A04-2258

State of Minnesota,

Respondent

vs.

Michael John Enright,

Appellant.

Filed December 20, 2005

Affirmed

Randall, Judge

Mille Lacs County District Court

File No. K9-04-141

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

Janice S. Kolb, Mille Lacs County Attorney, Sam D. Young, Assistant Mille Lacs County Attorney, 525 Second Street Southeast, Courthouse Square, Milaca, MN 56353 (for respondent)

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

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

RANDALL, Judge

In this appeal from conviction for gross misdemeanor assault, appellant argues that the prosecutor committed prejudicial misconduct in closing argument by misstating the testimony of a defense witness to indicate that she had a possible bias against police and by improperly vouching for the credibility of the prosecution witnesses, in part by lauding the professionalism of the police officers. We conclude the claimed errors did not likely play a substantial role in the jury’s decision to convict. We affirm.

FACTS

A jury convicted appellant Michael Enright of fourth-degree assault of a police officer, obstructing legal process, third-degree chemical-test refusal, and fourth-degree driving under the influence of alcohol. The evidence established that Mille Lacs County tribal police were called to investigate after a gray Toyota driven by appellant pulled out immediately in front of another car on Highway 169 in Mille Lacs County. The driver of that car observed appellant’s car pull into a gas station and saw appellant throw away a glass bottle, which he observed to be a liquor bottle, wrapped in a plastic bag. The driver noted the car’s license and reported the incident to police.

Two police officers spotted the Toyota, identified by its license, in the Grand Casino parking lot. The junior officer, Jeremiah Erickson, activated the squad lights and initiated a traffic stop. Erickson testified that when appellant rolled down his window, he noticed a strong odor of alcohol. He asked appellant for his driver’s license and told him the reason for the stop. Both officers noticed that appellant appeared agitated and hostile. The senior officer, Jason Rice, shined a flashlight into the car and saw two green wine bottles in the back seat.

Because Erickson was having trouble dealing with appellant, Rice took over the questioning. He asked appellant to perform a walk-and-turn field sobriety test, which he failed. Rice then indicated appellant needed to perform two more tests or he would be under arrest for DWI.

Rice testified that when appellant refused further testing and began to leave, he advised appellant of his arrest and reached for his hands as he walked away. Rice testified that appellant grabbed at his arm and locked into him with a bear-hug grip; that the men engaged in a fight, with Rice ending up on top of appellant; that appellant punched him in the face; and that he hit appellant back. Rice then reached for his taser and stunned appellant four times in the neck. He testified that after appellant stated he was going to leave, Rice tasered him again, but that did not slow appellant down. Erickson then sprayed appellant with pepper spray, and appellant went into his car and sat down. When appellant refused to step out of his car, Rice used his baton to break the car window. Appellant eventually came out and agreed to the arrest. The officers transported him to the Mille Lacs County jail, where the officers read the implied-consent form to him on audiotape. The tape contained no verbal response from appellant. Erickson testified that appellant stated, “If you didn’t have a taser, mace or a badge, I would have kicked your a— in a fair fight.”

At trial, Erickson corroborated Rice’s testimony on the fight and the arrest. The only defense witness, Bonita Neeland, testified that as she was walking through the parking lot of the casino, she saw appellant on the ground, with one officer hitting and the other kicking him. She testified that appellant was trying to get up, reaching out with one arm and grabbing the legs of the officer who had been kicking him. She observed the officer stun appellant with the taser four times on each side of the head, and testified that appellant stated, “Why are you doing this to me?” She did not see appellant try to kick or punch the officers. She stated that at first she thought appellant might have been her son, because he looked like him, and stated that her son had had contact with “the highway cops.”

At closing argument, the prosecutor made four references to Neeland’s possible lack of credibility based on her feelings towards law enforcement. In one reference, the prosecutor stated to the jury that after Neeland testified she suspected at first that the man was her son and that her son had been in trouble with tribal police, if her demeanor told the jury that she did not care for law enforcement, it could weigh against her credibility determination. The prosecutor also stated that the witness who initially reported appellant’s erratic driving was “clear and concise” and referred to the officers as “professional” or “professionals” five times.

The jury convicted appellant of all four charges. On defendant’s motion for acquittal of felony assault, the district court acknowledged that the jury instruction had contained only the elements for gross-misdemeanor assault and reduced the conviction to gross-misdemeanor assault. Appellant challenges the remaining convictions.

D E C I S I O N

When considering claims of prosecutorial misconduct, this court will reverse “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). This court generally reviews a district court’s decision on the propriety of a prosecutor’s closing argument for an abuse of discretion. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). “When assessing prosecutorial misconduct, the closing argument will be considered as a whole.” Powers, 654 N.W.2d at 678 (citation omitted).

Appellant argues that in closing argument, the prosecutor committed misconduct by misstating the record on Neeland’s prior involvement with and feelings toward police officers. In closing arguments, counsel “has 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” from the evidence. State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996). But the prosecutor may not intentionally misstate the evidence or mislead the jury as to inferences it may draw. State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).

The prosecutor in closing argument made four references to Neeland’s possible lack of credibility based on her feelings toward police. First, the prosecutor stated:

[I]f to you on the stand she appeared to be not exactly a fan of law enforcement, when she said—well, first I thought that they were beating my son, it just looked like him.

That tips you off that maybe she has some kind of a grudge against law enforcement, that is your call to make but---

Defense counsel then objected to this argument as presenting facts not in evidence, and the court overruled the objection. The prosecutor continued:

As I was saying, you hear what she said. I didn’t write it down word for word, but when she said that she suspected it was her son at first and then told you that her son had been in trouble with tribal police, if the look on her face, if her demeanor told you that she doesn’t care for law enforcement that is your call to make, and that is part of your determination as to her credibility for her entire testimony.

The prosecutor made two other references to Neeland’s possible negative feelings towards law enforcement personnel.

The prosecutor did misstate the evidence on Neeland’s son’s involvement with tribal police officers, who may differ from highway police. The record reflects that when the prosecutor asked Neeland whether she or her family had had previous involvement with the officers in Milaca, she answered “no,” and when asked, “[y]our son has not had contact with the police before?”, she answered, “[w]ith the highway cops, yeah.” And the prosecutor’s statement that Neeland “may be not only be experienced with law enforcement but also stun guns and the use of stun guns” does not reflect with accuracy her testimony that she owned two stun guns but had not been stunned nor had the opportunity to stun a person.

But we conclude these misstatements, which reflect less serious misconduct, even if intentionally made, did not likely play a substantial role in the jury’s decision to convict. See Powers, 654 N.W.2d at 678 (stating standard for less serious misconduct). Justice does not require the ideal, a totally error-free trial, but does require a trial free of error prejudicial to the defendant. State v. White, 295 Minn. 217, 225, 203 N.W.2d 852, 858 (1973). On this record, including testimony from both police officers and Neeland, we cannot find any substantial prejudice to defendant, and we conclude the claimed misstatements did not carry sufficient weight to improperly influence a jury’s decision. See, e.g., State v. Yang, 627 N.W.2d 666, 679 (Minn. App. 2001) (concluding that misstatements that five witnesses identified appellant as committing crime, when testimony was that five witnesses placed appellant at crime scene, and that police department’s database linked appellant to crime, when evidence showed that witnesses used database to identify appellant, were not so prejudicial as to require new trial), review denied (Minn. July 24, 2001).

Appellant argues that because Neeland was the sole defense witness and her credibility was at issue, the prosecutor’s statements impermissibly tended to inflame or prejudice the jury. See State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995) (stating that prosecutor must avoid inflaming jury’s passions and prejudices against defendant). But the prosecutor did not use inflammatory language. Cf. id. (determining that prejudicial misconduct occurred when prosecutor, in closing argument in criminal-sexual-conduct case, referred repeatedly to defendant’s “school of sex education”). The district court properly instructed the jury that the attorneys’ arguments were not evidence and the jury was the sole judge of a witness’s credibility and the weight given to testimony. The court gave the jury a list of factors to consider in weighing the evidence, including a witness’s interest or lack of interest in the case, relationship to the parties, manner, frankness and sincerity or lack thereof, and reasonableness or unreasonableness in light of other evidence in the case. The district court thoroughly instructed the jury on its duty as a trier of fact. We find no basis for a new trial.

II.

Appellant argues that the prosecutor unfairly vouched for the state’s witnesses in closing argument. Because he failed to raise this issue at trial, we may consider it waived. See State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002) (stating that defense generally waives the right to raise an issue concerning the prosecutor’s closing argument if defendant fails to object or seek a cautionary instruction during trial). But we may reverse a conviction if we deem an error to be sufficient to do so. Id. at 124.

Even if we were to consider the issue, we would conclude that the prosecutor’s statements on the professional conduct of the police and the concise nature of the complaining witness’s observation did not constitute serious improper vouching. A prosecutor impermissibly vouches for a witness when he “implies a guarantee of a witness’s truthfulness, refers to facts outside the record, or expresses a personal opinion as to a witness’s credibility.” State v. Patterson, 577 N.W.2d 494, 497 (Minn. 1998) (quoting United States v. Beasley, 102 F.3d 1440, 1449 (8thCir. 1996) (citation omitted)). The prosecutor did not imply guarantees of the testimony of the state’s witnesses or otherwise personally endorse their credibility. See, e.g., Yang, 627 N.W.2d at 679 (stating that prosecutor’s statements on the training and observation of police officers are generally permissible to explain police training and do not constitute improper vouching).

Finally, appellant argues that the cumulative effect of the prosecutor’s errors deprived him of a fair trial. See State v. Underwood, 281 N.W.2d 337, 344 (1977) (stating that even when an error at trial, standing alone, would not be sufficient to require reversal, cumulative effect of errors may compel reversal).

On this record, the prosecutor’s minor misstatements of the evidence and the claimed improper vouching, even when taken together, do not constitute prejudicial misconduct requiring a new trial.

Affirmed.