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,
Ovell Edwards, Jr.,
Filed July 27, 1999
Hennepin County District Court
File No. 97094054
Amy Klobuchar, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Schumacher, Judge, and Amundson, Judge.
Ovell Edwards, Jr. appeals his conviction for making terroristic threats on grounds of prosecutorial misconduct. We affirm.
Edwards was convicted on June 12, 1998, of one count of making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (1996). He was acquitted of second-degree assault. Testimony varied as to what happened, but both parties agree that on October 18, 1997, Edwards and his girlfriend, Adrianne Smith, had an argument. They had a group of people over and had been drinking.
During the argument, Smith told Edwards to leave and that she had a new boyfriend. Though Edwards denied it, several people testified that Edwards got a knife from the kitchen and ordered everyone to leave or he would kill them. Oliver Brooks testified he went to his car where he removed a tire jack. When Edwards came at Smith with a knife, Brooks hit him with the tire jack.
The police arrived and Edwards was taken to the hospital. After his release from the hospital, Edwards told the police he felt he had been the victim. The police suggested Edwards make a statement, but he declined. He was subsequently charged with the offense of making terroristic threats.
If the appellate court determines the prosecutor's conduct was improper, it applies harmless error analysis to determine if the misconduct warrants reversal. See State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). The court considers the whole record to determine whether the misconduct was so serious that the defendant's right to a fair trial was denied. State v. Scrugs, 421 N.W.2d 707, 715-17 (Minn. 1988).
Edwards argues that the prosecutor committed misconduct by questioning him about cocaine use. During direct examination, one officer testified that Smith told him Edwards had been using crack cocaine that day. Edwards's attorney did not object at that time, but the court on its own struck the statement from the record because it was hearsay and cautioned the jury to disregard it. Edwards's attorney did object, however, when the prosecutor asked Edwards if he had been using any drugs that day, to which he responded no. The objection was overruled. Edwards's attorney objected again when the prosecutor asked Edwards if he knew he had been tested for cocaine at the hospital, but the objection was overruled. His attorney did not object when the prosecutor asked Edwards if he knew he had tested positive for cocaine. The court, on its own, instructed the jury at this time that an attorney's questions are not evidence.
Edwards waived his right to raise on appeal the alleged misconduct that was not objected to below. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). This court may, however, choose to address any issue as justice requires. Minn. R. Civ. App. P. 103.04; Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987). In this case, the court issued cautionary instructions to the jury, even though Edwards did not object to the questions. Courts presume that juries follow the instructions they are given. State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998).
Edwards also argues that the prosecutor committed misconduct by questioning him because her question insinuated facts not in evidence. Her questions may have made prejudicial insinuations to the jury. The court did instruct the jury that questions were not evidence, however. See Ferguson, 581 N.W.2d at 835 (court assumes jury follows instructions). In addition, isolated questions, to which objections are made, do not usually constitute misconduct. State v. Harris, 521 N.W.2d 348, 355 n.9 (Minn. 1994). Where a jury acquits on some counts and convicts on another, it is a strong indication that the jury was not "unduly inflamed by the prosecutor's comments." State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (quotation omitted).
Reviewing the entire record, the prosecutor's questions, while arguably inappropriate, do not appear to be so serious and prejudicial as to deny Edwards a fair trial. See State v. Scruggs, 421 N.W.2d 707, 715-16 (Minn. 1988) (considering whole record, misconduct must be so serious that defendant's right to fair trial was denied).
Edwards claims the prosecutor also committed misconduct during questioning of witnesses and closing arguments. Edwards failed to object or seek cautionary instructions after the alleged misconduct. Once again, the defendant must object at trial to any statement or seek cautionary instructions, or the defendant will forfeit his or her right to appeal the issue. Gunn, 299 N.W.2d at 138.
We will address Edwards's claim that the prosecutor committed misconduct because she personally endorsed the credibility of witnesses. The prosecutor stated in her closing argument that "there's only one person who has anything to lose in the outcome of this case. And that is the Defendant." She also argued that the state's witnesses had nothing to gain by testifying. Although prosecutors may not personally vouch for the credibility of the state's witnesses, they may attempt to establish the credibility of those witnesses. State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996); State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984). We do not believe that the prosecutor's argument amounts to a personal endorsement of the witnesses.