This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

 

CX-99-1136

State of Minnesota,

Respondent,

 

vs.

 

Dennis Fisher,

Appellant.

 

Filed March 28, 2000

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. CX991136

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and

 

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

 

John Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D     O P I N I O N

 

PETERSON, Judge

            Appellant Dennis Fisher challenges his conviction for possessing a firearm, requesting that he be granted a new trial because, without first obtaining his consent, the trial court (1) instructed jurors not to draw any adverse inference from his failure to testify; and (2) allowed the jury to separate overnight during deliberation.  We affirm.

FACTS

            Minneapolis police officers Jeff Hoff and James Reynolds stopped a truck traveling westbound on Lake Street for an improper lane change and for not having a working license-plate light.  Hoff went to the driver’s side of the truck and asked the driver for his driver’s license.  Although his attention was focused on the driver, Hoff noticed that the passenger, who was later identified as appellant Dennis Fisher, was reaching behind himself with his left hand.  A bundle of clothes on the seat between the driver and Fisher prevented Hoff from seeing what Fisher was doing.

            Reynolds went to the passenger’s side of the truck and asked Fisher for some identification.  Fisher said that he did not have any.  Reynolds testified that Fisher began making hurried movements with his left hand, as if he were trying to push something into the crease of the seat.  Reynolds asked Fisher what he was doing, and Fisher continued making the hurried movements.  Reynolds asked Fisher to get out of the truck.  When Fisher leaned forward, Reynolds saw that Fisher was trying to tuck a gun into the seat with his left hand.  Reynolds removed Fisher from the truck, and with Hoff’s assistance, placed him under arrest.  Both officers acknowledged that the gun was accessible to the driver and Fisher.  Neither officer saw the driver make any movement toward the area where the gun was found.  No fingerprints were found on the gun.  Fisher was charged with being a felon in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(b) (1998). 

            The driver testified for the defense.  He said that he picked up Fisher near Bloomington and Lake.  They met two women at a store and drove them to 25th and Lake.  He knew that the police were following him on Lake Street, and he immediately pulled over when they activated their red lights.  The driver denied that he made an improper lane change and said that Hoff told him he was stopped because his license-plate light was out.  According to the driver, Fisher did not have identification, and he was looking for some paperwork in the glove box when Reynolds asked him to get out of the car.  When Fisher got out, the driver heard Reynolds yell, “Gun.”  The driver testified that he did not see Fisher doing anything with his left hand, and he did not know that there was a gun in the truck until the police discovered it.

            The defense argued that the state had not proven beyond a reasonable doubt that the gun belonged to, or was possessed by, Fisher because Fisher’s fingerprints were not found on the gun, the two women might have left the gun in the truck, and the officers’ account of what occurred was not credible.

            The trial court instructed the jury:

 

You’ll deliberate until you reach a verdict.  Now, if you have not reached a verdict by 4:30, you will be dismissed for the evening.  Keep in mind the instructions I’ve given you about not talking to anyone about this matter.  If you’ve not reached a verdict by 4:30 then you’ll come back tomorrow promptly at nine.  You’ll stay until 4:30.  And if you have not reached a verdict, then you will be excused for the weekend and you’ll come back Monday at nine a.m. and you’ll keep going until you have reached a verdict.

 

            The jury did not reach a verdict and separated for the evening.  The jurors returned the following day and found Fisher guilty.

D E C I S I O N

            Fisher did not testify.  He argues that the trial court committed reversible error by instructing jurors not to draw an adverse inference from his failure to testify without first obtaining his permission to give the instruction.  Without first obtaining Fisher’s consent, the trial court instructed the jury:

     The state must convince you by evidence beyond a reasonable doubt that the defendant is guilty of the crime charged.  The defendant has no obligation to prove himself innocent.

 

       The defendant has the privilege not to testify in his own defense.  This privilege is guaranteed by the federal and state constitutions.  You should not draw any inference from the fact that the defendant has not testified in this case.

 

This instruction was based on 10 Minnesota Practice, CRIMJIG 3.17 (1999), and was slightly modified to reflect the facts of this case.

            The United States Supreme Court has held that a trial court does not violate the federal constitution by giving such an instruction, even over a defendant’s objection.  Lakeside v. Oregon, 435 U.S. 333, 340-41, 98 S. Ct. 1091, 1095 (1978).  The Supreme Court stated that the very purpose of the instruction

is to remove from the jury’s deliberations any influence of unspoken adverse inferences.  It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.

 

Id. at 339, 98 S. Ct. at 1095.  But the Supreme Court also said that

[i]t may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection.  And each State is, of course, free to forbid its trial judges from doing so as a matter of state law.

 

Id. at 340, 98 S. Ct. at 1095.

            Minn. Stat. § 611.11 (1998) provides:

     The defendant in the trial of an indictment, complaint, or other criminal proceeding shall, at the defendant’s own request and not otherwise, be allowed to testify; but failure to testify shall not create any presumption against the defendant, nor shall it be alluded to by the prosecuting attorney or by the court.

 

            The supreme court has held that a trial judge should obtain a criminal defendant’s permission before giving CRIMJIG 3.17.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988); see also 10 Minnesota Practice CRIMJIG 3.17 cmt. (“This instruction should not be given without the clear consent of the defendant.  If such an instruction is requested by counsel for the defendant, the judge should also require the defendant to state on the record the desire that he wishes to have such an instruction given.”).  But the Thompson court also stated:

It does not follow, of course, that the defendant is entitled to a new trial simply because the record on appeal is silent as to whether the defendant and his attorney wanted the instruction * * * .

 

430 N.W.2d at 153.

            The trial court did not follow the correct procedure of obtaining Fisher’s permission on the record before giving CRIMJIG 3.17.  But the trial court submitted its proposed instructions to both parties for their review and asked if they were satisfactory.  Fisher’s attorney objected to the definition of “possession,” but did not object to CRIMJIG 3.17.  After the instructions were read to the jury, Fisher’s attorney did not object to CRIMJIG 3.17.  Consequently, the record on appeal does not indicate whether or not Fisher wanted the instruction.

The United States Supreme Court has established a three-prong test for plain error, requiring that before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. 

 

State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).

     The third prong, requiring that the error affect substantial rights, is satisfied if the error was prejudicial and affected the outcome of the case.  The defendant bears the burden of persuasion on this third prong.  We consider this to be a heavy burden.  We have defined plain error as prejudicial if there is a “reasonable likelihood that the giving of the instruction in question would have had a significant effect on the verdict of the jury.”

 

Id. at 741 (quoting State v. Glidden, 455 N.W.2d 744, 747 (Minn. 1990)).

            Fisher contends that he was prejudiced by the erroneous instruction because the jury might not have noticed that he did not testify if the instruction had not been given, and there is a reasonable probability that the instruction had a detrimental impact on the jury’s deliberations.  We disagree. 

            The evidence at trial conclusively established that there was a gun in the truck when it was stopped.  The only issue was whether Fisher possessed the gun.  With respect to that issue, Reynolds testified that he saw Fisher’s left hand on the gun and that Fisher was trying to tuck the gun into the seat.  Although Hoff could not see what was behind Fisher, his testimony that Fisher was reaching behind himself with his left hand was consistent with Reynolds’s testimony.  And the driver testified that he did not know that there was a gun in the truck until the police discovered it.  Because the other three eyewitnesses testified, it is very unlikely that the jury did not notice that Fisher did not testify.  Given the strength of the state’s evidence regarding the very narrow fact issue presented to the jury, we conclude that it is not reasonable likely that the erroneous instruction had a significant effect on the verdict of the jury.

            Fisher argues that the trial court erred by allowing the jury to separate during deliberations without first obtaining his consent.  Fisher argues that although the record does not demonstrate actual prejudice from the court’s decision to let the jury separate during deliberations, there is a possibility that the jury’s decision was tainted by an outside influence.  Because the trial court did not ask the jury whether it had been exposed to any outside influence or information about the case when it returned from the overnight recess, Fisher contends that this possibility cannot be ignored.

            Minn. R. Crim. P. 26.03, subd. 5(1), provides in relevant part:

With the consent of the defendant the court, in its discretion, may allow the jurors to separate over night during deliberation.  The officers shall not speak to or communicate with any juror concerning any subject connected with the trial nor permit any other person to do so, and shall return the jury to the courtroom at the next designated trial session.

 

            In State v. Erickson, 597 N.W.2d 897, 901 (Minn. 1999), the supreme court stated that “it is error for a trial court to allow the jury to separate during deliberations without the defendant’s consent.”  But a new trial will be ordered only upon a showing of prejudice.  Id.

Prejudice will be presumed upon a showing by the defendant of private communications or contact or other circumstances suggesting direct or indirect improper influence or jury tampering, such as “pervasive, unfavorable publicity.”

 

Id. at 902 (quoting State v. Anderson, 379 N.W.2d 70, 81 (Minn. 1985)).      

            The trial court erred by allowing the jury to separate during deliberations without first obtaining Fisher’s consent.  But Fisher has not met his burden of demonstrating prejudice.  Fisher concedes that the record does not demonstrate actual prejudice from the court’s decision to let the jury separate during deliberations.  Without evidence of some impropriety associated with the separation, the jury separation was harmless.

            Affirmed.