This opinion will be unpublished and
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,
Respondent,
vs.
Jamie Michael Carlson,
Appellant.
Filed July 11, 2000
Clay County District Court
File No. K399326
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Lisa Nelson Borgen, Clay County Attorney, Christopher Cory Myers, Assistant County Attorney, Clay County Courthouse, 807-11th Street North, Moorhead, MN 56561 (for respondent)
John M. Stuart, State Public Defender, Theodora Karin Gaitas, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Shumaker, Judge.
TOUSSAINT, Chief Judge
Appellant Jamie Michael Carlson appeals his conviction for fifth-degree assault, arguing prosecutorial misconduct and trial court error. Because (1) the prosecutor did not commit prejudicial misconduct; and (2) there is no evidence that the trial court’s error substantially influenced the jury to convict, we affirm.
D E C I S I O N
I.
Carlson contends that he was denied a fair trial because of prosecutorial misconduct on cross-examination and closing argument. Defense counsel objected neither to the prosecutor’s cross-examination of Carlson nor to the prosecutor’s closing argument. By failing to object at trial to any of the prosecutor’s statements or seek specific cautionary instructions, the defendant is deemed to have forfeited his right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).
Despite Carlson’s waiver, this court may review whether the prosecutor’s comments constituted plain error. Before the court will review an unobjected to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. State v. Hage, 595 N.W.2d 200, 204 (Minn. 1999) (quotation and citation omitted). Only if all three prongs are satisfied will this court address the error to ensure fairness and the integrity of the judicial proceedings. Id.
This court applies a two-tier test when determining whether prosecutorial misconduct warrants reversal of a conviction:
Where the misconduct is “unusually serious,” an affirmance of the conviction requires certainty beyond a reasonable doubt that the error was harmless. * * * In cases involving less serious misconduct, the test is whether the misconduct played a substantial part in influencing the jury to convict.
State v. Coleman, 560 N.W.2d 717, 721-722 (Minn. App. 1997) (citing State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974)). In most cases, the latter test applies. State v. Her, 510 N.W.2d 218, 221 (Minn. App. 1994), review denied (Minn. Mar. 15, 1994).
Carlson contends that the prosecutor committed prejudicial misconduct on cross-examination by questioning him about his prior convictions when he had not opened the door to the introduction of character evidence. By voluntarily testifying, the accused opens up the issue of his credibility, not his character. State v. Sharich, 297 Minn. 19, 23, 209 N.W.2d 907, 911 (1973). “[T]he prosecution may not attempt to establish the bad character of the defendant until the defendant has put that character in issue by offering evidence of good character.” State v. Willis, 559 N.W.2d 693, 699 (Minn. 1997) (citation omitted). Proper inquiry by the prosecutor on cross-examination into an accused’s prior convictions is limited to the fact of conviction, the nature of the offense, and the identity of the defendant. State v. Griese, 565 N.W.2d 419, 426 (Minn. 1997).
On direct examination, Carlson testified:
Q: Have you been in jail before?
A: Yes.
Q: Those past instances that have happened, do you think they have any bearing on today’s proceeding?
A: No, it’s a whole different life.
Q: And you’re trying to get things back on track?
A: I thought I did.
Carlson, not the prosecutor, introduced character evidence. The testimony was calculated to lead the jury to conclude that while violence may have been a part of Carlson’s past, it is not part of his character now. Thus, we conclude that Carlson “opened the door” to character evidence and the state could then cross-examine Carlson on his prior convictions:
Q: You have a problem with your temper?
A: No.
Q: No?
A: Well, to a certain degree, I suppose, yes. I don’t –
Q: You have to have a temper to commit terrorizing, wouldn’t you?
A: No, you have to—to be feeling ten-foot tall and bullet proof with a bottle of whiskey to terrorize someone. That’s all it is.
Q: So alcohol was your excuse on the terrorizing charge as well?
Q: No.
Carlson also contends that the prosecutor committed misconduct in his closing argument by attacking his character and emphasizing to the jury the notion of accountability. Because we conclude Carlson opened the door to character evidence, the prosecutor’s comments about character during his closing argument were not improper. However, a prosecutor’s duty is not to seek a conviction at any price, but rather to act as a “minister of justice.” State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993). “Introduction by the prosecutor of issues broader than the guilt or innocence of the accused is improper.” State v. Eggert, 358 N.W.2d 156, 162 (Minn. App. 1984).
It is proper for a prosecutor to talk about what the victim suffers and to talk about accountability, in order to help persuade the jury not to return a verdict based on sympathy for the defendant, but the prosecutor should not emphasize accountability to such an extent as to divert the jury’s attention from its true role of deciding whether the state has met its burden of proving defendant guilty beyond a reasonable doubt.
State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985). Here, the prosecutor urged the jury to hold appellant accountable for his actions:
The problem is * * * that violent behavior cannot be changed unless one, someone is held accountable, or two, someone accepts responsibility for their actions. It is clear from the testimony and the evidence in this trial that this defendant is not accepting responsibility for his actions. * * *
Ladies and gentlemen it is time to take this defendant’s ability to sting away from him. It is time to hold him accountable for his actions. And that’s what we’re asking you to do, is to hold him accountable for his actions.
The prosecutor’s remarks to the jury that they should hold Carlson “accountable” constituted misconduct. To determine whether such misconduct requires reversal, we look at whether the misconduct played a substantial part in influencing the jury to convict. Eggert, 358 N.W.2d at 162.
We consider several factors in determining whether prosecutorial misconduct played a substantial part in influencing a jury to convict, including defense counsel’s failure to object or seek a curative instruction, the trial court’s instructions to the jury, the jury’s verdict, the nature of the non-objectionable part of the closing argument, and the strength of the other evidence against the defendant. State v. Washington, 521 N.W.2d 35, 40-41 (Minn. 1994).
Carlson’s counsel did not object during the prosecutor’s closing argument. A failure to seek curative instructions “weighs heavily” in an appellate court’s decision not to reverse because carefully worded instructions can ameliorate the effect of prosecutorial misconduct. Caron, 300 Minn. at 127, 218 N.W.2d at 200. In addition, the trial court did instruct the jury that evidence of Carlson’s prior convictions was to be used only in assessing his credibility. Finally, while the objectionable part of the prosecutor’s closing argument constituted a substantial part of his argument, there was ample evidence introduced at trial on which the jury could have based its verdict.
We conclude that while the prosecutor’s conduct in closing argument was improper, it did not deprive Carlson of a fair trial and thus does not warrant reversal. See State v. Atkins, 543 N.W.2d 642, 647-48 (Minn. 1996) (prosecutorial misconduct does not in and of itself require that the defendant be granted a new trial; the test is whether the defendant received a fair trial).
II.
Carlson contends that the trial court abused its discretion in admitting the victim’s tape-recorded statement to police into evidence. “Rulings on evidentiary matters rest within the sound discretion of the trial court.” Caldwell v. State, 347 N.W.2d 824, 826 (Minn. App. 1984) (citation omitted). This court will not reverse the ruling unless the trial court abused its discretion and the error substantially influenced the jury to convict. State v. Lonergan, 505 N.W.2d 349, 353 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993). If a defendant claims error, the defendant has the burden of showing both the error and the prejudice resulting from the error. State v. Occhino, 572 N.W.2d 316, 321 (Minn. App. 1997), review denied (Minn. Jan. 28, 1998).
The trial court admitted the tape-recorded statement of the victim as a prior consistent statement under Minn. R. Evid. 801(d)(1)(B). Rule 801(d)(1)(B) provides that such statements must be helpful to the trier of fact in evaluating the witness’s credibility. In addition,
before the statement can be admitted, the witness’ credibility must have been challenged, and the statement must bolster the witness’ credibility with respect to that aspect of the witness’ credibility that was challenged.
State v. Nunn, 561 N.W.2d 902, 909 (Minn. 1997).
Carlson contends that the trial court abused its discretion in admitting the tape-recorded statement because he did not challenge the victim’s credibility. The record supports Carlson’s argument. The trial court erred in admitting the tape-recorded statement into evidence as a prior consistent statement. “But even if a trial court errs in an evidentiary ruling, we will not reverse unless the error substantially influenced the jury to convict.” State v. Bakken, 604 N.W.2d 106, 110 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).
We conclude that the victim’s tape-recorded statement to police did not substantially influence the jury to convict. There was ample admissible evidence on which the jury could have based its decision: (1) Carlson and the victim gave similar testimony as to the events of the night of the assault; (2) Carlson did not deny assaulting the victim; and (3) the arresting officers testified that the victim answered the door with a large welt on her forehead and bruised and bloody lips, and she told them that Carlson had caused the injuries. The court’s error was not prejudicial.
Affirmed.