This opinion will be unpublished and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,
Imani Rasaan Heath,
Hennepin County District Court
File No. 01014203
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Imani Rasaan Heath contends he is entitled to a new trial because the district court excused an African American juror from jury duty for tardiness in reporting for jury duty but provided transportation for a Caucasian juror allowing that juror to get to court. Appellant also argues the district court erred by: (1) answering questions from the jury outside of appellant’s presence; (2) directing the deputy to relay responses to the jury’s questions; and (3) allowing the deliberating jury to separate overnight without appellant’s consent. We affirm.
Appellant argues the district court violated appellant’s equal protection rights by failing to provide transportation to an African American juror and dismissing him from the panel while offering transportation to a Caucasian juror the next day. We disagree.
The district court has discretion in controlling the jury and its role in the judicial process. See State v. James, 638 N.W.2d 205, 210 (Minn. App. 2002) (stating a district court has the discretion to dismiss an inattentive juror), review denied (Minn. Mar. 27, 2002); State v. Yant, 376 N.W.2d 487, 491 (Minn. App. 1985) (recognizing court has discretion to dismiss sleeping juror), review denied (Minn. Jan. 17, 1986).
Appellant argues his equal protection rights were violated because the dismissal of the African American juror affected the racial composition of the jury panel. But the district court’s actions were not motivated by discriminatory intent. The record indicates the first juror demonstrated a lack of dependability and indifference by arriving late on both days he was on the panel without offering an explanation for his tardiness. Because of concern about the juror’s commitment, the district court dismissed the juror and seated an alternate.
In contrast, the other juror called the court to explain that because his child was up sick all night he had to make alternate childcare plans, and he lacked transportation. Because there was no longer an alternate juror to seat, the district court ordered that the juror be picked up and taken to the courthouse.
On these facts we conclude that because the African American juror was tardy or failed to get to court without an articulated reason, it was within the discretion of the district court to dismiss him from the panel.
Appellant argues he is entitled to a new trial because the district court answered jury questions during deliberation off the record and outside of appellant’s presence and allowed a deputy to convey responses to the deliberating jury. We disagree.
[T]he 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) (citation omitted).
Even 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).
Here, although appellant was not present, his counsel was. And appellant’s counsel agreed to the way the judge proposed to answer the jury’s questions and raised no objections to the judge’s actions. Moreover, the substance of the judge’s responses was neutral and consisted of telling the jury: (1) they need to decide the matter based on the evidence presented during the trial, and the law as provided by the court; (2) having reached an impasse they could go home for the night when they wanted; and (3) they could not take a copy of the forms of law home with them. Finally the fact that these answers were relayed either in writing, or verbally, by the deputy did not prejudice appellant and deprive him of his right to a fair trial. While appellant should have been in the courtroom when the court addressed the jury’s questions, we conclude that in light of the strong evidence presented by the state and the nonprejudicial nature of the responses, appellant was not denied his right to a fair trial.
Appellant also argues he is entitled to a new trial because the district court allowed the deliberating jury to separate for the night without his consent. We disagree.
Appellant notes that Minn. R. Crim. P. 26.03, subd. 5 states that the court may allow the jurors to separate overnight during deliberations with the consent of the defendant. But the rule does not require that this consent be in writing or on the record. And here, there is an indication that consent to the separation was given based on the trial transcript. After the judge talked with appellant’s counsel off the record, he informed the jury that they would begin deliberations on Monday morning. No mention was made that the jury should be prepared to spend the night. Moreover, when the judge told the jury they could go home during deliberations, appellant’s counsel did not object.
Finally, even if appellant did not consent, separation of the jury during deliberations in violation of rule 26.03 is not presumptively prejudicial. State v. Sanders, 376 N.W.2d 196, 206 (Minn. 1985). And appellant offers no evidence of improper influence or jury tampering, as is required to find prejudice. See id. (stating prejudice will be presumed upon showing of improper influence or jury tampering). Thus we conclude that even if the court committed error by not receiving appellant’s consent to allow the jurors to separate, appellant is not entitled to a new trial because he failed to show the alleged error was prejudicial.