This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Clint Michael Gifford,
Olmsted County District Court
File No. K0992074
Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Raymond F. Schmitz, Olmsted County Attorney, Government Center, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)
John Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Clint Michael Gifford challenges his conviction and sentence for criminal vehicular homicide arguing that: (1) he was denied his right to an impartial jury because of comments made by discharged prospective jurors during voir dire; (2) the evidence was insufficient to support the conviction; and (3) his conduct was less serious than the typical case, warranting a downward departure. Appellant also raises additional issues in his pro se supplemental brief. We affirm.
D E C I S I O N
In order to succeed in an appeal alleging juror bias, appellant must demonstrate: (1) the jurors were subject to challenge for cause; (2) he made an appropriate objection; and (3) “actual prejudice resulted from the failure to dismiss.” State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983) (citations omitted). Here, the jurors may have been subject to challenge for cause and an appropriate objection to dismiss the entire jury was made. See Minn. R. Crim. P. 26.02, subds. 5(1)(1) and 5(2). But we disagree with appellant’s contention that prejudice resulted when two prospective jurors, who knew the victim, referred to her by her first name, and another prospective juror described a criminal vehicular homicide during voir dire conducted en masse.
It was well within the district court’s discretion to conduct voir dire without sequestering the other panel members. See Minn. R. Crim. P. 26.02, subd. 4(2); State v. Chambers, 589 N.W.2d 466, 474 (Minn. 1999) (stating that district court entitled to “substantial discretion in conducting voir dire” (citation omitted)). Moreover, we conclude that no actual prejudice resulted from the complained of comments. Although the jurors heard the victim’s first name during voir dire, at trial, evidence was presented regarding the victim’s name and status in life as mother, wife, sister, and friend with no objection.
In addition, after a prospective juror began speaking about a cousin who was killed by a drunk driver, the district court stopped her recitation and dismissed her immediately. The court then questioned the remaining jurors regarding their ability to remain objective and decide the case based on the evidence presented. A reviewing court gives “special deference” to the district court’s determination of whether a prospective juror’s pronouncement of impartiality is credible. State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995) (quotation omitted). Because the district court properly questioned the jurors regarding their ability to render a verdict based on the evidence, and the information about the victim was later revealed during trial, no prejudice resulted. We conclude the district court did not abuse its discretion by refusing to dismiss the entire jury panel.
On appeal, we review the record in detail to determine whether the evidence was sufficient, when viewed in the light most favorable to the conviction, to allow the jurors to reach the verdict they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). We also must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989) (citation omitted). The verdict will not be disturbed if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Appellant contends there was insufficient evidence to prove that he was under the influence of alcohol. We disagree. Appellant had an alcohol concentration of .08 approximately 90 minutes after the accident and admitted to having six beers. The state offered expert testimony on the effects of alcohol and extrapolation of appellant’s alcohol level, which was determined to be between .09 and .10, at the time of the accident. Although appellant argues he “exhibited no physical indicia of impairment,” three officers and a passenger in appellant’s car testified that they smelled alcohol on appellant. Finally, we note that “[u]nder the influence of alcohol doesn’t necessarily mean that a person is inebriated or incapacitated.” State v. Hook, 376 N.W.2d 296, 297 (Minn. App. 1985) (quotation omitted).
Appellant also challenges the jury’s determination that he was negligent. But the record indicates: (1) it had been snowing and sleeting that day; (2) appellant admitted he was familiar with the road and knew he was approaching a series of curves with nearly 90-degree turns; (3) appellant admitted he was driving 40 to 45 miles per hour despite passing a sign 780 feet before the point of impact indicating a limit of 35 miles per hour around the curve; (4) appellant’s passenger told police that as they approached the curve, appellant pushed down on the brakes “too hard” causing appellant to lose control; (5) appellant drank six beers despite his plans to drive back to Wisconsin that same night; and (6) approximately two hours after his last drink, appellant’s vehicle crossed the center line and collided with the victim’s vehicle.
In contrast, evidence was presented that: (1) the victim was coming around the last of the four curves prior to impact; (2) the victim was driving cautiously at approximately 20 miles per hour; and (3) the victim’s car was not slipping. A reviewing court must assume “the jury believed the state’s witnesses and disbelieved any evidence to the contrary.” Moore, 438 N.W.2d at 108 (citation omitted). We conclude there was sufficient evidence to support appellant’s conviction.
Appellant contends the district court abused its discretion when it failed to consider mitigating circumstances and depart downward from the presumptive sentence. We disagree. A district court’s decision to depart from the sentencing guidelines will not be reversed absent an abuse of discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). The sentences provided in the sentencing guidelines are presumed appropriate for every case, and only in the “rare case” will an imposition of the presumptive sentence be reversed. State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981); see Minn. Sent. Guidelines II.D. Appellant contends that a downward departure is warranted because his conduct was less serious than the typical criminal vehicular homicide case. Appellant notes that: (1) there was no evidence of guilt other than the .08 blood alcohol level; (2) he ran for help following the accident; (3) he cooperated with police; (4) he expressed remorse; and (5) he has a job, fiancée, and child waiting for him upon his release. But appellant failed to mention that the district court chose not to depart downward because appellant received
a DWI eleven months after this event. And had [he] gone through treatment, * * * that would show the Court good faith [it] might have * * * considered [whether appellant was] amenable to probation and ordered [a] departure, but [it did not] in view of that second DWI.
We conclude that the district court did not abuse its discretion by imposing the presumptive sentence.
Finally, we have carefully reviewed appellant’s additional pro se claims and find them to be without merit.