State v. Mayhorn

ANDERSON, G. BARRY, Justice

(dissenting).

The majority holds that Mayhorn’s convictions must be reversed because of the cumulative effect of evidentiary errors and prosecutorial misconduct. While I agree that Mayhorn’s trial was far from perfect, and I certainly do not seek here to excuse wrongful conduct on the part of the prosecution, I cannot conclude on this record that the state and the district court failed in their joint obligation to ensure a fair trial.

Analysis of this case for cumulative error is complicated because some errors were properly preserved for appeal by appropriate objection and others were not. Of course, an error that is preserved for appeal may ultimately be determined to be harmless and not grounds for reversal. See Huff v. State, 698 N.W.2d 430, 437 (Minn.2005). Concerning errors to which no objection was taken, the governing analysis is plain error and, as the majority notes, plain error must affect a defendant’s substantial rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998).

These same analyses apply when analyzing the cumulative effect of errors. With respect to errors to which no objection was taken, when applying the plain-error test of Griller , the key issue is whether the errors collectively affected Mayhorn’s substantial rights such that reversal is the appropriate remedy. And, even if a determination is made that the errors affected substantial rights, we must determine whether the errors should be addressed to ensure the fairness and integrity of the judicial proceedings. See Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997)). As to the cumulative effect of errors to which objections were made, we have ultimately inquired whether the cumulative effect of the error was harmless. See State v. Keeton, 589 N.W.2d 85, 91 (Minn.1998) (“[W]e cannot conclude on this record that the cumulative *793 effect of these errors was harmless beyond a reasonable doubt.”).

The majority concedes that the state had strong evidence of Mayhorn’s guilt and describes that evidence in some detail. Because I conclude the evidence of Mayhorn’s guilt was overwhelming, the cumulative effect of the errors to which objection was taken was harmless, and the errors to which Mayhorn did not object did not cumulatively affect his substantial rights or the overall fairness and integrity of the judicial proceedings.

A word should be said about our standard for determining whether prosecutorial misconduct to which objection was taken requires reversal. Reversal is warranted “only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and so serious and prejudicial that [the] defendant’s right to a fair trial was denied.” State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980). As the majority notes, we have historically applied a two-tiered standard and recently have chosen to apply a higher standard to the effect that a defendant will not be granted a new trial if the misconduct is harmless beyond a reasonable doubt. Compare State v. Caron, 300 Minn. 123, 127-28 , 218 N.W.2d 197, 200 (1974) (using two-tiered standard), with State v. Swanson, 707 N.W.2d 645, 658 (Minn.2006) (applying harmless beyond a reasonable doubt standard).

But however it is formulated, harmless-error analysis is a linchpin in the analysis of prosecutorial misconduct to which proper objection was taken and consideration of whether or not a new trial should be granted. See Bennett L. Gershman, Pros-ecutorial Misconduct § 14:3 (2d ed.2005). In federal cases, the Supreme Court has required reviewing courts to employ harmless-error analysis in prosecutorial misconduct cases. See United States v. Hasting, 461 U.S. 499, 509 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983) (“Since Chapman, the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless,- including most constitutional violations”); Chapman v. California, 386 U.S. 18, 24-26 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) (applying harmless-error analysis to constitutional errors in a prosecutorial misconduct case, including improper comment on the defendant’s failure to testify at trial).

My point in this analysis is that whether we apply the lower standard set out in Caron (distinguishing between constitutional and non-constitutional violations), the higher standard which we have more recently applied {Swanson), or some other standard for evaluating prosecutorial misconduct, in any circumstance we look to whether the misconduct was harmless. In any event, the strength of the evidence is such that it is unnecessary to finally resolve the issue of which standard we should apply when analyzing the misconduct to which Mayhorn objected below. I would decline to reverse based on cumulative error as it relates to prosecutorial misconduct and evidentiary errors.

Finally, the majority, relying on State v. Harris, 521 N.W.2d 348 (Minn.1994), concludes that the cumulative effect of the errors and misconduct requires reversal and indicates that, since these trial errors violated Mayhorn’s right to a fair trial, he is entitled to a new trial regardless of the strength of the evidence of guilt. While I certainly do not excuse the conduct of the prosecutor in this case, Harris involved prosecutorial misconduct of a more deliberate and pervasive nature than found here. Id. at 354 (describing how prosecutor, in violation of district court rulings, persistently sought to elicit inadmissible testimony concerning defendant’s prior *794 bad acts). Essentially, the majority in this case prophylaetically reverses the verdict and orders a new trial in the face of overwhelming evidence of guilt. I would not do so and, under these circumstances, I respectfully dissent.