This opinion will be unpublished and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

A06-322

 

 

State of Minnesota,

Respondent,

 

vs.

 

Frank L. Miles,

Appellant.

 

 

Filed June 19, 2007

Affirmed

Lansing, Judge

 

 

Steele County District Court

File No. K2-04-897

 

 

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

 

Douglas L. Ruth, Steele County Attorney, Scott L. Schreiner, Assistant County Attorney, 303 South Cedar, Owatonna, MN 55060 (for respondent)

 

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

 

 

            Considered and decided by Worke, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In this appeal from conviction of temporary theft and illegal possession of a firearm, Frank Miles argues that he was denied a fair trial by the prosecutorial misconduct of expressing a personal opinion on witness credibility and that the evidence, absent his confession, is insufficient to establish that the charged offenses occurred.  We agree that the prosecutor erred by ascribing credibility assessments to the state, but in light of the record as a whole, the error did not result in an unfair trial.  And because sufficient evidence independent of Miles’s confession establishes that the charged offenses occurred, we affirm. 

F A C T S

            A Waseca County police officer arrested Frank Miles as he walked away from the porch of a Waseca residence at approximately 5:00 a.m. on June 29, 2004.  The homeowner had heard a vehicle with a loud motor pull up outside her house and watched Miles as he parked a pickup truck in a nearby parking lot and a short time later saw him on her porch looking into her window.  Miles told the police officer that he had gotten a ride to Waseca and that he had gone to the wrong house.  Initially, Miles provided an incomplete or false name.  When the officer ascertained Miles’s identity, he arrested Miles on outstanding warrants. 

            Following an investigation, the Steele County Attorney charged Miles with theft of the pickup, temporary theft of a 12-gauge shotgun that was in the pickup, felon in possession of a firearm, and driving without a valid license.  Miles pleaded not guilty and requested a jury trial.

At trial, the state presented evidence from the homeowner, several police officers, and Joshua Fedder, the owner of the gun and the pickup.  Fedder testified that Miles was at Fedder’s home in Owatonna on the evening of June 28, 2004, and they consumed alcohol together until 1:30 or 2:00 a.m. on June 29.  When Fedder went to bed, his Mossberg 12-gauge shotgun was in the dining room of his home where he had placed it after removing it from its case for cleaning.  Fedder’s pickup was parked outside his home and his keys to the pickup were either on the living-room table or on a desk near the gun in the dining room.            At 5:08 a.m. Miles called Fedder from the Waseca jail and told him that his pickup and shotgun were in a school parking lot in Waseca.  Fedder testified that he was upset because he had not given Miles permission to take the gun or the pickup.  Later that morning Fedder retrieved his pickup from the school parking lot and saw his shotgun in plain view behind the back seat. 

            An Owatonna police officer testified that, during a taped interview, Miles told the officer that he saw the gun in the pickup but denied that he had taken it.  Miles also said that he had driven the pickup to Waseca but asserted that he had Fedder’s permission to use it.  For purposes of trial, Miles stipulated that he was ineligible to possess a firearm.  

            In closing arguments the prosecutor commented on the credibility of several of the witnesses.  He prefaced some of his comments with the phrase, “The state believes.”  The defense objected to these statements.  The district court sustained the objection and instructed the jury to disregard these statements.  The prosecutor acknowledged his error and told the jury that, as the judge instructed, it is not what the state believes, but what the facts show. 

            The jury found Miles guilty of temporary theft and illegal possession of the shotgun and not guilty of theft of the pickup.  The district court dismissed the driver’s license charge because the state failed to provide evidence of a required element.  Miles appeals, arguing that the prosecutor committed prejudicial misconduct in closing arguments and that the evidence, absent his own statements to the police, is insufficient to meet the requirements of Minn. Stat. § 634.03 (2002) to establish that an offense occurred.

D E C I S I O N

I

            “It is improper for a prosecutor in closing argument to personally endorse the credibility of witnesses.”  State v. Porter, 526 N.W.2d 359, 364 (Minn. 1995).  This type of prosecutorial endorsement, also referred to as vouching, occurs when the prosecutor implies a guarantee of the witness’s truthfulness or expresses a personal opinion as to the witness’s credibility.  State v. Patterson, 577 N.W.2d 494, 497 (Minn. 1998).  The personal-opinion prohibition is not designed to prevent the prosecutor or the defense attorney from arguing that particular witnesses were or were not credible, but to prevent the attorney “from becoming an unsworn witness and otherwise personally attaching himself or herself to the cause which he or she represents.”  State v. Everett, 472 N.W.2d 864, 870 (Minn. 1991).  “As applied to the prosecutor, the rule helps avert exploitation of the influence of the prosecutor’s office.”  Id. 

            Miles points to six statements in the prosecutor’s closing argument that he contends violate the personal-opinion rule.  One statement describes police officers as appearing to be “very credible.”  Four statements are prefaced with the phrase “the state believes” or “the state does not believe.”  Two of these statements, however, express an opinion on a legal point, not on credibility.  The remaining statement concludes with the phrase, “in the opinion of the state.”  The state argues that the statements prefaced by the phrase “the state believes” do not express a personal opinion because the prosecutor does not say, “I believe.”  We are not persuaded by this reasoning. 

            By imputing his own observations about credibility to the state, the prosecutor aggravates the problems that the personal-opinion rule seeks to mitigate.  The state itself becomes the unsworn witness that passes judgment on the witness’s credibility, and the jurors are subject to the direct influence of the principal rather than the indirect influence of the agent.  We, therefore, conclude that in four instances the prosecutor injected impermissible guarantees of a witness’s truthfulness or untruthfulness.  We must now address whether this conduct entitles Miles to a new trial. 

            The overarching problem presented by prosecutorial misconduct is that it may deny the defendant’s right to a fair trial.  State v. Ramey, 721 N.W.2d 294, 300 (Minn. 2006).  We will reverse a conviction if prosecutorial error, considered in light of the whole trial, impaired the defendant’s right to a fair trial.  State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006).  For three reasons we conclude that the prosecutorial error did not deny Miles a fair trial.

            First, the district court sustained the objection to the prosecutor’s improper statements on the witnesses’ credibility and specifically instructed the jury “that the state shouldn’t argue the state believes kind of language.  They should properly argue the facts shown or the evidence shown.”  The district court then instructed the jury “to disregard that in the arguments here this morning.”  “Prosecutorial error may be cured by the court’s instructions.”  State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005).  In addition to its curative instruction, the district court, in its written preliminary instructions, cautioned the jury that, “Evidence is what the witnesses say and any exhibits submitted to you.  What the attorneys say is not evidence.”  The court issued a similar instruction at the beginning of the trial.  And in final instructions before closing arguments, the court again told the jury that “the arguments or other remarks of an attorney are not evidence.”  Given these instructions and the presumption that the jury follows the court’s instructions, this factor weighs against a new trial.  See id. (concluding that prosecutorial misconduct did not impair right to fair trial because district court’s ruling and instructions adequately addressed misconduct).  

            Second, we consider the misconduct in the context of the entire closing argument.  State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994).  The prosecutor’s errors consisted of four statements found on three pages of a closing argument that consisted of forty-seven pages in total.  The prosecutor devoted the rest of his argument to explaining the charges and arguing the facts as they applied to the charges.  See id. (finding harmless error when improper argument appeared on only four of forty-five pages of closing-argument transcript).  The errors were “isolated and not representative of the closing argument when reviewed in its entirety” and consequently were not fatally prejudicial.  State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990). 

            Third, that the jury finds a defendant guilty on some charges but not guilty on others suggests that the jury was not unduly influenced by the misconduct.  Id.  The jury found Miles guilty of theft and illegal possession of the shotgun but not guilty of theft of the pickup.  That result indicates that the jury maintained its independence and properly reviewed the evidence instead of passively accepting the prosecutor’s assessments of credibility.

            Miles argues that the dismissal of one of the charges and the jury’s request to hear the tape of the police interview demonstrate that the case was close and that the errors were not harmless.  But the licensure charge that was dismissed relied on evidence that was distinct from the remaining charges of illegal possession of a firearm and theft of the pickup and the shotgun.  Also, the record provides no reason why the jury requested the police-interview tape.  Significantly, the jury’s total deliberation time of less than three hours does not support an argument that the case was close or difficult to decide.   

            In summary, we conclude that the prosecutor committed error by improperly commenting on witness credibility.  But the prosecutor’s errors received a proper objection and the district court correctly sustained the objection and provided a curative instruction.  The district court also provided general instructions that were consistent with the curative instruction.  The improper references constituted only a small part of the total trial, and the split verdict confirms the jury’s independent evaluation of the testimony of the witnesses.  In light of the record as a whole, the errors did not deny Miles a fair trial. 

II

            A confession by a defendant is insufficient to sustain a conviction “without evidence that the offense charged has been committed.”  Minn. Stat. § 634.03 (2002); State v. Koskela, 536 N.W.2d 625, 629 (Minn. 1995).  Section 634.03 serves the dual purpose of discouraging coercively acquired confessions and assuring that the defendant’s admission is reliable.  State v. Azzone, 271 Minn. 166, 170, 135 N.W.2d 488, 493 (1965). 

            Miles argues that his admission that he knew he was transporting a shotgun in Fedder’s pickup was not sufficiently established by independent evidence because the state had no direct evidence of this crime aside from his admissions to the Owatonna police officer.  Miles’s contention improperly dismisses the probative value of circumstantial evidence and ignores Fedder’s testimony about Miles’s phone call in which Miles told Fedder about taking the shotgun and pickup, and that Fedder could retrieve them from the Waseca school parking lot. 

            To substantiate a confession for purposes of section 634.03, the state need only produce evidence that allows the jury to verify the confession’s accuracy.  State v. Brant, 436 N.W.2d 468, 471 (Minn. App. 1989).  The evidence can be direct or circumstantial, as neither is entitled to more weight than the other.  State v. Jones, 516 N.W.2d 545, 549 (Minn. 1994).  The crucial inquiry is the “practical relation between the confession and the government’s case, rather than the theoretical relation to the definition of the offense.”  Brant, 436 N.W.2d at 471. 

            The state presented evidence that a Waseca homeowner heard a loud vehicle in the early morning hours of June 29th and observed the vehicle park in a nearby school parking lot.  The homeowner then saw a stranger on her porch looking into her house through the porch window.  The homeowner called the police, who arrested Miles as he was walking away from the homeowner’s porch.  The state also presented evidence that Fedder received a telephone call from Miles just after 5:00 a.m., telling him that Miles had taken Fedder’s shotgun and pickup and that he had left them in a Waseca school parking lot.  Fedder drove to Waseca later that day and found his pickup in the school parking lot and his shotgun behind the bench seat.  Fedder’s pickup had a loud exhaust, his shotgun had been in his house when he went to bed earlier that morning, and Fedder testified that he had not given Miles permission to take it.  Viewed as a whole this testimony provides ample evidence that Miles took the shotgun without permission and illegally transported it from Owatonna to Waseca.  Thus the evidence is sufficient to support Miles’s admissions.

            Affirmed.