State of Minnesota, Respondent, vs. Ricky Duane Wike, Appellant.

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This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-880

State of Minnesota,

Respondent,

vs.

Ricky Duane Wike,

Appellant.

Filed March 3, 1998

Affirmed

Harten, Judge

Beltrami County District Court

File No. K8-96-1280

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

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

Timothy R. Faver, Beltrami County Attorney, 207 Fourth Street N.W., P.O. Box 1653, Bemidji, MN 56601 (for respondent)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.

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

HARTEN, Judge

In January 1997, appellant Ricky Duane Wike was tried on a charge of second degree assault. On the last day of a five-day jury trial, following the prosecutor's final argument, Wike moved for a mistrial, alleging that the prosecutor committed prejudicial misconduct by singling out an individual juror by name and holding out that juror as a model to the other jurors. The district court denied Wike's motion, but supplemented its final jury instructions. The jury found Wike guilty and this appeal followed. We affirm.

FACTS

Wike was charged with assault with a dangerous weapon following an incident that occurred in the early morning hours of October 6, 1996, when Wike observed his girlfriend, Andrea Browne, entering a restaurant in the company of Dan Rickard, a person with whom he suspected Browne was having an affair. Wike became enraged, grabbed a hunting knife from his car, and ran up behind Rickard and Browne, screaming obscenities and threatening to kill Rickard. Rickard was largely successful in avoiding Wike's knife, but did sustain a shallow knife cut on his side through his shirt. The brief struggle ended when restaurant patrons began gathering outside the restaurant. Wike then ran off, shouting to Rickard that he "was dead." Wike later testified that he really had not intended to injure Rickard--only scare him. He also admitted that his knife could have caused Rickard's cut. Wike was charged with second degree assault in violation of section 609.222, subd. 1 (assault with a dangerous weapon). He pleaded not guilty and demanded a jury trial.

During his final argument to the jury, the prosecutor urged, among other things, that the government had proved beyond a reasonable doubt that Wike's knife was a "dangerous weapon" and then commented as follows:

First, I want to point out to the jury as a whole that you have among your number a professional knife handler, a man who has been around serious cutting instruments and tools all of his life. He's a man who uses a knife to cut flesh, animal flesh, every day. I speak, of course, of Mr. Stittsworth. Now, what particular attention each of you may wish to give to Mr. Stittsworth on the issue of whether exhibit 1 [the hunting knife] is a dangerous weapon I will leave to each of you to decide. However, I do wish to point out one thing in relation to Mr. Stittsworth, and I do so not intending to embarrass or flatter him, although his careful actions offer a lesson to us all. This relates to that portion of the trial immediately after exhibit 1 was received in evidence and was circulated among the members of the jury. As the exhibit circulated among you, I took particular note of how Mr. Stittsworth, a professional with knives, dealt with exhibit 1. I paid particular attention to how he passed exhibit 1 on to Mr. Korpi. Now, as Mr. Stittsworth finished inspecting the knife, in a studied and practiced motion, which I suspect he performs almost unconsciously each day at his work, he first laid the knife's blade flat on his hand. He then spun the knife or turned it so the blade faced away from Mr. Korpi. Then with both hands and in a smooth and deliberate motion he extended the knife to Mr. Korpi. Each of these motions I suspect has significance. First, the knife is laid flat so that the sharpened blade and the tearing upper serrated portion of the blade posed no danger to Mr. Stittsworth's own hand as Mr. Korpi took the knife away from him. Secondly, the point of the knife was turned away from Mr. Korpi. This is a practice that I suspect has its origins in the distant past when individuals realized that to be absolutely certain that the person to whom they were passing a sharpened object made no mistake of their intention you turned the point toward yourself. Finally, the knife was extended to Mr. Korpi with both hands with a smooth and not a sudden motion. This assured that the knife was kept under control and neither ended up dropping to the floor or, far worse, flying out of control in the direction of Mr. Korpi. Now, Mr. Stittsworth's actions are a model of how to move a knife into the immediate area around another person's body.

(Emphasis added). The prosecutor also advised the jury that

what I am about to say is not evidence. Evidence is the testimony you heard from the witnesses on the stand. Evidence is the physical objects which were introduced at the trial. If anything I say regarding the testimony is different from what you recall hearing at the trial, I want you to rely upon your own recollection.

After the prosecutor concluded his argument, the district court temporarily excused the jury and defense counsel moved for a mistrial, charging that the prosecutor attempted to affect jury deliberation by improperly inviting the jury to attribute special expertise or importance to juror Stittsworth. Finding that the prosecutor's reference to juror Stittsworth was "technically improper" but not prejudicial, the district court denied the mistrial motion, instead giving the jury the following curative instruction as part of its final instructions:

Ladies and gentlemen, you have heard in the final argument of the State references to jurors by name and also references to the background and experience of a specific juror. All jurors in this case are equal parties and all [are] expected to bring into the jury room their own backgrounds, experiences and common sense, as specified elsewhere in these instructions. No particular juror is entitled to any more or less standing than any other juror in the case.

After deliberating for less than an hour, the jury found Wike guilty of second-degree assault.

D E C I S I O N

In this appeal we are asked to decide the consequences of an impropriety that is scrupulously avoided by experienced trial counsel, that is, referral to an empanelled juror by name during final argument in a jury trial. This practice not only constitutes misconduct; it invites a mistrial or an appeal. See State v. Comparetto, 292 Minn. 425, 426, 193 N.W.2d 626, 627 (1971) (calling jurors by name constitutes misconduct but is not necessarily prejudicial). Reference to a named juror cannot avoid highlighting that juror in the minds of his or her fellow jurors, thereby shifting other jurors' attention from the matter at hand to comments about the target juror. It also may be seen as an attempt to curry favor. These negatives are exacerbated when the impropriety is committed by a prosecutor, as here, in the trial of a criminal case.

The defendant in a criminal case has a constitutional right to due process of law, including the right to a fair trial. U.S. Const. amends. V, XIV; Minn. Const. art. I, § 7. The prosecutor occupies a unique role in the criminal justice system, a role beyond that of zealous advocate for the government; the prosecutor must do justice. State v. Walsh, 495 N.W.2d 602, 606 (Minn. 1993). Applying these principles to inappropriate final argument by a prosecutor, the supreme court has stated that

[w]hen a prosecutor's comments can be viewed as improper, and the conduct is unintentional, the test to be applied in determining whether the prosecutor overstepped the bounds of propriety to the extent requiring reversal is whether the statements likely played a substantial role in influencing the jury's decision. The mere fact that prosecutorial misconduct has occurred during the course of a trial does not, in and of itself, require a new trial. Whether a new trial should be granted * * * rests within the discretion of the trial judge * * *. The court's determination should be reversed on appeal only where the misconduct, viewed in light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied. Sufficiency of evidence to support the conviction is a necessary element in determining whether the prosecutor's final argument was so prejudicial as to constitute grounds for a new trial.

State v. Scruggs, 421 N.W.2d 707, 715-716 (citations omitted) (emphasis added).

Wike argues that the prosecutor's comments were improper and should be deemed unusually serious to the extent that it cannot be said that they were harmless beyond a reasonable doubt. See State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974) (establishing a two-tier test for evaluating improper arguments). To avoid a mistrial for serious misconduct under Caron, there must be certainty beyond a reasonable doubt that the misconduct was harmless, whereas less serious conduct requires a mistrial only if it played a substantial part in influencing the jury to convict. Id.

Because the overwhelming weight of the evidence against Wike supports the district court's denial of a mistrial, we need not decide whether the prosecutor's misconduct here fits within the more serious or less serious category of misconduct under Caron. Even assuming that the more serious standard applies, we would not conclude that Wike is entitled to a mistrial.

To support a conviction of second degree assault, the state had to prove (at least) that Wike used a dangerous weapon against Rickard intending to cause Rickard to fear immediate bodily harm or death. See Minn. Stat. § 609.222, subd. 1 (1996) (assault with a dangerous weapon); 609.02, subd. 10(1) (1996) (assault definition). A "dangerous weapon" is "any device designed as a weapon and capable of producing death or great bodily harm" or "other device or instrumentality that, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm." Minn. Stat. § 609.02, subd. 6 (1996). Wike admitted grabbing the hunting knife and attacking Rickard without provocation, threatening to kill him and intending to scare him. Wike's own testimony sufficed to convict him of second-degree assault.

Given the district court's curative instruction, the prosecutor's admonition to the jurors to consider only the evidence, and the strong evidence of Wike's guilt, viewing the misconduct in light of the whole record, we conclude that the prosecutor's misconduct was harmless beyond a reasonable doubt. Accordingly, the district court did not abuse its discretion in denying Wike's motion for a mistrial.

Affirmed.