This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed November 25, 2003
Hennepin County District Court
File No. 00003723
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for Dorsey)
Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Halbrooks, Judge.
Appellant, Lorenzo Dorsey, was convicted of possession of a controlled substance and possession of a firearm. Appellant argues that his conviction should be overturned because the trial court judge independently investigated a fact introduced at trial. Because we conclude that the trial court’s independent investigation of the fact introduced at trial was harmless error, we affirm.
On October 4, 2000, Dorsey was charged with possession of a controlled substance and possession of a firearm after Minneapolis police entered a residence and found 600 grams of marijuana and a 9mm firearm. After locating the marijuana, the arresting officer questioned Dorsey about whether there were any weapons on the premises. Dorsey admitted that there was a 9mm automatic pistol in the house. Initially, Dorsey claimed that he did not know where the firearm was located; later he admitted the 9mm firearm was located underneath a cushion on the couch.
Dorsey’s bench trial began on April 12, 2002. At trial, defense witness Pearl Worthy testified that the 9mm firearm did not belong to Dorsey. Worthy testified that she had a brief relationship with a drug dealer named LaTerrance Paige. Worthy stated that Paige often hid weapons in his couches and other places around his residence. Worthy testified that in May 1999, two weeks after Paige passed away, Worthy and her friend, Ava Garrett, took possession of Paige’s couches. Worthy then testified that in November 1999, Garrett arranged for Dorsey and his wife to purchase the couches.
During Worthy’s testimony, the trial judge stated that she was familiar with a LaTerrance Paige that frequented drug court. The judge stated:
Well, I actually am aware of a LaTerrance Paige who was a Defendant with frequent appearances in drug court. I believe he died. . . . However, I don’t believe it was – I think it was more recent than 1999. So, obviously, I don’t know if that is the same LaTerrance Paige. But it is a somewhat unusual name. And, you know, I’m not sure where that leaves us. I, actually – if it’s that LaTerrance Paige then the timing would not fit. I don’t know how many LaTerrance Paiges were shot on drug-related incidents in the city of Minneapolis over the last three years. I would guess there weren’t two.
At the end of the court proceedings on April 12, 2002, the judge announced that she had independently confirmed her memory concerning the date of Paige’s death, stating:
I’m not trying to play junior detective. I didn’t want to have in my mind something, so I asked Cynthia to check. This is LaTerrance Paige’s read-out. He died December of 2000. Again, I’m not trying to inject myself here as the investigator. But, obviously, I spent – I knew LaTerrance Paige pretty well from drug court, not – as one would in drug court. It was my recollection that he died fairly recently.
The state had also independently confirmed the date of Paige’s death during the lunch hour. During this interaction, Dorsey’s attorney made no objection.
At the end of the trial, the state requested that the court take judicial notice of unrelated court files identifying the date of Paige’s death as December 6, 2001. Dorsey’s counsel did not object, and the judge agreed to take judicial notice that Paige’s death occurred in December 2001. Neither party produced court records identifying a LaTerrance Paige dying in May 1999. On August 2, 2002, the trial court found Dorsey guilty of possession of a controlled substance and possession of a firearm. Dorsey was sentenced on October 31, 2002. This appeal follows.
As a general rule, this court will not decide issues that were not raised before the trial court. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But an appellate court has discretion to decide issues that were not raised below when the interests of justice require their consideration, and when doing so would not unfairly surprise a party to the appeal. State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989).
Here, because the alleged misconduct involved the trial court itself and had the potential to affect Dorsey’s right to a fair and impartial trial, we conclude that the interests of justice require us to consider Dorsey’s claim. Further, because the state had an opportunity to brief this issue, our consideration of the legal issue Dorsey presents will not prejudice or unfairly surprise the state.
Dorsey argues that the trial court’s independent investigation into the date of Paige’s death created an appearance of impropriety that compromised her impartiality, depriving Dorsey of a fair trial by an impartial factfinder.
A litigant seeking to disqualify a judge for cause must make an affirmative showing that the judge’s impartiality might reasonably be questioned. State v. Laughlin, 508 N.W.2d 545, 547 (Minn. App. 1993). A reviewing court’s inquiry must include an objective examination into the circumstances of the removal request. Id. at 548; State v. Fedor, 628 N.W.2d 164, 172 (Minn. App. 2001) (claim of judicial bias requires an affirmative showing of prejudice). In Powell v. Anderson, 660 N.W.2d 107, 120-21 (Minn. 2003), the Minnesota Supreme Court adopted a balancing test to assist in determining when to vacate a judgment due to judicial impropriety. The test considers “the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process” excusing for harmless error. Id. (quotation omitted).
In State v. Oden, 385 N.W.2d 420, 422 (Minn. App. 1986), this court held that it was improper for a judge to engage in discovery for the prosecution, because a judge must avoid both the reality and the appearance of impropriety. Id. See Minn. Code Jud. Conduct 2A (stating a judge must act in a manner that promotes public confidence).
Here, the trial court acted appropriately in telling the parties that she was aware of certain facts that impaired Worthy’s credibility. Indeed, had the judge not disclosed her knowledge—and Worthy happened to be right and the judge was wrong—the judge probably would have unfairly discredited Worthy and perhaps erroneously convicted Dorsey. Once the judge made her disclosure, it was up to the attorneys, and particularly defense counsel, to ask her to remove herself or take whatever steps they deemed appropriate. Significantly, defense counsel made no motion to remove the judge.
But the judge’s subsequent, independent investigation is another matter. Although it is a close call, especially on these peculiar facts, we are persuaded that the trial court committed error by independently investigating a fact raised at trial. Although well-intentioned, by interjecting itself into the evidence-gathering process and independently investigating facts, the trial court created the appearance of impropriety.
Further, because this was a bench trial, the trial judge was both the judge and the factfinder. When a juror independently investigates evidence presented at trial, the supreme court has awarded a new trial holding that the juror misconduct prejudiced the verdict. See Spinner v. McDermott, 190 Minn. 390, 392-93, 251 N.W. 908, 908-09 (1933). Here, because the judge was both judge and factfinder, the same principles governed.
But while we find that the trial judge committed error, the test for judicial misconduct in Powell excuses harmless error. Powell, 660 N.W.2d at 120. “[A]ppellate courts must look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict. If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.” State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996) (citation omitted).
On these facts, we conclude that the trial court’s independent investigation was harmless error. Reviewing the trial as a whole, the trial court’s finding of guilt was surely unattributable to its independent investigation, which therefore did not alter the outcome of the trial. We note first that, independent of the date of Paige’s death, the trial court had serious doubts concerning the credibility of Dorsey’s story. The trial court’s findings state:
With regard to the circumstances surrounding the discovery of the gun in question, Defendant’s testimony is particularly incredible. Defendant testified that although he told Officer Ungarian that he owned a 9 mm gun, the 9 mm weapon that was found in the couch was not his, and was not placed there by him.
This court defers to the factfinder’s witness credibility and weight-of-testimony determinations. State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985). Dorsey’s story concerning the 9mm was implausible regardless of whether Paige died in 1999 or 2001. In addition, at the end of the trial, both parties agreed that the trial court could take judicial notice of Paige’s date of death as December 6, 2001, and the trial court took notice of this fact. Finally, during the questioning of defense witness Worthy, it appeared that the prosecution was starting to challenge Worthy on the date of Paige’s death, and indeed, the prosecution independently submitted a court document identifying the date of Paige’s death. Therefore, examining the case as a whole, we are persuaded that the trial court’s independent investigation of Paige’s death did not affect the outcome of the trial.
We are also persuaded that the trial court’s intervention was distinguishable from the trial court’s intervention in Oden, because unlike the judge in Oden, the trial court here was not seeking information merely to assist the prosecutor. Rather, the trial court was confirming that her independent recollection concerning Paige’s death was correct. Indeed, from the record it appears that the trial court was attempting to avoid any potential bias by ensuring that her independent knowledge was not incorrect thereby tainting a witness’s testimony and jeopardizing appellant’s right to a fair trial.
We therefore conclude that, while the trial court did commit error by independently investigating the date of Paige’s death, the error was harmless.
 Apparently, neither the parties nor the trial court noticed that the date of Paige’s death given by the trial court was December 2000, but the date given by the prosecutor was December 2001.