This opinion will be unpublished and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

A05-1763

State of Minnesota,
Respondent,

vs.

Robert Nickle Carruthers,
Appellant.

Filed January 16, 2007

Affirmed

Minge, Judge

Hennepin County District Court

File No. 04077841

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

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

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Minge, 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

MINGE, Judge

Appellant challenges his conviction for second-degree assault, asserting that the district court erred in allowing an undisclosed witness to testify and abused its discretion by not declaring a mistrial because of prosecutorial misconduct and irrelevant, prejudicial testimony regarding an unrelated offense. We affirm.

FACTS

Appellant Robert Carruthers was charged with second-degree assault under Minn. Stat. § 609.222, subd. 1 (2004). The charges resulted from an early-morning encounter on November 24, 2004. Appellant and M.J. met outside “The Saloon” bar in downtown Minneapolis. Both had been drinking and were intoxicated. After a brief conversation, M.J. invited appellant to his apartment where they engaged in sexual activity. Several hours later, they fought, a knife was involved, and M.J. was stabbed. Their accounts differed regarding who initiated the struggle, who obtained the knife, whether appellant was cut, and who attacked whom. During the struggle, M.J. called 911 twice. The police arrived and arrested appellant as he was leaving the building.

The jury trial began on a Monday. On Thursday, the prosecutor disclosed that the day after the incident, Mary Carr, M.D., had visited the jail to evaluate and examine appellant’s claimed self-defense injuries. The prosecutor stated that she was unaware of this examination until appellant’s counsel asked her about it the prior evening (Wednesday). The prosecutor also stated that although the police department had a record of the examination, the department never informed her of the record, and that the prosecution wished to call Dr. Carr as a witness now that she knew of the examination. In response, appellant moved to prohibit Dr. Carr’s testimony. The district court denied the motion but granted appellant a continuance until the following Monday to consult with a medical expert regarding Dr. Carr’s proposed testimony.

During the trial, the prosecuting attorney made a number of statements and asked appellant questions about credibility. The prosecutor also criticized appellant’s testimony and his defense. Appellant objected to several, but not all, of these questions and statements. The district court sustained most of the objections. Also, M.J. testified that appellant had stolen a bottle of liquor from the bar before they went to his apartment. Appellant objected to this testimony as prejudicial because it attributed criminal conduct to him and moved for a mistrial. The district court denied appellant’s motion but barred future references to how appellant obtained the bottle.

The jury found appellant guilty of assault in the second degree. Appellant sought a new trial due to prejudicial errors during the trial. The district court rejected the request, entered judgment on the verdict, and sentenced appellant. This appeal follows.

D E C I S I O N

The first issue is whether the district court abused its discretion by allowing Dr. Carr to testify and granting appellant only a limited continuance. Whether a discovery violation occurred is a question that this court reviews de novo. State v. Palubicki, 700 N.W.2d 476, 489 (Minn. 2005). At the defense counsel’s request, a prosecutor must disclose trial witnesses, the existence of documents and tangible objects, and any exculpatory information prior to the date of the omnibus hearing. Minn. R. Crim. P. 9.01, subd. 1(1), (3), (6). If the prosecutor fails to comply with discovery rules, the district court may allow discovery, “grant a continuance, or enter such order as it deems just in the circumstances.” Minn. R. Crim. P. 9.03, subd. 8.

Here, appellant timely filed a Rule 9 demand for disclosure. Because the state did not provide information relating to Dr. Carr’s examination of appellant until after the trial started, a discovery violation resulted.

In response, the district court granted appellant a one-business-day continuance, plus the weekend, to prepare for Dr. Carr’s testimony. Because “the [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,” this court reviews the adequacy of discovery-violation sanctions for an abuse of discretion. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). Considerations relevant to our determination include: “(1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; (4) any other relevant factors.” Id. at 369. “[A] serious breach of the discovery rules requires a new trial in the interests of justice.” State v. Schwantes, 314 N.W.2d 243, 244 (Minn. 1982).

Here, the state did not willfully fail to disclose Dr. Carr’s involvement in the case. Although this does not excuse nondisclosure, it does provide an explanation. The prosecutor was unaware of Dr. Carr’s examination of appellant until appellant’s counsel asked about it after the trial started. Appellant knew Dr. Carr had examined him at the jail on the day after the incident for self-defense injuries and could have informed his attorney at an earlier date. Defense counsel also knew that two police officers, along with ambulance personnel, examined appellant for injuries at the scene. Both appellant and his attorney knew that his claim of self-defense, and of injury, would be an issue in the case. The importance of evidence supporting appellant’s claim that he was injured in the struggle was not a surprise. These factors minimize any prejudice resulting from delayed disclosure of Dr. Carr’s involvement in the case. In addition, appellant consulted with a forensic nurse during the continuance. Appellant has failed to make a showing that this expert or another was unavailable to testify at trial. In addition, appellant’s counsel impeached Dr. Carr with a learned treatise during cross-examination. We conclude the district court did not abuse its discretion by allowing Dr. Carr’s testimony and rectifying the nondisclosure by granting appellant a limited continuance.

II.

The second issue is whether this court should order a new trial due to prosecutorial misconduct. Some of the incidents of alleged misconduct were not objected to. Others were objected to, and in most cases the objections were sustained, while in other instances the objections were not sustained. The supreme court has established different standards of review for objected-to and unobjected-to misconduct. We describe each in turn.

Typically, a party’s failure to object at trial results in waiver of the issue on appeal. State v. Darris, 648 N.W.2d 232, 241 (Minn. 2002). But unobjected-to error may be reviewed if it amounts to plain error “affecting substantial rights.” Minn. R. Crim. P. 31.02. Under a three-part test, “before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). Under Griller, the defendant had the burden of persuasion to show that the error affected substantial rights. Id. at 741. But the supreme court recently concluded that “prosecutorial misconduct is the type of trial error that justifies a shift in the burden for determining whether the plain error affected the defendant’s substantial rights.” State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006). Although the three-part Griller test still applies, Ramey departs from Griller by placing the burden on the state to show lack of prejudice. Id. at 301-02. “[L]ack of prejudice” means that “the misconduct did not affect substantial rights.” Id. at 302. In other words, the state bears the burden to show that “there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury.” Id. (quotation omitted). The defendant continues to bear the burden of showing “that error occurred and that the error was plain.” Id. Error is plain when it is “clear or obvious.” Id. at 302 (quotation omitted).

Recent decisions of the supreme court have also addressed the standard applicable to objected-to misconduct. Historically, the court has affirmed such cases when they involved serious misconduct only if there is “certainty beyond a reasonable doubt that the misconduct was harmless . . . .” State v. Caron, 300 Minn. 123, 127, 218 N.W.2d 197, 200 (1974). When the conduct is less serious, the court has considered “whether the misconduct likely played a substantial part in influencing the jury to convict.” Id. at 127, 218 N.W.2d at 200. Recently the supreme court used a slightly different approach, stating that in deciding whether to grant a new trial, the reviewing court should consider whether the conduct is “harmless beyond a reasonable doubt.” State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006) (quotation omitted). An error is “harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.” Id. (quotation omitted). But the status of Swanson is unclear. Compare Ramey, 721 N.W.2d at 299 n.4 (“We leave for another day the question of whether the Caron two-tiered approach should continue to apply to cases involving objected-to prosecutorial misconduct.”) with State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006) (referring with apparent approval to the Swanson “harmless beyond a reasonable doubt” approach). Here, we apply the Swanson approach.

A. Vouching

Appellant contends that the prosecutor improperly vouched for the credibility of a witness during closing argument. Vouching occurs when the prosecutor “personally endorse[s] the credibility of [a] witness[]” or impliedly guarantees a witness’s truthfulness. State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995). But courts permit a prosecutor to argue about the credibility of witnesses. State v. Lopez-Rios, 669 N.W.2d 603, 614 (Minn. 2003). When evaluating claims of prosecutorial misconduct during closing argument, the reviewing court looks at the closing argument as a whole. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

The prosecutor made two statements during closing argument that appellant claims amount to improper vouching. First, the prosecutor said, “[M.J.] admitted to you that he was intoxicated and that he didn’t clearly remember everything. That is credibility. That is truth.” Then the prosecutor stated, “[y]ou have that [911] tape to listen to to verify what [M.J.] told you and to tell you that he is the truthful one here.” Appellant did not object to either of these statements, so this court reviews for plain error. See Ramey, 721 N.W.2d at 299; Griller, 583 N.W.2d. at 740.

These statements by the prosecutor were part of her analysis of the credibility of a witness. As such, they were a proper subject for closing argument. Lopez-Rios, 669 N.W.2d at 614. The prosecutor was simply pointing out that M.J. admitted that he was intoxicated and that the tape-recorded 911 call would confirm M.J.’s version of the events. The prosecutor was not personally endorsing credibility; she was urging the jury to analyze the witness’s credibility. Because the statements were not made in the form of a personal endorsement, they are not improper and do not constitute error. Therefore, we do not consider the second or third prongs of the plain error test.

B. Referring to Appellant as a “Liar”

Next, appellant argues that the prosecutor committed prejudicial misconduct by referring to appellant as a “liar” during the state’s opening statement and closing argument. A prosecutor “may argue that particular witnesses were or were not credible.” Lopez-Rios, 669 N.W.2d at 614.

1. Opening Statement

During an opening statement, “the prosecutor must refrain from language that might inflame the passions and prejudices of the jury.” State v. Montgomery, 707 N.W.2d 392, 399-400 (Minn. App. 2005). During the state’s opening statement, in reference to the 911 tape which the jury would later hear, the prosecutor said:

And then you will hear the defendant’s voice in the background . . . . He clearly is aware that [M.J.] is on the telephone with the police. And then he starts yelling things like, he tried to kill me, he cut me wide open. You will learn that all of that was a boldfaced lie.

The district court sustained appellant’s objection to the statement.

The district court’s curative action is usually deemed effective. A jury is presumed to disregard the evidence after the district court sustains an objection. State v. Steward, 645 N.W.2d 115, 122 (Minn. 2002). “The [district] court’s instructions to the jury are also relevant in determining whether the jury was unduly influenced by . . . improper comments.” State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994). Here, as part of the preliminary jury instructions, the district court stated: “What is said in opening statements is not evidence.” During the final charge to the jury, the district court again instructed, “the arguments or other remarks of an attorney are not evidence in the case,” and “[y]ou are [to] disregard all evidence which I have ordered stricken or have told you to disregard.” We acknowledge that jury instructions are not always sufficient to overcome prejudice. See State v. Reardon, 245 Minn. 509, 513, 73 N.W.2d 192, 195 (1955) (“The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction.” (quoting Krulewitch v. United States, 336 U.S. 440, 453, 69 S. Ct. 716, 723 (1949)). But here, we conclude that the offending statement and its context were not inflammatory, and the reaction it was likely to elicit from jurors was unlikely to be prejudicial. In this circumstance, we are unwilling to dismiss the value of the corrective action by the district court, and conclude that the statement was harmless beyond a reasonable doubt.

2. Closing Argument

To determine whether the prosecutor’s statements during closing argument were misconduct, a reviewing court looks at the “closing argument as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence.” Walsh, 495 N.W.2d at 607.

Here, during closing argument and rebuttal, the prosecutor made six references to appellant’s veracity.

[Dr. Carr’s photographs and report] totally support[] the State’s position that this man was not acting in self-defense, was not cut wide open the way he said, was not stabbed the way he told police, and was not the victim. The ultimate big lie. He wants you to believe that he is the victim here. Please do not be suckered in by his testimony that you heard here today. Carefully evaluate everything you hear.

Because appellant failed to object to this and to two similar statements, this court reviews these statements for plain error. Ramey, 721 N.W.2d at 299. “[P]lain or obvious error” is “conduct the prosecutor should know is improper.” Id. at 300. Although the three unobjected-to liar references may constitute error, we hold that they do not constitute plain error. Rather, the arguments are at least within or near the range of appropriate arguments regarding a defendant’s veracity. Because we find that appellant has not met his burden of demonstrating plain error, we find it unnecessary to evaluate the prejudicial prong of the plain-error test.

Appellant objected to the three other portrayals of appellant as a liar during the prosecutor’s closing argument and rebuttal. For example, the prosecutor said:

[Appellant] wasn’t cut open the way he wanted the police to believe when he is screaming it over and over again in his supposed fear. It was one falsehood after another right from the start. From the tape to what he said to the initial officers to what he told you today, he has been telling one falsehood after another to try to get himself out of this.

The district court sustained appellant’s objection to this and two other similar statements. We note that ordinarily the jury is presumed to disregard a statement to which an objection is sustained. Steward, 645 N.W.2d at 122. But, we also note that a prosecutor commits misconduct by persisting in conduct “that the [district] court has ruled improper . . . .” State v. Lee, 645 N.W.2d 459, 469 (Minn. 2002).

Here, the impermissible statements constitute less than one page of the prosecutor’s closing argument and rebuttal, which spans more than 30 pages. Respondent argues that they were minimal, incidental statements that the jury was instructed to disregard, and that they were not prejudicial to appellant. Given that the statements were only a small part of the prosecutor’s closing argument, we conclude that although the statements constitute error, they were harmless beyond a reasonable doubt.

C. “Were they lying?” Question

Appellant contends that the prosecutor asked an improper “were they lying” question during cross-examination. As a general rule, “were they lying” questions are inappropriate. State v. Pilot, 595 N.W.2d 511, 518 (Minn. 1999). This type of question, when asked of the defendant whose testimony conflicts with that of a witness, requires the defendant to state whether he believes that the witness was intentionally perpetrating a falsehood, and such statements constitute “improper comment” on another’s testimony. Id. at 516. “Were they lying” questions give the jury the unfair impression that in order to acquit, they must find that the witness whose testimony contradicts the defendant’s testimony is lying. Id.

While under cross-examination, appellant stated that he did not try to “get past” the police officers who were attempting to enter M.J.’s apartment building. The prosecutor responded: “And so the two officers that testified to that and put it in their reports, they are lying about that?” Appellant’s attorney did not object, so this court reviews the prosecutor’s conduct for plain error. Ramey, 721 N.W.2d at 299. First, we must determine whether the “were they lying” question constitutes error. Although generally objectionable, the Pilot court recognized that “[s]ituations may arise where ‘were they lying’ questions may have a probative value in clarifying a particular line of testimony, in evaluating the credibility of a witness claiming that everyone but the witness lied,” or when the witness plainly denies the happening of an event. 595 N.W.2d at 518.

Here, although appellant did focus on the credibility of the police officers, he did not insinuate that the officers deliberately falsified their testimony. As a result, we conclude that the “were-they-lying” question was improper. But the officers clearly thought that appellant was trying to evade them as he left M.J.’s building and their view of his conduct clearly clashed with his testimony. In this setting, the rule against using the “were they lying” question is less clear. In fact, the prosecutor arguably had some basis for asking the question. Under the circumstances, we conclude that the question does not rise to the level of plain error. Therefore, we do not need to address, under the third prong, whether the state has met its burden of proving lack of prejudice.

D. Denigrating the Defense

Appellant also claims that the prosecutor committed prejudicial misconduct by denigrating appellant’s defense. Prosecutors are allowed to argue that a claimed defense has no merit, but are not allowed to denigrate or belittle the defense itself. State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993). Prosecutors act improperly when they “suggest that the arguments of defense counsel are part of some sort of syndrome of standard arguments that one finds defense counsel making in ‘cases of this sort.’” Id.

Here, appellant points to four different parts of the record to support his argument that the prosecutor denigrated the defense. Appellant claims that the prosecutor implied that appellant and his attorney “cook[ed] up a defense.” One such instance occurred during the prosecution’s cross-examination of appellant when the prosecutor questioned appellant’s previous use of the word “retreat,” and then asked, “You know that word has some significance under the law?” During rebuttal, the prosecutor said, “Defense counsel has told you that this has not been a search for the truth. The problem is that [appellant’s counsel] doesn’t like the truth.” Appellant’s attorney did not object to either of these statements or a third statement, “And of course if their stories had matched up point by point, [appellant’s counsel] would be accusing [the police officers] of still lying and saying, see, they cooked up their story together and everything they are saying is exactly the same.” Because they were unobjected-to, this court reviews those statements for plain error. Ramey, 721 N.W.2d at 299.

The prosecutor’s questioning regarding appellant’s use of the word “retreat” is within the scope of the state’s right to vigorously argue its case. However, the statements about appellant’s attorney fall outside of that scope; admitting them was plain error. Because the incidents comprised only a small portion of the record and were not inflammatory, and because in this circumstance the jury is presumed to have followed the district court’s instructions that an attorney’s statements are not evidence, we conclude that the state has met its burden to show that the error did not affect appellant’s substantial rights.

Also during rebuttal, the prosecutor said, “And [appellant’s counsel] was shoving the pictures under the hands of all these different lay officers’ noses and trying to get them to say that there was something there when there wasn’t. The defendant himself got up there today and told you that there was nothing on his hands.” Arguably this is no more than the prosecutor engaging in strong criticism of what she thought was weak evidentiary support for appellant’s position. However, assuming that this statement denigrated the defense, we note that the district court sustained appellant’s objection on the ground that it misstated the evidence. Since the statement is not inflammatory, we again presume that the jury disregarded a statement to which an objection was sustained, and we conclude that this statement was harmless beyond a reasonable doubt.

III.

The third issue is whether the district court abused its discretion in denying a mistrial due to the testimony regarding appellant’s alleged theft of a bottle of liquor. Appellant argues that the evidence was both irrelevant and highly prejudicial. Appellant also contends that the prosecutor’s repeated references to the allegedly stolen bottle throughout the trial exacerbated the error.

This court reviews a denial of a motion for mistrial for an abuse of discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). “[T]he district court is in the best position to evaluate whether prejudice, if any, warrants a mistrial.” State v. Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001). “[U]nintended responses under unplanned circumstances ordinarily do not require a new trial.” State v. Hagen, 361 N.W.2d 407, 413 (Minn. App. 1985), review denied (Minn. Apr. 18, 1985).

During the prosecutor’s direct examination, when asked, “Did you have anything alcoholic back at your apartment?,” M.J. testified that appellant “ha[d] stolen a bottle from the bar.” Appellant’s attorney objected and, outside the jury’s presence, moved for a mistrial, arguing that the statement was a highly prejudicial “unpreviewed accusation of other criminal activity . . . .” The district court denied appellant’s motion to bar future references to the alcohol, but did bar references regarding how appellant obtained the alcohol. The district court then instructed the jury: “The Court is sustaining the defendant’s objection to the answer given by the witness. There is no basis for the statement and the jury is to disregard it and the statement is stricken.”

The district court was in the best position to determine whether the statement warranted a mistrial. Because M.J.’s statement was an “unintended response[]” to a question, a new trial is not warranted. Id. In addition, the district court’s immediate curative instruction and final jury instruction to “disregard all evidence which I have ordered stricken or have told you to disregard,” sufficiently remedied any potential prejudice. Thus, the district court did not abuse its discretion in denying appellant’s motion for a mistrial.

Appellant further claims that the prosecutor’s repeated, seemingly innocent references to the bottle of alcohol were an unspoken reminder to the jury that it was a stolen bottle and exacerbated the original, improper statement. Appellant claims that as a result of these references, the district court erred in denying a mistrial. The prosecutor posed questions to witnesses and elicited responses that referenced the alcohol four times during the trial. The prosecutor asked one such question during the cross-examination of appellant: “And you had a bottle of rum with you, didn’t you?” The record does not indicate the basis for appellant’s objection. Although the district court sustained appellant’s objection to this question, and a similar question, it does not appear that the questions were prejudicial or that they, in any way, affected appellant’s right to a fair trial.

Appellant did not object to the two remaining statements regarding alcohol. This court reviews the unobjected-to statements for plain error. Ramey, 721 N.W.2d at 299. Here, neither the questions nor the answers elicited responses that referenced the bottle as being stolen, which was the topic prohibited by the district court. Thus, these questions do not amount to error.

Appellant contends that these questions constitute error because they focused the jury’s attention on the source of the alcohol that the district court had previously ruled inadmissible. A prosecutor commits prejudicial misconduct by “persist[ing] in asking questions that the [district] court has ruled improper or to elicit evidence ruled inadmissible.” Lee, 645 N.W.2d at 469. “Questions by a prosecutor . . . which are asked in the face of a clear [district] court prohibition are not tolerable.” State v. Harris, 521 N.W.2d 348, 354 (Minn. 1994). Here, the district court did not prohibit all references to alcohol; it merely prohibited references to the bottle having been stolen. The prosecutor’s questions alluding to the source of the bottle neither constituted error nor deprived appellant of his right to a fair trial.

IV.

Finally, we consider whether a new trial is warranted because, taken cumulatively, the errors denied the appellant his right to a fair trial. State v. Keeton, 589 N.W.2d 85, 91 (Minn. 1998). Here, we acknowledge that several of the prosecutor’s statements constitute misconduct. But this court considers the misconduct “in light of the whole trial . . . .” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Even an aggregation of the incidents does not warrant reversal in this case. We note there were two incidents of prosecutorial misconduct that constituted plain error: the prosecutor’s two references regarding the defense attorney denigrated the defense. At points we had had to rely on curative and closing instructions to cure prosecutorial error. Although these improper statements are not pervasive, they are unacceptable in a judicial system committed to conducting a fair trial. In this case we note that appellant presented no persuasive evidence consistent with a self-defense injury, that he did not attempt to report to investigating officers that he was assaulted, and that the 911 calls by the victim indicated an assault in progress. Based on the overall weight of the evidence of guilt, we conclude the district court did not abuse its discretion in refusing to order a mistrial. However, we strongly caution prosecutors that the conduct similar to that which occurred in this case will result in a mistrial in a more difficult case in the future.

Affirmed.