may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Andre Glenn Madison,
Filed February 16, 1999
Toussaint, Chief Judge
Hennepin County District Court
File No. 96097951
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Lyonel Norris, Assistant State Public Defender, 2829 University Avenue, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Mulally, Judge.[*]
TOUSSAINT, Chief Judge
Appellant Andre Madison was convicted of second-degree assault, gross misdemeanor obstruction of legal process, and misdemeanor pointing of a dangerous weapon. On appeal Madison alleges that (1) the trial court abused its discretion by admitting evidence of the presence of an armed guard that gave rise to the no-knock search warrant and evidence seized as a result of the search; (2) he was denied a fair trial because of prosecutorial misconduct; (3) the trial court abused its discretion by excluding expert testimony on the reliability of witness observation; and (4) the evidence was insufficient to support his conviction.
Because (1) the evidence of the presence of the armed guard and the evidence seized as a result of the search were part of the res gestae of the crime charged; (2) Madison made no objection at trial to any prosecutorial misconduct; (3) the reliability of witness observation is within the province of the jury to evaluate; and (4) a jury could reasonably conclude that the officers' testimonies were neither inconsistent nor in conflict with the physical evidence of the case, we affirm.
On November 7, 1996, the Minneapolis police department executed a no-knock warrant at a north Minneapolis residence where Madison was visiting. Prior to obtaining the warrant, a confidential reliable informant purchased marijuana from a person in the residence and observed a guard, armed with a shotgun, at the rear of the residence. After the warrant was executed, the police seized a shotgun, several plastic baggies, 47.4 grams of marijuana, a marijuana pipe, a scale, a cell phone, a police scanner, and clothing stained with a blood-like substance.
The evidence of the presence of the armed guard and the items seized pursuant to the search: (1) constitute part of the res gestae of the crimes charged; (2) are necessary to provide context for the jurors to understand what triggered the investigation; and (3) are also necessary to explain why the police stormed the residence, heavily armed, without announcing themselves and giving the occupants a chance to open the door peacefully. Without such evidence, the jury may be led to believe that the warrant was improperly executed. Thus, the probative value of the evidence for providing context for the events that occurred outweighs any prejudice Madison may have suffered.
On appeal Madison makes several challenges to the prosecutor's trial conduct, only some of which he objected to at trial. Madison alleges that the prosecutor (1) engaged in a pattern of improper questioning; (2) failed to adequately prepare witnesses to avoid improper testimony; and (3) made improper inferences in closing argument. We decline to address the conduct Madison failed to object to because he waived his right to have that conduct reviewed on appeal. Id.
First, Madison alleges that the prosecutor committed misconduct when she referred to the clothing as "bloodstained," and asked Officer Patrick if he had an opinion as to whether "this was fresh blood." In response to the first of Madison's objections, the prosecutor apologized on the record for the mischaracterization and proceeded to refer to the stains as "blood-like." In addition, the court allowed Officer Patrick to testify as to whether or not the substance was wet. The prosecutor's mischaracterization of the stains as blood and request for the officer's opinion as to whether the substance was fresh blood did not amount to misconduct. The record reveals that Madison did not object to the characterization of whether this was wet or dry blood during the earlier testimony of Officer Waletzki.
Madison next alleges that the prosecutor failed to adequately prepare her witnesses. The state has a duty to properly prepare its witnesses prior to trial to avoid the problem of improper testimony being blurted out. State v. Underwood, 281 N.W.2d 337, 342 (Minn. 1979).
Madison contends that misconduct occurred when the prosecutor showed Officer Waletzki a picture and asked if it accurately reflected the scene of the crime. Waletzki testified that the trash bag containing the stained clothes had been under the styrofoam in the box, "as if it was being hidden." The trial court sustained Madison's objection that the officer's answer was speculative.
Madison next alleges that the prosecutor committed misconduct by failing to prepare Officer Novak to avoid having him blurt out improper testimony. Specifically, when asked about the items he recovered from the dining room, Officer Novak referred to the cell phone as stolen, the hand scale as "commonly used to weigh marijuana or narcotics," and the baggies as "used for packaging material." In response to the prosecutor's question whether the amount of marijuana seized was significant, the officer responded in the affirmative. In response to Madison's objections, the trial court ordered these characterizations stricken from the record and advised the jury to disregard all stricken testimony.
Madison also alleges that the prosecutor committed misconduct by mischaracterizing Wendy Sumpter's testimony in closing argument. In closing argument, the prosecutor stated that Sumpter "has a connection to another man living downstairs" and that Sumpter admitted having a bias against the police. Sumpter testified that (1) her nephew, who sometimes stayed with her, knew one of the men living in the apartment that was raided; and (2) although she had no bias against the police prior to this incident, her feelings about them had since changed. The prosecutor's assertion that Sumpter had a bias against the police is a permissible inference in light of Sumpter's testimony that she did not have any bias before this incident, but that her feelings about them changed as a result of the incident. The prosecutor's characterization does not amount to prosecutorial misconduct.
Finally, Madison argues that the prosecutor committed misconduct by inviting the jury to speculate about who moved the gun from the dining room/kitchen area, where the police found it, to the rear bedroom, where it was later photographed.
Prosecutors are allowed to make arguments that reasonably anticipate arguments the defendant will make in closing argument. State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993). The prosecutor's suggestion in closing argument that the paramedics moved the gun for their own safety or convenience was a reasonable anticipation of Madison's closing argument. Indeed, in his closing argument, Madison asserted that the discrepancy gave reason to disbelieve the integrity and honesty of the police.
Under the above circumstances, neither the examination of witnesses nor statements by the prosecutor in closing argument amount to prosecutorial misconduct.
Contrary to Madison's contention, the testimony of his expert witness was not offered to help the jury understand the reliability of witness identification; Madison's identity was never an issue in this case. Rather, the proffer went to the reliability of witness observation. The trial court did not abuse its discretion in holding that it is within the province of the jury to evaluate the reliability of what events a witness says he or she observed. Such expert testimony fails the helpfulness test.
Madison argues that the jury's verdict was not reasonable because the officers' testimonies conflicted and were inconsistent with the physical evidence of the case.
First, Madison argues that the officers "disagreed" in their testimonies about the sound emitted by the preliminary diversionary devices. One officer described the noise as a firecracker, another said they are very loud by design, and a third said his ears rang from the noise. Such differences in perception do not amount to a disagreement, they are merely three different ways to describe the same thing.
Next, Madison argues that the officers' testimonies about what they saw are inconsistent. Madison concedes that the officers generally agreed that they saw a man pointing a gun at them. He notes, however, that the officers disagreed as to how far away he was standing, the amount of smoke in the room, whether Madison chambered a shell in the shotgun, whether they saw a muzzle flash, and depending on the time of their entry, whether Madison was standing or lying on the ground. One officer also said he observed a man lying on the floor of the living room where Smith, another male in the residence, was located.
Madison does not cite anything in the record indicating that the officers entered or peered into the room simultaneously or from the same angle. Furthermore, the crime of assault was completed as soon as Madison picked up the gun and aimed it at the officers with the requisite intent. Madison concedes the officers' testimonies generally agreed on this crucial point.
Madison next claims that the officers' testimonies that he pointed the weapon directly at them are inconsistent with the fact that Madison was shot in the palm side of his right forearm because the stock of the shotgun would have shielded this part of his arm. However, we must assume the jury believed the state's evidence that to take a right-handed aim with a shotgun requires that the shooter's body be angled slightly to the right, with the right trigger arm bent up and out, exposing the inner forearm.
When viewed in a light most favorable to Madison's conviction, we conclude that the evidence was sufficient to permit the jurors to reach the verdict they did.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.