This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).


State of Minnesota,


Deon Lashawn Mallet,

Filed February 29, 2000
Reversed and remanded
Toussaint, Chief Judge

Hennepin County District Court
File No. 98120414

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)


Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge[*] .

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

The state charged appellant Deon Lashawn Mallet with two counts of aggravated robbery. After submitting the case to the jury, the trial court received a "deadlock" note from the jury. Despite defense counselís objection to Malletís absence, the trial court responded by instructing the jury to continue its deliberations. Because the trial courtís error in proceeding in Malletís absence violated Minn. R. Crim. P. 26.03, subd. 1(1), we reverse and remand.


Mallet argues he is entitled to a new trial because the trial court instructed the jury outside his presence. The Minnesota rules of criminal procedure provide:

The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules.

Minn. R. Crim. P. 26.03, subd. 1(1). The right of a criminal defendant to be present during every stage of the trial includes any communication between the trial court and the jury. State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994); see also State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993) (recognizing right to be present under rule broader than under federal constitution). A defendant may waive the right to be present, but the "decision to waive is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel." Ware, 498 N.W.2d at 457.

The record shows Mallet did not waive his right to be present, and in fact, his counsel objected to proceeding in Malletís absence. Under these circumstances, the trial court violated Malletís right to be present. See State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995) (finding violation of defendantís right to be present where trial court responded to several jury questions in open court in attorneysí presence but in defendantís absence); Ware, 498 N.W.2d at 457 (deciding violation of defendantís right to be present occurred where defendant was removed from courtroom after verdict read but before jury polled).

The state argues Mallet is not entitled to a new trial because the error was harmless beyond a reasonable doubt. Id. at 457-58. "The test in finding reversible error is whether the error affected the outcome of the case." State v. Rean, 420 N.W.2d 680, 684 (Minn. App. 1988) (citing State v. Schifsky, 243 Minn. 533, 543, 69 N.W.2d 89, 96 (1955)), review denied (Minn. Apr. 20, 1988). This court may conclude the error was harmless beyond a reasonable doubt only in those cases where the verdict was surely unattributable to the error. State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996). We must examine "all relevant factors" to determine whether the error failed to significantly impact the juryís verdict. State v. Petrich, 494 N.W.2d 298, 300 (Minn. App. 1992) (citing State v. Shoop, 441 N.W.2d 475, 481 (Minn. 1989)), review denied (Minn. Feb. 23, 1993)). Such relevant factors include the substance and timing of the trial courtís instruction, and the strength of the evidence against the defendant. Id.

In the present case, we cannot say the error in addressing the jury in Malletís absence was harmless beyond a reasonable doubt. As Mallet concedes, the trial courtís response to the juryís deadlock note was not overtly coercive. But the trial court did not reread CRIMJIG 3.04, as recommended by the Minnesota Supreme Court. State v. Martin, 297 Minn. 359, 373, 211 N.W.2d 765, 772 (1973) (noting potential for coercion is minimized if CRIMJIG 3.04 reread when jury appears deadlocked); see 10 Minnesota Practice, CRIMJIG 3.04 (1990) (explaining need for unanimous verdict and jurorsí duty to discuss case without surrendering honest opinion).

Most importantly, the communication occurred when the jury was deadlocked, which is "a critical stage of the jury deliberations." Petrich, 494 N.W.2d at 300 (recognizing jury deadlock is critical stage of jury deliberations and risk of coercion increases when erroneous instruction given at that time). Although sufficient evidence in the record may support the juryís verdict, it is impossible to say what effect Malletís presence may have played in the juryís decision had the trial court permitted Mallet to be present and we cannot evaluate the effect of Malletís absence; a defendantís unexplained absence at an interim hearing could be taken to indicate a defendantís indifference to the result. Given this uncertainty, we cannot conclude the verdict was surely unattributable to the error. See Kelley, 517 N.W.2d at 909-10 (awarding new trial because of ex parte communication between trial court and jury where jury deadlocked and trial court failed to follow Martin procedures); cf. Ware, 498 N.W.2d at 458-59 (holding that, among other errors, trial courtís polling jury outside defendantís presence warranted new trial). Therefore, the trial courtís violation of Malletís right to be present during every stage of his trial was not harmless beyond a reasonable doubt and Mallet is entitled to a new trial.

Reversed and remanded.

[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.