Devon James Pulczinski, Appellant, vs. State of Minnesota, Respondent.
A21-0065
STATE OF MINNESOTA IN SUPREME COURT
April 6, 2022
Thissen, J.
Pennington County
Keith Ellison, Minnesota Attorney General, Peter Magnuson, Assistant Attorney General, Saint Paul, Minnesota; and
Seamus Duffy, Pennington County Attorney, Thief River Falls, Minnesota, for respondent.
S Y L L A B U S
- The unobjected-to limitations that the district court placed on the presence of the public in the trial courtroom in response to the COVID-19 pandemic did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.
- The district court did not abuse its discretion by denying appellant‘s motion for a hearing under
Minn. R. Crim. P. 26.03, subd. 20(6) , and Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301, 303 (Minn. 1960).
Affirmed.
THISSEN, Justice.
This case requires us to resolve two questions. First, is appellant Devon Pulczinski entitled to relief from his criminal convictions based on unobjected-to limitations that the district court placed on the presence of the public in the trial courtroom in response to the COVID-19 pandemic? Second, did the district court abuse its discretion by denying Pulczinski‘s motion for a hearing under Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301, 303 (Minn. 1960), and
FACTS
A Pennington County grand jury indicted Pulczinski with first-degree murder in violation of
Pulczinski‘s jury trial was scheduled to start on April 13, 2020. But on March 13, 2020, Governor Tim Walz declared a peacetime emergency because of the COVID-19 pandemic. On March 20, the Chief Justice issued an order barring all district courts from beginning new jury trials before April 22, or until further order. Continuing Operations of
On May 15, 2020, the Chief Justice issued an Order Governing the Operations of the Minnesota Judicial Branch Under Emergency Executive Order Nos. 20-53, 20-56, ADM20-8001 (Minn. filed May 15, 2020). The Order noted that the Judicial Branch was entering a “transitional phase” to allow in-person proceedings. Id. at 1. The Order further required district courts to adhere to safety and exposure precautions laid out in the Judicial Branch COVID-19 Preparedness Plan. Id. at 2, 5–7.
Consistent with direction from the Judicial Council, each county was required to prepare a jury trial plan and have it approved before jury trials could be held. Pennington County submitted and received approval of its plan, and we take judicial notice of it. The Pennington County plan notes that it “takes into consideration the resources of the Ninth Judicial District and the capacity of our Judicial Center.” The Pennington County plan also states that “[s]ocial distance markings have been made in the courtrooms and the jury room to ensure everyone maintains proper spacing of 6 feet distance (360 degrees) at all times.” To ensure social distancing, the plan states that members of the public and/or media may observe court proceedings via interactive television capabilities (ITV) from either the other courtroom or the Pennington County boardroom, which is in the same building as the courtrooms. The plan also notes that both video/audio observation and audio only would be acceptable mediums.
Pennington County also submitted a Social Distancing Chart for Jury Trials (Jury Chart), which shows proposed seating arrangements for counsel, court staff, and jurors.
Additionally, the Pennington County plan references a letter that all potential jurors would receive from the Chief Judge of Pennington County. In the letter, the Pennington County Chief Judge wrote: “Our goal is to protect the rule of law and gradually resume normal functions in our courts while at the same time protecting the health of our community members who are exercising and performing their duties, responsibilities, and rights in our courthouses.” She also assured potential jurors that there would be ample space for social distancing, stating: “All of our courtrooms have been carefully mapped and marked to help us observe proper distancing during the trial. Once the courtroom has reached its maximum capacity consistent with safe distancing, no additional persons will be permitted to enter.”
On August 12, 2020, the district court held a pretrial hearing. At the outset, the court noted, “[E]arlier today I met with counsel to go over some logistics of how to conduct a jury trial in the midst of a pandemic. So thank you, counsel, that was very productive.” The lawyers made no response at that time.
The parties did have some discussion related to accommodating the public. During the August 12, pretrial hearing, defense counsel requested that witnesses who had finished testifying be allowed to watch the trial from the viewing rooms:
Also, it would be my position since based on our prior discussions from today and the fact that there is going to be two rooms for the—or potentially two rooms for people to watch the trial, it would be that once all witnesses are done and they‘re released, then they could watch the trial if there is still a trial ongoing.
Later, after discussing other pretrial matters, the court asked, “Counsel, were there any other issues that either side would like to bring up here today?” In response, the prosecutor asked, “Do we need to put anything on the record regarding the public viewing? How things like that are going to be addressed?”
The district court then responded by describing on the record the protocols and how the courtroom would be set up differently because of the COVID-19 pandemic. This included safety and exposure precautions, like the need for social distancing. The court stated, “Mr. Pulczinski is entitled to a public trial, and so the way that counties and our state are conducting trials is by having public access in other places, not just the courtroom itself.”
The district court explained that the jury would sit in the gallery six feet apart and that they were “going to take up that whole space and that is why we are not able to have members of the public in this particular courtroom.” The court further explained that the public could watch the trial in Courtroom 1 and the Pennington County Board Room, both of which were equipped with ITV.
At the hearing, the district court explained that it had submitted a jury plan through two layers of state court administration so it could conduct trials in Pennington County. An acceptable plan required social distancing. The court added, “You can see we‘ve got signs and tape and markers on the floor and a different configuration for how counsel is sitting, and this is all because of our pandemic and the social distancing requirements that we have
After describing the protocols, the court once again asked, “Counsel, any other matters that you would like to put on the record or you would like me to put on the record?” Defense counsel did not raise any objections to the trial restrictions; instead, he responded with a clarifying question about motions in limine and impeaching a witness.
At the end of the pretrial hearing, defense counsel noted his dissatisfaction with having to sit six feet away from his client. But he consented to the trial restriction because “given the pandemic, given the work everyone has done to get this trial going and given the fact that it‘s been about a year and a half since the allegations, we are comfortable with the approved distance between myself and my client.” The court acknowledged defense
The district court held voir dire from August 31 through September 3, 2020. On the first day, a potential juror was excused because she had possible COVID-19 symptoms. Later that day, the parties learned that an essential witness for the State was exposed to COVID-19. Because of health concerns, the parties discussed having the essential witness—a lead investigator—testify in the adjoining courtroom via ITV. Pulczinski consented on the record and waived his right to confront her in person.
But the next day, the parties agreed to postpone the trial for two weeks to accommodate the witness who had to quarantine. Defense counsel expressed his client‘s preference for in-person testimony. After discussion, the district court agreed to start the trial on September 14, 2020, so that the witness could “safely come into the courthouse and testify.”
The parties then agreed to continue with jury selection. The district court allowed one additional alternate juror to be seated in case something unexpected happened or someone got COVID-19. Before the trial began, however, the court excused the additional alternate juror because “15 is one too many for how many we can socially distance safely inside the courtroom itself.” Finally, because the trial date was postponed, the court held a hearing before the jurors were sworn in for trial duty to ensure that no juror had learned anything about the case over the two-week delay.
On March 22, 2019, the police executed a search warrant at Pulczinski‘s apartment. Pulczinski was not present during the search, but the police seized methamphetamine and drug paraphernalia. They also arrested three other people who were in the apartment.
Following the search, Pulczinski believed that people had stolen some of his things. He suspected that several individuals, including the victim, were involved in the thefts. Pulczinski told a friend that he wanted to get “payback” and “revenge” against them. He asked the friend to reach out to the victim so that he could meet up with the victim to “surprise her” and “take her stuff.” On March 26, the night before the murder, the friend sent a message to the victim on Facebook.
The next day, on March 27, around 4:20 p.m., the victim‘s grandmother and great aunt dropped off the victim at Pulczinski‘s apartment. The victim asked her grandmother and great-aunt to wait for her. They exchanged a few text messages because the grandmother and great-aunt were going to run some errands. When they got back, the grandmother sent a text message to the victim to let her know that they had returned. Although the grandmother‘s phone showed that the text message was read, the victim did not reply. The grandmother then sent the victim more text messages, but her phone indicated that those messages were not read. After waiting between 45 to 60 minutes, the grandmother got out of the car to get the victim.
As part of the murder investigation, law enforcement also interviewed N.H., a friend of Pulczinski‘s, three different times. Over the course of the interviews, N.H.‘s explanation of what happened evolved. During his third interview, N.H. admitted being in Pulczinski‘s apartment when the victim was killed. At trial, N.H. testified under protection of immunity and was subject to cross-examination. A partial fingerprint from a piece of electrical tape from the bag around the victim‘s head matched N.H.‘s left ring finger.
N.H. testified that he and Pulczinski became friends through mixed martial arts training. He also testified that Pulczinski had contacted him because Pulczinski believed
According to N.H., once the victim sat down, Pulczinski walked up behind her with an extension cord and wrapped it around her neck, choking her. The victim said she was sorry and pleaded to be let go. She was fighting back when Pulczinski pulled her into the kitchen. N.H. then said, “That‘s not working,” and Pulczinski let go of the cord and used his arms to choke her instead. After about a minute, the victim was no longer moving.
According to N.H., Pulczinski then asked N.H. to hand him a bag. N.H. did not respond, and he did not see what happened next. He recalled that Pulczinski said, “We need to get out of here before we‘re charged with murder.” As they left the apartment, N.H. looked back and saw the victim with a bag around her head and her hands and ankles bound.
Two other people testified that Pulczinski admitted to them that he had killed the victim. First, C.R., who had initially helped Pulczinski get away after the fire and lied to
After the jury returned its verdict, Pulczinski learned that Juror #8 was Facebook friends with the victim‘s stepmother, two of her brothers, two of her uncles, and her godparents. Two of Juror #8‘s sons were also Facebook friends with both of the victim‘s brothers. Further, based on publicly available information, Pulczinski cited five examples to show that not only was Juror #8 Facebook friends with the victim‘s family members, but also interacted with them: (1) An uncle of the victim “liked” a photo that Juror #8 posted of her former husband on May 9, 2015; (2) Juror #8 “liked” a photo of one of the victim‘s brothers on April 28, 2016, and another photo the brother posted on July 18, 2016; (3) the victim‘s stepmother “liked” a photo of Juror #8‘s wedding on October 12, 2018, and commented, “Congratulations!“; (4) one of Juror #8‘s sons “liked” a photo of the victim and her brothers that one of her brothers posted on March 31, 2019—4 days after the victim had died; and (5) an uncle of the victim “liked” a wedding photo that Juror #8 posted on May 12, 2019. Notably, none of the Facebook friends were witnesses or otherwise identified to the jurors in the jury questionnaire, and none of the Facebook friends had the same last name as the victim.
Based on this information, Pulczinski moved the district court to conduct a Schwartz hearing to explore whether Juror #8 lied during the voir dire by failing to disclose her
ANALYSIS
I.
A.
We begin with the question of whether Pulczinski is entitled to relief based on the unobjected-to limitations the district court placed on the presence of the public in the trial courtroom in response to the COVID-19 pandemic.3 According to Pulczinski, the unobjected-to limitations violated his constitutional right to a public trial. See
Under the plain-error doctrine, a defendant must establish (1) an error, (2) that is plain, and (3) that affects the defendant‘s substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); Johnson v. United States, 520 U.S. 461, 466–67 (1997). When the
Our analysis of the fairness, integrity, or public reputation of judicial proceedings does not focus on whether the alleged error affected the outcome resulting in harm to the defendant in the particular case. Rather, we ask whether failing to correct the error would have an impact beyond the current case by causing the public to seriously question whether our court system has integrity and generally offers accused persons a fair trial. See State v. Bustos, 861 N.W.2d 655, 663–64 (Minn. 2015) (explaining that a plain error affecting a defendant‘s substantial rights warrants reversal only when the error must be addressed to ensure the fairness, integrity, or public reputation of judicial proceedings); Olano, 507 U.S. at 736–37; Johnson, 520 U.S. at 470 (assessing whether reversal of the conviction would expose the judicial process to public ridicule after assuming that the defendant‘s substantial rights were harmed); see also State v. Benton, 858 N.W.2d 535, 540–41 (Minn. 2015) (noting that the judicial process would be “thwarted” if the defendant who requested the courtroom closure could now seek “a second bite at the apple“).
In summary, appellate courts have a limited discretionary power to grant relief based on an unobjected-to error, which may be exercised only when a plain error affected a particular defendant‘s substantial rights and a failure to correct the error would have an impact beyond the current case by causing the public to seriously question the fairness and integrity of our judicial system. In section I.C., we address whether we may grant Pulczinski any relief to correct the forfeited error under the plain-error doctrine. But first,
B.
Pulczinski argues that because a violation of the right to a public trial is a structural error, he is entitled to an automatic reversal of his conviction regardless of his failure to object to the closure. We disagree. For the reasons stated below, we hold that our rule that we will not exercise our discretion to grant relief for an unobjected-to error unless the error seriously affected the fairness, integrity, or public reputation of judicial proceeding applies when a defendant fails to object to a courtroom closure.
We have never addressed the precise question of whether an automatic reversal is required when a district court closes a courtroom in violation of a defendant‘s right to a public trial, but the defendant failed to object to the closure.5 But our decision in Benton—a case of unpreserved invited error—provides strong direction for our analysis in this case.
The fact that the defendant in Benton affirmatively requested the structural error and Pulczinski did not (he simply did not object) does not change the analysis. The rationale for our decision in Benton was that a denial-of-public-trial-right structural error remains subject to state procedural rules on forfeited claims. Id. at 540 n.1; see Weaver, 137 S. Ct. at 1910 (recognizing that the fact that an error is structural does not carry “talismanic significance as a doctrinal matter“). As we discussed in the prior section, we may not exercise our discretionary power to grant relief based on an unobjected-to error unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings such that a failure to correct the error would have an impact beyond the current case by causing the public to seriously question the fairness and integrity of our judicial system. Accordingly, whether the error is affirmatively invited or simply unobjected to, we will not exercise our discretion to grant relief to correct the unpreserved public-trial-right structural error unless the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.7
Pulczinski‘s argument to the contrary conflates two distinct concepts. On the one hand, the reason we automatically reverse for objected-to structural errors is that such errors affect the framework within which the trial proceeds such that the error defies
On the other hand, as discussed above, our forfeiture jurisprudence (which is a preliminary inquiry regarding our power to grant relief) has a different purpose, including encouraging parties to raise errors before the district court when the district court can cure any potential error and avoid any resulting harm. See Weaver, 137 S. Ct. at 1912. Accordingly, the default rule is that an unobjected-to error is forfeited and can be a source of relief only when the claimed error seriously affected the fairness, integrity, or public reputation of judicial proceedings. State v. Epps, 964 N.W.2d 419, 422 (Minn. 2021); see Olano, 507 U.S. at 732. This inquiry into the effect of the error on the fairness, integrity, or public reputation of judicial proceedings is not concerned with whether an error caused harm to the particular defendant.8 The Weaver Court observed that “[a]n error can count
More pertinent to this case, the Weaver Court determined that, “while the public-trial right is important for fundamental reasons, in some cases an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant‘s standpoint.” Id. at 1910; see generally Zachary L. Henderson, A Comprehensive Consideration of the Structural-Error Doctrine, 85 Mo. L. Rev. 965, 1005–06 (Fall 2020).9 Unlike some other
We also observe that Pulczinski is correct on one important part of his argument. Because structural errors defy analysis for harm, we assume that structural errors are harmful when we apply the plain-error test to structural errors. Of course, there is no need to consider whether we have the power to grant relief when there is no error, so the error element of the plain-error rule applies even in cases of claimed structural error. And we leave for another day the question of whether the defendant must prove that an error was plain before we can exercise our discretion to grant relief to correct an unobjected-to structural error. But once again, even if we assumed that the denial of the right to a public trial substantially harmed Pulczinski, we still will not exercise our discretion to consider an unpreserved error unless we further conclude that the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Epps, 964 N.W.2d at 422.
Accordingly, we will not exercise our discretion to grant relief for an unobjected-to courtroom closure unless the allegedly erroneous closure seriously affected the fairness, integrity, or public reputation of judicial proceedings. Consequently, even if we assumed that the unobjected-to limitations that the district court placed on the public‘s presence in the trial courtroom amounted to an error that was plain and that affected Pulczinski‘s substantial rights, we will not grant relief to correct the error unless our failure to do so will cause the public to seriously question the fairness and integrity of our judicial system. It is to that question that we now turn.
C.
No one contests that the serious health concerns presented by the COVID-19 pandemic generally justified adjustments to trial procedures, including reconfiguring courtrooms and limiting the number of persons allowed in courtrooms to accommodate the need for physical distancing and to assuage concerns of potential jurors without whom no jury trial could be held. The protocols adopted by the district court in this case were carefully considered and reviewed within Pennington County and by state court
Although Pulczinski asserts that he was personally prejudiced by the lack of a two-way video feed between the trial courtroom and the viewing rooms in the courthouse and by the exclusion of a few members of his family from the courtroom, he makes no argument that a failure to correct those errors will seriously affect the fairness, integrity, or public reputation of judicial proceedings generally. We perceive no reason why a failure to correct the alleged error will cause the public to seriously question the fairness and integrity of our judicial system. Accordingly, we may not exercise our limited discretion under the plain-error doctrine10 to grant the relief that Pulczinski requests based on the unobjected-
II.
We next consider whether the district court committed reversible error when it denied Pulczinski‘s motion for a Schwartz hearing11 to determine whether Juror #8 gave false answers on voir dire that concealed prejudice or bias toward one of the parties. We review a refusal to grant a Schwartz hearing for an abuse of discretion. State v. Mings, 289 N.W.2d 497, 498 (Minn. 1980).
A Schwartz hearing provides a party an opportunity to impeach a verdict due to juror misconduct or bias. A verdict may be impeached by testimony establishing that a juror
We conclude that the district court did not abuse its discretion by denying Pulczinski a Schwartz hearing because Pulczinski failed to submit sufficient evidence, which, standing alone and unchallenged, warranted the conclusion that Juror #8 gave false answers during voir dire that concealed prejudice or bias toward one of the parties. None of Juror #8‘s Facebook friends were listed as witnesses in the case.12 None of Juror #8‘s Facebook friends shared a last name with the victim. Additionally, Juror #8 had not affirmatively interacted with any of the identified Facebook friends for several years before voir dire. The only interaction between Juror #8 and one of the Facebook friends that occurred close to the time of the murder was when an uncle of the victim (with a different last name) “liked” a wedding photo that Juror #8 posted on May 12, 2019. Moreover, Pulczinski
The facts here are like those in Benedict, 397 N.W.2d at 338. In Benedict, we upheld a district court‘s denial of a Schwartz hearing because “defense counsel did not ask the sort of clear question that, absent a lack of credibility on the juror‘s part, necessarily would have elicited the disclosure of the sort of information that [was] withheld.” Id. at 340. We stated that, under those circumstances, there was not a “sufficient showing that the juror in question lied.” Id. The proper remedy for teasing out potential juror bias during voir dire is for lawyers to ask probing questions of the jurors during voir dire.
In sum, Pulczinski failed to produce evidence that standing alone and unchallenged, would warrant a conclusion that Juror #8 answered questions falsely during voir dire. Consequently, we conclude that the district court did not abuse its discretion by denying Pulczinski‘s request for a Schwartz hearing.
CONCLUSION
For the foregoing reasons, we affirm the decision of the district court.
Affirmed.
Notes
The Court: I‘ve had extensive conversations with counsel for I know family, friends who‘d like to come to these hearings, which is your right to do so. We don‘t have unlimited space and we do still have social distancing requirements in those [viewing] rooms, and so it‘s important that those be followed because we just don‘t have unlimited seating for everybody. But I‘m sure that if you are a family member in this case who have been talking with counsel, I expect that you still might have conversations about that.
Prosecutor: And just so the record is clear, we‘ve talked about designating, you know, one place for victim‘s family and another place for defendant‘s family so that way there‘s access for both while social distancing, everything like that. And we understand that there is going to be conversations that need to be had about limited space and things like that.
The Court: Correct.
Prosecutor: And it is my understanding that the Court is going to allow, if you live in the same household, you can be closer together, but if you don‘t, you have to maintain the six feet of distance.
The Court: That‘s correct. Just like we‘re doing here today.
(Emphasis added.)to closing the proceeding, and it must make findings adequate to support the closure. 531 N.W.2d 199, 201–02 (Minn. 1995) (quoting Waller, 467 U.S. at 48) (alteration in Fageroos). But based on our resolution of the case, we need not reach the issue of whether the district court‘s directive placing limitations on public presence in the trial courtroom was justified under the Waller test. Further, even under the Waller standard, a defendant is not always entitled to a new trial. The remedy for denying a defendant‘s right to a public trial “should be appropriate to the violation, and a retrial is not required if a remand will remedy the violation.” State v. Bobo, 770 N.W.2d 129, 139 (Minn. 2009); see Waller, 467 U.S. at 50 (remanding a case for a public suppression hearing when the closure of the previous suppression hearing violated the defendant‘s right to a public trial and holding that if the same evidence were suppressed at the new hearing, there would be no new trial).[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives
[a] defendant may move the court for a hearing to impeach the verdict. Juror affidavits are not admissible to impeach a verdict. At an impeachment hearing, jurors must be examined under oath and their testimony recorded. Minnesota Rule of Evidence 606(b) governs the admissibility of evidence at an impeachment hearing.