Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Robert M. A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, Seventh Floor, 2100 Third Avenue, Anoka, MN 55303 (for respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, LEC 304, St. Paul, MN 55105 (for appellant)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

Appellant Robert John Krumm was convicted of attempted second-degree murder, Minn. Stat. §§ 609.19(1) and 609.17, subd. 1(1994); first-degree assault, Minn. Stat. § 609.221(1994); second-degree assault, Minn. Stat. § 609.222 (1994); and terroristic threats, Minn. Stat. § 609.713, subd. 1(1994). Krumm appeals, alleging that he is entitled to a new trial because the trial court erred by failing to instruct the jury on the defense of abandonment and on the offense of attempted first-degree manslaughter. Krumm also alleges that the prosecutor committed misconduct during his closing argument. We affirm.

D E C I S I O N

1. Abandonment Defense

"The refusal to give a requested jury instruction lies within the discretion of the trial court, and no error results if no abuse of discretion is shown." State v. Blasus, 445 N.W.2d 535, 542 (Minn. 1989).

Krumm argues the trial court erred by failing to instruct the jury that if he abandoned the intention to commit the crime, he was not guilty of attempted murder. Pursuant to Minn. R. Crim. P. 9.02, subd. 1(3), he contends, assertion of the abandonment defense does not require pretrial notice to the prosecutor. Krumm claims that Minn. R. Crim. P. 9.02, subd. 1(3), requires only notice of defenses that would prejudice the case of the prosecution and, in this matter, no prejudice would result. Krumm argues, therefore, that the trial court's failure to instruct the jury as to the abandonment defense was not harmless error and requires he be given a new trial.

Minn. R. Crim. P. 9.02, subd. 1(3)(a), provides in part:

The defendant shall inform the prosecuting attorney in writing of any defense, other than that of not guilty, on which the defendant intends to rely at the trial, including but not limited to * * *.

(Emphasis added.) "[I]f an accused intends to raise any defense besides not guilty, s/he must notify the prosecution." State v. Lee, 491 N.W.2d 895, 899 (Minn. 1992) (where appellant failed to provide timely notice of his intent to plead mental illness, it was not an abuse of discretion for the trial court to preclude a proposed mental illness defense) (citing Minn. R. Crim. P. 9.02(1)(3)(a)).

Disclosure of defenses is a discovery function under the rules. If a party fails to comply with discovery rules, the trial court may grant a continuance "or enter such order as it deems just in the circumstances."

Id. (quoting Minn. R. Crim. P. 9.03(8)). "The imposition of sanctions for violation of discovery rules and orders is a matter particularly suited to the judgment and discretion of the trial court." Id. (quoting State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979) (citations omitted)). In determining an appropriate sanction after a discovery violation is made, the trial court should consider (1) the reason why the disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors. See Lindsey, 284 N.W.2d at 373.

We cannot say that the trial court erred in refusing to instruct the jury on an abandonment defense. Minn. R. Crim. P. 9.02 unequivocally states that the defendant is to provide the prosecution with pretrial notice of any defense to be relied upon at trial. Although Krumm provided the state with the required pretrial disclosure, the list included only the defenses of intoxication and self-defense. Krumm's request to add the defense of abandonment at the end of trial would have prejudiced the prosecution, which had prepared its case and selected witnesses based on the defenses listed in Krumm's rule 9.02 disclosure.

We conclude that Krumm's failure to disclose his intent to rely on the defense of abandonment, as required by rule 9.02, constitutes a waiver, and the trial court did not abuse discretion in refusing to give the requested instruction. Furthermore, even if the defense had been properly noticed, it appears doubtful that the evidence supported such an instruction.

2. Attempted First-Degree Manslaughter Instruction

The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court, but where the evidence warrants an instruction, the trial court must give it.

Bellcourt v. State, 390 N.W.2d 269, 273 (Minn. 1986) (citations omitted).

Krumm also argues that the trial court erred in failing to instruct the jury on the offense of attempted first-degree manslaughter. Although Krumm admits that he made no request for this instruction, he claims it was error for the trial court to fail to submit this offense sua sponte. Krumm argues that this plain error denied him his right to a fair trial, necessitating remand for a new trial.

Minn. Stat. § 609.20 (1994) provides in part:

Whoever does any of the following is guilty of manslaughter in the first degree * * * [I]ntentionally causes the death of another person in the heat of passion provoked by such words or acts of another as would provoke a person of ordinary self-control under like circumstances * * *.

However, the defendant's emotional state alone does not mitigate murder to manslaughter; the words and acts of the victim must have been enough to provoke a person of ordinary self-control. See State v. Auchampach, 540 N.W.2d 808, 815 (Minn. 1995). The determination of what, if any, lesser offense to submit to the jury lies within the sound discretion of the trial court. LaMere v. State, 278 N.W.2d 552, 558 (Minn. 1979). When a defendant fails to request an instruction on a lesser included offense, his right to obtain relief on this ground is forfeited, unless the trial court's failure to give the instruction sua sponte constituted plain error of a prejudicial nature. State v. Bolte, 530 N.W.2d 191, 199 (Minn. 1995). Furthermore, where the evidence warrants an instruction, the trial court must give it. See State v. Lee, 282 N.W.2d 896, 899 (Minn. 1979); see also State v. Galvan, 374 N.W.2d 269, 271 (Minn. 1985) (first-degree manslaughter is a lesser included offense of felony murder in the second degree). But, failure to give an appropriate instruction on lesser offenses is a ground for reversal only if defendant is prejudiced. State v. Edward, 343 N.W.2d 269, 276 (Minn. 1984).

Krumm admits that he did not make a request for the court to instruct the jury on attempted first-degree manslaughter; therefore, we must determine whether it was plain error for the court to fail to give this instruction on his own initiative.

On review of the record, we cannot say that the words or acts of the victim at the time of the assault would constitute sufficient evidence of provocation to require an instruction on attempted first-degree manslaughter. Krumm (who had been living with, but was presently separated from, the victim) had an argument with her on the telephone when she told him she had briefly seen an old boyfriend. Krumm then drove 15 minutes to her home, where she denied him admission. Somehow he managed to enter the home, where he followed her into the basement. The victim was walking away from Krumm to gather his belongings when he attacked her. In his brief, Krumm conceded that his attempt to kill his girlfriend resulted from his discovery that she had seen an old boyfriend.

We hold that this evidence did not warrant an instruction on attempted first-degree manslaughter despite Krumm's failure to request one. Krumm's claimed provocation was separate in time and place from his physical assault on the victim. The couple had separated. Krumm was calling from a separate residence when he argued with her. Krumm did not immediately rush out of the house following the argument, but instead made several further calls to her to discuss the matter. Furthermore, when he did decide to go to her home, Krumm had a 15-minute drive during which to consider his actions before he arrived.

We hold, as a matter of law, that the words and acts of this victim cannot be said to be such as "would provoke a person of ordinary self-control under like circumstances." We conclude, therefore, that the trial court did not commit plain error of a prejudicial nature in failing, without request, to instruct the jury on the offense of attempted first-degree manslaughter.

3. Prosecutorial Misconduct

Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rule, but rests within the discretion of the trial judge, who is in the best position to appraise its effect. State v. Moseng, 379 N.W.2d 154, 156 (Minn. App. 1985) (citing State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980)).

The court's determination should be reversed on appeal only when the misconduct, "viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that the defendant's right to a fair trial was denied."

Id. (quoting Wahlberg). A defendant who fails to object at trial to any statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). A reviewing court may reverse, notwithstanding the defendant's failure to preserve the issue, if the court deems the error sufficient to do so. Id. However, the comments, albeit improper, must rise to the level of being so serious or prejudicial that the defendant did not receive a fair trial. Wahlberg, 296 N.W.2d at 420.

Krumm alleges several instances of prosecutorial misconduct that he contends require a new trial. For clarity, we will address the comments in the order in which they arose.

a. Comment #1

Krumm argues that the prosecutor committed misconduct by telling the jurors that it was their responsibility to assess what happened and find him guilty. He specifically objects to the following:

[The offense] can be dealt with in such a way as treating it as a bedroom offense, and you can choose to turn your back on it and vote not guilty, of what this defendant did, and leave it at that. It's their problem, not ours. They should be able to handle their own problems between couples. Or you can treat this as criminal violence, and convict that man of those four charges * * * I can't be anymore blunt to you than that. That is what is before you.

Krumm admits that he did not object to this comment at trial.

A prosecutor should not emphasize accountability to the extent that the jury is diverted from its proper role of deciding whether the state has proved the defendant guilty beyond a reasonable doubt. State v. Montjoy, 366 N.W.2d 103, 109 (Minn. 1985). This court must look at the prosecutor's closing argument "as a whole, rather than just selective phrases or remarks that may be taken out of context or given undue prominence." State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993).

We do not perceive that this comment was prejudicial or such as to divert the jury from its proper role. The prosecutor's comment was nothing more than a prompt to the jury not to overlook the alleged criminality of the circumstances, despite the fact that the incident occurred in what had been the couple's home. Furthermore, Krumm did not object to this comment at trial. We cannot say that this comment of the prosecutor was prejudicial.

b. Comment #2

Krumm argues that it was improper for the prosecutor to argue that he was a controlling person:

But the two greatest examples of control I haven't even discussed yet. Dragging the woman by her hair through her own home, after having been choked to unconsciousness, to another place to assault her with a knife; how's that for control? Calling her a bitch and telling her she's no good, all that night, after he's had 15 minutes to drive to that residence and think about what's going to happen. In fact, the defendant still controls her today, controlled her yesterday, the day before. And we know how he's done that. You saw her try to testify and how it's affected her. Don't think this case is just in the bedroom, just to be worried about by the people involved.

He contends that the trial court improperly overruled his objection to this comment.

During closing argument, a prosecutor may argue all reasonable inferences from the evidence in the record. Wahlberg, 296 N.W.2d at 419. We hold that the prosecutor's reference to Krumm's "control" is not so improper that a new trial would be called for. In fact, we cannot perceive that the prosecutor's analysis of the events constitutes an unfair characterization of the evidence on the record. We conclude that the prosecutor did not commit misconduct with this comment.

c. Comment #3

Lastly, Krumm argues that the prosecutor sought to inflame the passions of the jury by making reference to the O.J. Simpson case. He claims that the prosecutor's reference to that highly publicized case was particularly prejudicial because of the parallel issues of domestic abuse in that and in this case. Specifically, Krumm takes issue with the prosecutor's comment:

Beyond a reasonable doubt. You've probably all heard it kicked around a lot, especially with the O.J. case. There's no clear definition.

When the argument is not made in a way "calculated to cause the jury to decide the case on the basis of passion rather than reason, and there is no reason to believe that defendant was prejudiced by the argument," there is no misconduct. State v. Johnson, 324 N.W.2d 199, 202 (Minn. 1982).

This comment appears to constitute nothing more than a single, brief reference during discussion of the meaning of reasonable doubt and did not taint the entire argument. While this comment may have been ill-advised, given its single use and the absence of any showing that the prosecutor intended to inflame the jury, we conclude that the prosecutor did not commit misconduct with these comments.

Affirmed.