State of Minnesota, Respondent, vs. Francis Brown, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-512

 

 

State of Minnesota,

Respondent,

 

vs.

 

Francis Brown,

Appellant.

 

 

Filed May 18, 2004

Affirmed

Halbrooks, Judge

 

 

Mahnomen County District Court

File No. K0-02-179

 

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Christian S. Walker, Assistant Attorneys General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Julie Bruggeman, Mahnomen County Attorney, Mahnomen County Courthouse, 311 North Main Street, P.O. Box 439, Mahnomen, MN 56557 (for respondent)

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

 

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

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Francis Brown challenges his convictions of attempted second-degree murder and first-degree assault, arguing that (1) the district court abused its discretion by allowing the state to present evidence of his prior convictions at trial and (2) he is entitled to a new trial because of prosecutorial misconduct during the closing argument.  Appellant also raises grounds for reversal by pro se supplemental brief.  We affirm.

FACTS

            Appellant was charged with one count of attempted second-degree murder, in violation of Minn. Stat. §§ 609.17, .19, subd. 1(1) (2000), and one count of first-degree assault, in violation of Minn. Stat. § 609.221, subd. 1 (2000).  The complaint alleged that on or about April 9, 2002, appellant assaulted Kristi Sargent by punching her twice in the mouth and then attempted to kill her by violently, and repeatedly, twisting her neck sideways and backwards. 

            At trial, Kristi Sargent testified that on the evening of April 8, 2002, she was drinking alcohol at the home of Teri Fairbanks with various people, including her cousins, appellant and Brian Sargent, Jr.  Kristi testified that after losing consciousness at some point in the evening, she awoke in what appeared to be a dark basement in the presence of an individual wearing a head garment similar to one she had seen appellant wearing earlier.  Kristi testified that after informing her that he was "going to break [her] neck," the individual placed one hand under her chin and one hand behind her head and "snapped" her neck; she then lost consciousness.  Kristi testified that when she awoke and discovered she "couldn't move" her body, appellant and Brian Sargent came down to the basement and Brian carried her to a couch located behind a neighbor's house.  Brian left her on the couch next to appellant, whom she clearly recognized.  Appellant then punched Kristi twice in the face, grabbed her head, and violently twisted her neck.  Kristi testified that she pretended she was dead "[b]ecause [she] thought [appellant] wasn't going to quit until [she] was dead." 

Kristi was transported by ambulance to the hospital.  The neurosurgeon who treated her testified that his examination of Kristi on April 9, 2002, disclosed that ligaments in her neck were "widely torn apart" and that her injuries were consistent with a twisting of the neck and inconsistent with a fall. 

            Appellant testified that he did not assault Kristi, instead blaming her injuries on several people from Rice Lake (who remained otherwise unidentified) who, according to appellant, assaulted Kristi in Fairbanks's garage on the evening of April 8.  Brian Sargent testified that he was with appellant the entire night of April 8-9, 2002, during which time appellant was never alone with Kristi.  The state called Deputy Brad Athmann, a criminal investigator with the Mahnomen County Sheriff's Department, to rebut Brian's testimony.  Deputy Athmann testified that when he interviewed Brian at approximately 10:00 a.m. on April 9, Brian told him that he had walked away from appellant and Kristi as they were sitting on the couch behind the neighbor's house and that when he later returned, the two were gone. 

            On cross-examination, appellant testified that (1) on April 25, 2002, he pleaded guilty to one count of felony attempted motor-vehicle theft and one count of accomplice to third-degree assault and (2) on August 9, 2001, he pleaded guilty to one count of felony third-degree assault.  Immediately following this testimony, the court instructed the jury that the evidence concerning appellant's prior convictions should only be used to assess appellant's credibility.  Later, the court stated that "[t]he record should reflect that the court admitted into evidence the prior convictions of the [appellant] pursuant to Rule 609 of the Rules of Evidence." 

            During trial, the court instructed the jury that "the parties in this case have entered into a stipulation, specifically, that the incident which is the subject matter of this case occurred in Mahnomen County."  Before closing arguments, the court instructed the jury as to the elements of attempted second-degree murder, explaining that the state had the burden of proving that (1) appellant "acted with the intent to kill" Kristi; (2) appellant took "a substantial step toward" killing Kristi; and (3) the charged "act took place on April 8 or 9th in Mahnomen County." 

            During closing argument, the prosecutor discussed these elements, saying that as to the first two elements, "the State's required to prove beyond a reasonable doubt that whoever committed this injury on [Kristi] intended to kill her, without premeditation intended to cause [her] death[.]"  The prosecutor then reviewed the testimony that he believed proved the first two elements and said, as reported in the transcript, "So these other elements that happened on April 8 or 9th that was proven through the testimony.  There's a stipulation that occurred through Mahnomen County, the intent to cause death.  I've gone over that."  Without objection from appellant, the prosecutor completed his closing argument.     

            The jury found appellant guilty as charged and the district court sentenced him to 193 months in prison.  This appeal follows. 

D E C I S I O N

I.

            Appellant argues that the district court abused its discretion by permitting the state to ask him about his April 2002 convictions for felony attempted motor-vehicle theft and accomplice to third-degree assault and an August 2001 conviction for felony third-degree assault.  The district court's evidentiary rulings will not be overturned absent an abuse of discretion.  State v. Brouillette, 286 N.W.2d 702, 707 (Minn. 1979). 

Appellant argues that the evidence of his prior convictions was admitted pursuant to State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), and was therefore only admissible for the limited purpose of showing motive, opportunity, intent, preparation, absence of mistake, identity, or a common scheme or plan.  See State v. Stewart, 643 N.W.2d 281, 296 (Minn. 2002) (discussing admission of Spreigl evidence).  Appellant argues that because the district court did not follow the procedural restrictions governing the admission of Spreigl evidence, see id., the evidence of his prior convictions is inadmissible.

            Appellant's reliance on Spreigl is misplaced insofar as the district court explicitly stated on the record that the evidence of his former convictions was being admitted pursuant to Minn. R. Evid. 609(a), which allows a witness to be impeached with a prior felony conviction when the district court determines that the probative value of the evidence outweighs its prejudicial effect. 

Before admitting prior-crime impeachment evidence, the district court should consider (1) the impeachment value of the prior crime; (2) the date of conviction; (3) the similarity of the prior crime and the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach); (4) the importance of the defendant's testimony (i.e., whether the court's ruling will deter defendant from testifying); and (5) the importance of the credibility issue.  State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).  This court gives "considerable deference" to the district court's admissibility ruling under rule 609.  State v. Ross, 491 N.W.2d 658, 659 n.3 (Minn. 1992).    

Here, the district court conducted the rule 609 analysis off the record and then stated on the record that it "was of the opinion that the probative value of admitting this evidence outweighed its prejudicial effect."  The district court's failure to conduct the rule 609 analysis on the record amounts to harmless error if the prior conviction evidence could have been properly admitted after applying the Jones-factor analysis.  State v. Vanhouse, 634 N.W.2d 715, 719 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  "A defendant who claims the [district] court erred in admitting evidence bears the burden of showing the error and any resulting prejudice."  State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999).

Our review of the record demonstrates that the contested evidence could have been properly admitted after applying the Jones factors.  First, evidence of the prior crimes had impeachment value.  See Brouillette, 286 N.W.2d at 707 (observing that "[j]ust because a crime is not directly related to truth or falsity does not mean that evidence of the conviction has no impeachment value"); State v. Gassler, 505 N.W.2d 62, 67 (Minn. 1993) (stating that "impeachment by prior crime aids the jury by allowing it to see the whole person and thus to judge better the truth of his testimony") (quotations omitted).  Second, "[t]he fact that the crime was recently committed enhances its probative value."  Brouillette, 286 N.W.2d at 708.  Two of appellant's prior convictions elicited on cross-examination occurred after his arrest for the crimes at issue here; the third occurred approximately nine months prior to that arrest. 

Third, although two of appellant's prior convictions were assaults, and therefore similar in nature to the crimes at issue and potentially prejudicial, this fact alone does not render admission an abuse of discretion.  See State v. Ihnot, 575 N.W.2d 581, 588 (Minn. 1998) (finding no abuse of discretion in admitting a third-degree criminal sexual conduct conviction for impeachment in a trial for first-degree criminal sexual conduct).  Fourth, the prospect that the district court might admit evidence of his prior convictions did not prevent appellant from testifying.  Fifth, appellant's "credibility [was] an essential factor in the case," Brouillette, 286 N.W.2d at 708, in light of his flat denial of any involvement with Kristi's injuries.  

The facts underlying appellant's prior convictions were not put into evidence and the district court immediately cautioned the jury as to the proper use of the evidence concerning the convictions; the possible prejudicial effect of the evidence was therefore minimized.  See Vanhouse, 634 N.W.2d at 720 (holding that prejudicial effect of evidence of prior conviction on similar charges was "minimal" where the facts underlying the conviction were not in evidence and the court immediately gave a curative jury instruction).  

Moreover, any error resulting from the admission of evidence of appellant's prior convictions was harmless in light of direct evidence presented by Kristi and Dr. Feldkamp and the state's evidence presented to impeach Brian Sargent and appellant.  The district court acted within its discretion in admitting evidence of appellant's prior convictions to impeach his credibility.

II.

Appellant argues that he is entitled to a new trial because the prosecutor committed prejudicial misconduct during closing arguments by stating that appellant had stipulated to his intent to cause Kristi's death. 

"Whether a new trial should be granted because of misconduct of the prosecuting attorney is governed by no fixed rules but rests within the discretion of the trial judge, who is in the best position to appraise its effect."  State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997).  Appellate courts "review the alleged misconduct in light of the whole record and will reverse if the misconduct appears to be inexcusable and so serious and prejudicial that a defendant's right to a fair trial is denied."  State v. Smith, 541 N.W.2d 584, 588 (Minn. 1996); see also State v. Boitnott, 443 N.W.2d 527, 534 (Minn. 1989) (holding that to grant a new trial for serious prosecutorial misconduct, the reviewing court must determine that the misconduct was not harmless beyond a reasonable doubt). 

            Because appellant did not object to or seek cautionary instructions following the prosecutor's remarks at trial, he is deemed to have waived the issue on appeal unless we determine that "the prosecutor's comments were unduly prejudicial."  State v. Whittaker, 568 N.W.2d 440, 450 (Minn. 1997) (citations omitted).  "The defendant's failure to object implies that the comments were not prejudicial."  Id. 

            Appellant contends that the prosecutor committed misconduct by stating that "these other elements that happened on April 8 or 9th that was proven through the testimony.  There's a stipulation that occurred through Mahnomen County, the intent to cause death.  I've gone over that."  Appellant argues that this statement erroneously led the jury to think that he stipulated to the intent to cause death, thereby impermissibly excusing the state from proving an element of the offense.  Our review of the record indicates that the prosecutor's statement was likely mispunctuated in transcription and should properly read thus:  "So [those] other elements that happened on April 8 or 9th that was proven through the testimony.  There's a stipulation that occurred through Mahnomen County[.  T]he intent to cause death[,] I've gone over that." 

The prosecutor made the statement after acknowledging the state's burden concerning the first two elements of the crime charged and addressing the testimony that the state believed satisfied those elements.  The statement merely affirms that the first two elements of the offense were proved through testimony and that the parties stipulated to the last element: the county in which the alleged crime occurred.  The statement does not constitute misconduct.

Even if the statement did constitute misconduct, it was not "so prejudicial to [appellant's] right to a fair trial, that [appellant's] failure to object and thereby present the [district] court with an opportunity to avoid prejudice should not forfeit his right to a remedy."  Rairdon v. State, 557 N.W.2d 318, 323 (Minn. 1996).  The prosecutor repeatedly and clearly stated the correct burden of proof elsewhere during the closing argument; the court told the jury that the parties had stipulated only "that the incident which is the subject matter of this case occurred in Mahnomen County," instructed the jury about the state's burden of proof, and reminded the jury that statements made during closing arguments are not to be considered evidence.

We conclude that the prosecutor's statement could not have so misled the jury about the state's burden of proof as to deprive appellant of a fair trial.  See State v. Glaze, 452 N.W.2d 655, 662 (Minn. 1990) (declining to grant a new trial on the basis of certain remarks made by the prosecutor where "the remarks were isolated and not representative of the closing argument when reviewed in its entirety and [where], given the overwhelming evidence of [the defendant's] guilt, it is extremely unlikely the improper remarks influenced the jury or affected the verdict in any way"). 

III.

            In his pro se supplemental brief, appellant argues that (1) the district court abused its discretion by allowing Deputy Athmann to present inadmissible hearsay testimony; (2) the district court erred by allowing Deputy Athmann to remain in the courtroom during Brian Sargent's testimony; and (3) he received ineffective assistance of counsel.

Brian Sargent testified that he spoke with Deputy Athmann on April 9, but denied telling Athmann that he had left appellant alone with Kristi on the evening of the assault.  After Brian testified, the state called Deputy Athmann and asked him to comment on Brian's testimony "[o]nly to the extent that [the testimony was] inconsistent with [the April 9 statement]."  Deputy Athmann testified that Brian's testimony was inconsistent with the earlier statement.  When appellant objected to Deputy Athmann's testimony as hearsay, the state asserted that the testimony was offered as "rebuttal."  Insofar as Deputy Athmann's testimony was specifically limited to identifying contradictions between Brian's earlier statement and his in-court testimony, Deputy Athmann's testimony was not offered for the truth of the matter asserted and was not inadmissible hearsay. 

Appellant next argues that the district court erroneously allowed Deputy Athmann to remain in the courtroom during Brian Sargent's testimony.  But it is undisputed that Deputy Athmann was sequestered prior to his own direct testimony, and appellant offers no argument, or evidence, that he was prejudiced by the deputy's presence in the courtroom during Brian's testimony.

Finally, appellant argues that he received ineffective assistance of counsel because his attorney did a poor job cross-examining witnesses and presenting a closing argument.  Appellant presents no record evidence of the alleged deficient performance and does not indicate how he was prejudiced thereby.  "Thus, even if counsel's performance was deficient, appellant has failed to carry his burden of demonstrating that the representation resulted in prejudice."  State v. Miller, 666 N.W.2d 703, 717 (Minn. 2003).

            Affirmed.