This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C9-99-446

State of Minnesota,
Respondent,

vs.

Jermaine Lee Johnson,
Appellant.

Filed December 14, 1999
Affirmed
Willis, Judge

Ramsey County District Court
File No. K3983148

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Douglas W. Thomson, Lisa Lodin Peralta, Suite W-1260, 332 Minnesota Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Jermaine Johnson appeals from his conviction of second-degree assault, in violation of Minn. Stat. ß 609.222, subd. 1 (1998). Johnson claims that the district court erred by denying two motions for a mistrial and by admitting hearsay evidence. Johnson also contends that alleged instances of prosecutorial misconduct that he did not object to require a new trial. We affirm.

FACTS

At 3:45 a.m. on August 27, 1998, L.T. arrived at the Regions Hospital emergency room, suffering from superficial "shrapnel or ricochet-like" injuries to her hand and forearm. She told an emergency-room doctor that her boyfriend had shot her and told a trauma doctor that she had been involved in a fight with her ex-boyfriend.

Officer Spark of the Roseville Police Department arrived at the hospital at 4:30 a.m., after being dispatched to investigate a report that a woman admitted at Regions had been wounded in Roseville by a shotgun blast. Officer Spark found L.T. lying on a gurney waiting to have x-rays taken.

L.T. told Officer Spark that after she let Johnson into her apartment the two began to argue about a car. L.T. said that Johnson then pulled out a small handgun wrapped in a white towel, she saw a flash of fire, and heard a "bang." Johnson was later identified as either L.T.ís boyfriend or ex-boyfriend.

L.T.ís injuries showed that she was not injured by an individual bullet; her injuries were similar to those resulting from the spray of birdshot. Police investigating the scene found a television set in L.T.ís apartment with a bullet hole and evidence that metal, either from a shattered bullet or from the television set, and glass had sprayed across the room.

Johnson was charged with second-degree assault. L.T.ís trial testimony was different from her report to Officer Spark; she testified that while she and Johnson were arguing, she retrieved her own handgun from under her bed, that Johnson told her "to quit playing with that," and that she then threw the gun at Johnson and "fire just went everywhere." L.T. further testified that she lied to the doctors and police because she was mad that Johnson had left her at the scene, feared losing her apartment, and thought she would go to jail because she was on probation and had a gun. The jury found Johnson guilty, and he appeals.

D E C I S I O N

I. Discovery Violation

Johnson argues that the district court erred by denying the motion for a mistrial he made after learning that the state had given him only a summary rather than the full report of the stateís gunshot-residue expert. Because the expert participated in the evaluation of the case and reported to the prosecuting attorneyís office, the state was obligated to disclose the expertís full report to Johnson. See Minn. R. Crim. P. 9.01, subd. 1 (requiring state to disclose fully to defendant all documentation relating to case in possession of those who have participated in investigation or evaluation of case).

The report summary described tests showing there was a particle of gunshot residue on Johnsonís right hand. During the second day of the trial, before the expertís testimony, the prosecutor and the expert realized that there was a clerical error in the summary because the full report stated that the residue was found on Johnsonís left hand. The prosecutor immediately informed the district court and Johnson.

Johnson moved for a mistrial, arguing that his "whole case was prepared" to contrast the report showing residue on his right hand with the fact he is left-handed. The district court agreed there was a discovery violation and determined the appropriate remedy would be to allow Johnson a continuance to adjust his defense and to prepare for cross-examination of the expert. Johnson refused the courtís offer, and the court denied Johnsonís motion for a mistrial.

District courts have wide discretion in determining the appropriate remedy for a discovery violation. State v. Freeman, 531 N.W.2d 190, 197-98 (Minn. 1995). This court will not overturn a district courtís determination absent a clear abuse of discretion. State v. Moore, 493 N.W.2d 606, 608 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). Johnson has not shown that the district courtís proposed remedy for the stateís discovery violation was an abuse of the district courtís wide discretion. The expert had yet to testify, the results of the test had not been mentioned in previous testimony, and the defense had yet to present its case. The district courtís denial of Johnsonís motion for a mistrial was not a clear abuse of its discretion.

II. Prosecutorial Misconduct

Johnson argues that the district court erred by denying his motion for a mistrial after an instance of prosecutorial misconduct and that, further, he is entitled to a new trial because of instances of alleged misconduct that were not challenged before the district court.

A. Prosecutorial Misconduct Objected to at Trial

The prosecutor asked L.T. during cross-examination whether she had been contacted by an investigator from the public defenderís office, which implied that Johnson was represented by a public defender. Johnson moved for a mistrial. The district court determined that the error was unintentional and would not deny Johnson a fair trial, and, therefore, denied Johnsonís motion. The court offered to provide a curative jury instruction, but Johnson refused.

A prosecutor may not inform the jury that defense counsel is a public defender. See State v. Bonn, 412 N.W.2d 28, 30 (Minn. App. 1987), review denied (Minn. Oct. 21, 1987). But where such identification is inadvertent and the prejudicial impact of the identification is both speculative and minimal, the misconduct does not deny the accused a fair trial. Id. A district court is in the best position to evaluate the effect of any misconduct, and the determination of whether a mistrial motion should be granted is within the courtís discretion. State v. Tennin, 437 N.W.2d 82, 88 (Minn. App. 1989) (citing State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980)), review denied (Minn. Apr. 24, 1989). We will reverse the district courtís denial of a mistrial motion "only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that [a] defendantís right to a fair trial was denied." Id. (quoting Wahlberg, 296 N.W.2d at 420).

The single reference here to the public defenderís office made by the state over the course of the entire trial was not so prejudicial as to have denied Johnson a fair trial. The district courtís denial of Johnsonís motion for a mistrial was well within the courtís discretion.

B. Alleged Prosecutorial Misconduct Not Objected to at Trial

Johnson argues that he is entitled to a new trial because of alleged instances of prosecutorial misconduct that he did not object to at trial. Generally, a defendant waives his right to appellate review of alleged prosecutorial misconduct where he fails to object or to seek curative jury instructions. State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999) (discussing statements made during closing argument); Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996) (discussing statements made during direct and cross-examination). But this court may grant a defendant appellate review where the alleged misconduct was so clearly erroneous under applicable law, and so prejudicial to the defendantís right to a fair trial, that the defendantís failure to object should not forfeit his right to a remedy. Rairdon, 557 N.W.2d at 323. But a defendantís failure to object to a prosecutorís statements implies that the alleged misconduct was not prejudicial. State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997).

Johnson claims that it was misconduct for the prosecutor to ask a witness how her sense of community changed after the crime. Remarks about the effects of a crime on the surrounding community are problematic when they divert the juryís attention from its role of determining whether the accused is guilty or not guilty. State v. Buggs, 581 N.W.2d 329, 342 (Minn. 1998). But comments that are only a small portion of the testimony presented to the jury and simply describe the inevitable result of a crime are not so prejudicial as to require a new trial. See id. The only statement regarding the impact of Johnsonís alleged crime on the community was made by a neighbor of L.T., who testified that the incident left her "a little frighten[ed]." We conclude that even if the prosecutorís question were misconduct, the response it elicited was a small portion of the testimony presented to the jury and simply described the inevitable result of the crime. It was not so prejudicial as to have denied Johnson his right to a fair trial.

Johnson also alleges that the prosecution improperly attempted to shift the burden of proof. Misstatements of the burden of proof are highly improper and constitute prosecutorial misconduct. State v. Coleman, 373 N.W.2d 777, 782 (Minn. 1985). In Johnsonís opening statement, defense counsel stated that there would be evidence that Johnson cooperated with the police. The prosecution in its closing argument questioned whether Johnson had presented such evidence. The prosecutorís comment did not suggest that Johnson had the burden of establishing his innocence. Both the prosecutor and defense described the appropriate burden of proof in their closing arguments. And the district court fully instructed the jury on the stateís burden of proof and told the jury that the statements of counsel are not evidence. In any event, the comment was not so prejudicial as to have denied Johnson his right to a fair trial.

In an apparent attempt to explain why L.T.ís trial testimony differed from her statements to the doctors at Regions Hospital and to Officer Spark, the prosecutor made repeated suggestions that L.T. was a victim of domestic abuse, which Johnson contends was misconduct because he was not charged with a domestic-abuse offense. A prosecutor may not attempt to coerce or urge a jury to "send a message * * * Ďwe will protect youí" where the attempt has the "inevitable result" of drawing a juryís attention away from the facts of the case toward broader societal problems. State v. Peterson, 530 N.W.2d 843, 848 (Minn. App. 1995); see State v. Threinen, 328 N.W.2d 154, 157 (Minn. 1983) (finding improper a prosecutorís comment that the jury represented the people of the community and that their verdict would determine what kind of conduct would be tolerated).

We are troubled by the prosecutorís repeated references to domestic abuse and to L.T. as a victim of domestic abuse during the trial and in her closing argument. Although the facts here could conceivably have supported a charge of domestic assault under Minn. Stat. ß 609.2242 (1998), Johnson was not so charged. Additionally, the credibility of L.T.ís trial testimony was crucial to Johnsonís defense. But Johnson did not object to the references to domestic abuse, which implies the statements were not prejudicial. The jury had the opportunity to weigh the credibility of L.T.ís testimony, and we note that the state provided evidence that L.T. had told two stories about the incident before the trial, each contradicting the other and both contradicting her trial testimony. We conclude that the stateís references to domestic abuse, while inappropriate, were not so prejudicial as to deny Johnson his right to a fair trial.

III. Hearsay Evidence

Johnson claims that Officer Sparkís testimony that L.T. described her assault by Johnson was inadmissible hearsay. The district court ruled the testimony admissible under the excited-utterance exception to the hearsay rule. The supreme court has established three requirements for the application of that exception:

1.  there must be a startling event or condition;

2.  the statement must relate to the startling event or condition; and

3.  the declarant must be under a sufficient aura of excitement caused by the event or condition to insure the trustworthiness of the statement.

State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986) (quoting Minn. R. Evid. 803(2) comm. cmt.). Relevant factors include "the length of time elapsed, the nature of the event, the physical condition of the declarant, any possible motive to falsify, etc." Id. at 782-83 (quoting Minn. R. Evid. 803(2) comm. cmt.); see State v. Berrisford, 361 N.W.2d 846, 850 (Minn. 1985) (finding that statements made 90 minutes after the event were within excited-utterance exception). Determining whether the declarant was under the necessary "aura of excitement" to ensure the trustworthiness of the statement is within the sound discretion of the district court. Berrisford, 361 N.W.2d at 850.

L.T. clearly experienced a "startling event." Her statements describing her assault by Johnson were related to the startling event. Finally, Officer Spark testified that during his conversation with L.T. 75 minutes after the event "it was hard for me to understand what she was saying" between her "gasps of breath and tears." The district court did not abuse its discretion by admitting L.T.ís statements to Officer Spark under the excited-utterance exception to the hearsay rule.

Johnson also argues that the district court erred by admitting the hearsay testimony of the two doctors from Regions Hospital who testified to the statements L.T. made that served to identify Johnson as her assailant. Even if admission of the statements were error, we conclude that L.T.ís brief statements to the doctors did not influence the jury substantially to convict given Officer Sparkís testimony, which presented the jury with L.T.ís description of her assault by Johnson. See State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981) (stating that reversal is warranted only where an evidentiary error "substantially influences the jury to convict").

Affirmed.