconduct of which appellant complains consists of the implication that appellant had a prior criminal record, the introduction of evidence of appellant's character, and the violation of the judge's pretrial order precluding references to homicide or to Spreigl evidence.

By asking the detective about his background investigation on appellant, which included a review of public records and discussions with other police officers, the prosecutor created the innuendo that appellant had some prior official contact with the police. By asking about discussions with people who "had incidents" with appellant, the prosecutor invited an inference that appellant had committed unlawful acts against others. By referring to the detective's conference with another homicide investigator, the prosecutor arguably contravened the judge's pretrial order.

Evidence of a defendant's prior criminal record is ordinarily strictly limited to the disclosures permitted by Rule 609, Minn. R. Evid. Evidence of a defendant's character or of other crimes or acts committed by the defendant is admissible only in accordance with Rule 404(b), Minn. R. Evid.

The prosecutor complied with neither Rule 609 nor Rule 404(b) in inquiring about appellant's background and other incidents. The prosecutor also failed to comply with the judge's pretrial order that there be no reference whatsoever to homicide. The prosecutor made such references herself or through the detective early in the case. In all of these respects the prosecutor committed misconduct. See State v. Tahash, 280 Minn. 155, 157, 158 N.W.2d 504, 505 (1968) (state is not permitted to deprive defendant of fair trial by insinuations and innuendoes that plant in jury's mind a prejudicial belief in evidence otherwise inadmissible).

The mere occurrence of prosecutorial misconduct does not require reversal of a criminal conviction. Washington, 521 N.W.2d at 40 (prosecutor's improper character inferences in final argument did not rise to the level of reversible misconduct). Reversal is required for "unusually serious" prosecutorial misconduct unless the misconduct is harmless beyond a reasonable doubt, and for "less serious" misconduct if it played a substantial part in influencing the jury to convict. State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).

We view the prosecutorial misconduct in this case to be of the "less serious" type. All of the improper references were brief, insubstantial, and equivocal in that they did not necessarily lead to impermissible conclusions. The identification of a detective as a homicide investigator who, in checking appellant's background, spoke to another detective identified as a homicide investigator can more readily be viewed as mere occupation identifications than as implications that appellant was a homicide suspect. The questions about public records and other incidents disclosed nothing of substance. The jury did not learn whether appellant had a bad record or a clear record. Nor did the jury learn anything at all about prior incidents or about appellant's role in those incidents. Thus, the paucity of information revealed, the equivocal nature of the impermissible references, and the brevity of the improper inquiry and disclosures relegate the misconduct to the "less serious" category. See State v. Ture, 353 N.W.2d 502, 517 (Minn. 1984) (isolated comments of prosecutor analyzed under less serious standard); State v. Clark, 486 N.W.2d 166, 170 (Minn. App. 1992) (where reference to defendant's prior record is of passing nature and evidence of guilt overwhelming, unlikely that improper evidence played substantial role in conviction).

Less serious prosecutorial misconduct does not require reversal if it did not play a substantial part in influencing the jury to convict. State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989). Here, the victim of the crimes was appellant's friend and had known appellant for more than a year. The victim witnessed the crimes and provided detailed direct evidence through his testimony. He consistently identified appellant as one of his assailants to a neighbor from whom he sought assistance shortly after the incident and to investigating officers. He was able to corroborate his contention that he knew appellant by supplying to the police appellant's address, telephone number, and place of employment. Considering the substantial evidence of appellant's guilt and the nature, degree, and extent of the prosecutorial misconduct, it is improbable that the misconduct played any significant role in the jury's decision to convict.