This opinion will be unpublished and may not be cited except as provided by Minn.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 A13-1479
State of Minnesota, Respondent,
vs.
Emmanuel Trokon Brown, Appellant.
Filed July 28, 2014 Affirmed Connolly, Judge
Hennepin County District Court File No. 27-CR-13-439
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Connolly, Judge; and
Willis, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant challenges his conviction of violation of a domestic-abuse no-contact
order (DANCO), arguing that the prosecutor committed serious misconduct by eliciting
testimony that appellant had been in and out of jail and by commenting on that testimony
during closing argument. Because we see no error in the prosecutor’s conduct and no
prejudice to appellant, we affirm.
FACTS
In November 2012, a DANCO was issued prohibiting appellant Emmanuel Brown
from directly or indirectly contacting D.D., his former girlfriend. On January 3, 2013,
D.D.’s neighbor, who lived in the apartment next to hers, called 911 because he heard
screaming and yelling, including “help me” and “stop hitting me” in D.D.’s voice, and,
when he looked through the peephole in his door, he saw appellant grab D.D. and bring
her back into her apartment. When the police arrived, the neighbor told them what he
had seen and heard.
Appellant was arrested and charged with violation of the DANCO; the complaint
was later amended to add charges of felony domestic assault and misdemeanor giving
false information to the police. At trial, the prosecutor presented D.D.’s neighbor as a
witness. Appellant’s attorney cross-examined the neighbor about the relationship
between D.D. and appellant.1
1 Appellant is represented by different counsel on appeal.
2 Q. Were you aware that [D.D.] and [appellant] were no longer in a relationship [on January 3, 2013] ? A. If that was true I would have been aware of it. Q. . . . [Y]ou don’t believe that to be true? A. No.
On redirect examination, the prosecutor returned to the topic of appellant’s relationship
with D.D. on January 3, 2013.
Q. So what was your understanding of their situation? A. [Appellant] got arrested like usual, got out, went back home [i.e., to D.D.’s apartment]. Q. Had you seen [appellant] in the building prior to January 3? A. Yes. Q. And how often were you seeing him in the building prior to January 3rd? A. I’d say about every other day.
Appellant’s attorney did not object to these questions.
In closing argument, the prosecutor told the jury, “[R]ecall what [the neighbor]
said about [appellant and D.D.’s] relationship, it was not over, he’d get arrested and he’d
keep coming back. This was not the first and only time [appellant] was violating that
[DANCO].” Appellant’s attorney objected; the district court overruled the objection.
The district court offered to give a curative instruction on “evidence of other crimes,” but
appellant’s attorney declined the offer on the ground that it would call further attention to
the issue.
Following trial, the jury found appellant guilty of all three charges, and he was
sentenced to 15 months in prison for the DANCO violation. He challenges his
conviction, arguing that he was prejudiced by prosecutorial misconduct during
examination of a witness and closing argument.
3 DECISION
1. Cross-examination
Appellant argues that the prosecutor committed misconduct by questioning the
neighbor about the relationship between appellant and D.D. and eliciting the information
that appellant, despite the DANCO, was seen at D.D.’s apartment “about every other
day.” Because the alleged error was not objected to, the standard of review is plain error.
See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (stating that defendant must
demonstrate that error occurred and that error was plain, but prosecution must show lack
of prejudice).
Appellant’s counsel opened the door to the prosecutor’s questions on redirect
examination by asking the neighbor about the relationship on cross-examination.
“Opening the door occurs when one party by introducing certain material . . . creates in
the opponent a right to respond with material that would otherwise have been
inadmissible.” State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (quotation omitted);
State v. DeZeler, 230 Minn. 39, 45, 41 N.W.2d 313, 318 (1950) (“Where one party
introduces inadmissible evidence, he cannot complain if the court permits his opponent in
rebuttal to introduce similar inadmissible evidence.”) Therefore, there was no error,
much less plain error, in the prosecutor questioning a witness about matters previously
explored by appellant’s attorney.
Moreover, because the jury had already heard the neighbor testify that he did not
believe the relationship between appellant and D.D. was over by January 3, 2013, the
information that appellant and D.D. were still seeing each other would not have been
4 prejudicial; the prosecution can meet its burden of showing lack of prejudice. See
Ramey, 721 N.W.2d at 302.
2. Closing argument
Appellant’s attorney objected to the alleged misconduct during closing argument.
The district court overruled the objection and offered to give a curative instruction;
appellant’s attorney rejected the offer. The determination of whether a prosecutor
committed misconduct during closing argument is within the district court’s discretion.
State v. Ray, 659 N.W.2d 736, 746 (Minn. 2003).
Appellant argues that the prosecutor’s closing-argument reference to the
neighbor’s testimony about appellant’s frequent presence at D.D.’s apartment and her
comment that “This was not the first and only time [appellant] was violating that
[DANCO]” were “unusually serious misconduct” that entitles appellant to a reversal of
his conviction. But prosecutorial misconduct requires a violation of “clear or established
standards of conduct, e.g., rules, laws, orders by a district court, or clear commands in
this state’s case law.” State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008) (quotation
omitted). Appellant has shown no such violation. Moreover, even serious misconduct
will not result in a new trial if the misconduct is harmless beyond a reasonable doubt.
See State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006) (noting that the harmless-
beyond-a-reasonable-doubt standard is appropriate when there has been an objection to
prosecutorial misconduct).
Free access — add to your briefcase to read the full text and ask questions with AI
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 A13-1479
State of Minnesota, Respondent,
vs.
Emmanuel Trokon Brown, Appellant.
Filed July 28, 2014 Affirmed Connolly, Judge
Hennepin County District Court File No. 27-CR-13-439
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rochelle R. Winn, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Connolly, Judge; and
Willis, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION
CONNOLLY, Judge
Appellant challenges his conviction of violation of a domestic-abuse no-contact
order (DANCO), arguing that the prosecutor committed serious misconduct by eliciting
testimony that appellant had been in and out of jail and by commenting on that testimony
during closing argument. Because we see no error in the prosecutor’s conduct and no
prejudice to appellant, we affirm.
FACTS
In November 2012, a DANCO was issued prohibiting appellant Emmanuel Brown
from directly or indirectly contacting D.D., his former girlfriend. On January 3, 2013,
D.D.’s neighbor, who lived in the apartment next to hers, called 911 because he heard
screaming and yelling, including “help me” and “stop hitting me” in D.D.’s voice, and,
when he looked through the peephole in his door, he saw appellant grab D.D. and bring
her back into her apartment. When the police arrived, the neighbor told them what he
had seen and heard.
Appellant was arrested and charged with violation of the DANCO; the complaint
was later amended to add charges of felony domestic assault and misdemeanor giving
false information to the police. At trial, the prosecutor presented D.D.’s neighbor as a
witness. Appellant’s attorney cross-examined the neighbor about the relationship
between D.D. and appellant.1
1 Appellant is represented by different counsel on appeal.
2 Q. Were you aware that [D.D.] and [appellant] were no longer in a relationship [on January 3, 2013] ? A. If that was true I would have been aware of it. Q. . . . [Y]ou don’t believe that to be true? A. No.
On redirect examination, the prosecutor returned to the topic of appellant’s relationship
with D.D. on January 3, 2013.
Q. So what was your understanding of their situation? A. [Appellant] got arrested like usual, got out, went back home [i.e., to D.D.’s apartment]. Q. Had you seen [appellant] in the building prior to January 3? A. Yes. Q. And how often were you seeing him in the building prior to January 3rd? A. I’d say about every other day.
Appellant’s attorney did not object to these questions.
In closing argument, the prosecutor told the jury, “[R]ecall what [the neighbor]
said about [appellant and D.D.’s] relationship, it was not over, he’d get arrested and he’d
keep coming back. This was not the first and only time [appellant] was violating that
[DANCO].” Appellant’s attorney objected; the district court overruled the objection.
The district court offered to give a curative instruction on “evidence of other crimes,” but
appellant’s attorney declined the offer on the ground that it would call further attention to
the issue.
Following trial, the jury found appellant guilty of all three charges, and he was
sentenced to 15 months in prison for the DANCO violation. He challenges his
conviction, arguing that he was prejudiced by prosecutorial misconduct during
examination of a witness and closing argument.
3 DECISION
1. Cross-examination
Appellant argues that the prosecutor committed misconduct by questioning the
neighbor about the relationship between appellant and D.D. and eliciting the information
that appellant, despite the DANCO, was seen at D.D.’s apartment “about every other
day.” Because the alleged error was not objected to, the standard of review is plain error.
See State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006) (stating that defendant must
demonstrate that error occurred and that error was plain, but prosecution must show lack
of prejudice).
Appellant’s counsel opened the door to the prosecutor’s questions on redirect
examination by asking the neighbor about the relationship on cross-examination.
“Opening the door occurs when one party by introducing certain material . . . creates in
the opponent a right to respond with material that would otherwise have been
inadmissible.” State v. Bailey, 732 N.W.2d 612, 622 (Minn. 2007) (quotation omitted);
State v. DeZeler, 230 Minn. 39, 45, 41 N.W.2d 313, 318 (1950) (“Where one party
introduces inadmissible evidence, he cannot complain if the court permits his opponent in
rebuttal to introduce similar inadmissible evidence.”) Therefore, there was no error,
much less plain error, in the prosecutor questioning a witness about matters previously
explored by appellant’s attorney.
Moreover, because the jury had already heard the neighbor testify that he did not
believe the relationship between appellant and D.D. was over by January 3, 2013, the
information that appellant and D.D. were still seeing each other would not have been
4 prejudicial; the prosecution can meet its burden of showing lack of prejudice. See
Ramey, 721 N.W.2d at 302.
2. Closing argument
Appellant’s attorney objected to the alleged misconduct during closing argument.
The district court overruled the objection and offered to give a curative instruction;
appellant’s attorney rejected the offer. The determination of whether a prosecutor
committed misconduct during closing argument is within the district court’s discretion.
State v. Ray, 659 N.W.2d 736, 746 (Minn. 2003).
Appellant argues that the prosecutor’s closing-argument reference to the
neighbor’s testimony about appellant’s frequent presence at D.D.’s apartment and her
comment that “This was not the first and only time [appellant] was violating that
[DANCO]” were “unusually serious misconduct” that entitles appellant to a reversal of
his conviction. But prosecutorial misconduct requires a violation of “clear or established
standards of conduct, e.g., rules, laws, orders by a district court, or clear commands in
this state’s case law.” State v. McCray, 753 N.W.2d 746, 751 (Minn. 2008) (quotation
omitted). Appellant has shown no such violation. Moreover, even serious misconduct
will not result in a new trial if the misconduct is harmless beyond a reasonable doubt.
See State v. Mayhorn, 720 N.W.2d 776, 785 (Minn. 2006) (noting that the harmless-
beyond-a-reasonable-doubt standard is appropriate when there has been an objection to
prosecutorial misconduct).
Because the prosecutor was entitled to question the neighbor about his knowledge
of appellant and D.D.’s ongoing relationship after appellant opened the door to this line
5 of inquiry, she was also entitled to comment on the matter in closing argument. See State
v. Wahlberg, 296 N.W.2d 408, 419 (Minn. 1980) (noting that prosecutor has the “right to
present to the jury all legitimate arguments on the evidence, to analyze and explain the
evidence, and to present all proper inferences to be drawn therefrom”).
Even assuming that the prosecutor’s closing-argument statement was plain error,
the error was harmless beyond a reasonable doubt. Before closing argument, the jury had
heard that a DANCO had been issued that prohibited appellant from direct or indirect
contact with D.D., that D.D.’s neighbor believed appellant and D.D. were still in a
relationship, that appellant was frequently at D.D.’s apartment, and that appellant had
repeatedly been charged with DANCO violations, incarcerated, and returned to D.D.
Particularly when the trial is considered as a whole, appellant was not harmed by the
prosecutor’s statement. See State v. Milton, 821 N.W.2d 789, 802 (Minn. 2012) (noting
that appellate courts review claims of prosecutorial misconduct to determine whether the
conduct, in light of the whole trial, impaired the defendant’s right to a fair trial).
Neither the prosecutor’s questioning of D.D.’s neighbor nor her statement in
closing argument was error, and neither resulted in prejudice to appellant.
Affirmed.