State of Minnesota, Respondent, vs. Bruce Franklin Sherman, Appellant.

This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,

vs.

Bruce Franklin Sherman,

Appellant.

Affirmed

Becker County District Court

File No. K398498

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)

Joseph Evans, Becker County Attorney, 910 Lincoln Avenue, Detroit Lakes, MN 56502 (for respondent)

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

            Considered and decided by Harten, Presiding Judge, Lansing, Judge, and Davies, Judge.

LANSING, Judge

            A jury convicted Bruce Sherman of second-degree burglary for violating Minn. Stat. § 609.582, subd. 2 (1998).  Sherman appeals the conviction, contending that the district court improperly instructed the jury on his decision not to testify and that the prosecutor improperly commented on his failure to produce alibi witnesses.  Because the unrequested instruction does not warrant a new trial and the prosecutor's comments permissibly responded to defense attorney's opening statement, we affirm.

            Becker County sheriff's deputies arrested Bruce Sherman and C.V., a juvenile, for burglary of a house near Tulaby Lake.  The events leading to Sherman's arrest, recounted at trial, began with a resident's report that he had observed signs of forced entry at a neighboring house and that he had also observed two sets of footprints in the freshly fallen snow.

The investigating officers followed the footprints and found property that the burglars had removed from the house and hidden in a brush pile.  The footprints continued through the woods and ended in the yard of a residence, where tire tracks crossed the footprints.  Two people in the residence told the officers that Sherman and C.V. had borrowed their car within the last half-hour.  The officers found the car parked nearby at the home of Sherman's girlfriend, Frances Thompson, and, with Thompson's consent, they entered the house and found Sherman in a bedroom.  Sherman initially gave a false name but Sherman's correct birthdate.  Then he restated the false name and gave a false birthdate.  One of the officers recognized him as Bruce Sherman because of his distinctive tattoo and scar.

            C.V. pleaded guilty in juvenile court to burglary and testified in Sherman's trial that he and Sherman committed the offenses together.  Sherman attempted to impeach C.V.'s testimony by presenting evidence of antagonism between them and between their families.  Sherman did not testify.

            At the close of evidence, the district court, during a chambers conference, provided both the state and the defense with a printed copy of proposed jury instructions.  The text included CRIMJIG 3.17, which instructs the jury that the defendant has the privilege not to testify and that the jury should draw no inference from the fact that the defendant does not testify.  The attorneys agreed on the instructions, including the no-inference instruction.  But the record contains no request from Sherman for the instruction.

            After the jury found Sherman guilty, he moved for a new trial or judgment of acquittal based on insufficient evidence and a claim that prescription pain medicine had prevented him from effectively participating in and assisting with his defense.  The district court denied the motion.  Sherman then brought this appeal alleging (1) error in the district court's unrequested no-inference jury instruction and (2) prosecutorial misconduct in closing-argument comments on the absence of alibi evidence.

            Ordinarily, an instruction on a defendant's right not to testify should be given only when the defendant personally requests it.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  The supreme court has cautioned that a record of the defendant's preference "should be made, either by defense counsel * * * or at the trial court's insistence."  Id.  But the failure to make a record does not, by itself, mandate a new trial.  Id.  Instead, we conduct a harmless-error analysis to determine whether defendant is entitled to a new trial.  See id. at 153 (approving court of appeals' conclusion that any error in giving no-inference instruction did not affect verdict); see also State v. Shoop, 441 N.W.2d 475, 480 (Minn. 1989) (applying harmless-error analysis to trial court's erroneous refusal to instruct on accomplice testimony); State v. Sandve, 279 Minn. 229, 234, 156 N.W.2d 230, 234 (1968) (applying harmless-error analysis to adverse-inference instruction).  Under the harmless-error analysis, a new trial is required if an error is prejudicial, but is not required if the error is harmless.  Shoop, 441 N.W.2d at 480-81.

            We have carefully reviewed the record and can identify no possibility that the instruction had a significant impact on the jury's verdict.  In presenting his defense, Sherman did not dispute the burglary's occurrence, but attempted to undermine the state's proof of his participation.  The attempts were not persuasive.  Sherman apparently abandoned his initial plan to provide alibi testimony through his mother.  Although Thompson testified that it was not Sherman but a person named Frank Murray who was apprehended at her house, her testimony was inconsistent, contrary to the officers' identification, and impeached by another defense witness.  The other defense witness testified that she knew Thompson well, that she had never heard of Frank Murray, and that Sherman lived at Thompson's house at the time of the burglary.

Neither are we persuaded by Sherman's argument that the no-inference instruction became prejudicial because it emphasized the absence of alibi evidence.  The defense attorney's opening statement identified Sherman's mother, not Sherman, as the person who would testify that he was at the Shooting Star Casino. 

            The state's evidence of Sherman's guilt, on the other hand, was very strong.  C.V.'s testimony was consistent and unequivocal that it was Sherman who committed the robberies with him.  Although C.V.'s testimony was accomplice testimony, C.V. had already pleaded guilty to the burglaries and received no favorable treatment for his testimony.  Other trial testimony strongly corroborated C.V.'s testimony and provided independent circumstantial evidence.  Two witnesses testified that Sherman and C.V. borrowed their car a half-hour before police came to inquire about the burglaries, and the two sets of footprints led from the burglarized house directly to the witnesses' door.  We conclude, beyond a reasonable doubt, that the district court's error in giving the unrequested no-inference jury instruction had no significant impact on the verdict.

            During summation, the prosecutor commented on Sherman's failure to provide alibi evidence.  The comment responded to the defense attorney's opening statement that the defense would rely on an alibi witness who would testify that Sherman could not have committed the burglary because at the time of the burglaries he was at the Shooting Star Casino.  The prosecutor commented, "There is absolutely not one shred of evidence, not one word of testimony from anyone, that the defendant was at the Shooting Star Casino when all this happened."  The prosecutor reminded the jury that the judge had said that lawyers' statements are not evidence and that there was no testimony or evidence to support the claim of alibi.

            We note initially that defense counsel did not object to the statements at trial or in the motion for a new trial.  See State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980) (defendant who fails to object to prosecutor's statement or to request cautionary instructions is deemed to have forfeited consideration of the issue on appeal).  Even if Sherman had preserved this issue for appeal, we disagree that the prosecutor's comments were improper.  A prosecutor may comment on a defendant's lack of evidence when the comment addresses claims in opening argument that are not supported by evidence.  See State v. Gassler, 505 N.W.2d 62, 69 (Minn. 1993) (prosecutor's summation commenting on defense's lack of evidence on stated theory does not shift proof burden to defense); State v. Coley, 468 N.W.2d 552, 555 (Minn. App. 1991) (recognizing prosecutor's reasonably limited right to point out that testimony did not support defense counsel's representation in opening statement).

The prosecutor's comments in this case directly addressed the alibi theory Sherman presented in his opening statement and later alluded to while questioning one of the witnesses.  The prosecutor's reference to alibi witnesses was proportional to the defense attorney's reference in the opening statement.  The prosecutor's comments were not improper.

            Affirmed.