This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA IN COURT OF APPEALS A13-1450
State of Minnesota, Respondent,
vs.
Dontrell Dyna Flowers, Appellant.
Filed July 28, 2014 Affirmed Reyes, Judge
Hennepin County District Court File No. 27CR1113822
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Kirk, Presiding Judge; Hooten, Judge; and
Reyes, Judge.
UNPUBLISHED OPINION
REYES, Judge
On appeal from his conviction for being a prohibited person in possession of a
firearm, appellant argues that the district court erred by (1) denying his motion to suppress evidence based on a confidential informant’s tip; (2) suppressing evidence
related to his defense; (3) ruling that his prior felony conviction could be used for
impeachment purposes; and (4) denying his request for an evidentiary hearing regarding
jury misconduct. Appellant also alleges several instances of prosecutorial misconduct.
Because we conclude that the district court did not err, and any prosecutorial misconduct
did not result in prejudice to appellant, we affirm.
FACTS
On the evening of May 10, 2011, after receiving a tip from a confidential
informant that appellant Dontrell Dyna Flowers was always in possession of a gun, two
police officers engaged in surveillance of a house located in north Minneapolis, which
was the residence of C.P., Flowers’s girlfriend. From their position on the street, the
officers saw a black suburban parked behind the residence and observed Flowers walk
from the house to the vehicle while carrying a multi-colored light-and-dark-blue towel or
two towels. The officers saw Flowers lean into the vehicle at the driver’s door for several
seconds, emerging empty-handed. Flowers got into the vehicle, and police followed him
as he drove away. Another officer initiated a traffic stop and ordered Flowers out of the
vehicle.
Police searched the vehicle, finding a blue towel in the bottom compartment of the
center console, which was wrapped around a handgun and an extra magazine. Another
towel, in a darker shade of blue, was found on the backseat. When questioned, Flowers
told an officer that he had been at his girlfriend’s house, that he left to go wash her car,
2 and he did not know that the gun was in the car. He also stated that his DNA would not
be on the gun. The recovered gun was never tested for fingerprints or DNA evidence.
Flowers was charged under Minn. Stat. § 624.713, subds. 1(2) and 2(b) (2010), as
a prohibited person in possession of a firearm. Flowers moved to suppress evidence
obtained as a result of the search and seizure, arguing that the information received from
the confidential informant was not reliable and that police did not have probable cause to
stop, arrest, or search Flowers. The district court denied this motion.
Before trial, Flowers stipulated that he was a person prohibited from possessing a
firearm. He also moved to suppress evidence of his prior conviction from being used as
impeachment evidence and moved to admit evidence about the history of the gun,
including its link to two prior incidents. The court denied both motions, but limited the
state to impeachment using an unspecified felony conviction only.
At trial, jurors heard testimony from C.P. and three police officers. C.P. testified
that Flowers was driving her car when he was stopped. She also testified that the
recovered gun was hers, claiming that she had bought it on the street from someone she
knew a couple of weeks before the stop for safety reasons and that she had forgotten to
take it out of her car that day. Flowers waived his right to testify. The jury found
Flowers guilty of being a prohibited person in possession of a firearm.
After trial, the jury foreperson wrote to the judge expressing concern that one juror
acquiesced to the rest in finding Flowers guilty. Flowers moved for a new trial and a
hearing to impeach the verdict. The district court denied the motions and sentenced
Flowers to 60 months in prison. This appeal followed.
3 DECISION
I. Motion to suppress
On appeal, Flowers states that there was insufficient corroboration of the tip
provided by the confidential informant to establish probable cause for the stop and
search. But because Flowers did not provide an argument with relevant legal authority in
his brief, this issue is waived.
Flowers’s attempt to incorporate a 15-page memorandum into a brief that is
already 41 pages long is a clear violation of the rules of this court. See Minn. R. Civ.
App. P. 132.01, subd. 3 (providing that, except with good cause and permission of the
court, a principal brief must not exceed 45 pages, unless it contains no more than 14,000
words or 1,300 lines of text and is accompanied by a certificate of compliance with one
of these exceptions). Flowers did not obtain permission from this court to file a brief in
excess of the 45 page limit, nor did he certify that his brief complied with one of the
exceptions to this page limit. In a similar circumstance, the supreme court stated:
This is a novel, but nonetheless unacceptable attempt to expand the page limitation for appellate briefs set out in Rule 132.01, subd. 3 (1992) of our Rules of Civil Appellate Procedure. To be absolutely clear, if these issues were important enough to have been reviewed, they should have been set forth with specificity within the ample page limit our rules permit. As it is, having these issues before the court in the manner in which they were raised has not been at all helpful in reviewing [the appellant’s] petition.
Indep. Sch. Dist. No. 622 v. Keene Corp., 511 N.W.2d 728, 733-34 (Minn. 1994)
(emphasis added), overruled on other grounds by Jensen v. Walsh, 623 N.W.2d 247
(Minn. 2001). Because Flowers did not brief his probable-cause argument on appeal, it is
4 waived. See State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) (stating that
issues not briefed on appeal are waived), review denied (Minn. Aug. 5, 1997).
Even considering this issue in the interest of justice, we find no merit in Flowers’s
contention that the stop and search of the vehicle was unreasonable because the police
lacked probable cause. The district court determined that the stop was justified under the
Terry warrant exception, which requires only a showing of reasonable suspicion, a less-
demanding threshold than probable cause. Terry v. Ohio, 392 U.S. 1, 20-21, 88 S. Ct.
1868, 1879-80 (1968); see State v. Flowers, 734 N.W.2d 239, 351 (Minn. 2007) (stating
that Terry applies to investigative vehicle stops and allows a limited search of a vehicle
for weapons based on reasonable suspicion that the person stopped is engaged in criminal
activity and may gain control of a weapon). Therefore, we conclude that the issue of
probable cause is irrelevant.
II. Gun history
Flowers contends that, because he has a constitutional right to present a defense,
the district court erred by not allowing him to present the gun’s history. We disagree.
Evidentiary rulings rest within the sound discretion of the district court and will
not be overturned absent a clear abuse of discretion, “even when constitutional rights are
implicated.” State v. Pendleton, 706 N.W.2d 500, 510 (Minn. 2005). The district court
“must allow defendants to present evidence that is material and favorable to their theory
of the case,” as long as it is relevant and its probative value outweighs any prejudicial
effect. State v. Crims, 540 N.W.2d 860, 866 (Minn. App. 1995), review denied (Minn.
5 Jan. 23, 1996). The appealing party has the burden to establish an abuse of discretion by
the district court and prejudice resulting from the error. Pendleton, 706 N.W.2d at 510.
At trial, Flowers sought to admit the testimony of (1) a ballistics expert who would
testify that the gun was used in two prior shooting incidents; (2) a police officer who
would link the gun to a shooting in south Minneapolis in September 2010 and testify to
the suspect’s physical description, which did not match Flowers’s; and (3) a witness to
that incident who would also describe the suspect. The district court refused admission
of this testimony, determining that “[t]he fact that [the gun] apparently was fired at some
point 8 months prior” is not relevant and “the fact that the gun was used in a prior
incident, perhaps a crime,” is prejudicial.
Flowers contends that this evidence is relevant to “the theory of defense . . . that
[C.P.] plausibly could have bought, without a permit, a gun floating around on the streets
that had no connection to [Flowers] and was never obtained or used by him.” But to
prove that Flowers was a prohibited person in possession of a firearm, the state only had
to prove that Flowers knowingly possessed the gun on the date that he was stopped. See
10A Minnesota Practice, CRIMJIG 32.17 (2013) (listing the elements of felon in
possession of a firearm). Whether C.P. owned the gun, though not dispositive, is relevant
to Flowers’s knowledge of the gun. But the gun’s involvement in a crime several months
earlier, before C.P. purchased it, does not have any tendency to make the existence of
Flowers’s knowledge of possession or C.P.’s purchase of the gun on the street more or
less probable than it would be without the testimony. See Minn. R. Evid. 401 (defining
“relevant evidence” as “evidence having any tendency to make the existence of any fact
6 that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence”).
Flowers also argues that any prejudice created by this evidence would have been
to the state, making it unfair for the court to impede his constitutional right to present a
defense. But even if the gun’s history had some probative value, the undue prejudice and
confusion to the jury caused by admitting evidence of potential criminal activity, which
was unrelated to the issues at trial, outweighed any probative value. Moreover, the
district court allowed C.P.’s testimony about how, where, and why she bought the gun on
the street, which directly related to Flowers’s defense. The district court did not abuse its
discretion by excluding evidence about the gun’s history prior to C.P.’s purchase.
III. Impeachment evidence
Flowers argues that the district court erred by ruling that his prior conviction could
be used as impeachment evidence if he chose to testify, contending that it undermined his
right to stipulate that he was a person prohibited from possessing a firearm. Flowers also
asserts that the district court’s reference to State v. Hill, 801 N.W.2d 646 (Minn. 2011), to
explain its decision to limit impeachment by reference to an unspecified felony
conviction, improperly negates the Jones analysis. State v. Jones, 271 N.W.2d 534, 538
(Minn. 1978) (listing five factors that the district court must consider in determining
whether to admit impeachment evidence against a defendant). We disagree.
The district court’s ruling on the impeachment of a witness by prior conviction is
reviewed, as are other evidentiary rulings, under a clear-abuse-of-discretion standard.
State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Evidence that a defendant has been
7 convicted of a felony is admissible for impeachment if the district court “determines that
the probative value of admitting this evidence outweighs its prejudicial effect.” Minn. R.
Evid. 609(a)(1). In making this determination, the court considers the Jones factors:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with 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 defendant’s testimony, and (5) the centrality of the credibility issue.
State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006) (quoting Jones, 271 N.W.2d at
538). “If a court finds that the prejudicial effect of disclosing the nature of a felony
conviction outweighs its probative value, then it may still allow a party to impeach a
witness with an unspecified felony conviction if the use of the unspecified conviction
satisfies the balancing test of Rule 609(a)(1).” Hill, 801 N.W.2d at 652-53.
Flowers contends that the court’s analysis of the Jones factors “was nothing short
of boilerplate reasoning.” But the record shows that the district court gave adequate
consideration to each factor. In deciding whether to allow Flowers’s prior conviction to
be used as impeachment evidence, the district court determined that (1) admitting
evidence of Flowers’s prior conviction would allow “the jury to see the whole person of
the defendant and better evaluate his or her truthfulness,” Swanson, 707 N.W.2d at 655
(quotation omitted); (2) the prior conviction was remote and Flowers did not have much
subsequent criminal history, weighing against admissibility; (3) the charged crime of
being a prohibited person in possession of a firearm was very different from the prior
conviction for aiding and abetting a homicide; (4) because Flowers had other witnesses to
8 tell his story, his testimony was not as important; and (5) credibility was a key issue in
this case.
Flowers maintains that the whole-person theory for evaluating impeachment value
should be rejected by this court, but this is an accepted analysis on just one factor to be
considered by the district court and does weigh in favor of admissibility. Swanson, 707
N.W.2d at 655. Additionally, the fact that Flowers’s prior conviction was remote is not
dispositive because he was released from prison in 2004, so it fell within the 10-year
window of admissibility. See Minn. R. Evid. 609 (“Evidence of a conviction . . . is not
admissible if a period of more than ten years has elapsed since the date of the conviction
or of the release of the witness from the confinement imposed for that conviction . . . .”).
And because Flowers intended to introduce his defense-theory evidence through C.P.,
Flowers’s testimony was not of central importance since he expressed that he would just
corroborate C.P.’s testimony. Finally, credibility was key, as Flowers concedes, because
he was the only person in the car when police recovered the gun and knowledge of the
gun was central to the charged crime. See State v. Smith, 669 N.W.2d 19, 29 (Minn.
2003) (citing Ihnot, 575 N.W.2d at 587) (stating that the fourth and fifth factors of the
Jones analysis are satisfied if the defendant’s credibility is a central issue in the case),
overruled by State v. Leake, 699 N.W.2d 312 (Minn. 2005); State v. Gassler, 505 N.W.2d
62, 67 (Minn. 1993) (stating that the importance-of-defendant’s-testimony factor supports
exclusion of impeachment evidence if, by admitting it, a defendant’s account of the
events would not be heard by the jury).
9 Flowers also contends that, because his prior conviction and the present charge
involve guns, admitting the prior conviction would lead the jury to believe that he is a
person who is around guns. This argument has no merit because the state was not
allowed to impeach with the substance of the prior crime. See State v. Pendleton, 725
N.W.2d 717, 728-29 (Minn. 2007) (“The concern weighing against admission with this
factor is that the jury will use the convictions as substantive evidence, in addition to
impeachment evidence.”). The district court used the nature of Flowers’s prior
conviction to determine that it had probative value under Jones and weighed this against
its assessment that “[t]he title of the prior conviction is . . . highly prejudicial to the
defendant” in deciding that the state could impeach with an unspecified felony conviction
only. This follows the ruling in Hill, where the supreme court determined that the district
court did not abuse its discretion by allowing an unspecified felony conviction to be used
for impeachment purposes after “[w]eighing all of the [Jones] factors [and] conclud [ing]
that the probative impeachment value of a sanitized version of Hill’s felony conviction
outweighed its prejudicial effect.” 801 N.W.2d at 653. Likewise, the district court did
not abuse its discretion by allowing Flowers to be impeached with his prior conviction
based on the court’s determination that the probative value of the prior conviction
outweighed the risk of prejudicial effect of admitting an unspecified felony conviction.
IV. Juror misconduct
Flowers argues that the district court erred by denying his request for a Schwartz
evidentiary hearing regarding juror misconduct, alleging that his constitutional right to a
fair trial by an impartial jury had been violated. We disagree.
10 This court reviews the denial of a Schwartz hearing for an abuse of discretion.
State v. Church, 577 N.W.2d 715, 721 (Minn. 1998). The purpose of a Schwartz hearing
is “to avoid harassment of jurors and to provide a record on appeal in cases where, after
the jury renders the verdict, the losing party becomes aware of facts which indicate the
possibility of jury misconduct.” State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979)
(quotation omitted). The requesting defendant must establish a prima facie case of juror
misconduct by submitting “sufficient evidence which, standing alone and unchallenged,
would warrant the conclusion of jury misconduct.” Id.
Flowers only cites the jury foreperson’s letter as evidence of potential juror
misconduct. In his letter, the foreperson expressed concern that after a series of split
votes and at the end of the day on a Friday, the sole remaining not-guilty-voting juror
acquiesced to the other jurors, even though he stated that he did not believe there was
enough proof to establish that Flowers knew the gun was in the vehicle. This is not
sufficient evidence to establish a prima facie case of juror misconduct. “Evidence of
what happened in the jury room is inadmissible, except that evidence of improper
extraneous prejudicial information, outside influence, or threats of violence or violent
acts is admissible. Evidence of psychological intimidation, coercion, and persuasion is
not admissible.” State v. Jackson, 615 N.W.2d 391, 396 (Minn. App. 2000) (citing Minn.
R. Evid. 606(b) and cmt. (emphasis omitted)), review denied (Minn. Oct. 17, 2000). We
expect that jurors commonly feel pressure at some point during deliberations, which may
have been the situation in this case, but there is no evidence of extraneous prejudicial
information, outside influence, or threats of violence here. Because the only evidence
11 presented to the district court does not establish juror misconduct, it did not abuse its
discretion by denying Flowers a Schwartz hearing.
V. Prosecutorial misconduct
Flowers argues that the prosecutor committed misconduct, denying him a fair trial,
by (1) failing to prepare witnesses; (2) failing to prepare for the case; (3) vouching for
witnesses; (4) inflaming the jury’s passions; and (5) misstating the burden of proof.
“We review prosecutorial misconduct to determine whether the conduct, in light of
the whole trial, impaired the defendant’s right to a fair trial.” State v. Milton, 821
N.W.2d 789, 802 (Minn. 2012) (quotation omitted). When comments made in closing
argument are challenged, this court will evaluate the closing argument as a whole.
Swanson, 707 N.W.2d at 656.
For objected-to prosecutorial-misconduct claims, this court applies one of two
harmless-error standards. State v. Watson, 829 N.W.2d 626, 630 (Minn. App. 2013)
(citing State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974)), review
denied (Minn. June 26, 2013). In cases involving less-serious prosecutorial misconduct,
this court considers “whether the misconduct likely played a substantial part in
influencing the jury to convict.” Caron, 300 Minn. at 128, 218 N.W.2d at 200. In cases
involving “unusually serious” misconduct, this court asks if it is certain beyond a
reasonable doubt that the misconduct was harmless. Id. For unobjected-to prosecutorial
misconduct, we have discretion to review for plain error. Minn. R. Crim. P. 31.02; State
v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006). To establish plain error, the appellant
must demonstrate that the prosecutor’s unobjected-to act constitutes error and the error
12 was plain. Ramey, 721 N.W.2d at 302. “Usually [plain error] is shown if the error
contravenes case law, a rule, or a standard of conduct.” Id. If the appellant establishes
plain error, the burden then shifts to the state to demonstrate lack of prejudice on the
defendant’s substantial rights from the error. State v. Martin, 773 N.W.2d 89, 104 (Minn.
2009). This burden is met if the state can show that there is no reasonable likelihood that
the misconduct had an effect on the jury’s verdict. Ramey, 721 N.W.2d at 302.
A. Failing to prepare
“The state has a duty to prepare its witnesses, prior to testifying, to avoid
inadmissible or prejudicial statements.” State v. McNeil, 658 N.W.2d 228, 232 (Minn.
App. 2003). And a prosecutor may not intentionally elicit inadmissible testimony from
the state’s witnesses. State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978). But
“unintended responses under unplanned circumstances ordinarily do not require a new
trial.” State v. Hagen, 361 N.W.2d 407, 413 (Minn. App. 1985), review denied (Minn.
Apr. 18, 1985).
Flowers contends that the prosecutor committed misconduct by failing to instruct
to an officer, who almost testified about the confidential informant despite the district
court’s order that such evidence was inadmissible. But this was an unintentional
response to the prosecutor’s question and the defense interrupted with an objection before
the officer said anything about the confidential informant or even used those words. The
record shows that the prosecutor instructed the state’s witnesses not to refer to the
confidential informant, and the jury never heard any mention of the confidential
informant at trial. As a result, there was no error.
13 Flowers also contends that the prosecutor committed misconduct by admitting
magazines and ammunition into evidence without verifying the chain of custody.
Flowers argues that these items were “effectively published” to the jury when the
prosecutor asked two officers to identify the exhibits, and Flowers contends that the error
was not harmless because the jury expressed interest in seeing the magazines during
deliberations. We are unconvinced that there was any error here because these exhibits
were not actually admitted into evidence or published to the jury, and there is nothing in
the record suggesting that the prosecutor knowingly tried to admit inadmissible evidence.
But even if the prosecutor committed misconduct by failing to verify the chain of
custody before trial, it was harmless. Photos of the magazines and ammunition were
admitted into evidence without objection and defense witness, C.P., commented on the
magazines several times in her testimony. Additionally, aside from asking witnesses to
identify the magazines and ammunition for evidentiary purposes, the state did not
comment on these items. See Tucker v. State, 309 Minn. 482, 487, 245 N.W.2d 199, 202
(1976) (holding that there was no reversible error where a shotgun was displayed in the
courtroom because there was other evidence relating to the shotgun and “the prosecutor
did not in any way call the weapon to the jury’s attention or suggest anything about it.”).
B. Vouching for witnesses
“A prosecutor may not personally endorse the credibility of a witness or impliedly
guarantee a witness’s truthfulness.” State v. Jackson, 714 N.W.2d 681, 696 (Minn.
2006). But, during closing arguments, a prosecutor may properly present arguments
about why particular witnesses should be perceived as credible or incredible so long as he
14 does not “impl[y] a guarantee of a witness’s truthfulness, refer[] to facts outside the
record, or express[] a personal opinion as to a witness’s credibility.” State v. Patterson,
577 N.W.2d 494, 497 (Minn. 1998) (quotation omitted).
Flowers argues that the prosecutor committed misconduct in his closing argument
by vouching for the honesty of the police officers who testified by contending that the
officers had no motive to fabricate their testimony and by stating, “[t]hey were not
polished witnesses. And they were not polished witnesses despite some of my efforts
pretrial to polish them up a bit. . . . And I submit to you that in their simplicity, you find
their honesty.” Flowers did not object at trial.
The prosecutor’s statements did not constitute impermissible vouching because he
merely argued that the officers were credible, not that he or the state believes they were
credible. See Swanson, 707 N.W.2d at 656 (holding that a prosecutor’s statement that a
person had made a “[v]ery believable witness” was permissible, while the prosecutor’s
statement that the “state believes [that a second witness] is very believable” was
impermissible). Though the use of “I” statements typically indicates the prosecutor’s
personal opinion, State v. Leutschaft, 759 N.W.2d 414, 425 (Minn. App. 2009), review
denied (Minn. Mar 17, 2009), and the prosecutor in this case briefly went outside of the
record by stating that he tried to polish up the officers’ testimony, these statements were
not an endorsement of the officers’ credibility, relating instead to the prosecutor’s general
argument as to why the jury should perceive these witnesses as credible. Though the
prosecutor was walking a fine line, Flowers has not met his burden of demonstrating that
15 the prosecutor committed an error in violation of a law, rule, or standard of conduct, and
therefore, Flowers did not establish plain error.
C. Inflaming passions of jury
A “prosecutor must avoid inflaming the jury’s passions and prejudices against the
defendant.” State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995). “The state should
refrain from . . . making arguments that would divert the jury from its duty to decide a
case on the evidence by injecting issues broader than a defendant’s guilt or innocence
into the trial.” State v. Dobbins, 725 N.W.2d 492, 512 (Minn. 2006) (citation omitted).
“It is well-settled that the state has a right to vigorously argue its case, but the state may
not denigrate a particular type of defense.” State v. MacLennan, 702 N.W.2d 219, 236
(Minn. 2005) (citations omitted). “A prosecutor’s closing argument should be based on
the evidence presented at trial and inferences reasonably drawn from that evidence.”
State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990).
In his closing argument, after discussing a line of questioning posed by defense
counsel to one of the police officers about whether the gun was deliberately not tested for
DNA and fingerprints, the prosecutor urged the jury to reject any argument from the
defense that tried to “shake [their] faith in the police and their system of investigation and
evidence gathering,” and commented on a statement made by a juror during jury selection
that he has faith in the judicial system. Flowers did not object at the time, but on appeal
argues that this inflamed the passions of the jury by harnessing a theme about belief in
the justice system and “accus[ing] the defense of fabricating a police conspiracy to lie.”
We disagree because Flowers cannot satisfy the burden of establishing plain error.
16 While the prosecutor’s statements started by addressing a broader idea of the
integrity of the justice system, the prosecutor did not implore the jury to convict Flowers
based on their belief in the justice system, but pointed out that the evidence was sufficient
for conviction and the police had no motive to fabricate testimony, even though there
were mistakes in this case. Porter, 526 N.W.2d at 364 (stating that the state’s arguments
must be based on evidence produced at trial, or reasonable inferences from that evidence,
but need not be “colorless”); see State v. Graham, 764 N.W.2d 340, 356-57 (Minn. 2009)
(rejecting argument that the prosecutor engaged in misconduct by asking for justice for
the victims, concluding that the state asked the jury to seek justice based on the evidence
and not to inflame passions). In stating that defense counsel would try to shake the jury’s
faith in the justice system, the prosecutor permissibly addressed the merits of Flowers’s
defense, urging the jury to base its verdict on the evidence presented by the state and not
the inferences put forward by Flowers. See State v. McDaniel, 777 N.W.2d 739, 752
(Minn. 2010) (stating that arguing that a particular defense has no merit is permissible).
Flowers has not shown error.
D. Burden of proof
“Misstatements of the burden of proof are highly improper and would, if
demonstrated, constitute prosecutorial misconduct.” State v. Hunt, 615 N.W.2d 294, 302
(Minn. 2000). Flowers contends that the prosecutor made unobjected-to misstatements
about the standard for proof beyond a reasonable doubt in his closing argument when he
stated:
17 In your lives when you’re facing such decisions, do you have doubts along the way? Certainly. And are your doubts reasonable? Certainly. But ultimately you’ve been able to make decisions to buy a house, to have children, to move, to have surgery, despite the reasonable doubts you had about your decisions. You’ve been able to make decisions despite not having certainty beyond all doubt.
And when he stated, “you’ll find that when you deliberate on this case, you will not go
beyond your reasonable doubts about it.” But in addition to these comments, the
prosecutor correctly told the jury that beyond a reasonable doubt is the state’s burden of
proof and articulated the difference between “beyond all doubt” and “beyond a
reasonable doubt.” And the prosecutor explained that in applying the latter standard, the
jury can reach a guilty verdict without forensic evidence because certainty beyond all
doubt is not necessary. Moreover, these comments were preceded by the prosecutor’s
statement that the standard is “beyond a reasonable doubt[,] [n]ot beyond all doubt.”
While the prosecutor’s closing argument contained some inartful statements about the
burden of proof, overall, his extensive discussion on the issue was not a misstatement of
the law. See State v. Taylor, 650 N.W.2d 190, 208 (Minn. 2002) (stating that “[a]
reviewing court considers the closing argument as a whole and does not focus on
selective phrases” taken out of context).
Even if the prosecutor did misstate the law, the jury was properly and repeatedly
instructed on the state’s burden of proof by the district court. See State v. Trimble, 371
N.W.2d 921, 926-27 (Minn. App. 1985) (concluding that error in misstatement of
presumption of innocence was harmless where jury received proper instructions), review
denied (Minn. Oct. 11, 1985). The district court also instructed the jury to disregard any
18 statement of law by an attorney that differed from that made by the court. See State v.
Shoen, 578 N.W.2d 708, 718 (Minn. 1998) (reviewing court will presume that jurors
follow the district court’s instructions). When the instructions are read as a whole and the
statements are taken in context, it is unlikely that any misstatements of law by the
prosecutor affected the jury’s verdict.
Affirmed.