STATE OF MINNESOTA
IN COURT OF APPEALS
File No. K4-03-39
John J. Brogan, Special Assistant State Public Defender, Dorsey & Whitney LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402-1498 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Hudson, Judge, and Collins, Judge.*
Where a bailiff in a criminal trial on drug charges twice made prejudicial comments in the presence of at least three jurors regarding the drug problem in the county and the need to punish offenders, the inculpatory evidence was circumstantial and not overwhelming, and the district court had no opportunity to take curative measures after learning of the comments posttrial, the state did not overcome the presumption of prejudice raised by the comments, and the defendant is entitled to a new trial.
O P I N I O N
afternoon of January 6, 2003, Corporal
During questioning at the scene, Scholten admitted that he had obtained more than 350 pseudoephedrine pills, which are used to make methamphetamine; he was not arrested. Appellant refused to admit to any wrongdoing, but police retrieved the plastic baggie and an aluminum foil-encased drug bindle containing what was later revealed to be .2 grams of cocaine. In field tests, the plastic baggie tested positive for drug residue, but it was not sent to the Bureau of Criminal Apprehension for further testing. Appellant was charged with fifth-degree possession of cocaine under Minn. Stat. § 152.025, subd. 2(1).
During appellant’s two-day trial, the jury viewed the arrest videotape because appellant moved for its admission, believing that it would reveal that he had thrown nothing out of the car window. The district court gave a Spreigl instruction to limit jury deliberations to only the charged offense. The jury deliberated more than eight hours before reaching a guilty verdict, at one point informing the court that they were deadlocked. The court individually polled the jurors about their votes.
In a juror
exit questionnaire, one juror revealed that the bailiff had spoken with some
jurors about there being a real methamphetamine problem in
individually interviewed 11 of the 12 jurors at the
Was appellant entitled to a new trial because of the improper comments made by the bailiff?
The appellate court reviews a
district court’s decision whether to grant a new trial because of a court
official’s improper prejudicial remarks made in the presence of the jury under an
abuse of discretion standard of review. State v. Cox, 322 N.W.2d 555, 560 (
A defendant in a criminal trial has
the constitutional due process right to a fair trial and an impartial
jury. State v. Varner, 643 N.W.2d 298, 304 (
The supreme court has set forth a
four-part test to weigh whether prejudicial communications between jurors and a
court official merit a new trial. Cox, 322 N.W.2d at 559. In reviewing the jury verdict, the court may
not scrutinize the jury’s deliberations, which are protected under Minn. R.
The bailiff’s comments here were presumptively prejudicial because they were privately made to the jurors and could have affected appellant’s right to an impartial jury. We also conclude that, using the four Cox inquiry factors, the state did not overcome the presumption of prejudice and satisfy its burden of establishing that the contact was harmless.
The bailiff was an officer of the court whose personal opinions might have improperly influenced a jury because of his position of authority and his presumed experience. His comments were made to at least three of the jurors, and possibly more, and they were made on two occasions. The comments pertained to methamphetamine, a drug that was implicated in this case, even though it was not the subject of the charged offense. Any possible jury confusion from the evidence in the arrest videotape, which contained references to both the charged cocaine offense and methamphetamine use, could have been exacerbated by the bailiff’s comments. Further, the overall evidence in the case was circumstantial, and this was a “close” case, as suggested by the fact that the jury was deadlocked during deliberations. Finally, the court had no opportunity to take specific curative measures because it only became aware of the improper bailiff comments posttrial.
On these facts, we conclude that the state did not meet its heavy burden of establishing that the bailiff’s contact with the jurors was harmless, and the district court abused its discretion in failing to order a new trial. See Watkins, 526 N.W.2d at 641-42 (bailiff’s use of racial epithet and jurors’ repeated use of epithet during deliberations entitled defendant of disparaged race to a new trial when remarks were severe, significant number of jurors heard remarks, evidence did not weigh heavily against defendant, and court had no opportunity to take measures to cure prejudice).
D E C I S I O N
We reverse the district court’s decision that the bailiff’s improper comments were harmless and remand for a new trial.
Reversed and remanded.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.