Opinion
No. C2-00-716.
Filed May 8, 2001.
Appeal from the District Court, Ramsey County, File No. K6993137.
Mike Hatch, Attorney General, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, (for appellant)
Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
This is a direct appeal from a conviction of possession of a firearm by an ineligible person in violation of Minn. Stat. § 624.713, subd. 1(b) (1998). Appellant argues that the trial court erred by requiring the jury to continue deliberations after it had stated it was deadlocked, and by not asking the jurors if the verdict was their own after it was read. Appellant further argues in his pro se supplemental brief that the evidence was insufficient to support the conviction and the trial court demonstrated bias against him. Because we find that the trial court did not abuse its discretion, the evidence adequately supports the verdict, and nothing substantiates the claim of judicial bias, we affirm.
FACTS
On October 24, 1999, at approximately 5:20 p.m., St. Paul Police Officer Tanya Hunter was traveling eastbound on Interstate 94 in a marked squad car when a vehicle approached and quickly passed her. Hunter "paced" the vehicle at 75 m.p.h. and then activated her lights and siren. The vehicle sped away and Hunter radioed for assistance. At one point during the chase, Hunter noted that her speed exceeded 100 m.p.h. At the Dale Street ramp, the vehicle slowed, took the exit, and turned right at the top of the ramp. As the vehicle rolled to a stop, the driver, appellant Derrick Lee Riddle, jumped out of the vehicle and laid face-down on the ground. Two other squad cars arrived to assist Hunter. With guns drawn, Hunter and Officer Tom Arnold approached the vehicle.
Hunter watched the two passengers while Arnold frisked and handcuffed appellant. As Arnold walked appellant to the squad car, appellant told him, "They [the passengers] don't know anything about it." Arnold asked, "About what?" Appellant replied, "There's a gun under the seat and they don't know anything about it." Arnold shouted to the other officers that there was a gun in the vehicle. Hunter looked into the vehicle and saw a pistol on the driver's side floor near the accelerator. The pistol was photographed and placed into an evidence envelope. Appellant was arrested and taken to jail.
The day after his arrest, appellant was interviewed by Officer Joseph Younghans. Appellant told Younghans that he had a gun in the vehicle. According to Younghans, appellant also told him that he had acquired the gun six hours prior to the stop in exchange for cocaine. Appellant also told him that the gun was for protection and that he had borrowed the vehicle, which belonged to his girlfriend. Younghans tried to tape-record the interview, but the recording was inaudible. Because he believed the interview was being recorded, Younghans did not have appellant write or sign a statement.
Appellant chose to represent himself at the jury trial, but a public defender sat with him and acted as stand-by counsel. Officers Hunter, Arnold, and Younghans testified about their observations and the statements appellant made to them. In addition, Officer Shay Shackle, from the St. Paul crime laboratory, testified about the fingerprint analysis he performed on the pistol. He testified that there was evidence that the gun had been handled, but there were no identifiable fingerprints, only "smudges and smears." He also testified that it was not uncommon to be unable to identify fingerprints on a gun. Respondent also presented photographs of the gun in the vehicle. Appellant cross-examined respondent's witnesses but chose not to testify or put forward any witnesses.
At the conclusion of the evidence both sides gave closing arguments. Appellant argued that the evidence was insufficient to connect him to the gun, given that at the time of his arrest, he was transporting two passengers in a borrowed car and his fingerprints were not found on the gun. The court instructed the jury on their duties in a criminal case, the elements of the charged crime, and guidelines for deliberations. As part of the jury instructions, the court gave the following:
In order for you to return a verdict, whether guilty or not guilty each [juror] must agree with the verdict. Your verdict must be unanimous.
You should discuss the case with one another, and deliberate with a view to reaching agreement, if you can do so without violence to your individual judgment. You should decide the case for yourself, but only after you've discussed the case with your other fellow jurors and have carefully considered their views. You should not hesitate to reexamine your views and change your opinion if you become convinced they are erroneous, but you should not surrender your honest opinion simply because other jurors disagree or merely in order to reach a verdict.
The jury began deliberating at 2:20 p.m. on December 21, 1999. Throughout the course of their deliberations, the jurors sent a total of nine questions to the court. The first two questions were sent within the first two hours. In the first note, the jury asked why appellant was the only one charged with possession. After consulting with the parties, the court replied that the jury should not be "concern[ed] * * * with what action, if any, was taken against other persons." The second note requested that the police reports be sent into the jury room. The judge denied the request because the police reports had not been entered into evidence and told the jury it could only "consider and review only the evidence received at trial."
The next three questions indicated that the jury believed it was "hung." In response, the court, again after consulting with the parties, told the jury, "they needed to continue their deliberations." After the next note the court told the jury, "Why don't you take a dinner break and then continue working." After the break, the jurors again declared that they were at an impasse. The court told the jury to, "Review `Unanimous Verdict-Duty of Jurors to Discuss' [CRIMJIG 3.04] portion of jury instruction."
In its sixth question, the jury asked about the consequences and definition of a hung jury. The court told the jury not to concern itself with the results of any decision, but that a hung jury is one "which is unable to reach a decision after completing deliberations."
At 8:30 p.m., the jury recessed to a hotel for the night. Soon after reconvening the next morning, the jury asked for a definition of possession. The court suggested a definition that was rejected by both appellant and respondent. Ultimately, the jurors were simply told to review the instructions they had been given.
During this discussion of how to instruct the jurors, appellant argued that the court was not accepting a hung jury as a legitimate result. Appellant also requested that the jury be given a hung-jury form. The court responded that the jury had only deliberated for about four hours and that it was not yet willing to declare a hung jury.
In the eighth question, the jury asked the court if appellant could be guilty of possession if he did not know the gun was there. The court asked the jury to rephrase the question. After the rephrased question was submitted to the court, but before the court responded, the jury returned a guilty verdict.
On January 28, 2000, the court heard a motion for a new trial and a motion for a judgment of acquittal based on the trial court's abuse of discretion for failure to declare a mistrial. The court denied both motions. This appeal follows.
DECISION I.
Appellant argues that the trial court erred in instructing the jury to continue deliberations after the jury indicated that it was deadlocked. Appellant further argues that the record shows that the jury verdict was coerced and based on a misunderstanding of law.
A trial court has discretion in determining a jury charge. State v. Buggs, 581 N.W.2d 329, 339 (Minn. 1998). In a criminal case, the trial court may instruct the jury "to consult and deliberate with a view to reaching an agreement consistent with their individual judgments." State v. Martin, 297 Minn. 359, 373, 211 N.W.2d 765, 773 (1973). But a defendant must receive a new trial if a trial court's instructions appear to have coerced a jury to reach a unanimous verdict. State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996) (holding it impermissible for the court to tell the jury that it may not deadlock); Martin, 297 Minn. at 373, 211 N.W.2d at 773; see also State v. Peterson, 530 N.W.2d 843, 846 (Minn.App. 1995) (instruction that jury would be sequestered until it reached a verdict is coercive and reversible error); State v. Petrich, 494 N.W.2d 298, 300 (Minn.App. 1992) (instruction that jury must reach a unanimous verdict is reversible error), review denied (Minn. Feb. 23, 1993).
In State v. Kelley, the supreme court cited the A.B.A. Standard Relating to Trial by Jury 15-4.4(b) (1986), with approval:
If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction * * * . The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
State v. Kelley, 517 N.W.2d 905, 909 (Minn. 1994) (citation omitted). The commentary to Standard 15-4.4(b) states that:
[A] court may send the jury back for additional deliberations even though the jury has indicated once, twice, or several times that it cannot agree or even after jurors have requested that they be discharged. * * * [A] jury should not be permitted to avoid a reasonable period of deliberation merely by repeated indications that it is unable to agree.
Instead, the real question is whether the jury was required to deliberate an unreasonable length of time or for unreasonable intervals, or was threatened with the prospect of such unreasonably lengthy deliberations. The general rule is that the length of time a jury may be kept deliberating is a matter within the discretion of the trial judge, but abuse of that discretion requires reversal. The reasonableness of the deliberation period depends on such factors as the length of the trial, the nature or complexity of the case, the volume and nature of the evidence, the presence of multiple counts or multiple defendants, and the jurors' statements to the court concerning the probability of agreement.
Id. at 909 (alterations in original) (citation omitted).
In this case, the evidence consisted of the testimony of four police officers and took less than a day to present. The single issue of the case — possession — was relatively simple. Yet it took the jury five and one-half to six hours to determine a verdict on the single count against a single defendant. Three times the jury reported it was at an impasse. But these facts alone do not make the time the jurors deliberated unreasonable. We must also look at the nature of the guidance given by the trial court.
After the jurors first claimed to be deadlocked, the court told them to "Continue your deliberations." Later, the court told the jury to "Take a dinner break and then continue working." See Buggs, 581 N.W.2d at 338 (instructing a jury to "continue to try to work through your impasse" found to be non-coercive because it "would not lead the jury to conclude they were required to deliberate until a unanimous verdict was reached"). The court's third instruction regarding the deadlock was to tell the jurors to review the "Unanimous Verdict-Duty of Jurors to Discuss" (CRIMJIG 3.04). Under Minn.R.Crim.P. 26.03, subd. 19(3), "[t]he court has discretion to decide whether to amplify previous instructions, reread previous instructions, or give no response at all." State v. Murphy, 380 N.W.2d 766, 772 (Minn. 1986). The instruction given explains the requirement of unanimity but also stresses the importance of holding onto one's own judgment of the case. See Jones, 556 N.W.2d at 907 (reading CRIMJIG 3.04 found to adequately describe the jury's role and duty). Finally, when asked the definition of a hung jury, the court also told them that it is one "which is unable to reach a decision after completing deliberations." This definition allowed the jury the possibility of deadlock. It tells the jurors that a hung jury is a potential result, but only after a jury completes deliberations.
Here, the jury was ready to give up on its deliberations quickly. The court applied gentle pressure to convince them to continue deliberations past a point of comfort. We find it is appropriate for the court to encourage more discussion when a jury quickly concedes to an impasse. See State v. Soyke, 585 N.W.2d 418, 421 (Minn.App. 1998) (noting "the court had an opportunity to observe the demeanor of the foreman and the other jurors and to assess the depth of their feeling of deadlock").
Appellant also argues that the questions regarding the definition of possession suggest that the jury misunderstood the law. A trial court's instructions must define the crime charged. State v. Crace, 289 N.W.2d 54, 59 (Minn. 1979). But detailed definitions of the elements of a crime need not be given in the jury instructions if the instructions do not mislead the jury or allow it to speculate over meaning of elements. Peterson v. State, 282 N.W.2d 878, 881 (Minn. 1979). Here, the instruction to define "possession" was whether "the defendant knowingly possessed a pistol or consciously exercised dominion and control over it." This is the same definition that respondent included in its closing argument. Pursuant to Minn.R.Crim.P. 26.03, subd. 19(3), the court, after giving notice to the prosecutor and defense counsel, shall give appropriate instructions, unless the jury may be adequately informed by directing its attention to some portion of the original instructions. Here, the original instruction properly defines possession.
The trial court did not abuse its discretion under these circumstances. Given that the trial court initially read CRIMJIG 3.04, responded to the jury questions without coercion, and participated in no ex parte communications with the jury, the length of the deliberations were not excessive in light of the conflicting theories of the case. We find, therefore, that, although the court encouraged the jury to deliberate further when it appeared deadlocked, it did not abuse its discretion or lead the jury to believe that a deadlock was impermissible. Therefore, there was no reversible error.
II.
Appellant argues that because the court failed to ask the jurors whether the verdict read into the record was their verdict, the verdict was never "complete." Under Minn. Stat. § 631.17 (1998), a verdict is not "complete" unless the jurors are asked if the verdict read in court is their verdict and no disagreement is expressed by a juror. The purpose of the statute is to ascertain whether the verdict is unanimous and to give every juror an opportunity to express dissent. Minn. Stat. § 631.17. By failing to inquire of the jury, the court arguably deprived jurors of their opportunity to express dissent. But appellant did not object to this procedural error. Failure to object ordinarily forfeits a criminal defendant's right to review. State v. Coleman, 373 N.W.2d 777, 783 (Minn. 1985). In addition, a juror could have expressed dissent via the jury poll, a procedure which appellant was offered and declined. Appellant contends that by waiving the right to have the jurors individually polled, he did not waive his right to have the court inquire as to whether the jury agreed with the verdict as a whole. But we do not find this argument persuasive. Because appellant did not object at trial, we hold that he waived his right of appellate review.
Minn. Stat. § 631.17 reads as follows:
When a verdict such as the court may receive is returned, the court administrator shall immediately file it in open court and read it to the jury, and ask the jurors if it is their verdict. If a juror disagrees, that fact shall be entered upon the minutes, and the court shall send the jury out to deliberate further. If no disagreement is expressed by the jury, the verdict is complete, and the court shall discharge the jury from the case. The court administrator shall immediately record the verdict in full in the court minutes.
Even if we did not find that appellant had waived his right, it does not change the result. "A reviewing court will not reverse a trial court for an error that it can see did not change the result." Welfare of D.T.N., 508 N.W.2d 790, 797 (Minn.App. 1993) (citation omitted), review denied (Minn. Jan. 14, 1994). An error is harmless "[i]f the verdict actually rendered was surely unattributable to the error * * * ." State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996). Appellant argues that because the court knew the jury was divided at one point in its deliberations, it was prejudicial not to allow a juror to express dissent. If at all possible, a court should follow proper trial procedures. But here we find no prejudice. The jury was fully aware of its duties and the necessity of unanimity. We presume that jurors follow the trial court's instructions. State v. Shoen, 578 N.W.2d 708, 718 (Minn. 1998). The error was harmless under these circumstances.
III.
Appellant argues in his pro se brief that the evidence was insufficient to sustain the verdict because it was based on the hearsay testimony of police officers. Our review of a challenge to the sufficiency of the evidence is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, was sufficient to permit the jurors to reach the verdict they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The appellate court "must assume the jury believed the state's witnesses and disbelieved contrary evidence." State v. Robinson, 539 N.W.2d 231, 238 (Minn. 1995). We will not set aside a jury's verdict if the fact-finder could reasonably have found the defendant guilty of the charged offense, giving due regard to the presumption of innocence and the prosecution's burden. State v. Thomas, 590 N.W.2d 755, 757-58 (Minn. 1999).
Appellant argues that his conviction was based solely on the uncorroborated testimony of police officers. Two of the officers testified that appellant told them that he had a gun. The issue of the police officers' credibility is central to the case. But it is the jury's responsibility to determine witness credibility. State v. Profit, 591 N.W.2d 451, 467 (Minn. 1999).
Appellant also argues that his conviction cannot be based on "hearsay." But the evidence against appellant is not hearsay. Under Minn.R.Evid. 801(d)(2), party-admissions — statements of a party offered against that party — are not hearsay. As a result, the police officers' testimony that appellant admitted having a gun is admissible non-hearsay.
Appellant further argues that the gun must have been "planted" because there was no probable cause for the stop. But, "[o]rdinarily, if an officer observes a violation of a traffic law, however insignificant, the officer has an objective basis for stopping the vehicle." State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (citations omitted). Hunter observed appellant speeding on Interstate 94, thus establishing an objective reason for the stop. Because appellant violated a traffic law and subsequently fled from the police, there were more than enough facts and inferences to justify a stop, and whether appellant was charged with a traffic offense is irrelevant.
The testimony of four police officers — two who were at the scene, one who interviewed appellant the next day, and the fourth who did the fingerprinting of the gun — along with photographs of the gun, convinced the jury to find appellant guilty. Because witness testimony and physical evidence support the verdict, we hold that the evidence is sufficient to sustain appellant's conviction for possession of a firearm by an ineligible person. Therefore, the verdict will not be disturbed.
IV.
Finally, appellant contends in his pro se brief that the trial court erred by improperly intervening in the proceedings and demonstrated bias by not granting a mistrial. Appellant's charges of improper judicial intervention are unfounded. The "interventions" he identifies are circumstances in which the court sustained respondent's objection, asked appellant to clarify a question, or stopped the proceedings to hold an off-the-record discussion with the parties. There is nothing in the record to suggest that the court departed in any way from the standards of judicial impartiality. Moreover, even if we were to find error in any of the court's statements, and we do not find such error, it is speculation to assume that the jury understood any of these statements to appellant's prejudice.
"A new trial is required when the trial court departs from the standards of judicial impartiality and prejudices the losing party's rights." State v. Erickson, 610 N.W.2d 335, 341 (Minn. 2000). But an appellate court "will not decide issues raised for the first time on appeal." State v. Spaeth, 552 N.W.2d 187, 196-97 (Minn. 1996) (citation omitted) (applying the principle to a pro se appellant's challenge to a trial court's decision to admit statements made by appellant into evidence). Appellant never raised the issue of the judge's bias at trial. Furthermore, appellant has not provided a factual basis for the assertion, nor did he request removal of the judge at trial. See Minn.R.Crim.P. 26.03, subd. 13(4) (providing method for defendant to remove judge); see also State v. Moss, 269 N.W.2d 732, 734-35 (Minn. 1978) (failure to request removal of judge before trial acts as waiver for objection to possible conflict known before trial). Appellant neither sought the trial judge's recusal during the trial, nor raised the issue of bias in a post-trial motion. Once a defendant has submitted to a trial and other proceedings before a judge without raising the issue of bias, the judgment will be reversed only if the defendant is "able to show actual bias and not just the appearance of bias." Moss, 269 N.W.2d at 735.
Even if we accept this issue for review, the record does not support appellant's contention of bias. Appellant confuses bias with discretion. The court did not say it would not accept a hung jury, but that it was not "accepting [a hung jury] yet." Appellant also disagrees with the court's decision not to give the jurors a "hung-jury form" for the jury to sign if they could not decide on a verdict. The court explained to appellant that the jury could simply choose not to sign either form. We find this an acceptable exercise of discretion.