Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Sharon E. Jacks, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.

After a jury trial in which appellant Thomas Rosado Rodriguez was tried jointly with Edward Santiago, appellant challenges his convictions for second-degree murder and two counts of attempted second-degree murder. Appellant contends the district court abused its discretion by making several incorrect evidentiary and trial rulings and by refusing to order separate trials, and erred in finding that appellant was competent to stand trial. We affirm.

"Relevant evidence" is evidence

having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Minn. R. Evid. 401. Here, the record contains no evidence indicating that Santiago was the shooter. Instead, the testimony of five eyewitnesses indicates that appellant was the shooter. In addition, appellant's own uncle testified that appellant told him appellant had "shot some people and Shedava." Thus, while evidence of past crimes and gang membership may show that Santiago had a propensity to commit crimes generally, we conclude the district court did not abuse its discretion by finding that the evidence was not relevant to show that Santiago was the shooter here.

The opinion testimony of nonexpert witnesses is limited to opinions that are "rationally based upon the perception of the witness" and "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." Minn. R. Evid. 701. Here, Ms. Rodriguez testified that she had seen the gun appellant carried many times, and it was the same color and shape of the gun identified as the murder weapon. Moreover, Ms. Rodriguez's testimony was helpful to a fact in issue because it indicated that appellant had a connection to the murder weapon. See State v. Marquetti, 322 N.W.2d 316, 317-18 (Minn. 1982) (allowing evidence of ownership of similar gun to show connection to gun found at the scene and to show that that type of gun was defendant's weapon of choice).

Appellant contends Ms. Rodriguez's testimony should have been excluded because it was more prejudicial than probative. We disagree. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice * * * ." Minn. R. Evid. 403. Here, there was some danger of prejudice because appellant's grandmother testified that she thought appellant might get in trouble. But the probative value of Ms. Rodriguez's testimony, which linked appellant to the murder weapon, outweighs any danger of unfair prejudice. We conclude that it was not a clear abuse of discretion for the district court to admit this testimony.

1. The opportunity of the witness to view the criminal at the time of the crime;

2. The witness' degree of attention;

3. The accuracy of the witness' prior description of the criminal;

4. The level of certainty demonstrated by the witness at the photo display;

5. The time between the crime and the confrontation.

Here, Mr. Webster testified that he was near to appellant, spoke with appellant, and observed appellant for several minutes before the shooting began. In addition, Mr. Webster's testimony indicates he was fully concentrated on the events because he described details such as a conversation between Santiago and appellant that would likely have escaped a casual observer. Further, the photo identification took place only three days after the incident, and it appears that Mr. Webster was certain of his choice when he finally pointed to the photo of appellant. We therefore conclude that there was not a substantial likelihood of misidentification and that the district court did not abuse its discretion by admitting this evidence.

Whether a new trial should be granted based upon prosecutor misconduct is a decision within the discretion of the trial court. State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). In criminal cases the prosecuting attorney "may not seek convictions at any price." State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993). While a prosecutor may argue that there is no merit to a particular defense in view of the evidence, a prosecutor may not denigrate defense theories in the abstract. Id. at 818. Also, the court should not place too much emphasis upon individual statements. See State v. Holscher, 417 N.W.2d 698, 702 (Minn. App. 1988) (the court must take the prosecutor's closing argument as a whole and not use a single phrase as a basis for reversal), review denied (Minn. Mar. 18, 1988).

Instead, the complained of statement

and its impact must be examined within the context of the record as a whole, considering the strength of the state's evidence and the weakness of any defense evidence.

Here, while the prosecutor did make some questionable comments during his closing argument, the prosecutor reviewed the evidence with the jury, and in discussing the witnesses who had testified, told the jury: "We only ask you to consider their words, judge the credibility of their statements fully, fairly and with an unbiased heart." Moreover, the prosecutor told the jury that statements made by the attorneys were not evidence. We therefore conclude that the prosecutor's conduct did not play a substantial part in influencing the jury to convict and was harmless beyond a reasonable doubt. The district court did not abuse its discretion in refusing to grant a new trial because of the prosecutor's statements.

When two or more defendants are jointly charged with a felony, they may be tried separately or jointly in the discretion of the court. In making its determination on whether to order joinder or separate trials, the court shall consider the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice. * * *

Appellant contends the district court abused its discretion by refusing to order separate trials after the district court excluded evidence of Santiago's prior crimes and gang affiliation. We disagree. Appellant did not show that Santiago's prior crimes would be admissible if he were tried alone. See Zafiro v. U.S., 506 U.S. 534, 539, 113 S. Ct. 933, 938 (1993) ("[A] defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial."). We conclude that the exclusion of the evidence did not prejudice appellant.

Appellant complains that he was prejudiced because the court gave jury instruction on the right not to testify. Santiago had requested the instruction, and the trial court gave the instruction over appellant's objection. Appellant contends he was prejudiced by the joint nature of the trial because this instruction would not have been given at a separate trial. We disagree.

While there is no federal constitutional requirement that courts obtain a defendant's consent before giving such an instruction, Minnesota courts have held that "a trial judge ordinarily should obtain a criminal defendant's permission before giving [the instruction]." State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988). But in cases where the defendant fails to show that the instruction affected the jury's verdict, the defendant is not entitled to a new trial. See State v. Thompson, 427 N.W.2d 266, 270 (Minn. App. 1988) (observing that "[w]e are certain * * * the jury verdict was not affected by the instruction in light of the evidence as disclosed by the record") aff'd, 430 N.W.2d 151 (Minn. 1988). Because the evidence against appellant was overwhelming, we conclude that the instruction did not affect the jury's verdict here.

Appellant contends that he was prejudiced by the joint nature of the trial because if the trial had been severed, the state would have had three fewer peremptory challenges and the jury would not have heard two opening and two closing arguments identifying appellant as the shooter. We disagree. Appellant's argument would invalidate all joint trials in which the defendants had antagonistic defenses. See Zafiro, 506 U.S. at 539, 113 S. Ct. at 938 (holding that mutually antagonistic defenses are not prejudicial per se). We conclude that the district court did not abuse its discretion by concluding that the peremptory challenges and opening and closing arguments did not create a manifest necessity for separate trials.

Here, three psychiatrists testified at appellant's competency hearing. Two of the three testified that appellant was competent to stand trial and not one of the psychiatrists testified that appellant was incompetent to stand trial. Moreover, the record shows that appellant knew he was charged with murder and had some idea of his defense strategy. While appellant's attorney testified that he had trouble communicating with appellant, this testimony is not entitled to the same weight as expert testimony by psychiatrists trained in the field. Finally, the district court made provision for any mental deficiencies by agreeing to slow the trial whenever appellant had problems understanding the proceedings. We conclude that the record sustains the trial court's finding as to appellant's competence to stand trial.

Affirmed.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.