may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Robert Erle Bullen,
Aitkin County District Court
File No. K200248
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from a conviction of a fifth-degree controlled-substance offense, appellant Robert Erle Bullen argues that the trial court erred by answering questions submitted by the jury during deliberations without making a record or notifying counsel and without appellant’s knowledge. Appellant also argues that the state’s witnesses violated the sequestration order and the trial court erred by failing to question them about the matter. We affirm.
Deputy Sheriffs Heidi Krueger and Steve Cook and State Trooper Keith Benz executed an arrest warrant for Bullen at a private residence where he and his father were working. The record contains evidence that Bullen knew about the warrant and had already contacted the sheriff’s office and made arrangements to turn himself in.
The officers arrested Bullen inside the house. Benz and Krueger testified that during the arrest, Bullen made several requests to go to his father’s van to retrieve or return something, but they denied the requests and did not allow Bullen to approach the van. Before transporting Bullen to jail, Cook conducted a brief pat-down search for weapons.
At the jail, Cook turned Bullen over to jailers Michael Morris and David Skaj. Skaj pat searched Bullen. Skaj described a pat search as follows:
You * * * start at the top with the hair to make sure there’s nothing there. And you work your way down, doing the extremities as you work your way down, and you go around the waist, around the legs and the groin area down, pull the pant legs up. Generally, you’ll check the shoes and the socks to see if there’s anything in those.
Morris testified that jailers conduct a fairly thorough pat search, checking pockets and the belt or waistband and seam areas of pants. Morris testified that when searching the crotch area, jailers “try to as best as you can without being too * * * intrusive.”
The jailers then instructed Bullen to disrobe. Skaj testified that the jailers watch a person disrobe to see if he has anything other than clothes on his person. From a distance of about four feet away, the jailers saw Bullen remove his shirt, socks, and boots. Skaj testified that Bullen “was in the process of taking off his pants and his undergarment when an object fell out of his person.” Morris testified that Bullen “was starting to remove his pants and his underwear, and a yellow vial of some kind fell out from somewhere.” The jailers testified that Bullen was in a small changing area and had a chair in front of him to put his clothes on. The vial fell between the chair and the wall. The vial contained methamphetamine.
Neither jailer saw the vial on Bullen’s person. But Skaj was positive that the vial had not been in the booking area before Bullen entered. Also, Skaj testified that he picked up the vial right after it fell and that the vial was warm. Skaj testified that on other occasions, he had missed small items during pat searches when the item was hidden in a manner that made detection difficult.
Bullen was charged with one count of fifth-degree possession of a controlled substance crime in violation Minn. Stat. § 152.025, subd. 2(1) (1998). Bullen denied possessing the vial. His defense was that the vial must have already been in the booking area or had been planted on his person.
During deliberations, the jury submitted the following written questions to the trial court:
1 - Want to review configuration of booking room - shower area most specifically how many chairs and where located
2 - Type of underwear boxers or briefs [Bullen] wearing at time of booking
3 - When was last person booked before [Bullen] - precise time
4 - Procedure re. cleaning booking - shower etc after each booking
5 - Want to see chair that [Bullen] was using while undressing
6 - Why did Deputy Cook not testify
7 - After Officer Benz used nik kit on substance why was [Bullen] not given a drug test or was he
8 - Was [Bullen] frisked and when - how many times pat downed how many times frisked - how when -
9 - Did Morris see vial fall - and from where
10 - Was [Bullen] frisked after he [emptied] pockets
The trial court responded with a written note, which stated:
The rules do not allow for these questions to be now answered - you must base your decision upon your collective recall of the evidence presented.
The record does not show that the trial court gave Bullen or his attorney an opportunity to be present before responding to the jury’s questions. The jury found Bullen guilty.
D E C I S I O N
[T]he Sixth Amendment to the United States Constitution grants a defendant the right to be present at all stages of trial. Responding to a deliberating jury’s question is a stage of trial. Thus, the general rule is that a trial court judge should have no communication with the jury after deliberations begin unless that communication is in open court and in the defendant’s presence.
State v. Sessions, 621 N.W.2d 751, 755-56 (Minn. 2001) (citations omitted). We conclude that the trial court violated Bullen’s right to be present at all stages of trial when the court responded to the jury’s questions. But
[e]ven if a defendant is wrongfully denied the right to be present at every stage of trial, a new trial is warranted only if the error was not harmless. If the verdict was surely unattributable to the error, the error is harmless beyond a reasonable doubt. When considering whether the erroneous exclusion of a defendant from judge-jury communications constitutes harmless error, we consider the strength of the evidence, and substance of the judge’s response.
Id. at 756 (citations omitted). This court also considers “what the defendant would have contributed to his defense if he had been present.” State v. Breaux, 620 N.W.2d 326, 333 (Minn. App. 2001) (citations omitted). In deciding whether an error was harmless, this court looks to the record as a whole. Id.
Bullen argues that the jury’s questions, which indicate a concern that the vial could have been left by someone else, show that the state’s case was weak. But considering the evidence as a whole, the state’s evidence was strong. The vial fell to the floor as Bullen was removing his pants in a small secure area. Skaj testified positively that the vial had not been in the booking area before Bullen entered, and the vial was warm to the touch when Skaj picked it up. Skaj also explained that it is possible to miss small items during a pat search, and Morris testified that jailers try not to be too intrusive when searching the groin area. Also, Benz and Krueger testified that during the arrest, Bullen made repeated requests to be allowed to go to his father’s van, although Bullen’s father contradicted this testimony. Finally, although Bullen claimed that the vial could have been planted on him, he presented no evidence of bias, interest, or any other motive to fabricate evidence against him.
Regarding the substance of the judge’s response to the jury’s questions, the response was neutral and nonsubstantive. Bullen does not argue that the trial court misstated the law or abused its discretion in failing to provide the jury with the requested information. His only objection is that he was not present and, thus, did not have the opportunity to persuade the trial court to respond differently.
Bullen makes no argument about what he would have contributed to his defense if he had been present when the court received and responded to the questions. The jury’s questions two through seven pertain to evidence not in the record. Bullen does not suggest any appropriate response to those questions other than the response given by the trial court. Questions one and eight through ten pertain to evidence in the record. The trial court could have attempted to narrow the jury’s request to specific testimony and reread that testimony. State v. Spaulding, 296 N.W.2d 870, 878 (Minn. 1980) (prejudicial error when trial court refused to reread any of defendant’s testimony and defendant’s testimony went to the core of the case, his self-defense claim). Bullen, however, does not explain how rereading testimony would have helped his case. Evidence about the booking room’s configuration, Bullen being pat searched, and the jailers’ observation of the vial falling was all evidence presented by the state. Bullen does not identify any instances of this evidence being discredited on cross-examination. Thus, it is not apparent how rereading testimony would have contributed to Bullen’s defense. Under these circumstances, the verdict was surely unattributable to the error of responding to the jury’s questions without notifying counsel and without Bullen being present, and therefore, the error was harmless beyond a reasonable doubt.
There must be an indication in the record that statements made in violation of a sequestration order were made in an attempt to influence the testimony of other witnesses, or that the statements did influence the testimony of other witnesses, before the trial court need even consider it as grounds for a new trial. Prejudice resulting from violation of a sequestration order must be shown.
State v. Erdman, 383 N.W.2d 331, 334 (Minn. App. 1986) (citations omitted), review denied (Minn. Apr. 24, 1986).
The trial court ordered all witnesses removed from the courtroom until called to testify. At the close of the state’s case, defense counsel advised the trial court that Bullen’s father saw the state’s witnesses waiting together in the library, and, after testifying, witnesses would return to the library and discuss what had happened in the courtroom with witnesses who had not yet testified. When the trial court questioned Bullen’s father about his observations, the only specific comments he recalled overhearing were, “Oh, there were some questions asked that I wasn’t aware of” and “I’m glad this part is over.”
Bullen argues that the trial court should have granted him a Schwartz hearing to investigate possible witness misconduct. Bullen does not cite any authority for using a Schwartz hearing, which is typically used to investigate allegations of jury misconduct, to investigate witness misconduct. But even if a Schwartz-type hearing is appropriate to investigate witness misconduct, a Schwartz hearing is not mandatory unless the defendant submits “sufficient evidence which if unchallenged would warrant the conclusion of * * * misconduct.” State v. Rainer, 411 N.W.2d 490, 498 (Minn. 1987).
In addressing Bullen’s misconduct claim, the trial court expressly stated that the only purpose of the sequestration order was to prevent witnesses from hearing testimony before they testified. Nothing in the record indicates that any witness discussed the substance of any testimony with another witness. Absent any evidence that the alleged violations of the sequestration order were attempts to influence testimony or did influence testimony, there was insufficient evidence to warrant the conclusion that misconduct had occurred, and there was no need for the trial court to even consider the sequestration violations as a basis for conducting a Schwartz hearing. Moreover, Bullen did not request a Schwartz-type hearing. See Pomani by Pomani v. Underwood, 365 N.W.2d 286, 290 (Minn. App. 1985) (failure to request a Schwartz hearing after becoming aware of facts indicating potential misconduct waives issue).