Clayton M. Robinson, Jr., City Attorney, Janet A. Reiter, Assistant City Attorney, 500 City Hall, 15 Kellogg Boulevard, St. Paul, MN 55102 (attorneys for respondent)

John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (attorneys for appellant)

Considered and decided by Davies, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

HALBROOKS, Judge

Appellant Stephan Farr was convicted by a jury of gross misdemeanor fifth-degree assault and misdemeanor disorderly conduct. He alleges his due process right to a fair trial was violated because of prosecutorial misconduct. We conclude that in light of the evidence of appellant's guilt, any misconduct did not play a substantial part in influencing the jury to convict. Therefore, we affirm.

Shannon Cartier, another neighbor in the building, heard the victim saying, "Stephan, please leave, please leave Stephan." She watched from her window as Farr exited the building and drove away. She then went downstairs to check on the victim. The victim told Cartier that she and Farr had been fighting, and he beat her up and hit her on the neck with a piece of wood. Cartier also noticed the victim's injuries.

Officer Sylvia McPeak found the victim in the bedroom when she arrived at the apartment. The victim told McPeak and officer Craig Nelson that Farr, her ex-boyfriend, came to the house, accused her of cheating on him, and became physical with her. He took her by the hair and smashed her face into the wall. He then picked up a stick from the floor and used it to hit her on the neck and leg. She attempted to call 911, but he pulled the phone out of the wall. McPeak and Nelson also observed that the victim's shirt was ripped and her face was injured.

Farr testified that he and the victim argued, but he did not assault her, and he assumed that her injuries were self-inflicted. Farr testified the victim was not injured when he left the apartment. Focusing on the issue of injuries, the prosecutor asked Farr whether Schultes was lying when she testified that the victim was injured when Farr left. Defense counsel objected that the question was improper, but the trial court overruled the objection. The prosecutor then asked Farr whether Cartier had also lied. Defense counsel did not object to this question.

The jury convicted Farr of gross misdemeanor domestic assault, in violation of Minn. Stat. § 609.2242, subd. 2 (1996), and misdemeanor disorderly conduct, in violation of Minn. Stat. § 609.72 (1996). The jury acquitted Farr of gross misdemeanor interference with a 911 call and misdemeanor criminal damage to property. He was sentenced to a year in the workhouse, with six months suspended, and placed on probation for two years. This appeal followed.

Farr contends that he is entitled to a new trial because the prosecutor committed prejudicial misconduct by (1) improperly cross-examining him regarding the credibility of other witnesses; (2) attempting to impeach him with a felony drug conviction; and (3) making improper closing arguments.

1. Cross-examination

Farr's primary argument on appeal is that the prosecutor's cross-examination of appellant was improper because it called for Farr to comment on the credibility of other witnesses and because it presented a misleading implication to the jury that Farr could be acquitted only if they found that the prosecution's witnesses were lying.

Although the particular type of misconduct alleged here has not been squarely addressed in Minnesota, other courts have condemned the practice of calling on one witness to assess the credibility of another. See, e.g., Scott v. United States, 619 A.2d 917, 924-25 (D.C. 1993); United States v. Akitoye, 923 F.2d 221, 224 (1st Cir. 1991); United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987).

But isolated questions, to which objections are made, do not usually constitute misconduct. State v. Harris, 521 N.W.2d 348, 355 n.9 (Minn. 1994); see also State v. Ture, 353 N.W.2d 502, 517 (Minn. 1984) (isolated comments analyzed under standard for less serious misconduct). If the questioning here was misconduct, it was most surely of the less serious nature. Therefore, the question is whether the misconduct played a substantial part in influencing the jury to convict. Caron, 300 Minn. at 128, 218 N.W.2d at 200.

When determining the impact misconduct may have had on a jury verdict, courts consider the strength of the evidence and the trial court's instructions. Washington, 521 N.W.2d at 40. In the present case, it is unlikely the alleged misconduct had a significant impact on the verdict.

First, the evidence against Farr was strong. Both Cartier and Schultes testified that they had overheard a loud argument between Farr and the victim. Both testified they went to the victim's apartment when Farr was leaving. Both testified the victim was injured when they saw her. Furthermore, the police officers testified they arrived on the scene shortly after receiving the call and observed the victim's injuries. They also testified that the victim told them Farr had beaten her and caused the injuries. Given this evidence, it is not likely the jury credited Farr's testimony that the victim was not injured when he left and must have subsequently injured herself.

Second, Farr's response to the second "is she lying" question was, "[s]he may have saw the injuries but - she may have saw the injuries, but I didn't injure her." This testimony was consistent with the defense argument that the victim injured herself and would have negated any improper inference that acquittal required finding the state's witnesses had lied. Furthermore, defense counsel focused on this point in closing argument by clearly stating, "They are not lying. They did not see what happened."

Finally, the trial judge appropriately instructed the jury as to credibility determinations. Considering these factors, we conclude the misconduct, if any, did not play a substantial part in influencing the jury's decision to convict.

2. Impeachment

Farr argues that the prosecutor denied him his right to a fair trial by improperly attempting to impeach him with a felony drug conviction. Defense counsel timely objected to the question, and the trial judge promptly sustained the objection. See Minn. R. Evid. 609(a)(1) (employing a rule 403 balancing test to determine whether the probative value of a prior felony conviction outweighs its prejudicial effect); State v. Gassler, 505 N.W.2d 62, 66 (Minn. 1993) (stating factors relevant to this determination are: "(1) the impeachment value of the prior conviction; (2) the date of the conviction and the defendant's subsequent history; (3) the similarity of the past crime with the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue") (citation omitted).

The court may excuse the asking of improper questions where they are brief, isolated, not repeated, not deliberately prejudicial, and unlikely to have a substantial effect on the jury. State v. Wilford, 408 N.W.2d 577, 580 (Minn. 1987); see also Harris, 521 N.W.2d at 355 n.9. The improper question here was isolated, and it does not appear from the record that it was deliberately prejudicial. More importantly, considering the strong evidence of Farr's guilt, it is extraordinarily unlikely that this question had a substantial effect on the jury. Therefore, it does not warrant reversal.

3. Closing Argument

Farr further argues that the prosecutor engaged in misconduct by characterizing him as a "violent, abusive man" during closing and by asking the jury to consider what incentive the state's witnesses had to lie.

Although it is impermissible for a prosecutor to personally vouch for the credibility of the state's witnesses, it is not always improper for a prosecutor to attempt to establish the credibility of those witnesses. State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996); State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984). The prosecutor here was not personally vouching for the credibility of the witnesses. She was simply arguing they were credible. While this type of argument may not be preferred, it is permissible. See Smith, 541 N.W.2d at 589.

However, the prosecutor's characterization of Farr as a "violent, abusive man" was clearly improper. See State v. Ives, 568 N.W.2d 710, 713 (Minn. 1997) (holding prosecutor's statement that defendant was a "would-be punk[ ]" with a "pathetic little li[fe]" was an improper character attack); Rairdon v. State, 557 N.W.2d 318, 324 (Minn. 1996) (holding improper prosecutor's characterization of defendant as a "violent man" and prosecutor's argument that this goes to "the way he deals with frustration, the way he would deal with anger towards [the victim]"). Nevertheless, defense counsel did not object to this statement.[1]

Under most circumstances, failure to object forfeits a criminal defendant's right to review. Rairdon, 557 N.W.2d at 323. But a defendant may obtain appellate relief where the errors are plain errors that affect substantial rights if those errors had the effect of depriving the defendant of a fair trial. Id.; see also Minn. R. Crim. P. 31.02. "The defendant bears the heavy burden of showing that there is a reasonable likelihood the error had `a significant effect on the verdict.'" State v. Patterson, 587 N.W.2d 45, 52 (Minn. 1998) (quoting State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998)).

Farr has not met that burden here. As noted above, there was strong evidence of Farr's guilt. Furthermore, the jury acquitted him on one count of interfering with a 911 call and one count of criminal damage to property. Where a jury acquits on some counts and convicts on others, it is a strong indication that it was not "unduly inflamed by the prosecutor's comments." Washington, 521 N.W.2d at 40 (quoting State v. Dewald, 463 N.W.2d 741, 745 (Minn. 1990)).

The cumulative effect of errors at trial may constitute grounds for reversal. See Harris, 521 N.W.2d at 355; State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979). But the cumulative effect of any misconduct here, when viewed in light of all the evidence, is insufficient to vacate appellant's conviction. See Rairdon, 557 N.W.2d at 324-25; State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).

Affirmed.

[1] Defense counsel did object shortly after the improper character attack but on a wholly different ground--that the prosecutor had misstated the evidence--to which the trial court promptly instructed the jury to rely on its own memory of the evidence.