A05-742

State of Minnesota,

Respondent,

vs.

Elijah Williams,

Respondent.

Filed May 9, 2006

Affirmed

Worke, Judge

Hennepin County District Court

File No. 04063883

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

Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414; and

Melissa Sheridan, Assistant Public Defender, 1380 Corporate Center Curve, Suite 320, Eagan, MN 55121 (for appellant)

Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.[*]

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

WORKE, Judge

On appeal from conviction of second-degree assault, appellant argues that he is entitled to a new trial because (1) the prosecution failed to preserve the photo lineup on which the victim failed to identify appellant, (2) the prosecutor committed prejudicial misconduct regarding the photo lineup and appellant’s post-arrest silence, and (3) the district court abused its discretion in failing to instruct the jury on the statutory definition of assault. We affirm.

D E C I S I O N

Motion for Mistrial

Appellant argues that the district court violated his right to a fair trial by denying his motion for a mistrial. When reviewing a denial of a motion for a mistrial, this court applies an abuse-of-discretion standard. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). “[T]he [district] court is in the best position to determine whether any harm has resulted from the particular violation and the extent to which this harm can be eliminated or otherwise alleviated.” State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). Due-process rights are implicated when the state fails to preserve material evidence. State v. Krosch, 642 N.W.2d 713, 718 (Minn. 2002). When reviewing these types of constitutional issues, this court reviews the district court’s legal conclusions de novo and its factual findings for clear error. State v. Heath, 685 N.W.2d 48, 55 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004).

Appellant and another male were arrested after a shooting on August 23, 2004, which was witnessed by two police officers. The victim of the shooting, A.S., testified at trial that as he was leaving a friend’s house, he saw two men standing outside. One of the men asked A.S. to come over but because A.S. did not know the men, he got into his car and locked the doors. The men approached the car and one of them started banging on the window with his gun saying, “[I]t’s a stick up.” After a few minutes, the second man said, “[S]ince he won’t open the door shoot his a-- then.” The man banging the gun on the window then started shooting. The first shot hit A.S. in the chest. A.S. testified that both men had braids and were wearing stocking caps over their faces. Following the shooting, A.S. was shown two photo lineups—one containing a picture of the accomplice and another containing a picture of appellant. At the time of trial, the original photo array containing appellant’s picture could not be located. Appellant moved for a mistrial based on the missing original photo lineup. The district court denied the motion, finding that A.S. had not identified appellant in the photo lineup and that defense counsel could establish through questions that A.S. “wasn’t able to identify [appellant] and maybe he identified somebody else.”

The Due-Process Clause of the Fourteenth Amendment requires the government “to deliver exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.” State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992) (quotation omitted). But the “constitutional duty to preserve evidence on behalf of criminal defendants is subject to a standard of materiality.” Id. “To meet the standard, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. Additionally, unless a criminal defendant can demonstrate bad faith on the part of the police, failure to preserve potentially exculpatory evidence does not amount to a denial of due process. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 337 (1988).

The failure to preserve the original lineup sheet does not warrant reversal for three reasons: First, the evidence did not have an exculpatory value that was apparent before the evidence was misplaced. While there was conflicting testimony regarding whether A.S. tentatively identified appellant in the photo lineup, the officer’s notes on the original sheet only showed which individual A.S. ultimately indicated as the assailant. There is no dispute that A.S. ultimately identified an individual that was not appellant. The original photo lineup would not prove whether A.S. tentatively chose appellant and another individual. Second, there was access to the information by other means—namely, the testimony of the officer and A.S. using copies of the photo lineups. Finally, there is no evidence that the failure to preserve the original lineup was intentional. At trial, the prosecutor stated:

[W]e have continued to make good-faith efforts to get this line-up involving [appellant]. I don’t know what happened to it. Occasionally it happens that evidence, for whatever reason, is misplaced or lost. I don’t know yet that that’s what has happened, but . . . we have continued to make efforts to get it and have so far been unsuccessful.

There was no further record made regarding the missing original. Appellant has also presented no evidence that the failure to preserve the original was intentional. For these reasons, the prosecution’s failure to preserve the original photo lineup did not violate appellant’s right to a fair trial. The district court did not abuse its discretion in denying appellant’s motion for a mistrial.

Prosecutorial Misconduct

A district court’s denial of a new-trial motion based on alleged prosecutorial misconduct will be reversed only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). If an argument is improper, its prejudicial effect is reviewed using a two-tier analysis that varies with the seriousness of the alleged improper argument. State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989). In cases involving serious misconduct, this court must determine beyond a reasonable doubt that the misconduct was harmless. Id. If the claim of misconduct arises out of the closing argument, this court considers “the closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.” State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). An individual who fails to object at trial generally forfeits the right to have prosecutorial misconduct considered on appeal. State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999).

Here, appellant argues that the prosecutor knew that the testimony by A.S. at trial that he had picked appellant and another individual was mistaken. Thus, the prosecutor’s line of questioning constitutes prejudicial misconduct. This argument, however, is supported solely by the fact that the officer’s testimony conflicted with that of A.S. Further, the fact that the prosecutor made a legitimate argument based on appellant’s testimony does not rise to the level of misconduct. Additionally, appellant failed to object to this line of questioning and argument at trial.

Appellant also argues that the prosecutor committed misconduct in closing argument by commenting on appellant’s failure to tell police that the accomplice had joined him on the sidewalk just prior to the officers stopping them. Post-arrest silence is ambiguous because a defendant has the right to remain silent. State v. Billups, 264 N.W.2d 137, 139 (Minn. 1978). Thus, it is fundamentally unfair for a prosecutor to comment on a defendant’s failure to tell an arresting officer the version of events to which the defendant testifies to at trial because it violates the defendant’s due-process rights. Id. Because appellant had the right to remain silent after his arrest, the prosecutor’s statement is considered serious misconduct. See State v. Combs, 292 Minn. 317, 322, 195 N.W.2d 176, 179 (1972) (stating that it is impermissible to allow the prosecution to comment on fundamental rights such as the defendant’s right to remain silent.) In order to determine whether prosecutorial misconduct during closing argument constitutes harmless error beyond a reasonable doubt, this court must consider the following factors: (1) defense counsel’s failure to object, (2) the district court’s instructions, (3) the jury’s verdict on other counts against the defendant, (4) the non-objectionable part of the closing argument, and (5) the strength of the evidence relating to the defendant’s guilt. State v. Coleman, 560 N.W.2d 717, 722 (Minn. App. 1997). A prosecutor’s misconduct is harmless beyond a reasonable doubt if the guilty verdict was surely unattributable to the misconduct. State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997).

The prosecutor’s misconduct here was harmless beyond a reasonable doubt. First, the defense did not object to the closing argument. Second, the district court gave proper instructions regarding the presumption of innocence and proof beyond a reasonable doubt. Third, the misconduct constituted a single sentence in a lengthy argument and the prosecutor did not dwell on the issue. Further, the strength of the evidence against appellant was more than sufficient to find appellant guilty: appellant and his accomplice were both wearing dark clothing as seen by the officers, both were running in the same direction the officers saw the two men run, both were apprehended within seconds after the shooting, both matched the description of the assailants, and both were sweating and had racing pulses when apprehended by the officers. Accordingly, any misconduct by the prosecutor was harmless beyond a reasonable doubt.

Jury Instructions

Appellant argues that the district court committed plain error by failing to incorporate the definition of assault into the jury instructions on the elements of first- and second-degree assault. Generally, “an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial.” State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002). However, even when a defendant does not object to the instructions, the reviewing court “could reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence.” State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980). The Minnesota Supreme Court has adopted a three-prong test for plain error to determine whether the court should review an unobjected-to error. State v. Griller,583 N.W.2d 736, 740 (Minn. 1998). Under the test, “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” Id. The defendant bears a heavy burden on the third prong. Id. at 741.

While appellant agrees that the jury instructions that were given accurately define the crimes of first- and second-degree assault, appellant argues that the failure to give the definition of assault constitutes plain error. However, appellant does not state how the failure to give the definition of assault prejudiced him. Appellant did not argue at trial that A.S. was not shot or that the shooting did not constitute assault. Rather, appellant argued that he was not at the scene of the shooting. Even if the failure to give the assault definition constituted an error that was plain, because appellant has not shown how the failure to give the definition of assault during the jury instructions was prejudicial, appellant has not met his heavy burden on the third prong of the plain-error test.

Affirmed.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.