IN COURT OF APPEALS
Brian David Ritter,
Filed August 8, 2006
Morrison County District Court
File No. KX-04-741
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Conrad Freeberg, Morrison County
John M. Stuart, State Public
Defender, Theodora Gaïtas, Assistant Public Defender,
Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Parker, Judge.*
S Y L L A B U S
In a criminal trial where the only witnesses for the state are law enforcement personnel, a defendant’s constitutional right to an impartial jury is violated when the district court prohibits the defendant from asking prospective jurors during voir dire whether they are inclined to give more credence to testimony of law enforcement personnel than to testimony of lay witnesses.
O P I N I O N
In this appeal from conviction of and sentence for fifth-degree controlled substance offense, appellant argues that the district court abused its discretion by preventing appellant from asking in voir dire whether prospective jurors would give more credence to law enforcement witnesses simply because they were law enforcement personnel. Appellant also argues that the district court erred in denying his request for a sentencing hearing at which he could argue for a downward departure. Because we conclude that the district court’s refusal to allow questioning as to pro-law-enforcement bias during voir dire impermissibly deprived appellant of his right to an impartial jury, we do not reach the sentencing issue, and we reverse and remand for a new trial.
On the evening of June 18, 2004, appellant Brian Ritter was arrested for the theft of a motor vehicle. During the booking process Ritter asked to use the bathroom; an officer directed him to an empty cell which contained a toilet. Shortly after Ritter left the cell, officers discovered contraband in the cell, including a metal pipe and plastic wrap which had residue on them. The residue was later determined to be cocaine. Ritter was charged with fifth-degree possession of a controlled substance. Ritter pleaded not guilty and exercised his right to a jury trial.
During an en bloc voir dire of the venire, the district court questioned some prospective jurors about their contacts with law enforcement and whether such contacts would prevent them from being fair and impartial. Six prospective jurors had some connection with law enforcement personnel. One prospective juror, whose spouse was in law enforcement, was stricken for cause when she stated that she would give more credence to a law enforcement officer’s testimony than to a person from the general public. Four of the other five prospective jurors who knew someone in law enforcement said that their associations with law enforcement would not prevent them from being fair and impartial. One prospective juror who had a law enforcement connection was not directly asked this question.
After the defense attorney asked one of the six prospective jurors who had a law enforcement connection specifically whether she could be impartial, the following occurred:
[DEFENSE ATTORNEY]: Okay. Is there anyone here who believes that they would give more credence or more belief ––
THE COURT: [ ] –– will the lawyers come to the bench, will you?
(The following proceedings were had at the bench by the Court and counsel out of the hearing of the jurors:)
THE COURT: That’s actually an objectionable question to ask and there’s cases based on it. You can’t be asking whether, in particular, defense lawyers say, as an officer, do you think the officer will be more credible or believable. You can’t ask that.
[DEFENSE ATTORNEY]: Well, I believe it’s up to the State to object to the question, rather than ––
THE COURT: I know it is but I can object to –– the Court in fact ––
[DEFENSE ATTORNEY]: Well ––
[PROSECUTOR]: As I understand it, would it be permissible, “are you more likely to believe a police officer than not,” getting to credence and ––
THE COURT: I don’t think he can ask any of that. Actually it’s always asked, but I’m starting to tighten up on that. Plus, if I cover the subject matter, don’t ––
[DEFENSE ATTORNEY]: Is the Court instructing me not to ask that question?
THE COURT: Yeah, if one witness is more believable. I mean, the State’s –– well, do you believe the defendant more than the cops. I mean, their credibility, it will speak for itself on the stand. You guys will cross-examine. That’s it.
[PROSECUTOR]: (Nods head.)
THE COURT: Whether they’re going to believe a cop or not, it’s going to be through their testimony and cross-examining. It’s an objectionable question to ask and I’m just telling you not to ask it. Okay?
[DEFENSE ATTORNEY]: Okay.
The defense attorney promptly recorded his objection and later confirmed that it was preserved for appeal. Two of the jurors who knew law enforcement personnel were later excused through the exercise of peremptory challenges. All of the state’s witnesses were law enforcement personnel. During trial, Ritter testified on his own behalf stating that the contraband in the cell was not his. The jury found appellant guilty.
When the jury was excused, the district court proceeded immediately with sentencing. Appellant requested a pre-sentence investigation and a later sentencing date so that he might seek a downward dispositional departure, if appropriate. Based on the pre-trial worksheet, the district court denied appellant’s request and immediately sentenced appellant to the presumptive sentence of 24 months. This appeal from the judgment of conviction follows.
Did the district court deprive appellant of his constitutional right to an impartial jury when it prohibited him from asking prospective jurors during voir dire whether they were inclined to give more credence to the testimony of law enforcement personnel than to the testimony of lay witnesses?
Appellant argues that the district court violated his constitutional right to an impartial jury when it prohibited him from asking prospective jurors during voir dire whether they were inclined to give more credence to the testimony of law enforcement personnel than to the testimony of lay witnesses.
The right to a trial by an impartial
jury is a basic guarantee of both the
In State v. Logan, 535 N.W.2d 320, 324 (Minn. 1995), the Minnesota
Supreme Court found reversible error where the district court denied the
defendant’s motion to strike for cause a juror who stated during voir dire that
he was inclined to give greater credence to police officer testimony than to
lay witness testimony. Significantly,
the prospective juror did not state unequivocally that he or she would follow
the trial court’s instructions and fairly evaluate the evidence.
Here, the district court determined
that appellant could not ask a general question regarding whether prospective
jurors “would give more credence or more belief” to the testimony of a law
enforcement officer simply because he or she was an officer. While acknowledging that the question is
“always asked,” the district court stated that “I’m starting to tighten up on
that.” It is unclear whether any of the
seated jurors held a bias in favor of law enforcement because the district court
prohibited appellant from asking the very question that revealed the juror’s
In support of our holding, we note
that the question “Would you tend to believe the testimony of a policeman,
because he is a policeman, more than that of another witness?” is one of
several questions recommended to defense counsel in 8 Henry W. McCarr &
Jack S. Nordby, Minnesota Practice,
§ 27.4 (B) (2001). In
addition, there is a wealth of
Finally, neither the district court nor the state cited any authority indicating that a general question intended to discover such bias in prospective jurors is improper or unreasonable. Thus, we conclude that the district court abused its discretion by not allowing appellant to inquire into the potential pro-law enforcement biases of prospective jurors.
leaves the question of whether appellant is automatically entitled to a new
trial or whether the error is subject to harmless-error analysis.
voir dire questions and jury instructions on impartiality, following the
court’s instructions, and the presumption of innocence might overcome some deficiencies
in voir dire questions. See State v. Owens, 373 N.W.2d 313, 315
we are reversing and remanding for a new trial, we do not reach appellant’s
second issue regarding the district court’s denial of his request for a
sentencing hearing. We do note, however,
that upon request, the district court is required to provide a defendant with
both a sentencing hearing and adequate time to prepare for such a hearing.
D E C I S I O N
Because the district court deprived appellant of his constitutional right to an impartial jury when it prohibited him from asking prospective jurors during voir dire whether they were inclined to give more credence to the testimony of law enforcement personnel than to the testimony of lay witnesses, we reverse and remand for a new trial.
Reversed and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The district court stated “That’s actually an objectionable question to ask and there’s cases based on it.” In its brief, the state candidly notes that “[i]t is unclear what cases the [district] court was referring to.”