This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-1636

State of Minnesota,

Respondent,

vs.

Curtis Marcell Smallwood,

Appellant.

Filed July 21, 1998

Reversed

Amundson, Judge

Dakota County District Court

File No. K1-96-2511

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, James Backstrom, Dakota County Attorney, Phillip D. Prokopowicz, Statia D. Hendrix, Assistant County Attorneys, Dakota County Judicial Center, 1560 Highway 55, Hastings MN 55033 (for respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55101 (for appellant)

Considered and decided by Amundson, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Appellant challenges his first-degree burglary conviction, arguing that evidence seized from his car was improperly admitted and that his right to a fair trial was violated when the prosecutor stated in his opening statement that Smallwood had admitted his guilt in an attempt to craft a plea agreement. Appellant also challenges his 240-month sentence, arguing that a Maryland offense was inaccurately calculated as a dangerous offense, and that the sentence overstates his criminality. Because we find that the prosecutor's comments constitute prosecutorial misconduct and therefore denied appellant his right to a fair trial, we reverse appellant's conviction.

FACTS

On the morning of October 31, 1996, appellant Curtis Marcell Smallwood was arrested for burglary. Later that day, investigator Mark Robideau questioned Smallwood about the offense; twice Smallwood offered to plead guilty. At trial, the prosecutor referred in his opening remarks to Smallwood's offer to plead guilty. The jury convicted Smallwood of first-degree burglary, and he was sentenced to 240 months. This appeal follows.

D E C I S I O N

Smallwood argues that the prosecutor's statement in his opening argument that Smallwood had offered to plead guilty denied Smallwood his right to a fair trial. This statement relates to the fact that Smallwood had twice asked, during his October 31st statement, that the tape recorder be turned off, and while it was off, offered to plead guilty in exchange for a sentence according to the guidelines.

The prosecutor told the jury in his opening statement,

You're also going to hear from Investigator Robideau the defendant at one point in time even admitted that he wanted to plead guilty to this particular offense and receive an appropriate sentence.

Smallwood's attorney made no objection, although, after a recess, she asked the court that no reference of Smallwood's offer to plead guilty be admitted.

The prosecutor's statement was prosecutorial misconduct. A prosecutor "must avoid inflaming the jury's passions and prejudices against the defendant," particularly where credibility is the central issue. State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). Moreover, the prosecutor's statement was a direct violation of Minn. R. Evid. 410, which states:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

Because we find that the prosecutor's comment denied Smallwood his right to a fair trial, we need not address the other issues presented on appeal.

Reversed.