A04-2143

State of Minnesota,

Respondent,

vs.

Melinda Jean Pudlick,

Appellant.

Filed November 1, 2005

Affirmed

Hudson, Judge

Aitkin County District Court

File No. K4-03-797

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101; and

Thomas Murtha, Aitkin County Attorney, Aitkin County Courthouse, 217 Second Street Northwest, Aitkin, Minnesota 56431 (for respondent)

John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

Melinda Pudlick appeals from convictions of terroristic threats and fifth-degree assault, arguing that the prosecutor committed prejudicial misconduct by failing to prepare its police witness, who volunteered evidence that had been ruled inadmissible. Appellant also argues that the prosecutor committed misconduct in rebuttal argument by discussing landlord-tenant law, on which the jury was not instructed, in a case in which appellant claimed she was trying to remove an unwanted guest from her apartment. Because we conclude that any misconduct in failing to properly prepare the police witness did not play a substantial part in influencing the jury to convict appellant, and any improper statements made during closing argument did not constitute plain error affecting her substantial rights, we affirm.

FACTS

A jury found appellant Melinda Pudlick guilty of terroristic threats and fifth-degree assault for her actions in attempting to remove her brother, Joseph Chouinard, from an apartment that she leased. Chouinard, Pudlick, and another person shared an apartment in McGregor, Minnesota. Chouinard paid Pudlick $150 per month rent.

The Aitkin County Sheriff’s Department responded to appellant’s late-evening call requesting that Chouinard be removed from the apartment. Appellant had also called police earlier that evening with the same request, based on her belief that Chouinard would return to the apartment and take appellant’s possessions. Earlier that afternoon, Chouinard had learned that appellant intended to ask him to move out and request his rent money back. The deputies explained that they could not remove him from the apartment if he was paying rent.

Two sheriff’s deputies, Dan Guida and Heidi Lenk, responded to appellant’s second call around midnight. Lenk testified that when Chouinard met them at the downstairs apartment door, she saw blood dripping from his nose and mouth and marks on his neck. Chouinard and Guida then went upstairs, followed shortly by Lenk. Lenk saw appellant in the apartment bathroom; appellant did not appear to be injured but was behaving erratically, acting normally and then suddenly screaming and swearing. When Lenk left her to interview the other person in the apartment, appellant came out of the bathroom yelling and swinging her arms in the air. The other witness later testified that he heard appellant threaten to “kill” Chouinard. Lenk handcuffed appellant for her safety and then arrested her.

The state charged appellant with terroristic threats under Minn. Stat. § 609.713, subd. 1 (2002), and misdemeanor domestic assault under Minn. Stat. § 609.2242, subd. 1(2) (2002). The district court granted appellant’s pretrial motion in limine to exclude opinion testimony from police officers, as well as hearsay statements from Deputy Guida, who was unavailable to testify. The court also instructed the state to prepare its witnesses to avoid “blurting out” or making prejudicial comments. At trial, in response to a question on cross-examination about the length of time between when appellant was handcuffed and when she was arrested, Deputy Lenk testified, “Long enough for Deputy Guida to tell me there was enough for a fifth degree assault.” The district court declined to give a curative instruction. During rebuttal in closing argument, the prosecutor referred to Minnesota landlord-tenant law as requiring 30 days’ notice before eviction; the defense did not object. The jury convicted appellant of both counts; the district court imposed the presumptive guidelines sentence of one year and one day, with a five-year stay of imposition. Pudlick appeals the convictions.

D E C I S I O N

Appellant argues that the prosecutor committed misconduct by improperly failing to instruct Deputy Lenk on the limits of acceptable testimony before trial. The district court’s pretrial order prohibited the introduction of “any testimonial evidence on the part of . . . Deputy Guida” and directed against presenting opinion testimony from police officers on credibility or reliability without the court’s permission. The district court asked both attorneys to prepare their witnesses to avoid prejudicial comments.

A prosecutor has a duty to prepare a witness before trial to avoid eliciting improper testimony. State v. Ray, 659 N.W.2d 736, 745 (Minn. 2003). Appellant challenges Deputy Lenk’s testimony that it took “long enough for Deputy Guida to tell me there was enough for a fifth degree assault” for her to arrest appellant, as hearsay and improper opinion testimony. Hearsay is defined as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). Although Deputy Lenk’s statement may have had an admissible purpose (showing the timeline of the arrest), we agree that it was inadmissible hearsay to show that probable cause existed for appellant’s arrest. See State v. Johnson, 616 N.W.2d 720, 729 (Minn. 2000) (concluding that a statement made in closing argument for the admissible purpose of rehabilitating a witness was inadmissible hearsay for purposes of showing that the declarant actually made the statement or was truthful). When evidence admissible for one purpose but not another is admitted, the court on request must instruct the jury that the evidence be limited to its proper purpose. Id. (citing Minn. R. Evid. 105). Thus, the introduction of this statement without a curative instruction violated the district court’s order prohibiting testimonial evidence from Deputy Guida. And because the district court instructed the prosecutor to prepare the state’s witnesses to avoid prejudicial comments, failure to do so constitutes misconduct.

When considering claims of prosecutorial misconduct, this court will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). There are two standards for prosecutorial misconduct: serious misconduct will be found “harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error,” while for less-serious misconduct, the standard is “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. (citing State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000)).

Because the statement was nonresponsive and made during cross-examination, we consider it under the less-serious Powers standard. Under that standard, we conclude that its introduction was not so prejudicial as to require a new trial. The district court, who observed the testimony, declined to offer a curative instruction because it considered the statement inadvertent. See State v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974) (stating that a reviewing court is more likely to find prejudicial misconduct when the state intentionally elicits impermissible testimony). Furthermore, neither party referred again to the testimony, minimizing its prejudicial value.

Moreover, the record contained overwhelming evidence of appellant’s guilt. See State v. McNeil, 658 N.W.2d 228, 232–33 (Minn. App. 2003) (holding that a witness’s nonresponsive answer to a cross-examination that mentioned the defendant’s drug addiction, in violation of the district court’s ruling suppressing evidence of the defendant’s drug use, did not substantially affect the jury’s decision to convict, when evidence of guilt was overwhelming). The state introduced three photographs of Chouinard taken after the incident, which showed bruises and lacerations around his head and neck area. This evidence was corroborated by Deputy Lenk’s personal observation of Chouinard’s injuries. And although appellant’s counsel presented the theory of self-defense at closing argument, appellant called no witnesses and thus did not rebut Chouinard’s testimony, as well as the other witness’s testimony that appellant threatened to “kill” Chouinard, but Chouinard did not threaten her. Thus, it is unlikely that the statement substantially affected the jury’s decision to convict appellant.

Pudlick argues that the prosecutor committed misconduct by referring to Minnesota landlord-tenant law in closing argument. Pudlick did not object to any statements in the closing argument at trial and did not request a cautionary instruction on the remarks. Generally, a defendant who fails to object to the prosecutor’s closing argument or to seek a cautionary instruction waives the right to have the issue considered on appeal. State v. Parker,353 N.W.2d 122, 127 (Minn. 1984). The defendant’s failure to object implies that the remarks were not prejudicial. State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997). Therefore, this court reviews unchallenged prosecutorial conduct for plain error, determining whether the misconduct was “so prejudicial to the defendant’s right to a fair trial, that the defendant’s failure to object . . . should not forfeit his right to a remedy.” Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).

This court considers a closing argument as a whole to assess claims of prosecutorial misconduct arising from that argument. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). Appellant claims that the prosecutor’s closing-argument remarks that recited the 30-day notice requirement of Minnesota landlord-tenant law impermissibly introduced new evidence that may have influenced the jury to disbelieve the defendant’s theory of self-defense. See State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990)(stating that a proper closing argument focuses on evidence and reasonable inferences drawn from that evidence). But the remarks were made in rebuttal to the defense’s comment in closing argument that the police did not check the lease to see who was entitled to use the apartment. In addition, the district court minimized any prejudicial effect from the prosecutor’s remarks by instructing the jury that the attorneys’ arguments did not constitute evidence. Any error was slight, and there is no indication that the jury’s verdict was attributable to these remarks. Thus, we conclude that the prosecutor’s comments did not deprive appellant of her right to a fair trial, and we affirm.

Affirmed.