This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1890

 

State of Minnesota,

Respondent,

 

vs.

 

Yves Alban Nadeau,

Appellant.

 

Filed ­­­November 1, 2005

Affirmed

Dietzen, Judge

 

Hennepin County District Court

File No. 04003991

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minnesota, MN 55487 (for respondent)

 

John. M. Stuart, State Public Defender, Sara L. Martin, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge.

 

            Appellant Yves Alban Nadeau challenges his conviction of second-degree assault arguing (1) that the district court erred in dismissing the jury panel during voir dire; (2) that the prosecutor committed misconduct during closing arguments; and (3) in a pro se argument, that witnesses lacked credibility.  Because the district court properly applied the law, and we find no abuse of discretion, we affirm.

F A C T S

            On January 17, 2004, appellant’s roommate, the victim, left the house they share to take his dog for a walk.  While outside, the victim noticed that appellant was looking into the victim’s bag on the dining room table.  When the victim entered the house, he asked appellant why appellant was looking at his bag.  Appellant made a rude gesture to the victim and then walked into appellant’s bedroom.  The victim walked to the entrance of appellant’s bedroom and told appellant they must talk to resolve an earlier disagreement. 

            Then, according to the victim, appellant picked up a towel lying nearby which the victim observed partially concealed a knife.  The victim backed away but appellant slashed at the victim with the knife, tearing his clothing, and cutting him.  The victim ran outside to his car and immediately called the police.  The police responded and confronted appellant inside the house.  Appellant denied the incident but the police arrested him.

            When a police officer obtained permission to enter appellant’s bedroom to retrieve appellant’s coat, he observed the towel and knife in appellant’s bedroom.  He retrieved appellant’s coat, and seized the knife and towel as evidence.

            During voir dire of prospective jurors, the district court instructed members of the prospective jury panel that appellant was charged with a felony.  The next day, defense counsel objected to the charge, stating that the court erred when it stated to the prospective jurors that appellant was charged with a felony.  The district court agreed and ordered that the jury panel be dismissed.  The court also explained that it was not declaring a mistrial because the jury panel had never been sworn.  Defense counsel objected to the dismissal of the jury panel.  After a jury was selected, the case proceeded to trial with the evidence presented in two phases; the first phase was to determine whether appellant committed a criminal act, and the second phase was to determine whether appellant’s culpability was excused due to mental deficiency or mental illness at the time of the act.

            During the first phase of the trial, appellant testified that the victim and another roommate fabricated their stories so that appellant would be evicted from their shared apartment.  Appellant also testified that the victim made police reports that others, including appellant, were harassing or bothering the victim so that he needed to carry a gun for protection.

            During closing arguments, the prosecutor labeled appellant’s version of events as “ludicrous.” After discussing the victim’s testimony about the offense, the prosecutor stated: “[t]he defendant’s claim that the victim planted the knife and the towel in this case is ludicrous, it is not supported by the evidence, and as a motivation to get out of a leasing contract, it’s really—it really is quite ludicrous.” 

            The prosecutor also stated:

“Now, the defendant in this case says, well, it must have been—first he testified that he didn’t know the knife was there.  He says that the victim planted the knife.  And why is that a ludicrous, unsupported statement by the evidence?  Consider what I—first of all, first of all, one of the things I am to do is to anticipate how I believe defense counsel will argue.  And this is what I anticipate.”

 

The defense generally objected and was overruled.  The prosecutor continued:  “One of the things I anticipate defense counsel will argue is why would the defendant just leave the knife sitting out there and then answer the door.”  The prosecutor then went on to rebut the hypothetical defense argument. 

Then, during rebuttal closing argument, the prosecutor stated:

[T]he defendant had an opportunity to listen to all the evidence before he testified.  And I believe he testified first he thought he should blame the police; then he decided that wasn’t so successful, so he decided to blame [the victim] for this incident....it is a strategic defense, but it does not reflect reality in this case.

 

Appellant did not request surrebuttal.  The jury convicted appellant of second-degree assault.

During the second phase of the trial, appellant’s brother, the victim, the roommate, two responding police officers, the appellant, and a clinical psychologist who evaluated appellant testified.  The clinical psychologist testified that he diagnosed appellant with delusional disorder and seizure disorder.  At the conclusion of the culpability phase, the jury found that appellant was criminally responsible for the crime of second-degree assault.

            The district court sentenced appellant to 21 months imprisonment but stayed the sentence based on appellant’s lack of substantial capacity for judgment due to a mental impairment.  Appellant later requested that his sentence be executed, and the district court granted that request.  This appeal follows.

D E C I S I O N

I.

On appeal, appellant raises two issues.  First, appellant argues that the district court erred when it dismissed the prospective jury panel.  To support his argument, appellant contends that the district court violated his constitutional right against double jeopardy.  No person may be put twice in jeopardy for the same offense, U.S. Const. amend. V; Minn. Const. art. I, § 7.  But jeopardy does not attach until after the jury has been selected through voir dire and sworn in as the jury for the case.  State v. McDonald, 298 Minn. 449, 452, 215 N.W.2d 607, 609 (1974).

            Here, the district court dismissed the jury panel before the jury was selected and sworn in as the jury for the case, and therefore, jeopardy did not attach.  See McDonald, 298 Minn. at 452, 215 N.W.2d at 609.  But appellant argues that Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S. Ct. 2083, 2087 (1982), supports his position.  See Kennedy, 456 U.S. at 671-72, 102 S. Ct. at 2087 (stating the Double Jeopardy Clause affords a criminal defendant “a valued right to have his trial completed by a particular tribunal”).  In Kennedy, the Court held that where a defendant moved for a mistrial in response to prosecutorial “goading,” the defendant may raise the bar of double jeopardy to a second trial.  Kennedy, 456 U.S. at 676, 102 S. Ct. at 2089-90.  Kennedy clearly applies only after jeopardy has attached; that is, after a jury panel has been selected and sworn.  See, e.g., United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547 (1971);  McDonald, 298 Minn. at 452, 215 N.W.2d at 609.  Therefore, appellant cannot rely on Kennedy to support his argument.  And it is well settled that a party has no right to a particular panel.  State v. Hurst, 153 Minn. 525, 532-34, 193 N.W. 680, 683 (1922) (“No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause until he has been accepted and sworn.”). 

            Alternatively, appellant argues that the district court abused its discretion when it dismissed the first jury panel.  The decision whether to dismiss a panel of prospective jurors lies within the sound discretion of the district court.  State v. Lundgren, 124 Minn. 162, 165, 144 N.W. 752, 753 (1913).  Here, the district court was in the best position to determine whether the prospective jurors could be impartial because it had the opportunity to observe the demeanor of the jury panel members.  See State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990) (stating that the district court was in the best position to evaluate the impartiality of a juror).  The district court dismissed the jury because “it’s to the benefit of [appellant] that a new panel be called just because of the fact that this panel is aware that [the offense] is a felony.”  And appellant provided no less drastic alternative at the time he objected to the district court’s reading of the charge to the jury.  On this record, we find no abuse of discretion.

II.

            Second, appellant contends the prosecutor committed misconduct during closing argument when she labeled appellant’s defense as “ludicrous.”  Claims of prosecutorial misconduct are reviewed in light of the whole record and will result in reversal only if the misconduct appears to be inexcusable and so serious and prejudicial that a defendant’s right to a fair trial is denied.  State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996).  “If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal, but if the error is sufficient, this court may review.”  Powers, 654 N.W.2d 667, 678 (Minn. 2003)(citing State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999)). 

A.         Prosecutor’s comments that defense theory was “ludicrous”

            Appellant concedes in his brief that defense counsel did not specifically object during closing argument to the prosecutor’s comments that the defense theory was “ludicrous” but urges us to review the prosecutor’s comments.  Minnesota appellate courts have cautioned prosecutors about belittling defense arguments in the abstract and have reversed for unobjected-to misconduct.  State v. Salitros, 499 N.W.2d 815, 818-820 (Minn. 1993) (reversing in the exercise of the supreme court’s supervisory power over the trial courts and in the interests of justice because of prosecutor’s argument that the defendant should be held accountable for his actions and that constitutional guarantees are designed to protect the innocent, not shield the guilty).  But a prosecutor is free to specifically argue that a particular defense lacks merit in light of the evidence or to reasonably anticipate defense counsel’s closing argument.  Id. at 818.  And counsel have the right to present to the jury all legitimate arguments on the evidence, to analyze and explain the evidence, and to present all proper inferences to be drawn therefrom.  State v. Wahlberg, 296 N.W.2d 408, 419 (Minn. 1980).  A reviewing court must look at the prosecutor’s closing argument as a whole, and must reject efforts to take certain phrases or remarks out of context and accord them undue prominence.  State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

            Here, the prosecutor’s comments are not misconduct because, taken in context, the prosecutor was not belittling the defense in the abstract.  And the prosecutor’s comments on the defense theory were made in reasonable anticipation of the defense arguments.  When taken in context of the entire closing argument, the prosecutor tied criticism of the defense theory to the evidence as required under Salitros and Wahlberg.  Because all of the prosecutor’s comments were appropriately tied to the facts or were made in reasonable anticipation of defense arguments as required by Salitros, there was no misconduct and no reversible error.

B.         Prosecutor comments that appellant heard all testimony before he testified

Appellant also argues that the prosecutor impermissibly commented that appellant had the opportunity to listen to all the evidence before he testified.  The supreme court has cautioned prosecutors against dwelling on the defendant’s presence during trial.  State v. Buggs, 581 N.W.2d 329, 341 (Minn. 1998).  There, the court stated:

[G]iven the constitutional implications that such commentary raises, we caution prosecutors that extensive dwelling on a defendant's presence during the trial may result in reversible error in future cases, especially where there are no facts in evidence to support an inference of fabrication, or there is no opportunity to rehabilitate the defendant.

 

Id. 

            However, the United States Supreme Court has allowed comment on the defendant’s presence during trial where the prosecutor intimates that the defendant had an opportunity to tailor his or her testimony.  Portuondo v. Agard, 529 U.S. 61, 73, 120 S. Ct. 1119, 1127 (2000).  In Portuondo, the Court held that it was permissible to question the defendant’s credibility during closing arguments because the defendant acted as a witness and thus the Fifth Amendment was not implicated.  Id.at 69, 120 S. Ct. at 1125.

            Here, the prosecutor commented that appellant’s presence during trial gave him an opportunity to tailor his testimony, then explained that appellant’s testimony was a “strategic defense” that did not reflect “reality.”  But the prosecutor’s argument that appellant’s testimony was fabricated was supported by the victim’s testimony about the offense and other evidence presented at trial.  Under Portuondo, the prosecutor’s comments could be construed as a permissible attack on appellant’s credibility.  And the prosecutor’s recitation of appellant’s testimony, although argumentative, was based in fact.  The prosecutor’s closing arguments consisted of nearly 15 pages of transcript and the comment in question amounted to one sentence.  See Powers, 654 N.W.2d at 679 (holding that when viewed in context of the closing argument taken as a whole the disparaging statement does not amount to misconduct where it consists of two sentences in a 20-page transcript of closing argument). 

But even if the prosecutor’s statement was misconduct, it likely did not play a substantial role in convincing the jury to convict.  See Powers, 654 N.W.2d at 678.  Based on the victim’s testimony and pictures of the victim’s wound and torn clothing submitted as exhibits, the jury had sufficient evidence to convict the appellant of second-degree assault.

III.

            In appellant’s pro se brief, appellant asserts that the victim and another roommate fabricated allegations so that appellant would be arrested for a crime, challenging the credibility of the victim and the roommate who both testified at trial.  “[C]redibility is not an issue for this court to consider on appeal.”  State v. Garrett, 479 N.W.2d 745, 747 (Minn. App. 1992), rev. denied (Minn. Mar. 19, 1992).  It is the exclusive function of the fact-finder to weigh the credibility of witnesses and choose between conflicting testimony.  State v. Heinzer, 347 N.W.2d 535, 538 (Minn. App. 1984), rev. denied  (Minn. July 26, 1984) (quotation omitted). 

Appellant also alleges certain claims, including crimes not relevant to this appeal.  We have carefully considered appellant’s claims, but we find no support for them in the record before us, therefore we conclude they have no merit.

Affirmed.