IN COURT OF APPEALS
Gerald Arthur Gillespie,
Filed February 28, 2006
Isanti County District Court
File No. K9-03-835
Mike Hatch, Attorney General, John Garry, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Jeffrey R. Edblad, Isanti County Attorney,
Paul W. Rogosheske, Thuet, Pugh, Rogosheske & Atkins, Ltd.,
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
S Y L L A B U S
I. The district court’s voir dire examination is sufficient if it elicits the information necessary to test prospective jurors for bias or partiality and to enable the parties to make informed peremptory challenges and challenges for cause.
II. A criminal defendant lacks standing to assert the victim’s physician-patient privilege to exclude medical evidence and, thereby, shield himself from prosecution.
O P I N I O N
A jury found Gerald Gillespie guilty of terroristic threats, false imprisonment, and fifth-degree domestic assault following a trial in which Gillespie represented himself. The conviction was based on testimonial and medical evidence that Gillespie assaulted his wife. On appeal from the denial of his motion for a new trial, Gillespie challenges the jury-selection process, the admission of the victim’s medical records and the testimony of her treating physician, and the district court’s failure to advise him that he could stipulate to his prior convictions. Because we conclude that the district court did not err by admitting the medical records and the physicians testimony and did not plainly err on the remaining issues, we affirm.
F A C T S
At the beginning of the trial, the district court indicated that it intended to call twenty prospective jurors for voir dire. This number represented eight more jurors than the court would need to impanel to serve on the twelve-person jury. The court told Gillespie he would receive five peremptory challenges and told the state it would receive three. The court then explained that Gillespie and the prosecutor would have the opportunity to question the jurors after the court completed its voir dire. When the court told Gillespie that he would have an opportunity to exercise his peremptory strikes after questioning was completed, Gillespie responded, “I’m not going to do any strikes.” The court explained to Gillespie that he was required to strike five jurors.
When the panel was drawn, only seventeen prospective jurors were available for voir dire. To be able to proceed, the court eliminated the state’s peremptory challenges. The court indicated that if it struck any prospective jurors for cause, it would ask Gillespie if he would be willing to give up some of his peremptory challenges. If Gillespie was not willing, the court would declare a mistrial and start over the next day. Gillespie did not object.
Before voir dire, the court went through the questions it would be asking the panel and asked Gillespie if there were any questions he would like the court to ask. Gillespie replied, “No comment.” During voir dire, four jurors each said that they had previously served on a criminal jury. The court asked those jurors how long ago they had served and whether they had reached verdicts.
In response to later questioning, two of the four jurors with past jury experience stated that they would find it difficult to be an impartial juror. The first said that she had experienced domestic violence within her family and initially indicated that she “would probably be pretty partial.” But after further questioning she confirmed that she was willing to be objective. Gillespie ultimately struck this juror peremptorily. The second of the two prospective jurors with past jury experience expressed disillusionment over the tactics one of the attorneys had used in the previous case. But she nonetheless confirmed that she could listen to the facts objectively, and she was impaneled without objection. The remaining two jurors with past jury experience were also impaneled without objection.
After concluding its voir dire, the court told Gillespie that it was his opportunity “to ask any questions [he wanted] of the jurors.” Gillespie replied, “I have no questions.” The court then asked Gillespie if he passed the jury for cause. Gillespie responded, “Yes, oh, yes.” Gillespie then exercised his peremptory challenges.
Several months before trial, the state applied for the release of the victim’s medical records. The state provided the victim with a copy of the application, advised her how to contest it, and stated that the court would likely release her records if she did not object. The victim did not respond. A week later, the court granted the application.
After receiving the records, the state filed a motion in limine, seeking to introduce the victim’s medical records, the testimony of her treating physician, and evidence of Gillespie’s prior domestic-assault convictions. When the district court asked Gillespie if he opposed the motion to admit the victim’s medical records and her physician’s testimony, Gillespie replied, “No comment.” When asked whether he opposed the motion to admit evidence of his prior convictions, Gillespie similarly replied, “No comment.” The court granted the motion to admit the records and the physician’s testimony and took the prior-convictions issue under advisement. Before the second day of testimony began, Gillespie moved to exclude the physician’s testimony. The court denied the motion, reasoning that the issue previously had been decided.
The medical records reflected that a physician at a regional medical center examined the victim the day after she was assaulted and that her sister was present during the examination. At trial, the physician testified that the victim’s abdominal and neck muscles were tender and that he found bruises on the victim’s middle finger, right leg, and left wrist. The physician also testified that the victim told him that Gillespie had punched her stomach and head, pushed her onto a bed, put a pillow over her head, and sat on her. The victim also told the physician that Gillespie had abused her physically and emotionally for seven years. The victim later conveyed the same information to a deputy sheriff. The information that the victim gave to law enforcement became the basis of the complaint against Gillespie.
This appeal follows the denial of Gillespie’s motion for a new trial.
I S S U E S
I. Given its decision not to impanel any alternate jurors, did the district court plainly err by calling only seventeen prospective jurors for voir dire?
II. Did the district court plainly err by not asking prospective jurors who had previously served on criminal juries follow-up questions about their service?
III. Did the district court plainly err by not sua sponte striking the jurors who initially indicated partiality?
IV. Did the district court err by admitting the victim’s medical records and her physician’s testimony over Gillespie’s assertion of the physician-patient privilege?
V. Did the district court have a duty to advise Gillespie that he could stipulate to his prior convictions?
A N A L Y S I S
Failure to object to an alleged error in the
district court generally constitutes waiver of the right to raise the issue on
appeal. State v. Litzau, 650 N.W.2d 177, 182 (
Nonetheless, the court may, in its discretion, consider plain errors
affecting substantial rights.
Gillespie first argues that the district court violated Minn. R. Crim. P. 26.02, subd. 4, by calling only seventeen veniremembers for voir dire. Gillespie’s argument lacks a solid base because it is premised on the erroneous assumption that the court was required to impanel alternate jurors.
Rule 26.02 prescribes three methods for
selecting a jury. Under the first
method, the district court must direct that as many prospective jurors be drawn
and called as will equal the number of jurors who must be sworn plus the number
of peremptory challenges available to both parties and the number of any
alternate jurors. Minn. R. Crim. P.
26.02, subd. 4(3)(a)1. Under the second
method, the court must direct that as many prospective jurors be drawn and
called as will equal the number of jurors who must be sworn plus the number of
any alternate jurors.
The district court made it clear before and during voir dire that it intended to seat no alternate jurors. The court stated at the outset that the jury would be a twelve-person jury. The court then told the parties that it intended to call twenty prospective jurors for voir dire and noted that it was calling eight more people than would be seated. The court ultimately seated only twelve jurors. The decision not to impanel any alternate jurors was within the court’s discretion. See id., subd. 8 (providing that “trial judge may impanel alternate or additional jurors whenever in the judge’s discretion, the judge believes it advisable to have such jurors available to replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties”). Because the trial lasted only one day, the court did not abuse its discretion by opting not to impanel any alternate jurors.
Given the court’s decision not to impanel alternate jurors, its decision to proceed to voir dire with only seventeen prospective jurors was not error. Under the first jury-selection method, the court was required to draw and call a minimum of seventeen prospective jurors (the twelve jurors required for a criminal trial plus the number of peremptory challenges available to both parties, which the court reduced to five, presumably to comply with the rule 26.02, subdivision 4(3)(a)1). Under the second method, the court was required to draw and call a minimum of twelve prospective jurors (the twelve jurors required for a criminal trial). The court did not err, therefore, by proceeding to voir dire with only seventeen veniremembers.
Gillespie next argues that the court committed plain error by failing to ask follow-up questions of prospective jurors who indicated that they had previously served on criminal juries. We disagree. Although it would have been preferable for the court to question these jurors further, the court’s limited voir dire did not constitute plain error under the circumstances of this case.
The purpose of voir dire is to probe the jury
for bias or partiality to enable counsel to exercise informed peremptory
challenges and challenges for cause.
Minn. R. Crim. P. 26.02, subd. 4(1).
The Constitution “does not dictate a catechism for voir dire, but only that the defendant be afforded an impartial
jury.” Morgan v.
The rules of criminal procedure require the district
court to ask prospective jurors any questions it deems necessary to ascertain
their qualifications to serve as jurors in the case on trial. Minn. R. Crim. P. 26.02, subd. 4(1). The parties may supplement the court’s voir
dire by questioning prospective jurors themselves.
In this case, the district court asked prospective jurors if they had previously served on a criminal jury. The information was significant because a party may challenge for cause a prospective juror who previously served on a jury that tried another person for the same or a related offense. Minn. R. Crim. P. 26.02, subd. 5(1)9. The court then asked if the jurors who had previously served on a criminal jury had reached a verdict in the other case. But neither the court nor the parties asked follow-up questions to test the jurors for bias that might have resulted from their past jury service.
Ideally, the district court should have inquired about the nature of the charges in the previous cases and the effect of the jurors’ past jury service on their present ability to serve. SeeDarbin v. Nourse, 664 F.2d 1109, 1113 (9th Cir. 1981) (stating that probing inquiry is necessary because general inquiries often fail to reveal relationships or experiences that may cause unconscious or unacknowledged bias). Because the district court’s questioning was sufficient to elicit the information necessary for the parties to test the prospective jurors for bias or partiality, the court’s limited voir dire did not constitute error.
Even if the court’s limited voir dire had
constituted error, the error would not warrant a new trial for four reasons. First, Gillespie failed to object to the
court’s limited voir dire. A criminal
defendant may not stand silently by during voir dire, acquiesce in the
proceedings, and accept the jury panel as constituted, only later to assail the
process on appeal. See State v. Stofflet, 281 N.W.2d 494, 497 (
Second, Gillespie did not ask the court to
conduct additional inquiry into the prospective jurors’ past service, even
though the court extended the opportunity to both attorneys to submit
additional questions. Presumably,
Gillespie was satisfied that the district court’s inquiry was sufficient. See
People v. Vieira, 106 P.3d 990, 1004 (
Third, Gillespie had the opportunity to inquire further into the jurors’ past service during his voir dire of the prospective jurors. See id. (holding that refusal to include particular question in jury questionnaire was not error so long as parties themselves had opportunity to ask question during voir dire). He may not now complain that the questioning was insufficient to test for bias.
Finally, Gillespie has not established that the court’s limited questioning made the trial fundamentally unfair. See Quick, 659 N.W.2d at 718 (finding no plain error when defendant failed to establish prejudice). No evidence indicates that the veniremembers who were not questioned extensively about their past jury service held specific biases that made Gillespie’s trial fundamentally unfair. Without more, past jury service does not establish bias.
Given the strength of the evidence against Gillespie, the lack of an objection, Gillespie’s failure to ask for a more thorough inquiry or to question the prospective jurors himself, and the absence of a showing of prejudice, reversal based on the court’s limited voir dire is unwarranted.
Gillespie next argues that the district court committed plain error by failing to strike sua sponte the two veniremembers who had previously served on a jury and who initially expressed reservations about their ability to be impartial. We disagree.
for cause must be initiated by motion.
Minn. R. Crim. P. 26.02, subd. 5(1) (stating that “juror may be
challenged for cause by either party”
(emphasis added)). A challenge for cause
“may be oral and shall state the grounds on which it is based.”
We have previously held that the district
court did not have a duty to replace sleeping jurors sua sponte when the court
believed that the defendant was not prejudiced and the defendant was apprised
of the potential misconduct and declined to voir dire the jurors, replace them
with alternates, or move for a mistrial.
Even if we concluded that the court had a duty to dismiss prospective jurors for cause sua sponte, the exercise of this duty is still subject to the district court’s discretion. See id. (applying abuse-of-discretion standard to sua sponte replacement of jurors). Both of the jurors initially indicated reservations about their ability to serve as an impartial juror. When the district court asked further questions, however, they indicated that they could be objective or impartial jurors. Because of this rehabilitation, the district court did not abuse its discretion by not dismissing them for cause sua sponte.
The test of an impartial juror is that he
“can lay aside his impression or opinion and render a verdict based on the
evidence presented in court.” State v. Andrews, 282 Minn. 386, 394,
165 N.W.2d 528, 534 (1969) (quotation omitted); see also State v. Alladin, 408 N.W.2d 642, 650 (Minn. App. 1987)
(“A juror must simply undertake to try the case fairly, and the trial judge,
being in the best position to observe and assess the demeanor of the
prospective juror, is to be given deference in determining whether the juror
should be removed for cause.”).
Gillespie’s claim of reversible error with respect to the first of these
prospective jurors fails at the outset because he struck the juror peremptorily,
and she was not impaneled. See Ross v. Oklahoma, 487
Gillespie also argues that the district court violated the victim’s physician-patient privilege by admitting the victim’s medical records and by allowing her physician to testify about statements the victim made in the course of treatment. We conclude otherwise.
physician-patient privilege prevents medical providers from disclosing
information acquired in the context of a physician-patient relationship. Minn. Stat. § 595.02, subd. 1(d)
(2004). The purpose of the privilege is
to encourage patients’ full disclosure of information, which will enable
medical providers to extend the best medical care possible. See
State v. Staat, 291 Minn. 394, 397, 192 N.W.2d 192, 195 (1971) (stating
that “theory underlying [the physician-patient] privilege is that a patient’s
fear of an unwarranted, embarrassing, and detrimental disclosure in court of
information given to his doctor would deter the patient from freely disclosing
his symptoms to the detriment of his health” (quotation omitted)). The privilege is “solely for the protection
of the patient and is designed to promote health and not truth.” Snyker
v. Snyker, 245
Reasoning that the physician-patient privilege belongs to the patient, courts in other jurisdictions have held that a criminal defendant lacks standing to assert the victim’s physician-patient privilege as a shield against prosecution. See, e.g., People v. Palomo, 31 P.3d 879, 885 (Colo. 2001) (stating that defendant may not assert privilege “to raise issues concerning the medical records in [the victim’s] file”); State v. Evans, 802 S.W.2d 507, 511 (Mo. 1991) (holding that defendant convicted of raping his girlfriend lacked standing to object to introduction of her medical records on basis of physician-patient privilege); In re Grand Jury Proceedings, 437 N.E.2d 1118, 1120 (N.Y. 1982) (stating that criminal defendant “should not be permitted to assert the victim’s physician-patient privilege as a bar to production of relevant medical records or testimony”); State v. Boehme, 430 P.2d 527, 536-37 (Wash. 1967) (stating that physician-patient privilege is designed to protect patient and “should not, by unrealistic or impractical application, become a means whereby criminal activities of third persons may be shielded from detection, prosecution, and punishment, however magnanimous, compassionate or conciliatory the victim might otherwise wish to be”).
We, too, conclude that the physician-patient privilege is personal and may not be invoked by a criminal defendant to shield himself from prosecution. Allowing a criminal defendant to exclude relevant medical evidence by asserting the privilege of a victim who has not expressed any concerns about confidentiality would convert the privilege into a tool for shielding criminal activity from prosecution and would result in a miscarriage of justice. By contrast, the purpose underlying the physician-patient privilege would be minimally frustrated, if at all, by not allowing a defendant to invoke the victim’s privilege.
Even if Gillespie had standing to invoke the victim’s privilege, the
privilege was unavailable because the victim waived it by allowing her sister
to be present during the examination and by voluntarily disclosing to a deputy
sheriff the information she gave the physician in the course of
treatment. The presence of a third party
during consultation or treatment renders statements a patient makes to a
physician nonprivileged if the third party is not a necessary and customary participant
in the consultation or treatment. State v. Kunz, 457 N.W.2d 265, 267
(Minn. App. 1990) (holding that privilege did not apply to observations
acquired by physician during medical examination because police officer was in
roomwith patient’s acquiescence
during examination), review denied (Minn.
Aug. 23, 1990); see also State v. Andring,
342 N.W. 2nd 128, 133 (Minn. 1984) (holding that
statements made in group-psychotherapy sessions were privileged). The victim’s sister was not a necessary and
customary participant in the consultation, and she was present during the
consultation with the victim’s consent.
Her presence during the consultation, therefore, rendered the victim’s
statements to the physician nonprivileged.
Additionally, the statements lost their privilegedcharacter after the victim disclosed them to a deputy sheriff, and
they became the basis of the criminal complaint against Gillespie. See State
v. Clark, 296 N.W.2d 372, 376 (
Gillespie argues that the state’s motion in limine lacked “factual or evidentiary support” because it was unaccompanied by affidavits, testimony, or medical records. But Gillespie has cited no authority for the proposition that a motion must be supported by anything other than persuasive legal arguments and authority. The state offered persuasive arguments and legal authority for each of its requests. Nothing more was required.
Gillespie argues that the district court erred by not advising him that he had
a right to stipulate to prior convictions, which the state used to prove motive
and intent. Pro se litigants are generally held to the same standard as
attorneys. State v. Seifert, 423 N.W.2d 368, 372 (
D E C I S I O N
The district court did not plainly err by proceeding to voir dire with seventeen veniremembers, by failing to ask follow-up questions of prospective jurors who indicated that they had previously served on criminal juries, by not sua sponte dismissing prospective jurors who initially indicated partiality, or by failing to advise Gillespie that he had a right to stipulate to his prior convictions. Nor did the district court err by admitting into evidence the victim’s medical records and her physician’s testimony.