STATE OF MINNESOTA
IN COURT OF APPEALS
Sylvester Terrell Morris,
Filed July 13, 1999
Hennepin County District Court
File No. 98008633
Amy J. Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, D. Adrian Bryan, Special Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
In an appeal from conviction and sentencing for attempted second-degree murder and first-degree burglary, Sylvester Morris identifies a portion of the prosecutor’s closing argument as misconduct depriving him of a fair trial. The pejorative references to Morris have evidentiary foundation, and the remaining comments reasonably anticipate defense counsel’s closing argument. We affirm.
A jury convicted Sylvester Morris of six separate charges stemming from his nonfatal shooting of Ivory Latham. Morris and two accomplices broke into Latham’s apartment, demanding that Latham pay them money he allegedly owed for purchase of crack cocaine. Morris threatened Latham at gunpoint and, shortly before leaving the apartment, shot him in the chest. At trial, Latham and two of his friends who were staying at his apartment testified that Morris shot Latham. Morris’s two accomplices also testified consistently with Latham’s account of the events.
In closing argument the prosecutor addressed Morris’s possible motive, stating that Morris shot Latham because he was in business as a crack dealer and did not welcome resistance to debt payment. These comments included the term "crack-dealing mentality." The prosecutor also hypothesized a series of arguments that the defense might make in its closing statement. Morris appeals from conviction, citing the prosecutor’s closing argument as misconduct depriving him of a fair trial.
D E C I S I O N
Ordinarily a defendant waives his right to challenge a prosecutor’s comments in the closing argument unless the defendant objects or seeks a cautionary instruction. State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997). But if the arguments amount to plain error affecting substantial rights, appellate review is extended despite the lack of objection. Id.; see Minn. R. Crim. P. 31.02.
A prosecutor may argue "all reasonable inferences from evidence in the record," but may not "inflame the passions or prejudices of the jury," or "divert the jury from its duty to decide the case on the evidence." State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (citation omitted). Nor may a prosecutor use improper character attacks against a defendant. State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997).
The prosecutor described Morris as a crack dealer and, in suggesting a possible motive for the shooting, referred to a crack-dealer mentality. The statements about Morris’s business are based on the direct evidence. Morris himself testified he was a crack dealer and that selling crack was a for-profit business. He testified he had previously possessed a gun, and Latham testified that Morris had previously approached him to collect on the debt. The reference to a crack-dealer mentality is pejorative, but it is a permissible inference supported by Morris’s status as a crack dealer and the direct evidence of how Morris went about collecting the drug debt that led to the confrontation and shooting. See State v. Ashby, 567 N.W.2d 21, 28 (Minn. 1997) ("A prosecutor may draw reasonable inferences from the evidence produced at trial.") (citation omitted). The prosecutor’s comments reflect a reasonable argument, rather than a generality used to inflame the jury or attack Morris’s character and therefore do not constitute misconduct.
The remaining parts of the argument identified by Morris as error were the hypothetical statements about the defense attorney’s closing argument. A prosecutor may make "arguments that reasonably anticipate arguments defense counsel will make in closing argument." Salitros, 499 N.W.2d at 818. A prosecutor may also "argue that there is no merit to a particular defense * * * or no merit to a particular argument." Id., cited in Ashby, 567 N.W.2d at 28. But a prosecutor "may not generally belittle a particular defense in the abstract." Ashby, 567 N.W.2d at 28. In his conjectural remarks, the prosecutor commented on (1) the burden of proof, (2) Morris’s alibi defense, (3) a potential conspiracy argument by Morris, and (4) the credibility of the witnesses and the differing versions of the events presented by the witnesses.
Conjecturing that Morris’s attorney would emphasize that proof beyond a reasonable doubt was the highest burden of proof did not mischaracterize the law or belittle the state’s burden. See id. The prosecutor indicated agreement with the standard. Referring to the defense attorney’s argument was apparently a rhetorical device to lead into comments on standard of proof. Similarly, the prosecutor’s reference to Morris’s alibi was not error or misconduct. Morris had told police that he was at his girlfriend’s house when the shooting occurred and testified at trial that he was at his brother’s when Latham was shot. In light of the evidence, the prosecutor could logically and permissibly anticipate an alibi argument.
The conjecture that the defense attorney "may suggest a possible conspiracy" is also based on the evidence. The comment stemmed from repeated questions about the plea agreements between the state and Morris’s two accomplices. Although "conspiracy" may be a value-laden term, using it is not misconduct. Finally, the prosecutor appropriately anticipated that the defense’s closing argument would attempt to discredit the witnesses based on their backgrounds and variations in their versions of the events. Again, the comments did not disparage a particular defense, and the comment was not misconduct.
Although we conclude that none of the prosecutor’s comments were improper—much less misconduct—we further note that the comments could not have played a substantial part in influencing the jury to convict Morris. The identified comments amounted to approximately one page out of a 28-page closing argument in a case in which the evidence of guilt was based on eyewitness testimony squarely supported by circumstantial evidence. See State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (comments to be viewed in context of whole argument); see Griese, 565 N.W.2d at 428 (discussing strength of evidence).