This opinion will be unpublished and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

A06-996

 

State of Minnesota,

Respondent,

 

vs.

 

Buddy Theodore Opelt,

Appellant.

 

Filed ­­­June 5, 2007

Affirmed

Dietzen, Judge

 

Carlton County District Court

File No. 09-CR-05-3637

 

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

 

Thomas H. Pertler, Carlton County Attorney, P.O. Box 300, 204 Courthouse, Carlton, MN 55718 (for respondent)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges his convictions of second-degree controlled-substance crime (possession of methamphetamine) and fleeing a peace officer in a motor vehicle, arguing that unobjected-to prosecutorial misconduct during closing argument deprived him of a fair trial.  Because we conclude that the prosecutor did not engage in prejudicial misconduct during closing argument, we affirm. 

FACTS

About 1:30 a.m. on a December morning, a Carlton County deputy sheriff observed appellant Buddy Theodore Opelt driving a car with an object hanging from his rear-view mirror, which is a traffic-law violation.  The deputy observed that appellant had some difficulty keeping his vehicle within his lane and turned on his squad-car video camera.  When appellant drifted across the lane divider with both wheels, the deputy activated his flashing lights, and receiving no response from appellant, the deputy turned on his siren and flashed his high-beam lights. 

During a several-mile chase, the deputy observed appellant empty the contents of plastic baggies out the window of his car and then discard the baggies.  Appellant was eventually stopped and arrested by police coming from the other direction.  Based on a review of the videotape, law enforcement was able to recover three plastic baggies and several “shards” in the snow alongside the road.  The materials were sent to the Bureau of Criminal Apprehension (BCA) and tested positive for methamphetamine.

 Appellant was charged with second-degree controlled-substance crime (possession of methamphetamine), fleeing a police officer in a motor vehicle, felony driving-while-impaired, and test refusal.  At trial, the deputy testified to the facts leading up to the arrest.  A BCA forensic scientist testified that he analyzed one of the shards weighing 21.3 grams and that it contained methamphetamine.  Also, he tested one of the baggies that contained crystalline material and found that it contained methamphetamine.  He also stated that he did not test the other two baggies because the weight would not be enough “to increase to the next chargeable level.”

            Appellant testified that the flashing lights of the squad car frightened him due to prior “bad experiences” with the police and, therefore, he did not stop.  Appellant admitted that a friend had been smoking marijuana in the car earlier in the evening and testified that he threw the ashtray out the window to get rid of any marijuana residue.  Appellant denied having any methamphetamine in the car.

            Following trial, the jury returned a verdict of guilty on the controlled-substance and fleeing-a-police-officer charges.  The other charges were dismissed during trial.  Appellant was sentenced, and this appeal followed.

D E C I S I O N

Appellant argues that unobjected-to prosecutorial misconduct during closing argument deprived him of a fair trial.  We apply the plain-error doctrine when examining unobjected-to prosecutorial misconduct.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  In Ramey,the supreme court stated that the overarching concern regarding prosecutorial misconduct “is that such misconduct may deny the defendant’s right to a fair trial.”  Id.at 300; see, e.g., State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003); State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980).  Prosecutors have an affirmative obligation to ensure that a defendant receives a fair trial.  State v. Henderson, 620 N.W.2d 688, 701-02 (Minn. 2001).

The plain-error doctrine requires that there be (1) error; (2) that is plain; and (3) the error must affect substantial rights.  Ramey, 721 N.W.2d at 302 (citing State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)).  According to Ramey, the burden remains on the defendant to demonstrate both that error occurred and that the error was plain.  Id.  “An error is plain if it was ‘clear’ or ‘obvious.’”  State v. Strommen, 648 N.W.2d 681, 688 (Minn. 2002).  Usually this is shown if the error “contravenes case law, a rule, or a standard of conduct.”  Ramey, 721 N.W.2d at 302.  But if “the defendant demonstrates that the prosecutor’s conduct constitutes an error that is plain, the burden would then shift to the state to demonstrate lack of prejudice; that is, the misconduct did not affect substantial rights.”  Id.

Appellant argues that the prosecutor engaged in four acts of misconduct.  First, the prosecutor improperly vouched for the credibility of the police officers.  Vouching occurs when the prosecutor endorses the credibility of the state’s witnesses or expresses a personal opinion as to a witness’s credibility.  State v. Patterson, 577 N.W.2d 494, 497 (Minn. 1998).  “It is prosecutorial misconduct to bolster the credibility of the state’s witnesses with the prosecutor’s own opinion: an advocate may not throw onto the scales of credibility the weight of his own personal opinion.”  In re Welfare of D.D.R., 713 N.W.2d 891, 900 (Minn. App. 2006) (quotation omitted).  But the prosecuting attorney has a right to argue that the state’s witnesses were worthy of credibility.  State v. Googins, 255 N.W.2d 805, 806 (Minn. 1977); State v. Yang, 627 N.W.2d 666, 679 (Minn. App. 2001), review denied (Minn. July 24, 2001).

Here, the prosecutor told the jury that to find the defendant not guilty, the jury would have to “somehow surmise that the police officers were fabricating, or you’d have to disbelieve the police officers.”  The prosecutor asked, “What motivation would they have to fabricate any of this?  You heard them come in and testify.  The story makes perfect sense.” 

On this record, we see no misconduct. The prosecutor’s comments do not personally endorse the state’s witnesses, but rather imply that there was no conceivable reason for them to fabricate their testimony because of the nature of their job.  Yang, 627 N.W.2d at 679.  And the prosecutor did not attempt to bolster the personal credibility of any specific witness.  See Patterson, 577 N.W.2d at 497 (describing vouching as bolstering a witness’s credibility).

Second, appellant argues that the prosecutor’s closing argument appealed to the passions and prejudices of the jury, but failed to identify any specific instance in his brief.  Prosecutorial misconduct occurs when the state appeals to passion or prejudice and distracts a jury from applying the standard of proof to the evidence presented.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  But the defendant cannot rely on a few isolated statements.  Powers, 654 N.W.2d at 679.  Rather, the court must consider the prosecutor’s statements in the context of the parties’ arguments and the entire trial.  Id.

The prosecutor argued that the jury needed “courage” to convict, but also requested the jury be impartial, give the appellant a fair trial, and leave their emotions outside.  The overall tenor of the prosecutor’s closing argument is not overheated and does not exploit prejudice against appellant.

Third, appellant argues that the prosecutor improperly told the jury that they would be violating their oath if they did not convict appellant.  Respondent argues the prosecutor did not say that jurors would violate their oath if they did not convict, but rather that they would violate their oath if they disregarded the evidence. 

Reminding the jurors of their oath is not by itself misconduct.  Accord State v. Bradford, 618 N.W.2d 782, 799 (Minn. 2000) (admonishing a jury to “render a true and just verdict” was not improper); State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996) (noting that it is appropriate for a prosecutor to beseech a jury to “seek justice”).  Further, it is not misconduct for a prosecutor to argue that the “overwhelming” nature of the evidence requires conviction.  See Atkins, 543 N.W.2d at 648 (holding that prosecutor’s statement that it would be “unspeakable injustice” to acquit was not misconduct).  But it is misconduct to argue that the jury would violate their oath if they did not convict appellant.  See State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (it is misconduct to argue that the jurors would be “suckers” for acquitting the defendant because such misconduct “struck at the heart of the jury system, juror independence.”). 

The prosecutor argued, “Look at the evidence of this case.  It’s overwhelming,” and stated that by ignoring the evidence, “you would be violating your oath as a juror.”  Further, the prosecutor stated that “I don’t know . . . how could the jury find this defendant not guilty?  Well, you’d have to . . . ignore most of the evidence . . . .”  Finally, “You received the evidence, you took the oath.  Follow that oath and make your decision.”

On this record, the prosecutor’s argument did not cross the line.  Unlike Porter, the prosecutor’s argument was not “a blatant attempt to impinge upon juror independence.”  Id.at 364.  While the prosecutor’s statement that he did not know how “the jury could find this defendant not guilty” is questionable, it must be evaluated in the context of his other statements.  Here, the prosecutor also stated that the jurors should follow their oath by considering the evidence and making a decision.  Thus, we conclude that the prosecutor did not commit misconduct. 

            Fourth, appellant argues that the prosecutor improperly characterized the state’s burden of proof.  Misstatements of the burden of proof are highly improper and constitute prosecutorial misconduct.  State v. Coleman, 373 N.W.2d 777, 782-83 (Minn. 1985); State v. Johnson, 679 N.W.2d 378, 389 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004).   

During closing argument, the prosecutor argued that “beyond a reasonable doubt” did not require “absolute [or] mathematical certainty,” and stated, “You don’t have to be sure.”  The prosecutor also stated that “proof beyond a reasonable doubt” was “a lot of jargon” and “a lot of legal stuff,” and that the jury’s obligation was to use “reason and common sense.” 

Here, the prosecutor’s comments regarding the burden of proof were an attempt to explain “beyond a reasonable doubt” in layperson’s terms.  Although the prosecutor’s comment that the jury did not “have to be sure” may be problematic in isolation, it must be evaluated in the context of the other statements that proof “beyond a reasonable doubt” did not require “absolute or mathematical certainty.”  We consider the closing argument as a whole, rather than focusing on particular “phrases or remarks that may be taken out of context or given undue prominence.”  State v. Leake, 699 N.W.2d 312, 327 (Minn. 2005), cert. denied, 126 S. Ct. 745 (2005). 

Appellant suggests that State v. Trimble, 371 N.W.2d 921, 926-27 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985), supports his argument.  In Trimble, the supreme court held that prosecutorial misconduct involving a misstatement of the presumption of innocence was not reversible error because the district court told the jury that the prosecutor’s argument was “an incorrect statement of the law” and properly instructed the jury on the appropriate burden of proof.  Id.  Here, the prosecutor did not misstate the burden of proof.  And the district court properly instructed the jury on the presumption of innocence and that “the state has the burden of proving a defendant guilty beyond a reasonable doubt.”  We presume that the jury followed the court’s instructions, which fully advised the jury on the requirement of proof beyond a reasonable doubt.  See State v. Pendleton, 706 N.W.2d 500, 509 (Minn. 2005) (citing State v. Taylor, 650 N.W.2d 190, 207 (Minn. 2002)); see also State v. McDonough, 631 N.W.2d 373, 389 n.2 (Minn. 2001) (“[A] prosecutor’s attempts to shift the burden of proof are often nonprejudicial and harmless where . . . the district court clearly and thoroughly instructed the jury regarding the burden of proof.”).

But even if we were to conclude that the prosecutor’s statements that the jury did not “have to be sure” or that it would “violate [its] oath” by ignoring the evidence were plain error, these statements did not prejudice appellant’s right to a fair trial.  Under Ramey, the state must show that there is no reasonable likelihood that the absence of the misconduct would have had a significant effect on the jury verdict.  721 N.W.2d at 302.  Thus, the supreme court has directed a reviewing court to focus on the impact the misconduct had on the jury verdict.  State v. Dobbins, 725 N.W.2d 492, 508 (Minn. 2006). 

It is unlikely that the prosecutor’s statements that he did not know how “the jury could find this defendant not guilty” and “[y]ou don’t have to be sure” had a significant effect on the jury verdict.  These statements were isolated and a very small part of the prosecutor’s argument.  See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (finding no prejudice to defendantwhen remarks were isolated and not representative of the closing argument viewed in its entirety).  And the district court properly instructed the jury on the appropriate burden of proof. 

Further, the evidence supporting conviction was overwhelming.  Here, the jury was shown the squad-car videotape depicting the police pursuit of appellant and his discarding of what appeared to be the baggies later found to have contained drugs.  Along with the testimony of the officers, the videotape evidence renders it unlikely that the prosecutor’s comments prejudiced appellant by altering the jury verdict.  See Dobbins, 725 N.W.2d at 513 (concluding that when state’s case against appellant was very strong, conviction was not significantly affected by prosecutorial misconduct; State v. Washington, 521 N.W.2d 35, 41 (Minn. 1994) (stating that where the evidence is strong, it is unlikely that improper comments by the prosecutor influenced the jury).  Appellant concedes the state had a strong case against him.  On this record, the prosecutor’s statements did not prejudice the jury verdict and deprive appellant of a fair trial. 

            Affirmed.