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,
Edward M. Johnson,
Filed March 16, 1999
Ramsey County District Court
File No. K3-96-2996
Michael A. Hatch, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent); and
Susan Gaertner, Ramsey County Attorney, Lawrence M. Schultz, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102-1657 (for respondent)
Considered and decided by Harten, Presiding Judge, Huspeni, Judge,[**] and Holtan, Judge.
Appellant Edward Muhammad Johnson challenges his conviction for controlled substance crime in the third degree. Appellant argues that the trial court abused its discretion in denying his motion to admit the confession of his cousin, and that the prosecutor's misconduct during the closing argument deprived him of a fair trial. We affirm.
In the early morning of September 22, 1996, Officer David Langfellow of the St. Paul Police Department was dispatched to an assault at 293 Dayton Avenue. As he and Officer Loretz traveled eastbound on Dayton Avenue toward the assault location, Langfellow noticed a person, later identified as appellant, walking away from that address toward a parked car full of people. Thinking that appellant could have been a suspect in the assault, Langfellow executed a U-turn and blocked the parked vehicle.
When Langfellow blocked the vehicle, appellant was standing in front of the car's open driver's door. Langfellow turned his spotlight on appellant and saw three pieces of a white rock-like substance drop straight to the ground from the area around appellant's hip. Because Langfellow believed he had "a felony situation," he took appellant into custody. Laboratory analysis revealed that the three pieces of white rock-like substance constituted eight grams of crack cocaine.
At trial, appellant claimed that the crack cocaine did not belong to him and that he did not drop it on the ground. Fardan Sirdar, appellant's cousin, was sitting in the back seat of the car with his friend Joseph Papasodora when the officers approached the vehicle. In the front passenger seat was Marjaan Sirdar, appellant's cousin and Fardan Sirdar's brother. Fardan Sirdar testified that he did not see appellant drop the pieces of crack cocaine, but that he saw Marjaan Sirdar toss something out the front driver's door. Papasodora also testified that he saw Marjaan Sirdar bend over toward the driver's seat and drop something unidentified out of the driver's door.
Marjaan Sirdar exercised his Fifth Amendment right and did not testify. However, appellant offered into evidence a notarized statement given by Marjaan Sirdar in which he admitted that he tossed the crack cocaine out of the vehicle as the officers approached. The trial court denied appellant's motion to admit the statement, stating that it lacked trustworthiness.
During her closing argument, the prosecutor commented on appellant's theory that Marjaan Sirdar tossed the crack cocaine at appellant's feet when the officers approached the vehicle. She stated:
Now, let's look at who has testified for the defense. First we heard from Fardan Sirdar. And who is he? He's the defendant's cousin. And they also lived together during the time of the incident. Seven months have passed since this incident, it happened September 22nd. He testified on May 5th, which was yesterday, more than seven months have passed. I'm sure they are really good friends and he doesn't want to see his cousin get in trouble, so he comes in and testifies for him. And who does he blame? his brother. Did we ever hear from his brother? No, we didn't. Where is he if he is the one who threw the drugs out of the car?(Emphasis added.) Defense counsel did not object to the state's reference to appellant's failure to call Marjaan Sirdar as a witness, nor did defense counsel request a curative instruction. Rather, he rebutted the state's argument by stating:
Now, every person here, Mr. Sirdar, Mr. Papasodora, and Marjaan Sirdar, who didn't come to testify, who didn't get up on the stand and say, "Yup, I did it, arrest me right now and put me in jail." Oh, no, he didn't do that. Why would he come right here and take an oath, I did it? Well, sure, they would arrest him on the spot, right on the spot. Marjaan is Fardan Sirdar's brother. [Fardan Sirdar and appellant] might be cousins, but [Marjaan Sirdar] is [Fardan Sirdar's] brother.
The jury found appellant guilty of controlled substance crime in the third degree.
Generally, hearsay statements are not admissible. Minn. R. Evid. 802. However, a statement tending to "subject the declarant to * * * criminal liability" is not excluded by the hearsay rule if the declarant is unavailable. Minn. R. Evid. 804(b)(3). Under rule 804(b)(3):
A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
As the supreme court has stated, "hearsay statements tending to exculpate the accused must be regarded with suspicion," and "must be proven trustworthy by independent corroborating evidence that bespeaks reliability." State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990) (quoting State v. Higginbotham, 298 Minn. 1, 4-5, 212 N.W.2d 881, 883 (1973)).
In this case, Marjaan Sirdar's hearsay statement was against his penal interest and he was unavailable to testify due to his invocation of the Fifth Amendment privilege. However, the hearsay statement did not bear sufficient indicia of reliability to satisfy the standard set forth in Minn. R. Evid. 804(b)(3) and Higginbotham. Marjaan Sirdar had a familial relationship with appellant that gave him a motive to fabricate his statement. Additionally, Marjaan Sirdar's factual allegations were contradicted by the trial testimony of Langfellow, who stated that the pieces of crack cocaine fell straight down from appellant's hip. Most significantly, Marjaan Sirdar never went to the authorities with his account, and only gave his statement to an investigator for appellant's defense counsel three days before trial and nearly seven months after the incident. This lapse of time gave appellant, the brothers Sirdar, and Papasodora ample time to fabricate a consistent account of events. For these reasons, the trial court did not abuse its discretion in refusing to admit Marjaan Sirdar's hearsay statement. See State v. Renier, 373 N.W.2d 282, 285 (Minn. 1985) (trustworthiness of hearsay statement determined by, among other things, whether there is a relationship between declarant and accused, whether statement is contradicted by other testimony, and whether declarant went to authorities with confession).
In this case, the prosecutor's comments on Marjaan Sirdar's failure to testify constituted misconduct. See State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (prosecutor may not comment on defendant's failure to call witnesses or contradict testimony). However, defense counsel's failure to object to the comment suggests that appellant did not find any fault with the argument. State v. Marquetti, 322 N.W.2d 316, 318 (Minn. 1982). By choosing to counter-argue rather than to object, appellant forfeited his right to have this issue considered on appeal. Whisonant, 331 N.W.2d at 769.
Additionally, the prosecutor's improper comment was harmless. The supreme court's decision in State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974), sets out the applicable harmless error standard:
[I]n 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 127-28, 218 N.W.2d at 200. Because the improper portion of the prosecutor's closing argument was only three sentences in a lengthy closing argument, it is grounds for reversal only if it substantially influenced the jury to convict.
We cannot conclude that the improper comments played a substantial part in influencing the jury to convict. Appellant's failure to object or seek a curative instruction "weighs heavily" against reversal and implies that the prosecutor's comments were not prejudicial. State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997). In addition, the trial court's jury instruction that the state bore the burden of proof and that the attorneys' arguments were not evidence lessened the detrimental effect of the prosecutor's improper comments. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (jury instructions relevant in determining whether jury was unduly influenced by improper comments). Finally, Langfellow's testimony that the pieces of crack cocaine fell straight down from the area around appellant's hip was unequivocal. Due to these factors, the prosecutor's comments regarding Marjaan Sirdar's failure to testify did not substantially influence the jury and did not deprive appellant of a fair trial.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
[**] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The fact that Marjaan Sirdar's invocation of the Fifth Amendment privilege frustrated the prosecutor's ability to conduct a cross-examination also supports the trial court's ruling. See United States v. Doddington, 822 F.2d 818, 822 (8th. Cir. 1987) (striking entire direct examination of defense witness's testimony was permissible where witness asserted Fifth Amendment privilege and refused to be cross-examined on the details of his direct testimony).