Lead Opinion
OPINION
This case is before us following a remand for reconstruction of the record regarding communications between the judge and the jury. An Anoka County jury found Lennell Maurice Martin guilty of first-degree premeditated murder, first-degree murder while committing a burglary, second-degree assault, and two kidnapping offenses. On direct appeal to this court, one of Martin’s arguments was that the district court committed reversible error by communicating four times with the deliberating jury outside his presence. The district court record as transmitted to this court contained no information about the substance of the four communications. We affirmed Martin’s conviction in part, but also retained jurisdiction and remanded to the district court to make a record of the communications. State v. Martin,
In the file originally sent to this court for Martin’s direct appeal, the only record of any communications between the deliberating jury and court personnel consisted of certain notations made by the in-court
In remanding, we stated:
Our review of the record leaves us with some doubt as to whether the four communications at issue relate to housekeeping matters or substantive matters. Because there is some doubt about the nature of the communications, we remand to the trial court to make a record of the four communications at issue, so that we may make an informed decision regarding the matter.
Id. at 587. Two evidentiary hearings were conducted, the transcripts of which have been transmitted to this court.
The evidence gathered during the remand proceedings provides the following information about the four communications: ,
(1) On October 28, 2003, at 5:29 p.m., the jury asked a question which the judge answered at 5:30 p.m. The written content of this communication was not located, but Davidson testified that the “question was to the Judge indicating or questioning what time [the jury] would have to leave for the hotel.” The deputy also recalled that the judge responded to this question at 5:30 p.m. telling the jury they would leave for the hotel at 8:00 p.m.
(2) On October 28, at 8:18 p.m., the jury asked a question which the judge answered at 8:21 p.m. The written content of this communication was not located and neither the deputy nor the trial judge could recall the content.
(3) On October 29, at 9:58 a.m., the jury submitted a note to the judge asking “Can we have a dictionary? If so give us one.” The judge’s response, written on the note, is “No,” followed by “Judge Olson 10:04 10/29/03[.]”
(4) On October 29 at 10:08 a.m., the jury submitted a note to the judge asking “Does [the] rule of law define rash impulse? What is it?” The response, again written on the note, is, “You have the law the Judge has given you. That is the only law that applies to this case[.] Judge Olson 10:10 am 10/29/03[.]”
At the first hearing on remand, conducted on August 19, 2005, deputy Davidson
After excusing the jury to begin deliberations in Martin’s trial, the district court discussed with the parties’ attorneys and in Martin’s presence the “typical questions” or requests the jury might make as it deliberated. The purpose of the discussion, Judge Olson said, was to “get your assent that I don’t need to contact you first before answering them.” The judge said she would grant a request for equipment to watch the video tape of the crime scene that was admitted at trial, but would deny a request- to review testimony. She also said she would deny a request for definitions, unless the question presented was “[cjomplicated * * * even if it’s pretty minor but still complicated, I would feel a need to talk with both of you, but I wouldn’t necessarily need to have you come in, if that’s okay with you.” Counsel for the state and for Martin agreed, without discussion or modification, to the judge’s proposal.
In the agreement initiated by the district court, the court also stated that “the only time I would really want you actually here, with Mr. Martin here, is if there’s something of real substance that they ask about that I feel I just * * * [sjhouldn’t do alone.” Martin’s counsel replied, “sure” before the court had finished and “that’s fine” when the court had finished. The court then asked, “Is that okay with everybody?” Martin’s counsel replied, “Fine with me, Judge.” The court’s language indicates that the parties understood the court would have broad discretion in determining whether a question fell within the scope of the agreement. Martin has conceded as much, stating: “This agreement * * * gave the judge unchecked discretion to determine what constituted ‘something of real substance’ * * *.”
On remand, Judge Olson testified that she believed that she followed the agreement every time there was a question and an answer between her and the jury. She also testified that in the absence of an agreement, she would have brought the attorneys “back [for] every question.” Finally, she explained during her testimony that if the jury had asked a question that was outside the terms of the agreement, she would have called the attorneys.
After our receipt of the transcript from the first remand hearing and the parties’ supplemental briefs, we remanded for a Schwartz
In the second remand, we also ordered findings of fact from the district court.
I.
We first address whether the district court committed reversible error when it communicated with the deliberating jury outside of Martin’s presence. A defendant in a criminal proceeding has a Fourteenth Amendment due process “right to be present at all critical stages of trial.” Ford v. State,
It is clear, however, that “[l]ike. any constitutional right, the right to be present at trial may be waived by the accused.” State v. Cassidy,
Rather than requiring an explicit waiver, we have said with respect to the defendant’s right to be present that “the fact that a personal waiver does not appear of record on appeal does not mean that there was no waiver.” State v. Ware,
Martin asserts that “he did not personally waive his right to be present for this critical stage of the trial.” ■ The state argues that the communications at issue fell within the scope of the agreement made between the district court and Martin’s counsel, and that the agreement was made in Martin’s presence. This court “reviewfs] a decision to proceed with trial [with the defendant absent] under an abuse-of-diseretion standard, and [this court] will not disturb the trial court’s factual findings unless clearly erroneous.” Cassidy,
Where, as in this case, a defendant claims that he did not waive his right to be present, “[c]learly, a defendant bears the burden of showing that his or her absence from trial was involuntary. That burden is a heavy one to meet, and rightly so.” Cassidy,
In other contexts, beyond the right to be present at trial, we have also construed a defendant’s failure to object as the defendant’s acquiescence. See State v. Blom,
We next examine whether the four disputed communications fell within the scope of the agreement. We first examine the two communications that are reflected in notes (the request for a dictionary and the “rash impulse” question) and then turn to the two communications for which notes were not located (the communication at 5:29 p.m. on October 28 and the communication at 8:18 p.m. on October 28).
The Dictionary request
According to the deputy’s minutes, at 9:58 a.m. on October 29, 2003, the jury knocked with a question. The judge was called two minutes later and an answer was provided to the jury at 10:04 a.m. At the first remand hearing, the following note was admitted into evidence as Exhibit 3: “Can we have a dictionary? If so give us one.” The response, written on the note, is “No,” followed by “Judge Olson 10:04 10/29/03[.]”
Judge Olson testified at the first remand hearing that this was “the kind of question that juries often ask when they want to be supplemented. And clearly they can’t be supplemented.” Judge Olson did not consider calling the parties about the dictionary request because she thought she was “not allowed to give” the jury a dictionary and “thought this was one of those kinds of questions [the court and the parties] had already discussed.” As the agreement did encompass denying the jury “[definitions that have to do with the jury instructions, have to do with the law,” and Judge Olson appears to have reasonably understood the agreement to also encompass denying the jury’s request for materials not in evidence, we conclude that the request for a dictionary fell within the scope of the agreement and therefore the district court did not commit reversible error in communicating with the jury regarding the dictionary request.
Rash impulse question
Four minutes after the jury was told that it could not have a dictionary, the jury again knocked with a question. Judge Olson was called a minute later and at 10:10 a.m. an answer was given to the jury. At the first remand hearing, the following note was admitted into evidence as Exhibit 4: “Does [the] rule of law define rash impulse? What is it?” The response, again written on the note, is, ‘You have the law the Judge has given you. That is the only law that applies to this case[.] Judge Olson 10:10 am 10/29/03[.]”
In testimony at the first remand hearing, Judge Olson agreed that the jury was “essentially asking for a definition” of “rash impulse” in the questions on Exhibit 4. Judge Olson said that “I couldn’t possibly give [the jury] anymore [sic] answer than I did give them” with regard to the rash impulse question. She did not consider contacting the parties “because we discussed it ahead of time” and the parties had “been in complete agreement that with the obvious sorts of questions wanting more information, that I [Judge Olson] couldn’t give it to [the jury].”
Exhibit 4 indicates that the jury wanted to know the definition of rash impulse. In reading the instructions to the jury immediately prior to the start of deliberations, the district court said: “A premeditated decision to kill may be reached in a short period of time. However, an
October 28 question at 5:29 p.m.
There is no written contemporaneous record of this communication. The deputy recalled on remand, however, that this communication related to the time the jury would leave for the hotel. There is no other credible evidence in the record that this communication involved anything other than a housekeeping matter. Based on the deputy’s description of this communication, we conclude that it fell within the terms of the agreement. The district court framed the agreement as requiring it to call the parties back only “if there’s something of real substance that they ask about that I feel I just * * * shouldn’t do alone.” Both sides agreed with this arrangement. The question regarding how long the jury would continue deliberating cannot by any definition be viewed as a question of “real substance” and we hold that the court did not commit reversible error in concluding that the question fell within the scope of the agreement and in handling this question as it did.
October 28 question at 8:18 p.m.
The reconstructed record contains little information about this communication, and, as a result, Martin asks us to presume prejudice and award him a new trial. We have said, however, that we generally do not “presum[e] prejudice” merely because of a defect in the proceedings. State v. Dame,
At issue in Erickson was whether the district court committed reversible error in allowing a deliberating jury to separate overnight without first securing the defendant’s consent. Id. at 901. We held that the district court had, contrary to our rule, allowed the jury to separate without the defendant’s consent. Id. at 902. Yet, we did not presume prejudice and order a new trial based on the rule violation. Id.
The concern underlying the jury sequestration rule at issue in Erickson was to avoid the potential for “outside influences” on a deliberating jury. Id. at 902. This case does not involve jury sequestration. But Martin’s claim that his right to be present during proceedings involving jury questions implicates the same concern— guarding the sanctity of the deliberating jury — we addressed in Erickson. See also Sessions,
We emphasize that the rule applied in Erickson does not require that Martin prove that the communications were harmful. Rather, Erickson requires only that appellants come forward with evidence “suggesting” that there was “improper influence.”
We reach this conclusion for several reasons. First, Judge Olson did not personally talk to the jurors or enter the jury room while the jury was deliberating. Cf. Brown,
On this reconstructed record, where we have the sworn testimony of the trial judge, the testimony of all 12 jurors and the findings of fact from the district court on remand, we hold that Martin has not met his burden of producing evidence suggesting that this communication fell outside the scope of the agreement. We therefore hold that the district court did not violate Martin’s right to be present at all stages of trial when the court communicated with the jury outside of his presence.
III.
It is important to note that we do not intend to condone the practice the district court used here. The better practice, and the practice we expect, is for the court to convene counsel and the defen
IV.
In his supplemental brief, Martin argues that he received ineffective assistance of counsel because of his counsel’s consent to the district court’s proposed procedures for handling questions from the jury. This basis for claiming ineffective assistance of counsel is different from the five bases Martin claimed in his original appeal. See Martin,
Martin also raises for the first time in his supplemental brief a claim that “prejudicial irregularities surrounding the communications between the judge and the jury and the failure to maintain and timely provide information about those communications” entitles him to a new trial. In particular, Martin claims he was prejudiced by the judge’s alleged absence from the courthouse, by the procedure by which the judge received the jury questions and responded, and by the deputy’s reading of the judge’s responses to the jury. We hold that this claim is also barred by the rule articulated in Greer.
Affirmed.
Notes
. We provided a full recounting of the facts of the murder in our first opinion. See Martin,
. Davidson testified that she had written the minutes documenting the interactions between court personnel and the jury. She explained that under established protocols, the jury would write down its question and knock on the jury room door, Davidson would take the question and get an answer from the judge, and then Davidson would read the note and hand it back to the jury. If the judge was not in chambers when the jury asked a question, Davidson would contact the judge by phone, write the answer on the jury’s note, and then return it to the jury. As set forth below, notes do not exist for two of the communications at issue. Davidson did not have an explanation for the absence of written evidence (notes) for those two questions. She testified that the questions would definitely have been written by the jury, but may have been misfiled or lost — either because a juror carried them away or threw them away after the first day of deliberations. Davidson said she cleaned up the jury room and secured the notes at the conclusion of the trial but probably did not search the wastebasket in the jury room.
. The dissent argues that "the terms of this agreement run contrary to well-settled law in Minnesota that a judge is absolutely prohibited from communicating with a deliberating jury outside of the defendant's presence[,]” and that the only exception to the rule is "if the communication relates to mere pleasantries or issues of jury comfort.” Aside from the "housekeeping” exception recognized in Ford v. State,
. See Schwartz v. Minneapolis Suburban Bus. Co.,
. The last three notes are not before us. As set forth below, Martin waived the right to appellate review of a claim based on the VCR note, and Martin makes no claim based on either the note sent at 8:00 p.m. on October 28 or the note sent at 3:10 p.m. on October 29. See Martin,
. We have also determined "that when a judge communicates in writing with the jury about a housekeeping matter, the defendant’s right to be present at trial is not violated.” Ford,
. The dissent points to Osborne and argues that we should not imply Martin’s waiver of his right to be present during proceedings involving communications with the jury. We note, however, that our rules require explicit on-the-record waivers by the defendant for the rights discussed in Osborne: the right to jury trial and the right to counsel. See Minn. R.Crim. P. 26.01, subd. 1(2) (jury trial) and Minn. R.Crim. P. 5.02, subd. 1(3) and (4) (counsel). The rule relating to the defendant’s presence at trial, by contrast, contains no such requirement. See Minn. R.Crim. P. 26.03, subd. 1. In addition, while "we have never applied forfeiture or waiver by silence” to the right to jury trial or the right to counsel, Osborne,
. The dissent contends that the result reached here conflicts with Ware and Worthy, but, as discussed supra, in both Ware and Worthy we specifically noted that the absence of a personal, on-the-record waiver was not disposi-tive of the issue. Ware,
. As discussed above, the jury also asked for a VCR. At the first remand hearing, the following note was admitted into evidence as Exhibit 2: "We need to watch video tape Item # 53 please provide VCR.” The note also included "9:37 10/29/03.” A clerk called "Judge Olson to get OK for VCR,” and at 9:42 a.m. a "TV and VCR [were] given to jury.” Martin did not contest this communication in his initial appeal to this court, and we determined that Martin had conceded that the VCR request was one of ten contacts evidenced by the minutes that "concerned housekeeping matters.” Martin,
. For example, we have recognized that ''[s]tatements of a court official about the merits of a criminal case raise a rebuttable presumption of prejudice.” State v. Cox,
. In Erickson, "because of the existence of several other serious errors” in addition to the error in allowing the jury to separate, we remanded the case for a Schwartz hearing, just as we did here.
.If we were to look outside Minnesota, as the dissent suggests we should, we would find that the highest courts from other states appear to be split on the issue of whether prejudice is presumed in circumstances where, as here, the record is silent as to the substance of the communication by the court. Compare Tarry v. State,
. The dissent concludes that Martin "has sufficiently sustained his burden to show that impermissible communications occurred,” and that a "presumption of irregularity" must attach. We disagree. In the absence of the agreement between the district court and the parties, there might be room for a finding that Martin had carried his burden of showing an improper contact. Cf. Ford,
. The dissent suggests that we should have “considerable doubt” about Judge Olson's testimony that the 8:18 p.m. question was not substantive because Judge Olson also described the VCR request, the dictionary request and the rash impulse question as not substantive. The issue, however, is not simply whether the questions were substantive, but whether they were the types of questions covered by the agreement between the district court and the parties. The agreement specifically authorized Judge Olson to respond to these three questions in the manner she did. As Judge Olson explained, all three of these questions were things she had specifically discussed with counsel, and counsel agreed (in Martin's presence) to how Judge Olson answered these questions. As shown above, our review of the reconstructed record confirms the accuracy of Judge Olson’s recollection.
Dissenting Opinion
(dissenting).
I respectfully dissent from the majority’s conclusion that Lennell Martin waived
The Sixth Amendment Confrontation Clause and the Due Process Clause of the Fourteenth Amendment provide the basis for a criminal defendant’s right to be present at trial. United States v. Gagnon,
Responding to a deliberating jury’s question is a stage of trial, requiring the defendant’s presence. Sessions,
Our focus is not on the inconvenience of calling necessary personnel into open court, but on the public interest. “The public interest requires that parties to lawsuits or defendants on trial should have nothing to complain of or suspect in the administration of justice.” Where the rules explicitly require proceedings in open court, and, without defendant’s consent, those proceedings are not conducted there, the defendant and society generally lose confidence in the integrity of the proceeding.
Sessions,
A failure to respond to a jury communication on a point of law or an evidentiary issue in open court with counsel and the defendant present is a violation of the defendant’s constitutional right to be present and a violation of our rules of criminal procedure. Id. at 753 (“We hold that the trial court erred by engaging in substantive communications with a deliberating jury outside of open court, without the appellant’s knowledge, consent or presence, and without the presence of appellant’s counsel and the prosecutor.”). In this case, the majority apparently concludes that Martin’s constitutional right to be present would have been violated but for the fact that he “waived by his silence” his right to be present during a critical stage of the trial. I would conclude that there was no effective waiver. Martin did not knowingly, intelligently, and voluntarily waive his right to be present during jury communications.
I turn first to the substance of the so-called waiver granted by Martin. After the jury began its deliberations, the judge initiated a discussion with the parties’ attorneys, in Martin’s presence. The purpose of the discussion was to get an agreement from the attorneys that the judge
The majority’s conclusion runs contrary to the general principle that constitutional rights must be waived knowingly, intelligently, and voluntarily, see Brady v. United States,
The majority’s conclusion is also in direct conflict with our holding in State v. Ware,
a trial court ought not proceed with the return of the verdict, including the polling of the jury, in the absence of the defendant unless the defendant has waived the right to be present. Moreover, this decision to waive is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel.
Id. The rule is that “[ajlthough [the defendant] could have waived the right to be present, and his counsel purported to do so, we have held that a waiver by counsel is ineffective unless it is made with the informed consent of the defendant.” Browm v. State,
In Ware we made it clear that a decision to waive the right to be present at a critical stage of trial is a “personal decision.”
The four communications concerned substantive matters
I turn next to the question of whether any of the communications related to housekeeping matters. A judge is permitted to communicate ex parte with a jury relative to housekeeping matters but not with respect to substantive matters. See State v. Greer,
When we remanded this case for a complete record, we did so because we did not know whether four communications related to housekeeping matters or substantive matters. State v. Martin,
A second remand was ordered by this court “for a Schwartz hearing to determine the nature of the communications between the jury and the trial judge” regarding the two undocumented communications. At the Schwartz hearing the twelve jurors from Martin’s trial each testified but they did not recall the nature of the two disputed communications.
The request for the dictionary did not pertain to a matter of the jury’s comfort, and instead likely related to a definition at play in the deliberations (in light of the jury’s request for a legal definition of “rash impulse” shortly after the dictionary request). Given the presumption in Ford and the likelihood that the dictionary communication related to a point of law in the jury’s deliberation, it cannot be described as a housekeeping matter.
The rash impulse communication, likewise, related to language in the jury instructions. The applicable rules and this court’s case law on the matter indicate that such questions are clearly not housekeeping matters. See, e.g., Sessions,
With regard to the two undocumented communications of October 28, the trial judge had no recollection of these communications and presumed that the communications “fell within the agreement” and did not concern matters of “real substance.” Unfortunately, the trial judge’s definition of matters that were not of “real substance” encompassed questions about the jury instructions. Such communications, we have held, are forbidden. As we said in Sessions, a trial court errs “by engaging in substantive communications with a de
The trial court’s determination that the VCR request, dictionary request, and rash impulse question were not substantive should leave this court with considerable doubt about the nature of the undocumented communications — I cannot conclude on the record we have before us that these communications did not concern matters of substance. The rapidity with which the court answered the two questions for which notes were not found cannot be relied on, as the state suggests, to indicate that the questions related to housekeeping matters since the dictionary question was answered in three minutes and the rash impulse question was answered in two minutes. The presumption in Ford again argues in favor of this court assuming the communications related to matters that were not housekeeping, finding error on the part of the trial court. Having concluded that the trial court erred in communicating with the jury on four separate occasions on matters of substance, I would proceed with harmless error analysis.
Harmless error analysis
When a trial court wrongfully denies a defendant’s right to be present for a jury communication, this court analyzes the error to determine if its impact was harmless beyond a reasonable doubt; that is, that the verdict was surely unattributable to the error. Sessions,
Regarding the strength of the case against Martin, the evidence introduced by the state included an eyewitness who identified Martin as the gunman, a neighbor who testified to seeing a car matching the description of Martin’s outside the crime scene, directions to the home of Anthony (the victim) discovered in the car of Martin’s accomplice, blood matching the victim’s DNA discovered in Martin’s car, testimony describing a history of Martin and his accomplice coming to the aid of a cousin who had a complex and troubled relationship with Anthony that had flared up the day before the murder and, finally, Anthony’s dying declaration that Martin was one of his assailants. Martin,
Martin asserts that the state never provided a motive for Martin to murder the victim and, relevant to the premeditation element of the charge against Martin, that the eyewitness did not testify that Martin threatened to shoot Anthony and that the single, fatal shot was fired when a neighbor (responding to the sounds of a struggle) knocked on the door to the apartment where the assault took place. I would characterize the state’s case for premeditated murder as strong, but not overwhelming.
Regarding the second analytical step, the judge’s answer, the impropriety of allowing a jury to have material not in evidence, is self-evident. As such, this court could conclude that the court’s summary disapproval was neutral and nonsubstan-tive and could not have played a significant role in the verdict. See State v. Hudspeth,
The jury’s request for a dictionary and a request four minutes later for a definition
This case would be a close call if we were only concerned with these two communications. I believe this close call tips in favor of Martin because of the two undocumented communications and the presumption of irregularity that must apply to them. This court does not know the substance of the undocumented communications and the judge’s response to them. As such, we cannot answer the question of whether the judge’s response was sufficient to call the error in communication a harmless one.
In this case the trial court failed to make a contemporaneous record of all communications with the jury where we have made clear that such a record should be made, the trial court communicated with the jury about matters of substance where the rule is clear that no communication is to be had with the jury during deliberations without first notifying counsel and defendant, and the trial court communicated with the jury about matters that cannot be effectively reviewed on appeal. The majority would place the burden on Martin to “come forward with evidence ‘suggesting’ that there was ‘improper influence’ ” in these communications, citing to a “rule” announced in the Erickson case that a presumption of regularity attaches if a defendant cannot come forward with such evidence.
I believe the majority misapplies Erickson to the facts of this case. In Erickson, over defense counsel’s objection, the jury was allowed to separate overnight during its deliberations. State v. Erickson,
Under the facts of this case, a presumption of regularity does not attach, and I would not require Martin to bear the burden of supplying a record of communications from which he was unconstitutionally barred. Other appellate courts have similarly not placed the burden on the defendant to prove harmlessness where the record is incomplete. State v. Corrales,
In conclusion, Martin did not personally waive his right to be present for communications with the jury, as required by State v. Ware. The trial court engaged in off-the-record communications with a deliberating jury about matters of substance. Two of these communications concerned substantive matters, and the failure to notify Martin and his counsel may have prejudiced Martin’s rights. The other communications cannot be substantively and effectively reviewed on appeal because no record could be reconstructed. On these facts, the state cannot prove beyond a reasonable doubt that the errors were harmless and, therefore, I would reverse and remand for a new trial.
. I am troubled by the trial court's preempto-ry effort to avoid having to call counsel and the defendant into open court to consider questions from the jury. This is a significant deviation from the rules of criminal procedure and this court should not acquiesce in this practice. See State v. Rean,
My concerns are heightened by other circumstances surrounding the jury communications. First, the trial court failed to collect the notes sent from the deliberating jury and make them part of the court file. Only after the first remand did the court discover some of the notes, and include them in the court file. The bailiff had no explanation for the absence of some notes that would have documented the communications. Second, there is an indication in the record on remand that the judge was absent from the courthouse while the jury was deliberating and that the judge provided responses to at least some of the jury questions over the phone through the bailiff.
. As discussed below, the terms of this agreement run contrary to well-settled law in Minnesota that a judge is absolutely prohibited from communicating with a deliberating jury outside of the defendant’s presence. The only exceptions we have permitted are if the communication relates to mere pleasantries or issues of jury comfort.
. The majority notes that Rule 26.03, subd. 1(1), mandating the defendant’s presence at trial, contains no requirement for explicit on-the-record waivers. However, the rule does describe two situations where the trial may proceed without the defendant present: when the defendant absents himself without justification and when the defendant is excluded because of disruptive conduct. The rule does not permit a defendant to be absent from trial on the basis of waiver.
. It is not surprising that the jury members had little to no recollection of the questions given the length of time that had passed since they had served: the jury rendered its verdict on October 29, 2003, and the Schwartz hearing was conducted nearly two and one-half years later on March 30, 2006.
Dissenting Opinion
(dissenting).
I join in the dissent of Justice Meyer.