This opinion will be unpublished and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

A06-250

 

State of Minnesota,

Respondent,

 

vs.

 

Anthony Farron Campbell,

Appellant.

 

Filed May 22, 2007

Reversed and remanded
Randall, Judge

Dissenting, Dietzen, Judge

 

Anoka County District Court

File No. KX-04-7398

 

 

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

 

Robert M.A. Johnson, Anoka County Attorney, Marcy S. Crain, Assistant County Attorney, 2100 Third Avenue, 7th Floor, Anoka, MN 56303 (for respondent)

 

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Davi Axelson, Assistant Public Defenders, 2221 University Avenue SE, Suite 425, Minneapolis, MN  55414 (for appellant)

 

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

This is an appeal from appellant’s conviction of first-degree assault.  Appellant argues that the district court abused its discretion in admitting into evidence a wooden board without any evidence linking it to the assault, or to appellant.  Appellant also argues that the prosecutor committed prejudicial misconduct in closing argument by manufacturing an explanation for the lack of blood on the board. We find prejudicial error based on prosecutorial misconduct. We reverse and remand.

FACTS

Appellant was convicted by an Anoka County jury of first-degree assault, in violation of Minn. Stat. § 609.221, subd. 1 (2004), and fifth-degree assault, in violation of Minn. Stat. § 609.224 (2004).  Thereafter, the court denied appellant’s motion for a downward departure and sentenced appellant to the presumptive term of 98 months in prison. 

On July 28, 2004, appellant was in possession of Holli Lucht’s white Ford Explorer.  Appellant was friends with Lucht and she regularly permitted appellant to borrow her vehicle.

Charles Pratt, the victim, was dating Lucht.  On the evening of July 28, Lucht, Pratt, and a friend of Pratt’s, Thomas Nelson, were together.  Pratt wanted appellant to return Lucht’s vehicle so he could give Nelson a ride home. 

Pratt called appellant and left several angry messages demanding the return of the vehicle.[1]  Pratt, Lucht, and Nelson walked to appellant’s home in search of the vehicle, and then to Burger King, the employer of appellant’s girlfriend.  After leaving Burger King, the three gave up and returned to Pratt’s apartment.  Pratt, Nelson, and Lucht remained at Pratt’s apartment and drank a couple of beers.  Later in the evening, Pratt and Lucht retired to the bedroom while Nelson remained in the living room to sleep on the couch.

Around approximately 2:00 a.m., Nelson heard a knock on the apartment window.  Nelson identified the person outside, who asked for Pratt, as “Dean.”  Nelson awoke Pratt who went to the window and corrected Nelson, identifying the person as appellant.  Pratt went outside and greeted appellant.  Appellant failed to answer him and instead walked back towards the vehicle.  Pratt testified that he got a good look at appellant and stated that he had no doubt it was appellant. 

According to Pratt, appellant retrieved a wooden object from the back seat of the SUV, closed the door, and approached him.  Pratt testified that he was not sure if the wooden object was “a baseball bat or what,” but after waking up in the hospital believed it was a Louisville Slugger.  Pratt remembered being struck on the left side of his face, spinning around, and then being struck again.  Pratt could not recall anything following the two blows.

Before heading outside to find Pratt, Nelson testified to witnessing a white SUV driving away.  Nelson found Pratt lying on the sidewalk seriously injured and bleeding.  Nelson notified Lucht and ran to a nearby police station.  Pratt sustained extensive injuries from the attack and was hospitalized for two weeks. 

The responding officer did not secure the perimeter around the crime scene, but testified to retrieving and securing into evidence a wooden board.  The officer testified that he found the board “in the grassy area behind [Pratt].”  The officer did not photograph the board’s position in relation to the victim or the crime scene in general.  Swabs from the board were tested for blood, but nothing turned up as blood on the board.  Fingerprint testing of the board was requested and no fingerprints were found on the board.  A search of the vehicle appellant was driving while apprehended produced no evidence.  The vehicle was not combed for fibers.

Appellant was convicted and sentenced.  This appeal followed.

D E C I S I O N

Admission of physical evidence

Appellant argues that the district court abused its discretion by introducing into evidence a wooden board found at the scene because it was neither connected to the crime nor to appellant.  A district court’s admission of physical evidence will be upheld unless it constitutes an abuse of discretion.  State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985).  An object is admissible into evidence if it tends to connect the defendant to the crime.  Id.; State v. Johnson, 324 N.W.2d 199, 201 (Minn. 1982).  “The lack of an absolute connection between the object introduced into evidence and the alleged crime does not affect the admissibility of the challenged evidence, but only its weight.”  State v. Olson, 436 N.W.2d 817, 820 (Minn. App. 1989), review denied (Minn. Apr. 26, 1989) (citing State v. Olek, 288 Minn. 235, 242, 179 N.W.2d 320, 325-26 (1970)). 

Appellant contends admission was improper because the wooden board lacked any connection whatsoever to him or the crime – there were no fingerprints, blood, or other bodily fluid found on the board, there was no eyewitness identifying appellant as having possession of that board, and there was no testimony that appellant had access to that board.  An officer testified that he found teeth, a retainer and the board “within close proximity of the victim,” but no photograph was taken of the crime scene documenting the board’s location.  The police also did not establish a secure perimeter around the crime scene. 

Appellant relies on State v. Lubenow, 310 N.W.2d 52 (Minn. 1981), to support his argument.  In Lubenow, the state introduced hunting arrows found in the defendant’s car as evidence of a weapon.  Id. at 56.  The supreme court held the arrows were improperly admitted into evidence because no showing was made regarding their connection to the crime, and further, tests indicated that no blood or bodily fluid was found on the arrows.  Id.  A doctor testified that the victim’s injuries could have been caused by the arrows, but, it was conceded at trial that any number of other objects could also have caused the injuries.  Id.

Lubenow is instructive, but respondent correctly points out some differences.  Here, the board is linked to the crime since it was found at the scene and Pratt testified that he was struck with a wooden object.  Unlike in Lubenow, where the victim never identified the defendant, here, Pratt identified appellant.  Despite Pratt’s condition of possible intoxication, a victim’s identification is relevant and goes to the jury on weight.  

“Evidence that in some degree advances the inquiry and therefore has probative value is relevant evidence and may be admitted.”  State v. Morrison, 437 N.W.2d 422, 427 (Minn. App. 1989).  Relevant evidence, however, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.  Id.  Such determination rests with the sound discretion of the district court and will be reversed only upon a showing of an abuse of that discretion.  Id.

Pratt was never even asked to identify the board.  No supporting medical or expert testimony was presented regarding the instrumentality used to cause Pratt’s injuries.  The state failed to support its claim that the board in evidence either caused or “could have” caused Pratt’s injuries. 

Appellant argues correctly that if admission was in error, it created substantial prejudice because whether it was the assault weapon or not, it gave a picture to the jury (with no strong argument of relevance) of a dangerous weapon.  The court was so concerned about the proposed exhibit that the judge warned the state and put specific limitations on the prosecution’s use and display of the board.  A short while later on that same day, in defiance of the court’s warning, a witness for the state carried the board into the courtroom and placed it adjacent to the witness stand.  After being scolded by the court, the state apologized and admitted a lack of foundation with that witness to admit the board.  No curative instruction was issued.  Later, after further foundation through another witness, the board was admitted with no objection. 

Prosecutorial misconduct

Appellant alleges prosecutorial misconduct during the state’s closing argument.  A prosecutor may not seek a conviction at any cost.  See State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993).  “Rather, the prosecutor is a ‘minister of justice’ whose obligation is ‘to guard the rights of the accused as well as to enforce the right of the public.’”  Id.  (citation omitted). 

At trial, appellant failed to object to the alleged misconduct.  A defendant who fails to object to prosecutorial misconduct at trial generally waives the right to have the issue considered on appeal.  State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999).  This court, however, will consider the issue and grant a new trial if the misconduct constituted plain error.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  Plain-error exists if there is an “(1) error, (2) that is plain, and (3) that affects substantial rights.”  State v. Washington, 725 N.W.2d 125, 133 (Minn. App. 2006).  Plain error is one which 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 contradicts caselaw, a rule, or a standard of doctrine.  Ramey, 721 N.W.2d at 302.  If misconduct is found, the defendant’s conviction will be reversed only if the misconduct impaired the defendant’s right to a fair trial.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2004).  The defendant bears the initial burden of demonstrating plain error, but upon satisfying this obligation, the burden shifts to the state to show that the error does not affect substantial rights.  Ramey, 721 N.W.2d at 302.  “If the defendant establishes that the prosecutor’s actions constitute plain error, and the state is unable to meet the burden of showing that there is no reasonable likelihood of a significant effect, the appellate courts then assess whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings.”  Washington, 725 N.W.2d at 133-34 (quotation and citation omitted). 

Appellant challenges the state’s closing remarks regarding the lack of blood found on the wooden board.  During closing arguments, the prosecutor stated:

Now, a lot was made of the fact that the board didn’t have any blood on it.  And there wasn’t any blood on it.  Folks, what I would ask you today is to really think about the chronology of events and just kind of use some common sense and ask yourself, if that board was used, would there necessarily be any blood on it, even if his face ended up all bloody?

           

If you remember Charles Pratt’s testimony, he said the first blow was right in the face.  The next one was in the back of the head.  After that he didn’t remember so we don’t really know what happened.

 

But, you know, that first blow is going to be on thin skin; there’s not going to be any blood on there.  There’s not going to be any blood transferred onto a stick.  That next blow is in the back of the head, which, you know, there’s not going to be any blood back there yet.  And even if there was another blow on his face, just because his face ended up being bloody a couple minutes later when people found him, doesn’t mean that it was there instantaneously.  You know, there would have been blood coming out of his eye, there would have been blood coming out of his mouth but it would not necessarily have been instantaneous.  It is very, very reasonable to believe that he could have been beaten with that stick multiple times, since it would have been in different parts of the body, and there wouldn’t have been any blood on that stick.

 

Appellant contends that these statements constitute plain error because they unduly prejudiced the jury by drawing conclusions unsupported by the evidence and proposing his theory for the lack of physical evidence on the board.  We agree.  During closing argument, 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. Wahlberg, 296 N.W.2d 408, 419 (Minn. 1980) (citation omitted). 

The prosecutor went far beyond argument and inference here.  First, the prosecutor said “use some common sense.”  Then the prosecutor said from the first blow on the face “there’s not going to be any blood on there.”  Common sense tells you exactly the opposite.  Then the prosecutor said, “that next blow is in the back of the head, which, you know, there’s not going to be any blood back there yet.”  Common sense tells you exactly the opposite.  Pratt sustained extensive injuries, including a frontal bone fracture just above his left eye, an eye socket fracture, a lacerated upper eyelid, a cheek bone fracture, a fractured lower jaw, and a collapsed lung.  The prosecutor stated, “[i]t is very, very reasonable to believe that he could have been beaten with that stick multiple times, since it would have been in different parts of the body, and there wouldn’t have been any blood on that stick.”  Common sense tells you exactly the opposite.

The state offered zero medical evidence supporting any inference that a wooden board could have caused the extensive injuries it did without leaving any traces of blood on the board.  The prosecutor was not simply arguing inferences, but making statements of fact, as if he were an expert, on the transference of blood from a victim to an alleged assault weapon.

The prosecutorial misconduct, which the state has failed to demonstrate did not effect appellant’s substantial rights, requires reversal for a new trial in the administration of justice.[2] 

Reversed and remanded.

DIETZEN, Judge (dissenting)

           

I respectfully dissent.  Appellant was convicted of first-degree assault for the severe and brutal beating of victim Charles Pratt arising out of a dispute over the victim’s girlfriend.  The majority rests its conclusion to reverse on the district court’s unobjected-to admission of a wooden object and unobjected-to prosecutorial misconduct during closing argument.  Because appellant waived his right to object to the wooden object, and the disputed portion of the prosecutor’s closing argument was non-prejudicial and did not deprive appellant of a fair trial, I would affirm the conviction.

Admission of the Wooden Object

Appellant argues that the district court abused its discretion by admitting the wooden object into evidence following the foundational testimony of the police officer who recovered it “within close proximity of the victim,” and the testimony of the victim that a wooden object was used to assault him.  Prior to trial, appellant brought a motion in limine asserting that there was no foundation for the wooden object, and, therefore, it should not be introduced.  The district court ordered that the wooden object should not be brought into court until proper foundation was introduced.  When the police officer testified, he brought the wooden object to the stand in order to identify it.  Subsequently, the prosecutor was admonished by the court for failing to follow its order. 

After the victim testified, the prosecutor moved to admit the wooden object, appellant’s counsel stated “no objection,” and it was received.  By failing to object, appellant has waived the right to challenge the admissibility of the wooden object.  State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001).  Further, the wooden object was discovered near the victim and therefore was connected to the crime scene and was admissible.  See State v. Olson, 436 N.W.2d 817, 820 (Minn. App. 1989) (admission of night stick found near deceased ruled sufficient connection), review denied (Minn. Apr. 26, 1989). 

The majority does not directly address whether the district court abused its discretion in admitting the wooden object.  Instead, the majority argues that the prosecutor may have committed misconduct by having the officer bring the wooden object to the stand before it was admitted into evidence.  The crux of the majority’s argument is that the manner in which the wooden object was introduced contributed to an unfair trial.  I disagree. 

We examine unobjected-to prosecutorial misconduct under the plain error doctrine.  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).  The plain-error doctrine requires (1) error; (2) that is plain; and (3) the error must affect substantial rights.  Id.  It is not clear that the prosecutor committed misconduct by permitting the officer to bring the board to the witness stand before it was received into evidence.  But even if we assume that it was plain error, I see no prejudice in having the wooden object identified by the police officer before it was received into evidence.   

Prosecutorial Misconduct During Closing Argument

Secondly, the majority concludes the prosecution engaged in misconduct by arguing that it is reasonable to believe that the victim could have been beaten with the wooden object and “there wouldn’t have been any blood on that [wooden object].” I agree with the majority that the prosecutor’s argument was not supported by the evidence in the record and, therefore, constitutes plain error.  Under Ramey, the burden then shifts to the state 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.”  Ramey, 721 N.W.2d at 302 (citation omitted).  On this record, the state has met its burden of establishing that it’s conduct did not materially undermine the fairness of the trial. State v. Fields, ___ N.W.2d ___, ___, 2007 WL 1288493, at *4 (Minn. May 3, 2007).     

Thus, we turn to the seriousness of the prosecutor’s misconduct and the likely effect of the misconduct on the jury.  First, we observe that the prosecutor’s misconduct, that is, speculating on the lack of blood on the wooden object, does not implicate a core constitutional right such as the defendant’s right not to testify, nor did the prosecutor misstate the presumption of innocence or the burden of proof.  Ramey, 721 N.W.2d at 300.  Here, the prosecutor in his closing argument stated that appellant brutally beat the victim with a wooden object.  In response, appellant did not dispute that a wooden object was used to assault the victim.  Rather, appellant denied that he assaulted the victim and asserted that someone else did it.  In this context, it is unlikely that the prosecutor’s comments about the lack of blood on the wooden object had a substantial effect on the jury.  Specifically, the prosecutor’s comment was unimportant and neutral to appellant’s defense that someone else assaulted the victim.  Clearly, whether the wooden object had blood on it or not has nothing to do with whether appellant or someone else assaulted the victim. 

Further, the prosecutor’s argument that it is unlikely that a person would bleed immediately when struck on the head by a wooden object, is contrary to a layperson’s experience and to common sense, and likely was rejected by the jury.  Specifically, the court properly instructed the jury that the arguments of the attorneys do not constitute evidence, and that the jury should base their decision on the evidence.  We presume that the jury followed the court’s instruction.  State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002).  Here, the prosecutor’s comments involved merely three paragraphs or roughly ten percent of the prosecutor’s closing argument.  Thus, the comments were not pervasive.  See State v. Holscher, 417 N.W.2d 698, 702 (Minn. App. 1988) (noting that on review we must consider the closing argument as a whole), review denied (Minn. Mar. 18, 1988).

Finally, the evidence that contradicted appellant’s defense and supported appellant’s conviction was overwhelming.  See State v. Washington, 521 N.W.2d 35, 41 (Minn. 1994) (stating that where evidence is strong, it is unlikely that prosecutor’s improper comments influenced the jury verdict).  Here, the victim’s friend identified appellant in the courtroom as the person who came to the victim’s apartment and asked for him just prior to the assault.  Appellant admitted going to the victim’s apartment that night, getting into an argument over the victim’s girlfriend, and then entering into an altercation and pushing the victim.[3]  The victim testified that it was appellant who brutally attacked him.  The victim and appellant knew each other, and there was little likelihood of misidentification.  The victim’s friend testified that about the time that the assault had occurred that he observed a white SUV drive away from the apartment building.  Shortly thereafter, appellant was stopped in a white SUV.  The arresting officer testified that appellant stated at the time of the stop that, the only reason he was being arrested was because a white guy was assaulted.  At that time, the police had not yet mentioned the race or identity of the victim. 

On this record, it is unlikely that the prosecutor’s speculation that striking the victim on the head with a wooden object would not immediately draw blood had a significant effect on the jury verdict or was prejudicial to appellant’s right to a fair trial.  Therefore, I would affirm the conviction.

 

______________________________

Christopher J. Dietzen, Judge