State v. Borg
| Decision Date | 26 March 2012 |
| Docket Number | A09-243 |
| Parties | State of Minnesota, Respondent, v. Brett David Borg, Appellant. |
| Court | Court of Appeals of Minnesota |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010).
Affirmed
Mille Lacs County District Court
Lori Swanson, Attorney General, St. Paul, MN; and
Jan Jude, Mille Lacs County Attorney, Milaca, MN (for respondent)
David W. Merchant, Chief Appellate Public Defender, Jodie L. Carlson, Assistant Public Defender, St. Paul, MN (for appellant)
Considered and decided by Minge, Presiding Judge; Schellhas, Judge; and Stauber, Judge.
UNPUBLISHED OPINION
On remand from the supreme court, appellant challenges his conviction of third-degree criminal sexual conduct arguing that (1) his conviction must be reversed because the prosecutor engaged in prejudicial misconduct; (2) the district court abused its discretion byrefusing to impose a dispositional departure; and (3) he was denied the effective assistance of counsel. We affirm.
Following a jury trial, appellant Brett David Borg was found guilty of third-degree criminal sexual conduct. Appellant raised several issues on appeal, including a claim that the district court erred by allowing the state to elicit evidence of appellant's pre-arrest silence in the state's case-in-chief. This court agreed, holding that the district court erred by permitting a police officer "to testify about appellant's pre-counseled, pre-arrest, and pre-Miranda silence in the state's case-in-chief." State v. Borg, 780 N.W.2d 8, 16 (Minn. App. 2010), rev'd and , 806 N.W.2d 535 (Minn. 2011). This court further held that "in light of the weakness in the state's case" the error was not harmless beyond a reasonable doubt. Id. Thus, we reversed and remanded for a new trial without addressing the remaining arguments. Id.
The supreme court granted review and in a 4-3 decision, reversed this court, stating that "[w]hen the government does nothing to compel a person who is not in custody to speak or to remain silent, . . . then the voluntary decision to do one or the other raises no Fifth Amendment issue." State v. Borg, 806 N.W.2d 535, 543 (Minn. 2011). In regard to appellant's pre-arrest, pre-Miranda silence, the supreme court held that "if a defendant's silence is not in response to a choice compelled by the government to speak or remain silent, then testimony about the defendant's silence presents a routine evidentiary question that turns on the probative significance of that evidence." Id.(quotation omitted). The supreme court then remanded the case to this court "for consideration of [appellant's] remaining arguments." Borg, 806 N.W.2d at 548.1
A prosecutor engages in prejudicial misconduct if the prosecutor's acts have the effect of materially undermining the fairness of a trial. State v. Fields, 730 N.W.2d 777, 782 (Minn. 2007). A prosecutor also engages in prejudicial misconduct if the prosecutor violates rules, laws, orders by a district court, or this state's caselaw. Id. Appellate courts reviewing claims of prosecutorial misconduct "will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant's right to a fair trial." State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).
Appellant argues that the prosecutor engaged in misconduct by (1) encouraging a verdict based on sympathy for the complainant; (2) eliciting inadmissible evidence; (3) vouching for the complainant's credibility; and (4) violating the discovery rules. Although appellant admits that much of the misconduct was not objected to at trial, he argues that he is entitled to a new trial because the misconduct was plain and prejudicial error.
The supreme court has used two different harmless-error standards to review objected-to prosecutorial misconduct. State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010) (citing State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974)). The Caron harmless-error test for less-serious prosecutorial misconduct requires the reviewing court to ask "whether the misconduct likely played a substantial part in influencing the jury to convict." Id. (quoting Caron, 300 Minn. at 128, 218 N.W.2d at 200). The Caron harmless-error test for "unusually serious" misconduct requires us to ask whether the alleged misconduct was "harmless beyond a reasonable doubt." Id.; State v. Martin, 773 N.W.2d 89, 104 (Minn. 2009). An appellate court "will find an error to be harmless beyond a reasonable doubt only if the verdict rendered was 'surely unattributable' to the error." State v. Nissalke, 801 N.W.2d 82, 105-06 (Minn. 2011) (quoting State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008).2
Appellant argues that the prosecutor committed misconduct at trial by asking S.C. who purchased the beer because the question was irrelevant and damaged S.C.'s credibility by suggesting that S.C. purchased alcohol for under-aged girls. The general rule is that a prosecutor may not ask a question to advance an improper inference to thejury. State v. Jahnke, 353 N.W.2d 606, 609 (Minn. App. 1984). But here, the record reflects that appellant's attorney first asked a witness who brought alcohol and, thus, the prosecutor's question concerning the alcohol was not improper.
Appellant also contends that the prosecutor committed misconduct by asking S.C.: "Do you remember [appellant] telling you that he had fondled [the complainant] but that he did not have sex with her?" Appellant argues that the prosecutor's question was improper because it asked S.C. if he "remembered" appellant making the statement, rather than asking him "if" appellant made the statement. Appellant further argues that the question was improper because the prosecutor incorrectly phrased the question despite being advised by the court outside the presence of the jury how to ask the question.
We agree that the question initially posed by the prosecutor was different than the question discussed outside the presence of the jury. But the record indicates that there was some confusion concerning how the question should be asked. And there is no indication that the misstatement was intentional. We conclude that the misstatement does not rise to the level of prosecutorial misconduct.
Appellant argues that the prosecutor engaged in misconduct by violating the discovery rules when she faxed certain witness statements to defense counsel's office rather than to counsel's hotel. But the district court found that the prosecutor had no way of knowing that, at the time the faxes were sent, defense counsel had checked into his hotel. Appellant points to no evidence in the record to refute this finding, nor does ourcareful review of the record reveal any such evidence. Accordingly, appellant has not established that the prosecutor engaged in misconduct by violating the discovery rules.
For unobjected-to prosecutorial misconduct, the court applies a plain-error test. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006). Before an appellate court will review an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. Id. The appellant has the initial burden of showing that the error was plain; if he does so, the burden shifts to the state to show that the error did not affect appellant's substantial rights. Id. Thus, the state must show "that there is no reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury." Id. (quotation omitted). Only if the three prongs of the plain-error test are met does the reviewing court determine whether the error seriously affected the integrity and fairness of the proceedings as to require reversal. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1983).
Appellant argues that the prosecutor inflamed the passions of the jury by asking the nurse and the complainant to describe the intrusiveness of the sexual-assault exam and by commenting during opening and closing remarks that appellant made a choice "for another when she was not in a position to even make a choice." But it is well settled that the reviewing court considers the prosecutor's closing argument as a whole and does not focus on selected phrases taken out of context. State v. Taylor, 650 N.W.2d 190, 208 (Minn. 2008).
Here, when looking at the closing argument as a whole, there is nothing improper about the prosecutor's statements. Appellant was charged with third-degree criminal sexual conduct based on his alleged knowledge that the complainant was physically helpless. The prosecutor's comments go directly to the crux of the case. Moreover, the questions regarding the sexual-assault exam were helpful in explaining to the jury the relevancy of the evidence discovered through the sexual-assault examination, and pertinent to establishing the complainant's credibility. Because appellant claimed that the sex was consensual, the state presented evidence explaining the intrusiveness of the exam to bolster the complainant's claim that she was not fabricating her story. Therefore, the prosecutor's arguments and questions did not improperly inflame the passions and prejudices of the jury.
Appellant next argues that the prosecutor improperly elicited the substance of an inadmissible out-of-court statement under the guise of impeachment. Specifically, appellant complains about the prosecutor's question to K.K. asking her if she remembered giving a statement indicating that appellant was "chasing after [the complainant] all night?" K.K. responded by stating: "No, I remember saying he was just friendly with everybody." Although appellant...
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