This opinion will be unpublished and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

A05-337

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jermaine Turner,

Appellant.

 

 

Filed February 14, 2006

Affirmed

Huspeni, Judge*

 

 

Clay County District Court

File No. K9-04-1318

 

 

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

 

Lisa Nelson Borgen, Clay County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56560 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle Rene Winn, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 

 

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Challenging his convictions of first-degree burglary, third-degree criminal damage to property, and gross-misdemeanor domestic assault, appellant Jermaine Turner argues that the district court abused its discretion by denying his motion for a continuance and by making various adverse evidentiary rulings; that prosecutorial misconduct on cross-examination and at closing argument denied him a fair trial; and that the district court committed plain error in instructing the jury.  Because we see no error in the district court’s refusal to grant a continuance, in its evidentiary rulings, or in its jury instructions, nor prosecutorial misconduct in cross-examination or closing argument, we affirm. 

FACTS

            As a result of an incident occurring on June 8, 2004, appellant was charged with one count of first-degree burglary with assault, in violation of Minn. Stat. § 609.582, subd. 1(c) (2002); one count of third-degree criminal damage to property, in violation of Minn. Stat. § 609.595, subd. 2(a) (2002); and one count of gross-misdemeanor domestic assault, in violation of Minn. Stat. § 609.2242, subd. 2 (2002).  On August 30, a public defender was appointed to represent appellant.  At a September 27 hearing, appellant pleaded not guilty, waived an omnibus hearing, and requested that a jury trial be set; the court set a trial for October 12.  At an October 11 pretrial hearing, defense counsel moved for a continuance, arguing that he was unprepared for trial and that appellant intended to hire private counsel.  The district court denied the motion.  The next day—the first day of trial—defense counsel again moved for a continuance, arguing lack of preparation.  The court again denied the motion in light of the imminence of trial and the amount of time that had passed since the trial date was set.

            At trial, the complaining witness, A.W., testified that on June 8, 2004, she called the police from her apartment after receiving three threatening phone calls from appellant, whom she knew from their prior relationship to be physically abusive.  A.W. testified that before the police arrived, appellant knocked at her front door and said he wanted to enter her apartment to retrieve some belongings; when she refused, appellant forced the door, entered, and dragged her by the hair into the living room, where he punched her repeatedly in the arms and face in the presence of her sons, ages three and four.  A.W. also testified that appellant frequently accused her of being a “baby killer” because in July 2003, she experienced a miscarriage in a pregnancy resulting from her relationship with appellant.

            The Moorhead police officer who responded to A.W.’s call testified that A.W. told her that appellant had broken down the apartment door and hit her in the face.  The officer testified that she observed and photographed red marks around A.W.’s nose that the officer believed were both recent and consistent with A.W.’s account of the assault.  The officer also testified that when she arrived at the apartment, she spoke with appellant—who had left the scene—on a cell phone that belonged to A.W.’s neighbor and that when she asked appellant what had happened, appellant stated that he had broken the door and was willing to pay to replace it.  The officer testified that when she then asked appellant about A.W., he began “yelling and screaming” and told her that A.W. had killed his baby.  A.W. subsequently explained to the police that appellant blamed her for the 2003 miscarriage and that appellant brought up the miscarriage whenever he became angry with A.W.

            Over appellant’s objection, a criminal-justice advocate for the Rape and Abuse Crisis Center testified that on September 27, as she was seated in the courtroom watching appellant’s pretrial hearing, appellant looked at A.W. several times and said the words “baby killer”; the observer also testified that as appellant was leaving the courtroom that day, he turned toward A.W. and again said “baby killer.”  The district court excluded as irrelevant testimony subsequently offered by appellant to show that the “baby killer” statements referred not to A.W., but to one Rashod, whom appellant maintains caused A.W.’s 2003 miscarriage by punching A.W. in the stomach. 

            Appellant testified that on June 8, 2004, he called A.W. to tell her he intended to come to her apartment to retrieve some belongings, but denied threatening her, and that when A.W. refused to let him enter the apartment, he kicked the door in, took his belongings, and left without threatening or physically harming A.W.  Appellant testified that, in his opinion, the photographs of A.W. taken on June 8 show no recent injury.  On cross-examination, and without objection from appellant, the prosecutor asked appellant approximately 20 times whether various of the state’s witnesses were lying to the extent that their testimony about appellant’s relationship with A.W. and about the events of June 8 contradicted appellant’s.  Appellant responded that those witnesses were either lying or simply incorrect in their testimony. 

            During closing argument, the prosecutor stated that appellant had told police that he wanted A.W. charged with killing his child; that on June 8, appellant dragged A.W. into the living room by the neck in front of her children “and then start[ed] to swing at them”; and that appellant once stopped a car A.W. was driving and forced her to get out and go with him.  The prosecutor also made several statements concerning the credibility of various witnesses and stated that appellant was a “controlling” man who “cultivat[ed] his girlfriends to do what he wants [them] to do” and who considered his assault of A.W. as akin to “disciplining a dog or something like that, something he owned.”  Appellant did not object to any aspect of the state’s closing argument.

            The district court instructed the jury that it was “not to consider any possible penalty that may be imposed as a result of the verdict except as that may affect the credibility of a witness.  The court alone decides what is an appropriate sentence if the defendant is found guilty.”  The jury found appellant guilty as charged.  This appeal follows.

D E C I S I O N

I.

Appellant argues that he is entitled to a new trial because the district court unjustly denied his motions for a continuance.  We review a district court’s ruling on a defendant’s request for a continuance for an abuse of discretion.  State v. Courtney, 696 N.W.2d 73, 81 (Minn. 2005).  A defendant must show that he was prejudiced to justify reversal.  Id.  A defendant’s request for a continuance to obtain substitute counsel “will be granted only if exceptional circumstances exist and the demand is timely and reasonably made.”  State v. Vance, 254 N.W.2d 353, 358 (Minn. 1977). 

            Appellant’s counsel first requested a continuance nearly six weeks after his appointment.  He argued that he was unprepared to try the case and that appellant had stated that he intended to hire private counsel because his court-appointed attorney was too busy with other cases to effectively represent him.  Appellant’s counsel again requested a continuance on the day trial began and again asserted insufficient preparation.  Appellant offered no proof that he had retained, or attempted to retain, private counsel as of the day trial began.  Nor does he specify on appeal how he was prejudiced by the denial of a continuance or how granting the continuance would have changed the outcome; he simply asserts that his counsel did not have time to adequately represent him.  The record does not support these assertions.  Indeed, pretrial filings and transcripts demonstrate that appellant was ably and effectively represented. 

On the facts of this case, no continuance was warranted.  See id. at 359 (holding that no continuance is warranted where a defendant seeks to dismiss a competent court-appointed attorney “a few days” before the scheduled trial solely because of a concern that the attorney will “not be able to devote sufficient time and effort to defendant’s case” and without having made any demonstrable effort to secure private counsel).  We also reject appellant’s unsupported assertion that he was entitled to a continuance absent proof that he sought the continuance for the purpose of delaying the proceedings.  The district court did not abuse its discretion by denying the continuance motions. 

II.

Appellant argues that the district court improperly allowed a criminal-justice advocate for the Rape and Abuse Crisis Center to testify that she heard appellant call A.W. a “baby killer” several times at the September 27 pretrial hearing and improperly prevented appellant from presenting further testimony concerning those statements.  We review the district court’s evidentiary rulings for a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  A defendant who claims the district court erred in admitting evidence bears the burden of showing the error and any resulting prejudice.  State v. Steinbuch, 514 N.W.2d 793, 799 (Minn. 1994).

            Appellant maintains that the criminal-justice advocate’s testimony was inadmissible Spreigl evidence; that is, evidence of appellant’s other crimes, wrongs, or acts.  See State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998).  Spreigl evidence is not admissible to show actions in conformity with those offenses, but it is admissible to show, among other things, motive.  Minn. R. Evid. 404(b); State v. Robinson, 604 N.W.2d 355, 363 (Minn. 2000).  The district court admitted the disputed testimony as relevant to show that appellant’s motive for entering A.W.’s apartment was to physically harm A.W. and not, as appellant maintained throughout trial, simply to retrieve his belongings.  Appellant has not specified how he was prejudiced by the admission.  We conclude that the district court did not abuse its discretion by ruling the evidence admissible.   

            Appellant also argues that the district court denied him his due-process right to present evidence in his own defense when it excluded as irrelevant his testimony that the term “baby killer” referred not to A.W., but to Rashod, a former boyfriend of A.W., and that A.W. had told him that Rashod caused the 2003 miscarriage.  “Although a defendant has a right to present relevant evidence in his own defense, he has to comply with basic rules of foundation to establish the relevance and admissibility of the evidence, at least when opposing counsel objects[,]” as was the case here.  State v. Svoboda, 331 N.W.2d 772, 775 (Minn. 1983). 

Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  Appellant’s testimony that Rashod caused A.W.’s miscarriage does not tend to make any fact consequential to determining whether appellant committed any of the charged offenses more or less probable.  Nor does appellant explain how he was prejudiced by the exclusion.  Minn. R. Evid. 403.  The district court did not abuse its discretion when it excluded the testimony.

III.

Appellant argues that the prosecutor committed misconduct in cross-examining him and during closing argument.  At trial, defense counsel did not object to, or seek cautionary jury instructions concerning, any of the statements that he now challenges.  “Generally, if a defendant fails to object at trial to a particular error, [he] is deemed to have forfeited his right to have the alleged error reviewed on appeal.”  State v. Quick, 659 N.W.2d 701, 717 (Minn. 2003).  Notwithstanding the failure to object, we have the discretion to consider plain error affecting substantial rights “if the fairness, integrity, or public reputation of the judicial proceeding is seriously affected” by the error.  Id.    

Here, even were appellant not deemed to have waived his objections, he has not shown that the alleged prosecutorial misconduct either affected his substantial rights or seriously affected the integrity of the proceeding.  He first contends that the prosecutor asked him a series of impermissible “were they lying” questions concerning various state witnesses.  In support, he cites to State v. Pilot, which held that such questions are generally inappropriate.  595 N.W.2d 511, 518 (Minn. 1999).  But Pilot also observed that “[s]ituations may arise where ‘were they lying’ questions may have probative value . . . in evaluating the credibility of a witness claiming that everyone but the witness lied or [where] the witness flatly denies the occurrence of events.”  Id. (quotation omitted).  Here, appellant flatly denied that he struck A.W. when he went to her apartment on June 8.  The questions were therefore appropriate.

Appellant next argues that the prosecutor committed misconduct during closing argument by arguing facts not in the record.  We agree that the record lacks support for the prosecutor’s statements that appellant requested that A.W. be charged in the death of his unborn child, that appellant dragged A.W. by the neck on the day of the assault (the record shows that he dragged her by the hair), or that appellant attempted to strike A.W.’s children.  These were isolated misstatements in a lengthy closing argument, however, and appellant fails to articulate how they constituted prejudicial misconduct that denied him a fair trial on the offenses with which he was charged and convicted.  Further, the prosecutor himself admonished the jurors that what attorneys say is not evidence and cautioned about misstatements of fact that may be made by the attorneys.  A fourth challenged statement, referring to appellant forcing A.W. to exit a car, refers to an event described in A.W.’s neighbor’s testimony and is supported by the record.   

Having reviewed the state’s closing argument as a whole, as we must, we further find no merit in appellant’s claims that the prosecutor disparaged defense witnesses and inflamed the jury.  See State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (stating that the reviewing court must consider the challenged closing argument “as a whole rather than focus on particular phrases or remarks” (quotation omitted)).  The prosecutor 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 therefrom.”  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  The prosecutor’s comments about appellant’s disregard for A.W. could reasonably be inferred from the evidence that appellant was violent and controlling in his relationships with women.  These unobjected-to statements do not constitute prejudicial plain error.

Finally, citing to State v. Harris, appellant argues that the prosecutor’s comments during closing argument, even if not prejudicial when considered individually, cumulatively deprived him of a fair trial.  521 N.W.2d 348 (Minn. 1994).  We disagree and find Harris factually distinct from the case before us.  In Harris, the supreme court held that the defendant was prejudiced by the prosecutor’s persistence in consistently asking “[q]uestions . . . calculated to elicit or insinuate inadmissible and highly prejudicial character evidence” after being repeatedly admonished by the court not to do so.  Id. at 354.  The record here indicates no similar attempts to introduce improper evidence over the court’s admonishments; instead, the record demonstrates that the statements to which appellant now objects are isolated remarks in a lengthy closing argument.

IV.

Appellant argues that the district court committed plain error by instructing the jury that it could not consider the penalty that might be imposed as a result of the verdict.  “It has long been the rule in Minnesota that sentencing is not a proper consideration for the jury.”  State v. Chambers, 589 N.W.2d 466, 474 (Minn. 1999).  Because appellant did not object to this instruction at trial, it is reviewed for plain error.  See State v. Griller, 583 N.W.2d 736, 740-41 (Minn. 1998).   

            The district court instructed the jury “not to consider any possible penalty that may be imposed as a result of the verdict except as that may affect the credibility of a witness.  The court alone decides what is an appropriate sentence if the defendant is found guilty.”  Appellant contends that this instruction “arguably misled the jury” by “focusing their attention on the possible penalty.”  This contention is contradicted by the plain language of the instruction, which permits the jury to consider any penalty only when determining witness credibility.  Appellant does not dispute that the court may instruct the jury to consider a witness’s interest in the outcome in assessing credibility, but maintains that because he was the only witness actually facing the penalty resulting from the verdict, the instruction subjected his testimony “to a higher standard of scrutiny.”  We disagree.  

The disputed instruction in no way encourages the jury to consider the consequences of its verdict, as appellant alleges, or otherwise misleads the jury as to its proper function.  The district court did not plainly err by giving the instruction.

            Affirmed.