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State v. Hakala3/15/2005
hat he was able to miraculously remember that the girl was black and that she was a bigger girl and that she weighed about 180 pounds. So you have three different versions, each of them different and each of them clearly designed - or the last one clearly designed, rather, to assist his son.
Again, appellant objected to the last sentence, but the district court concluded that it was a reasonable inference and overruled the objection.
The prosecutor's statement that " learly, someone didn't feed [Mark Peterson] the information they were supposed to" was improper, and the district court properly sustained the objection. But in cases where the prosecutor has expressed a personal opinion of the veracity of witnesses, the supreme court has held that such statements are harmless where the district court cautioned the jury to consider only the evidence, where the evidence of guilt was adequate, and where the prosecutor's argument was otherwise proper. Ture, 353 N.W.2d at 517 (citations omitted). Because these same circumstances exist here, we conclude that the error is harmless beyond a reasonable doubt.
With regard to the prosecutor's statements concerning Steven Hakala, the record indicates that those statements were based on reasonable inferences from the evidence, the prosecutor did not state a personal opinion on Hakala's veracity, and the prosecutor did not specifically state that he was "lying." Cf. id. at 516 (finding endorsement of state's witnesses' credibility and personal opinion of defendant improper); State v. Duncan, 608 N.W.2d 551, 555 (Minn. App. 2000) (finding prosecutor's statements that defendant was "lying" clearly crossed the line), review denied (Minn. May 16, 2000). Therefore, we conclude that the statements do not constitute misconduct.
In sum, because any prosecutorial misconduct identified by appellant was harmless beyond a reasonable doubt, we conclude that appellant is not entitled to a new trial. See Gates, 615 N.W.2d at 340.
III.
Finally, appellant argues that the district court improperly imposed a sentence of 288 months, a double upward departure from the presumptive sentence of 144 months. As aggravating factors supporting the departure, the district court cited multiple forms of penetration, victim injury , particular cruelty, and racially inflammatory language.
After this appeal was filed, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S.Ct. 2531 (2004). In Blakely, the United States Supreme Court held that an upward durational sentencing departure violates a defendant's right to a jury trial unless the facts upon which the departure was based were admitted by the defendant or found beyond a reasonable doubt by a jury. Id. at 2537. The Minnesota Supreme Court has affirmed the application of Blakely to the Minnesota sentencing guidelines. State v. Shattuck, 689 N.W.2d 785, 786 (Minn. 2004). New rules of federal constitutional procedure apply to matters pending on direct review when the rule is announced. O'Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).
Here, because the district court did not have the opportunity to consider the application of Blakely to appellant's sentence, we remand for resentencing in accordance with Blakely. In light of this conclusion, we do not address whether the aggravating factors identified by the district court could properly support an upward durational departure under Taylor v. State, 670 N.W.2d 584 (Minn. 2003).
Affirmed in part, reversed in part and remanded.
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