St. Louis County District Court File No. 69DU-CR-11-4258
Lori Swanson, Attorney General, St. Paul, Minnesota; and Mark Rubin, St. Louis County Attorney, Nathaniel T. Stumme, Assistant County Attorney, Kevin Pillsbury (certified student attorney), Duluth, Minnesota (for respondent)
Bradford Colbert, Legal Assistance to Minnesota Prisoners, St. Paul, Minnesota (for appellant)
Considered and decided by Kirk, Presiding Judge; Kalitowski, Judge; and Chutich, Judge.
Appellant Merlin John Sherer challenges his conviction of terroristic threats. Appellant argues that: (1) the prosecutor committed misconduct by improperly asking appellant "were they lying" questions during cross-examination; (2) there is insufficient evidence to support his terroristic threats conviction; (3) the district court abused its discretion by granting the state's motion to amend its complaint after jeopardy attached; and (4) appellant received ineffective assistance of counsel. We affirm.
Appellant argues that the prosecutor committed misconduct by asking appellant "were they lying" questions during cross-examination. This court "review[s] 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). If the defendant objected to the misconduct at trial, the supreme court has employed a two-tiered harmless-error test. State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009). "For cases involving claims of unusually serious prosecutorial misconduct, " the conviction may be upheld if there is "certainty beyond a reasonable doubt that misconduct was harmless." Id. For cases involving less serious prosecutorial misconduct, an appellate court determines "whether the misconduct likely played a substantial part in influencing the jury to convict." Id. If the defendant did not object to the misconduct at trial, this court reviews the defendant's claim under a modified plain-error test. State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).
Appellant points to three instances where the prosecutor in effect asked appellant if an officer who had testified earlier was lying. Appellant immediately objected after the first "were they lying" question was asked, and was overruled by the district court. Because appellant takes issue with all "were they lying" questions and objected to the first question, we will assume that he objected to all questions. See State v. McDaniel, 777 N.W.2d 739, 749 (Minn. 2010) (analyzing alleged instances of prosecutorial misconduct as if they had all been objected to, even though some had been and some had not); State v. Sutherlin, 396 N.W.2d 238, 241 (Minn. 1986) (concluding the "trial court presumably would have sustained objections to other questions . . . if defense counsel had objected."). We therefore review appellant's prosecutorial misconduct claim under the harmless-error test. Yang, 774 N.W.2d at 559.
The supreme court has long expressed its "concern with 'were they lying' questions, and stated that as a general rule, they are inappropriate." State v. Morton, 701 N.W.2d 225, 235 (Minn. 2005) (citing State v. Pilot, 595 N.W.2d 511, 517 (Minn. 1999)). Thus, we must conclude that the prosecutor erred by asking appellant these questions. Nevertheless, we conclude beyond a reasonable doubt that the prosecutor's error was harmless and that it did not play a substantial part in influencing the jury to convict.
Considering the misconduct in light of the whole trial, we conclude that the jury would have reached the same verdict even if the prosecutor had not asked appellant the three improper questions. These questions were a small part of the prosecutor's cross-examination. And before the prosecutor asked "were they lying" questions, the jury had heard appellant's version of events, which directly conflicted with the officer's testimony. Thus, we conclude that asking appellant whether an officer lied was a harmless error and did not play a substantial part in influencing the jury to convict. Moreover, the evidence against appellant was strong. Appellant admitted he was verbally abusive to the arresting officers, and two officers credibly testified that appellant had made threats.
On this record, the limited nature of the prosecutorial misconduct as well as the evidence presented at trial leads us to conclude that the misconduct was harmless beyond a reasonable doubt and did not play a substantial part in influencing the jury to convict. Although the prosecutor erred by asking ...