This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2326

 

 

State of Minnesota,

Respondent,

 

vs.

 

Jody L. Griffith,

Appellant.

 

 

Filed January 16, 2007

Affirmed

Lansing, Judge

 

 

St. Louis County District Court

File No. K0-04-601091

 

 

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

 

Melanie S. Ford, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

 

John Stuart, State Public Defender, Theodora Gaïtas, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            A jury found Jody Griffith guilty of six criminal charges stemming from an armed assault in which Griffith’s parents sustained gunshot wounds.  In this appeal from his conviction, Griffith argues that he is entitled to a new trial because the prosecutor’s rebuttal argument contained plain error that affected his substantial rights.  He also argues that the district court abused its discretion by denying his request for a Schwartz hearing.  Because the prosecutor’s comments, to which Griffith did not object at trial, are not plain error, and, because Griffith has not presented a prima facie case of juror misconduct, we affirm.  The nine additional arguments that Griffith raises in his supplemental pro se brief do not provide a basis for reversal.  

F A C T S

            Following an investigation of Jerry and Paula Griffith’s gunshot injuries, the St. Louis County Attorney charged Jody Griffith (Griffith) with two counts of attempted first-degree murder, two counts of attempted second-degree murder, and two counts of second-degree assault.  At trial, the state presented evidence that Jerry and Paula Griffith were asleep in their home when their bedroom door burst open.  A person standing in the doorway fired all the rounds in a six-shot revolver at them.  When the cylinder had been emptied, the person pulled the trigger a few more times and then left.  Jerry and Paula Griffith then called 911 for help.  During the call, Griffith’s parents identified him as the person who entered their bedroom and shot them.

            The trial testimony established that, following the shooting, Griffith drove his parents’ truck to the neighboring Proctor police station and then returned to his parents’ home, where he was stopped by a state trooper who had been dispatched in response to the 911 call.  The trooper, who had his shotgun trained on the truck, testified that Griffith leaned out the window and said, “I need help.  I just shot my parents.”  Griffith was transported to the Duluth police station.

            Police interviewed Jerry Griffith at the hospital the following morning, and he again identified his son as the assailant.  A revolver belonging to Griffith’s grandfather, and kept at his parents’ residence, was missing.  Also a swab taken from Griffith’s hands on the night of the shooting revealed four particles of primer gunshot residue. 

            In his defense, Griffith testified that he was asleep in his room when he heard gunshots.  Observing that his parents’ bedroom door was closed, he drove off in his parents’ truck to get help at the Proctor police station.  Griffith acknowledged that he did not have a driver’s license and that his cell phone was plugged into the wall in his bedroom.  Griffith said that, although he spent about ten minutes banging on the station’s doors and pressing the keypad buzzer, he was unable to get any response.  He said that he returned home, and when he saw the trooper, he told him that he needed help because someone hadshot his parents.

            In closing argument, defense counsel aggressively attacked the prosecution’s case.  He said that the prosecutor was creating an illusion of evidence, an illusion of qualification, and an illusion of adequate testimony.  He referred to this as a common prosecutorial trick of which he was aware because of his fourteen years of experience.  He warned the jury not to “fall for” or “buy” the argument because the job of the prosecutor and the prosecution witnesses was “to convict.”  He returned to this theme several times in the argument, saying at one point, “keep in mind their job is convictions, don’t ever think otherwise.  That’s their job, convict, convict, convict.”  He also told the jury, “Believe me, if law enforcement didn’t get convictions, they wouldn’t be around anymore.” 

            In rebuttal, the prosecutor responded to defense counsel’s allegations about the prosecutor’s improper motives for charging and prosecuting the case and the allegations about the police officers’ testimonial bias.  The prosecutor stated that he was offended at the accusation that he was trying to create illusory evidence or that he would intentionally bring a case to trial knowing there was insufficient evidence.  He also said that the police were not involved in a conspiracy to convict and were only attempting to do the best job that they could.  He concluded the rebuttal by apologizing for being agitated by the personal attacks and told the jury that the police were there to bring forth the evidence to let the jury decide, based on reason and common sense, what the evidence proves.  Neither the prosecutor nor the defense counsel objected to any statements that were made in the closing arguments.

            The jury began deliberations shortly before noon on a Friday.  At about 6:00 p.m., the district court called the jurors back to the courtroom and told them that, because Duluth was hosting Grandma’s Marathon the next day, hotel rooms were not available in Duluth.  The judge advised them that if they wanted to end deliberations for the day they would be transported to Grand Rapids where hotel space was available.  The foreperson told the judge that the jury wanted to continue deliberations.  Just before 8:00 p.m., the jury returned a verdict of guilty on all six charges.  At Griffith’s request, the judge polled the jury and each member stated that it was that juror’s true and correct verdict.

            Approximately one month later, Griffith submitted a juror’s affidavit alleging that she felt pressured by the other jurors, that the outcome could have been different if they were not “going to have to go all the way to Grand Rapids for the night,” that other jurors “verbally abused” her by screaming at her, and that no one listened to her when she suggested “that if everyone thought Jody Griffith did it that maybe the conviction should only be one count.”  The district court heard oral arguments on the allegations of juror misconduct and denied Griffith’s motion to conduct a Schwartz hearing.  Griffith appeals, alleging that the prosecutor’s rebuttal argument constituted plain error that affected his substantial rights and that the district court abused its discretion by denying his motion for a Schwartz hearing.

D E C I S I O N

I

            The standard for review on allegations of prosecutorial misconduct that was not objected to at trial is governed by the plain-error doctrine.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  Under that doctrine, there must be (1) error, (2) that is plain, and (3) that affects the defendant’s substantial rights.  Id. at 302.  As a threshold, the appellant who failed to object at trial must “demonstrate both that error occurred and that the error was plain.”  Id.  An error is plain if it is clear or obvious under current law.  Johnson v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997).  An error is clear or obvious if it “contravenes case law, a rule, or a standard of conduct.”  Ramey, 721 N.W.2d at 302.  If a defendant establishes that an error occurred that is clear or obvious under current law, the burden shifts to the state to establish that the error did not prejudice the defendant.  Id.  An error is not prejudicial if there is no reasonable likelihood that the misconduct complained of significantly affected the verdict.  Id.  A new trial is warranted “only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006) (quotationomitted).

            Griffith alleges three categories of prosecutorial misconduct in the state’s rebuttal argument:  personal attacks on defense counsel, denigration of Griffith’s defense, and personal vouching for the credibility of the police witnesses.  Additionally, Griffith contends that the prosecutor’s statements were inflammatory.   

            First, Griffith maintains that the prosecutor’s rebuttal statements personally attacked defense counsel by suggesting that he was offensive, was not doing his job, and had less integrity and experience.  Griffith rests this claim on the following statements: 

            Folks [defense counsel] talks about he’s been doing this for 14 years.  Well, I’ve been doing it a lot longer.  I tried my first criminal case in 1978.  You can do the math.  I don’t know how many cases I’ve tried, I really don’t, a lot, but I have never had my personal integrity so attacked and I find it offensive and hope you do, too, because this is my life’s work.  The criminal justice system is my life’s work.

 

We agree that an attorney should not resort to personal attacks on opposing counsel in closing argument.  The ABA standards for criminal prosecution, which the Minnesota Supreme Court cites with approval, provide that prosecutors should not “use arguments which are, in essence, personal attacks on defense counsel.”  ABA Standards for Criminal Justice Prosecution Function and Defense Function § 3-5.8 cmt. (3d ed. 1993); see State v. Salitros, 499 N.W.2d 815, 818 (Minn. 1993) (quoting ABA Standard 3-5.8).   

We do not agree, however, that the comments amounted to a personal attack on defense counsel.  The comments were obviously aimed at rebutting defense counsel’s accusations that the prosecutor was creating illusions of evidence, engaging in common prosecutorial tricks, had called expert witnesses who told him whatever he wanted to hear, and that defense counsel recognized these tricks because he had been practicing for fourteen years.  A prosecutor’s improper argument in response to defense counsel’s improper argument is still improper and may constitute reversible prosecutorial misconduct.  See United States v. Young, 470 U.S. 1, 14, 105 S. Ct. 1038 1045-46 (1985) (rejecting application of invited-response doctrine to prosecutorial misconduct).  But rebuttal comments must be considered in context, and a prosecutor may “right the scale” of defense counsel’s misconduct so long as the prosecutor’s comments do not cross the line of permissible conduct.  Id. at 15.    

            In this case, the prosecutor’s personal comments were directed at himself.  The prosecutor stated that he felt defense counsel’s attacks on his integrity were offensive and that he was only doing his job.  And while the prosecutor did say that he had been doing his job longer, he did not say it in a way that questioned defense counsel’s abilities.  We conclude that the comments do not constitute misconduct.

            Second, Griffith argues that the prosecutor denigrated his defense by suggesting that it was nothing more than a lawyering tactic.  In support of this claim, Griffith points to the following language: 

            And what does he say?  Oh, it’s just some kind of conspiracy to create an illusion where no facts exist.  I’m sorry folks, I am sorry, but that is offensive and that’s not what happened here.

 

Keep your eye on the ball, folks.  This is not a case built on illusion or conspiracy or anything else.  It’s a case built on the facts and [defense counsel] doesn’t like the facts so we’ll blame the prosecutor, we’ll blame the cops.

 

            A prosecutor cannot suggest that a defense is being used because it is the only defense that “might work.” State v. Williams, 525 N.W.2d 538, 549 (Minn. 1994).  And a prosecutor should not belittle a defense in the abstract.  Salitros,499 N.W.2d at 818.  But the prosecutor’s rebuttal comments in this case did neither.  The reference to “blame the prosecutor” or “the cops” might be considered improper denigration in some factual circumstances, but not on the facts of this case.  Instead of addressing an abstract defense of last resort, the prosecutor responded to Griffith’s specific arguments that the state was creating an illusion of evidence, that the state’s witnesses were biased, and that the prosecutor and the police were responsible for a wrongful prosecution.  “Examined in context, the prosecutor’s remarks . . . had more to do with the merits of that defense and were not aimed at improper disparagement.”  State v. Wright, 719 N.W.2d 910, 919 (Minn. 2006).

            Third, Griffith argues that, by defending the state’s witnesses, the prosecutor vouched for their credibility.  Griffith points to the following testimony:

            But it’s not enough to attack me, then he attacks the cops.  You know, the cops, if you listen to him, the cops are out there with some big conspiracy to convict innocent people.  If I sound angry, I am.  I’m sorry, I am.  We send these cops out there day in, day out, to protect us, do the best job you can, and they do.  And they come in here and they do a good job and they tell you what their qualifications are and their experience.  

 

            “Vouching occurs when the government 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.”  In re Welfare of D.D.R., 713 N.W.2d 891, 900 (Minn. App. 2006).  The prosecutor stated that the police were doing the best they could and did a good job. Standing alone, these statements imply vouching.  But when placed alongside defense counsel’s sustained attack on the police officers’ lack of credibility they are rebuttals and not plain error.  See State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977) (stating prosecution has right to vigorously argue state’s witnesses are credible).  Defense counsel, in his closing argument, said that police are the prosecutor’s paid professional witnesses; that police take courses on how to testify; that the prosecutor went through the police officer’s qualifications “ad nauseum” to create an illusion of qualification, which is a common trick of the prosecution; that the police had intentionally failed to produce a tape of Griffith from the Proctor police station; that the police knew that Griffith was the wrong person but arrested him because it was convenient; that the police didn’t care about finding the gun because it might have shown that someone other than Griffith shot his parents; and that when anything emerged in the investigation that would exonerate Griffith, the police ignored it. 

            Plainly, the better response would have been for the prosecutor to object to the defense counsel’s argument or for the district court to intervene.  Young, 470 U.S. at 13.  But, “interruptions of arguments, either by an opposing counsel or the presiding judge, are matters to be approached cautiously,” and the better remedy is sometimes “plain” only in hindsight.  Id.  Nonetheless, the comments “right the scale” on the credibility issue and do not plainly guarantee or express a personal opinion on the truth of the police testimony.

            Finally, Griffith argues that the prosecutor’s statements that he was angry and offended were inflammatory.  The prosecutor’s comment about anger was incorporated into his statement relating to the conduct of the police and he made comments about being offended at the beginning of his rebuttal and, again, at the end:

      Folks, I’m going to end right now.  I’m sorry if I got a little agitated and upset here in the last couple of minutes.  I am.  I am because my personal integrity has been attacked by [defense counsel].  I find that terribly offensive.  I’m here to do my job.  The cops were here to do their job and that is to bring forth the evidence to you and let you decide, based upon reason and common sense, what that evidence proves.

 

A prosecutor must refrain from inflaming the passions of the jury and prejudicing the defendant.  State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995).  The prosecutor expressed the agitation caused by the defense counsel’s argument and also said that he hoped that the jury was offended by it.  As Learned Hand recognized, “It is impossible to expect that a criminal trial shall be conducted without some showing of feeling; the stakes are high, and the participants are inevitably charged with emotion.”  United States v. Wexler, 79 F.2d 526, 529-30 (2d Cir. 1935), cert. denied, 297 U.S. 703, 56 S. Ct. 384.

            The prosecutor’s remarks in his initial summation demonstrated careful attention to his prosecutorial role of “guard[ing] the rights of the accused as well as [enforcing] the rights of the public.”  Salitros, 499 N.W.2d at 817.  But, after defense counsel concluded his summation, the prosecutor requested and received a five-minute recess.  Apparently affected by what he perceived as an unwarranted attack on his integrity, the prosecutor’s statements on rebuttal suggest that he was struggling to maintain composure.  His rebuttal acknowledges his emotional response, but he mitigates it to some extent by his apologies for his response.  His comments are more inappropriate than improper and his emotional response is not disproportionate to the provocation.  But more importantly, the comments do not display an attempt to have the case decided on the basis of extraneous matters rather than on the evidence relevant to the issues and reasonable inferences from that evidence.  In fact, the prosecutor closes his rebuttal argument with a reminder to the jury that their job is to reach a decision based on the evidence presented.  The prosecutor did not commit error that was plain because his comments were not inflammatory statements that attempted to distract the jury from its function of determining whether the state had met its burden of proof.

II

            We review the denial of a Schwartz hearing under an abuse-of-discretion standard.  Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004).  Ordinarily, “a verdict to which, on a poll, every member assented may” not be impeached.  State v. Flaherty, 158 Minn. 254, 255, 197 N.W. 284, 285 (1924).  But an allegation of juror misconduct may provide a basis for the trial court to order an investigatory hearing with the jurors in the presence of all interested parties.  Minn. R. Crim. P. 26.03, subd. 9; Opsahl, 677 N.W.2d at 421-22 (citing Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960)).   District courts should liberally grant requests for Schwartz hearings, but the requesting party must first produce “sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.”  State v. Church, 577 N.W.2d 715, 720 (Minn. 1998).  Evidence may be submitted through a juror affidavit that complies with Minn. R. Evid. 606(b).   

            For purposes of determining whether a verdict is valid, a juror may testify to “whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict.”  Minn. R. Evid. 606(b).  Thus a prima facie case of juror misconduct established under one of the Rule 606(b) criteria will justify a Schwartz hearing.  Church, 577 N.W.2d at 720. 

            The district court concluded that the juror affidavit that Griffith submitted in support of his motion for a Schwartz hearing did not present a prima facie case of juror misconduct.  In the affidavit, the juror alleged that other jurors verbally abused her and that the fact that the jury would have to spend the night in Grand Rapids rather than Duluth influenced the jury in reaching its verdict.  Griffith argues that these allegations establish the existence of an improper threat and impermissible outside influence, and the district court abused its discretion by denying the Schwartz hearing.  We disagree.

            Griffith characterizes the district court’s announcement that the jury would have to spend the night in Grand Rapids as a coercive act that constituted an impermissible outside influence.  Virtually this same argument was considered and rejected in State v. Hill, 287 N.W.2d 918, 921 (Minn. 1979).  The supreme court held that (1) jurors have a right to know about sleeping accommodations should they be unable to reach a verdict; (2) this issue is properly dealt with by the trial judge in the presence of the defendant and counsel; (3) the decision is not coercive; and (4) jurors cannot testify to whether they felt coerced.  Hill, 287 N.W.2d at 921.  The district court’s notice to the jurors on the record in open court of the pending sleeping arrangements was not a coercive act that amounted to an impermissible outside influence on the jury.  Id.

            Griffith’s other basis for a Schwartz hearing is the juror’s claim of “verbal abuse.”  Evidence of psychological intimidation is not admissible under Minn. R. Evid. 606(b), and consequently would not provide a basis for a Schwartz hearing.  Nonetheless, Griffith contends that “verbal abuse” may include threats of violence, and therefore the district court abused its discretion by not holding a Schwartz hearing to investigate that possibility.  This “possibility” of violent threats is not a sufficient basis to find that the district court abused its discretion.  Griffith did not produce adequate evidence to establish a prima facie case of juror misconduct.  As the supreme court noted in State v. Anderson, alleged jury misconduct that is only vaguely described is insufficient to trigger a Schwartz hearing.  379 N.W.2d 70, 80 (Minn. 1985).

            In the polling of the jury that followed the reading of the verdict, each juror affirmed the verdict.  The alleged verbal threats and the adverse effect of remote overnight accommodations do not establish a prima facie case of juror misconduct because they are inadmissible under the rules of evidence.  Therefore the district court did not abuse its discretion in denying Griffith’s motion for a Schwartz hearing.

III

            Griffith raises nine additional claims in his supplemental pro se brief.  Four of the arguments essentially challenge the credibility of witnesses.  It is the function of the jury to assess the credibility of a witness, and an appellate court may not engage in a determination of the credibility of witnesses upon review.  State v. Mems, 708 N.W.2d 526, 531 (Minn. 2006).  Two of the pro se arguments appear to challenge the admissibility of evidence. The brief cites neither the record nor legal authority, and we are unable to address these arguments.  See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (reaffirming that arguments unsupported by references to the record and legal authority are waived).  The final three arguments relate to the failure of Griffith’s trial attorney to obtain an expert witness, the alleged unfairness of the sentence, and the composition of the jury.  Neither the record nor the brief provides a basis for reversal on any of these issues.  

            Affirmed.