State of Minnesota, Respondent, vs. Kunta Laushan Brown, 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This opinion will be unpublished and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

C7-99-1711

 

State of Minnesota,

Respondent,

 

vs.

 

 

Kunta Laushan Brown,

Appellant.

 

 

 

Filed July 18, 2000

Reversed and remanded

Toussaint, Chief Judge

 

Hennepin County District Court

 File No. 99021676

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy J. Klobuchar, Hennepin County Attorney, Mary Martin Lynch, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487-0501  (for respondent)

 

 John M. Stuart, State Public Defender, Leslie Joan Rosenberg, Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414-3230 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Shumaker , Judge.

 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

Appellant Kunta Laushan Brown challenges the trial court's denial of a motion for a new trial.  Brown claims the trial court erred by: (1) denying his motion for a continuance; and (2) admitting a prior conviction for impeachment purposes.  Brown also contends the prosecutor committed misconduct.  Because the statements made by the prosecutor during closing argument rose to the level of misconduct and, when considered in their totality, the statements were not harmless beyond a reasonable doubt, we reverse and remand for a new trial.

D E C I S I O N

I.

            Brown contends the prosecutor committed misconduct during his closing argument when he: (1) made disparaging statements about the Minneapolis community where the defendant and the witnesses lived; (2) attacked the character of the witnesses, introducing his personal opinion of their lifestyle; (3) improperly speculated about the events at the scene of the crime; and (4) suggested that negative consequences may flow from acquittal. 

            "A prosecutor may not seek a conviction at any price" and must avoid "inflaming the jury's passions and prejudices against the defendant" or otherwise impeding the jury's task of determining whether the state has proved defendant's guilt beyond a reasonable doubt.  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (citation omitted).  If the jury's verdict was surely unattributable to the conduct, the error was harmless beyond a reasonable doubt, and a new trial is not warranted.  State v. Buggs, 581 N.W.2d 329, 340 (Minn. 1998).  The trial court's decision to deny a motion for a new trial will be upheld unless the record shows the misconduct was "inexcusable and so serious and prejudicial" that the defendant was denied a fair trial.  State v. Pelawa, 590 N.W.2d 142, 148 (Minn. App. 1999), review denied (Minn. Apr. 28, 1999) (citing State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980)).

Generally, a defendant is deemed to have waived the right to raise an issue on appeal concerning the prosecutor's comments during closing argument if the defendant fails to object or seek cautionary instructions.

 

State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (citations omitted).  But, if the prosecution's comments are unduly prejudicial, this court may reverse notwithstanding the defendant's failure to preserve the issue on appeal.  State v. Parker, 353 N.W.2d 122, 127-28 (Minn. 1984).

            Brown claims the prosecutor committed misconduct when he made disparaging comments about the Minneapolis minority community where the defendant and the witnesses lived.  During his closing argument, the prosecutor stated:

[W]ell, you shouldn't expect that the bulk of the cases that we have in Hennepin County and areas like this in the third precinct in Minneapolis come from houses occupied by Mother Teresa or Pope John Paul.  It's people that are engaged in this kind of behavior.  It's unfortunate, it's inappropriate, but we don't get to choose who our witnesses are. 

 

            In State v. Robinson, the Minnesota Supreme Court addressed the propriety of a similar statement, where the prosecutor stated:

[T]he appellant was not of the same world as the jurors and clearly was distinguishable from a businessman from Edina, Pope John Paul and Mother Teresa.

 

609 N.W.2d 355, 363 (Minn. 2000).  While in Robinson the court held there was no prejudice because the purpose of the statement was to prepare the jury for evidence of an unfamiliar world of drugs, here, there is no such evidence in the record.  Id.

            In this case, the prosecutor's statement was made in the context of discussing the trial testimony of two witnesses, C.H. and Donique Sims, who initially claimed to have seen Brown carrying a gun, but who later testified at trial that they were too high on marijuana that night to remember whether he did in fact have a gun.  Not only was the disparaging statement about the Minneapolis community inappropriate, but also its purpose was contrary to the ABA standards.  The ABA standard dealing with appropriate and inappropriate closing arguments provides that "[i]t is unprofessional conduct for the prosecutor intentionally to * * * mislead the jury as to the inferences it may draw."  State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (citing I ABA Standard for Criminal Justice, Argument to the Jury 3-5.8(a)).  Here, the statement grossly mischaracterized a Minneapolis community for the purpose of suggesting to the jury that the witnesses must have been lying at trial, because people like them are not as honest as the Pope and Mother Teresa.  A prosecutor cannot seek a conviction  "at any price."  Id.  We find the prosecutor's statement was inappropriate.

            Brown then argues that the prosecutor improperly attacked the character of C.H. and Sims and provided the jury with his personal opinion of their behavior.  The prosecutor stated:

[C.H.] is 16 years old and has two children with the defendant.  Now, I always thought that was inappropriate for a person that young to be having children, but apparently it's okay with her mother.  Be [that] as it may, it does demonstrate the connection between [C.H.] and Kunta Brown. 

 

Similarly, we conclude this statement during closing arguments was also inappropriate.

            The prosecutor also stated:

Let's turn to Donique Sims.  I would suggest to you folks that the testimony and attitude of Donique Sims is just pathetic and appalling.  * * * I ask you if you think Donique Sims was telling the truth when she testified she doesn't remember.

 

By describing Sims's testimony as "pathetic" and "appalling," the prosecutor indicated to the jury that he believed Sims testimony was false.  A prosecutor cannot express to the jury his personal opinion or belief regarding whether a witness's testimony is true or false.  Id.

            Brown further claims that the prosecutor improperly speculated about events at the scene of a crime.  The prosecutor stated:

[The police] did respond within seconds, and they took care of this disturbance before there was any shooting that ever tookthat could ever have taken place, and you can well imagine the damage that could be done with that weapon and the kinds of bullets that go into that weapon.

 

            So [Sims] had every right to call the police and expect assistance from the police.  But when she did that, she also put these officers lives in jeopardy by doing this, and that's what they do for a living, I understand that, but you also would expect a citizen to back you up after you have possibly saved their lives.  Just imagine what would have happened if those officers would have confronted this man.

 

Brown objected to this statement as improper, and the trial court sustained the objection.  However, the prosecutor followed with a similar statement:

It is fortunate that there was no gunfire exchanges in this incident, so that no one in that apartment building was shot or that these officers had to defend themselves.  The people inside apparently were unarmed.  These officers were armed, but was it sufficient to prevent them from being destroyed by this weapon.  You will see the bullets when you go back there for your deliberations.  They are about three inches long and they are hollow point bullets.

 

Brown similarly objected to this statement, and even after the trial court sustained the objection for the second time, the prosecutor appeared to ignore the court's ruling and further stated:

Two and a half, three inches long, whatever they are, and it's carved out on the top there (indicating), that's what I'm referring to.  An instrument like this does a lot of damage to human flesh.

 

The prosecutor's statements asked the jury to imagine what would have happened if one of the police officers had confronted Brown while he was armed.  He also asked the jury to imagine the damage that the type of bullets in the gun would have done to the police officers had there been a shooting.  Because a prosecutor may not speculate as to the events at the scene of a crime, these statements were also inappropriate.  See State v. Thompson, 578 N.W.2d 734, 742 (Minn. App. 1994).

            Finally, appellant argues that the prosecutor acted improperly in suggesting that negative consequences may flow from Brown's acquittal.  The prosecutor stated:

Well if you don't care, why should any of us care?  Why should I care?  Why should my office care?  Why should those officers care when they get this kind of call thatat that time of night in South Minneapolis. For thisour democracy to work, somebody has to care, and in this case that burden falls upon you.  The challenge for you, as I indicated, is to not let your role of searching for the truth in the evidence be infected by this apathetic attitude of Donique Sims.

 

This statement suggested to the jury that failure to convict Brown would result in: (1) the police no longer wanting to protect citizens; and (2) the breakdown of democracy.  In State v. Porter, 526 N.W.2d 359, 366 (Minn. 1995), the prosecutor suggested to the jurors that they would be "suckers" for acquitting the defendant and that no salve or sedative would be able to make them feel good if they were to acquit a defendant.  The Minnesota Supreme Court concluded that statements by the prosecutor regarding the effect of acquitting the defendant were impermissible misconduct because they were directed at the very heart of the jury system. Id.  Accordingly, we find that here, the prosecutor's statements were also inappropriate.

            While the prosecutor committed misconduct when he made each of these statements to the jury, prosecutorial misconduct in itself is not sufficient to warrant a new trial.  Id.  Brown is not entitled to a new trial unless it can be said with certainty that the misconduct was harmless beyond a reasonable doubt.  Id.  If the jury's verdict was surely unattributable to the conduct, the error was harmless beyond a reasonable doubt.  Buggs, 581 N.W.2d at 339-40.  In determining whether the prosecutor's misconduct was harmless we look at the prosecutor's statements as a whole.  State v. Richardson, 514 N.W.2d 573, 579 (Minn. App. 1994). 

            While we cannot say that each of the incidents of misconduct in this case influenced the jury to convict Brown, we conclude that the cumulative effect of all these statements during the prosecution's closing arguments, in spite of sustained objections, combine to compel reversal.  See State v. Peterson, 530 N.W.2d 843, 848 (Minn. App. 1995) (concluding that while none of the incidents of misconduct was sufficient to warrant a new trial on their own, their cumulative effect required reversal).  Because we are not satisfied that the jury would have reached the same verdict in the absence of the misconduct, we conclude the misconduct was not harmless beyond a reasonable doubt and was, therefore, prejudicial.  In addition, even though Brown failed to object to several of these statements, their prejudicial nature requires us to reverse the conviction.  Parker, 353 N.W.2d at 127-28 (stating if the prosecution's comments are unduly prejudicial, the conviction can be reversed notwithstanding the defendant's failure to preserve the issue on appeal).  We reverse and remand for a new trial. 

 

 

II.

            Brown also contends the trial court erred in: (1) refusing to allow the defense to impeach Iesha Wilder; and (2) admitting a prior conviction for impeachment purposes.  Because we are reversing and remanding this case for a new trial, we need not address these issues on appeal. 

            Reversed and remanded.