Opinion
No. A04-1056.
Filed April 12, 2005.
Appeal from the District Court, Steele County, File No. K2-03-419.
Mike Hatch, Attorney General, James B. Early Assistant Attorney General, and Douglas L. Ruth, Steele County Attorney, (for respondent)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, (for appellant)
Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant contests his conviction of felony violation of an order for protection, arguing that the district court committed plain error in giving the no-adverse-inference instruction without appellant's consent or acquiescence. Appellant also argues that the prosecutor committed prejudicial misconduct in vouching for the credibility of the state's witnesses and in injecting his personal opinion in closing argument. Because the district court improperly gave a no-adverse-inference instruction and the prosecutor committed misconduct by vouching for a witness, we reverse and remand.
FACTS
Appellant Scott Ramey contests his conviction of violation of an order for protection. Sherry Smith, who had previously dated Ramey, obtained the order in February of 2003 in response to his multiple unwanted attempts to contact her. This behavior culminated in Ramey entering her bedroom on April 8, 2003 and awakening her by kissing her.
Smith phoned the police following that event and learned that Ramey had not yet been served with the order for protection. When Ramey returned again that evening, Smith called 911. The police arrived and served Ramey with a short-form notification, which advised Ramey that he was excluded from Smith's residence and place of work, and forbade him to contact her.
Later that day, while Smith was working the night shift, she received a phone call and immediately identified Ramey as the caller. She hung up without speaking to him and called the police. After investigating the alleged contact, police took Ramey into custody.
Because of previous convictions related to domestic violence, Ramey was charged with felony violation of an order for protection under Minn. Stat. § 518B.01, subd. 14(d)(1) (2002). In December of 2003, a jury found Ramey guilty of the charged offense. The district court sentenced Ramey in March of 2004 to a stayed commitment of 21 months and a partially stayed $3,000 fine, plus completion of a domestic abuse or anger management program.
DECISION I.
Ramey argues that the district court erred by instructing the jury not to draw any adverse inferences from his decision not to testify, even though Ramey did not request such an instruction. See State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (stating that a court should not provide a jury instruction regarding a defendant's right not to testify "without appellant's permission on the record"). District courts have considerable latitude in the selection of the language of jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990). But because a no-adverse-inference instruction "calls the defendant's silence to the jury's attention," such an instruction should ordinarily not be given unless the defendant personally requests it on the record. McCollum v. State, 640 N.W.2d 610, 617 (Minn. 2002). Giving the instruction without obtaining the defendant's consent on the record is error. Darris, 648 N.W.2d at 240; see also Minn. Stat. § 611.11 (2002) (stating that a defendant's failure to testify creates no presumption against the defendant and is not to be alluded to by the court).
Ramey did not request the no-adverse-inference instruction and the state concedes that the district court committed plain error by issuing the instruction. Ramey's attorney consented to the jury instructions in response to the district court's query and did not object to the instruction after the court read it to the jury. Failure to object to a jury instruction at trial generally results in forfeiture of the right to appeal the instruction. State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998). But a reviewing court may consider the issue on appeal if the district court committed plain error affecting an appellant's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). To establish plain error, an appellant must show that (1) there was error, (2) the error was plain, and (3) the error affected the appellant's substantial rights. Id. Plain error in a jury instruction is prejudicial and thus reversible when there is a reasonable likelihood that the giving of the instruction had a significant effect on the jury's verdict. Id. at 741.
Ramey argues that "the connection between [his] silence and guilt was too direct and too natural for the jury to resist." We agree. The rule is clear that the district court cannot give this instruction without the defendant's consent. The state concedes error and we are compelled to conclude that the court simply overlooked a fundamental right.
II.
Ramey also argues that he deserves a new trial because the prosecuting attorney committed misconduct by personally vouching for his witnesses and by interjecting his personal opinion into closing argument. Ramey did not object to any of the instances he now argues are misconduct. "If the defendant failed to object to the misconduct at trial, he forfeits the right to have the issue considered on appeal," unless the misconduct is unduly prejudicial. State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Misconduct is unduly prejudicial when it plays a "substantial part in influencing the jury to convict." State v. Parker, 417 N.W.2d 643, 647 (Minn. 1988). The general standard for determining whether a new trial is warranted due to prosecutorial misconduct is whether the misconduct, viewed in light of the entire record, is so "inexcusable and so serious and prejudicial that defendant's right to a fair trial was denied." State v. Booker, 348 N.W.2d 753, 755 (Minn. 1984) (quotation omitted).
Ramey points to several statements in the state's closing argument as the basis for his claim that he was denied a fair trial. The prosecuting attorney stated in his closing argument that "[t]he State" believed that Smith's testimony was "credible" and that "[t]he officers' testimony is credible, and you should believe what they told you." The prosecuting attorney also interjected his personal commentary on the evidence, such as "[t]he State believes that's too big of a coincidence" and "[w]e suggest that there's no evidence that you can find that Ms. Smith was somehow affected" in her ability to hear the phone caller by the noise at her workplace. Ramey argues that such statements influenced the jury because the state's case was based upon a two-second phone call and the jury was susceptible to the prosecutor's opinion.
When reviewing alleged misconduct in closing statements, we look at the whole argument in context, not just selective phrases or remarks. State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993). We find that the prosecutor's statements, especially statements vouching for witnesses, amounted to misconduct. But the statements should not be considered serious misconduct, which requires a new trial, unless harmless beyond a reasonable doubt in that the verdict was surely unattributable to the error. Powers, 654 N.W.2d at 678. Less serious misconduct will be considered prejudicial only if it likely played a substantial part in influencing the jury to convict. Id. We are convinced that the prosecutor's statements, when viewed in light of the judge's improper no-adverse-inference instruction, substantially influenced the jury to convict and denied Ramey a fair trial.