This opinion will be unpublished and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

C5-03-224

 

State of Minnesota,
Respondent,

vs.

Jamal Deshawn Brown,
Appellant.

 

Filed December 9, 2003

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. 02004154

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Minge, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            As a result of a shooting incident, appellant was charged and tried for attempted murder in the first and second degree and first- and second-degree assault.  Appellant challenges his conviction for first- and second-degree assault on the grounds that the district court’s ex parte contact with the jury and the admission of Spreigl evidence were reversible errors.  Because we conclude that the communication with the jury regarding one juror’s desire to attend a funeral and the admission of evidence of appellant’s prior altercation with his girlfriend were not reversible errors, we affirm.

D E C I S I O N

I.

 

            The first issue is whether the district court denied appellant a fair trial when it met with the jury outside the presence of appellant and his counsel and advised them that a juror could not attend a funeral unless the jury reached a verdict prior to the funeral.

            The Sixth Amendment of the United States Constitution grants a defendant the right to be present at all the stages of trial.  Kentucky v. Stincer, 482 U.S. 730, 745, 107  S. Ct. 2658, 2667 (1987).  The trial court’s response to a question from a deliberating jury is such a critical stage if defendant’s presence would contribute to its fairness.  See State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995).  The general rule is that no communication should take place between the judge and jury after the cause has been presented to them by the charge of the court “unless in open court and, where practicable, in the presence of counsel involved in the litigation, and in criminal cases in the presence of the defendant.”  State v. Schifsky, 243 Minn. 533, 543, 69 N.W.2d 89, 96 (1955). 

Stated differently, when a defendant is wrongly denied the right to be present at a stage of trial, a new trial is required unless the error was harmless beyond a reasonable doubt or the guilty verdict was surely unattributable to the error.  See State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001).  When considering whether the erroneous exclusion of a defendant from judge-jury communications was harmless error, a reviewing court considers “the strength of the evidence and substance of the judge’s response.”  Id.  (citation omitted).  We also consider “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).  In deciding whether error was harmless, this court looks to the record as a whole.  Id.

In this case, at the end of the second day of deliberations when the jury returned to the courtroom, the bailiff informed the judge that one of the jurors wished to attend a funeral.  The court, without notifying counsel and outside the presence of the appellant, addressed the jury as follows:

The deputy informed me that one of you has a friend’s mother who died and you would like to go to the funeral tomorrow.  You can’t go to the funeral tomorrow unless the jury has reached a verdict before then.  That’s because of the deliberation process.  They can’t deliberate without you.  If there’s a visitation or something this evening, you’re free to go to that.

 

The court then adjourned until morning.  The next day the jury reached a guilty verdict of first- and second-degree assault and a not guilty verdict of attempted murder.[1]

Appellant claims that demanding a verdict before allowing the juror to attend a funeral could have caused members of the jury to compromise their views to accommodate the juror who requested to leave.  Appellant asserts it is reasonable to suspect the jury was diverted from neutral deliberations.  Appellant also argues he would have contributed to his defense had he been present.  He asserts he could have requested the trial court not condition the juror’s attendance on the return of the verdict, requested the juror be permitted to attend the funeral, or asked for an alternate to fill in.  Appellant also asserts that if he were present he would have had the opportunity to question the juror to determine whether the recent death would affect the deliberations.

The attorneys must be notified when the jury asks for review of testimony or other evidence, Minn. R. Crim. P. 26.03, subd. 19(2)(1), or when the jury desires to be informed on a point of law.  Minn. R. Crim. P. 26.03, subd. 19(3)(1).  But, when the court’s communication only involves a procedural matter or a housekeeping question, not a legal matter or one concerning the court’s instructions, the defendant and counsel do not have to be present.  See State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994) (stating attorneys need not be notified about questions regarding “physical comforts and the like”) (quoting ABA Standards for Criminal Justice § 15-3.7(b) (1986)); see also State v. Hendry, 636 N.W.2d 158, 165 (Minn. App. 2001) (concluding that “the mere failure to notify the attorneys when a jury asks a question is not error as a matter of law”), review denied (Minn. Jan. 29, 2002).

The question regarding attending the funeral was a “housekeeping” question; the question did not implicate factual or legal questions to be decided by the jury during its deliberations, nor was it a request to review testimony or other evidence, or an inquiry on a point of law.  See Hendry, 636 N.W.2d at 165.  Although it would have been desirable to have the accused and his counsel in the courtroom, the court did not prejudicially err in failing to have the defendant or counsel present when the question was asked or when its answer was given. 

Further, claims by the appellant are not persuasive.  Appellant discusses use of an alternate for the juror who wanted to attend the funeral.  But, in this case the alternate juror had been dismissed and was unavailable to fill in.  There is also no indication here that the juror’s inquiry about the funeral had any effect on the outcome of the case.  There is no evidence the deliberations were hurried to accommodate the juror who wished to attend the funeral, nor is there any indication this was a stressful situation; the funeral was not for a juror’s family member.  There is substantial evidence that appellant committed an assault.  See Sessions, 621 N.W.2d at 756 (stating the strength of the evidence is a factor in assessing whether judge-jury communications constitute harmless error).  The victim, along with two other witnesses, positively identified appellant, both from a photo lineup and in the courtroom, as the man who shot at the victim.  The prior altercation between appellant and the victim showed an appearance of motive.  Appellant confessed to having shot his gun at the victim.  Therefore, even if it were error for the district court to address the juror’s situation on its own, it was not reversible error.

II.

            The second issue is whether the district court abused its discretion in admitting certain evidence regarding a prior encounter in which appellant allegedly assaulted his girlfriend on the street.  Witnesses testified the woman was crying, and appellant was yelling at her, pulling on her arm and her hair, punching her in the face, and saying something about money.  The shooting victim in this case and his cousin saw the encounter, and the cousin intervened, asking the girlfriend if she needed help.  Appellant pushed the cousin and told her to stay out of his business.  The victim in this case responded by punching appellant twice and walking away.  As a result of the punches, appellant was unconscious and taken away in an ambulance.  Appellant did not object to the portion of testimony about how he had been punched by the victim.  However, over the objection of the appellant, the district court admitted the evidence of appellant’s abusive behavior toward his girlfriend that precipitated the encounter. 

A reviewing court will not reverse the district court’s admission of evidence of other crimes or bad acts unless an abuse of discretion is clearly shown.  State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988).  To prevail, an appellant must show error and prejudice resulting from the error.  State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).  If the district court has erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).

            The parties dispute whether the details regarding appellant’s alleged prior assault on his girlfriend are relevant and material to the case at hand.  Generally in a criminal case, evidence showing that the accused has committed another crime unrelated to the crime for which he or she is on trial is inadmissible.  State v. Spreigl, 272 Minn. 488, 490, 139 N.W.2d 167, 169 (1965).  And evidence of other crimes or bad acts may not be used to prove the accused’s propensity to engage in criminal behavior.  State v. Thieman, 439 N.W.2d 1, 6 (Minn. 1989).  Appellant argues that his alleged assault on his girlfriend is irrelevant, not probative, and is only being used to prove he has a propensity to be violent.  The district court disagreed, noting that the evidence regarding appellant and the victim’s first encounter would not make sense without admitting the evidence of why the victim had intervened because it was all one incident. 

            There are exceptions to the above general exclusionary rule.  Minn. R. Evid. 404(b) provides that evidence of another crime, wrong, or act may be admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” as long as the “act and the participation in it by a relevant person are proven by clear and convincing evidence.”  Further, 

[w]here two or more offenses are linked together in point of time or circumstances so that one cannot be fully shown without proving the other, or where evidence of other crimes constitutes part of the res gestae, it is admissible . . . .  Such evidence may be considered only for the purpose for which it is sought to be introduced, regardless of the fact that it may incidentally show commission of some other offense.  Such evidence, however, must show a causal relation or connection between the two acts so that they may reasonably be said to be part of one transaction.

 

State v. Nunn, 561 N.W.2d 902, 907 (Minn. 1997) (quoting State v. Wofford, 262 Minn. 112, 118, 114 N.W.2d 267, 271-72 (1962)).  These exceptions allow the prosecution to prove its case using evidence of the context of a tangentially related crime to explain why the accused may have been motivated to commit the crime.  See id; see also State v. Martin, 293 Minn. 116, 128, 197 N.W.2d 219, 226 (1972) (stating that “in a criminal prosecution, evidence that other criminal acts have been committed by the accused may be admissible to show his motive for the commission of the offense charged, notwithstanding such evidence proves or tends to prove an offense other than that charged”).

            While the other-crimes evidence exception stated above is very similar to Spreigl evidence, it is different.  Spreigl evidence concerns bad acts not related to the charged offense.  Other-crimes evidence may be used to show that the accused committed the charged offense with evidence of other crimes “offered to complete the picture” and provide context to the charged offense.  State v. Roy, 408 N.W.2d 168, 171 (Minn. App. 1987), review denied (Minn. July 22, 1987); see also State v. Waukazo, 374 N.W.2d 563, 565 (Minn. App. 1985) (admitting evidence to illuminate the parties’ relationship and place the charging incident in proper context), review denied (Minn. Nov. 1, 1985).  Further, in State v. Boyce, 284 Minn. 242, 260, 170 N.W.2d 104, 115 (1969), the supreme court recognized that the Spreigl decision was not intended to apply to evidence offered in a homicide prosecution bearing directly upon the history of the relationship existing between one accused of murder and the victim.  Other-crimes evidence such as that in issue here is “admissible to show motive without regard to the Spreigl requirements.”  State v. Salas, 306 N.W.2d 832, 936 (Minn. 1981).

            Here, evidence was introduced regarding appellant’s alleged assault on his girlfriend and the subsequent altercation involving appellant and the victim.  The district court specifically instructed the jury that the evidence was only admitted for their consideration in deciding motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident by the appellant.  The jury was also instructed to not consider the prior act as evidence of appellant’s character or conduct.  The evidence relating to the other incident was necessarily, but incidentally, a part of the state’s theory that appellant shot the victim in retaliation for the victim’s intervention in the prior assault.  The evidence in issue provided the full context for what otherwise would appear to be a gratuitous attack by the victim.  In both Martin and Roy, evidence was deemed admissible to show a defendant was motivated to commit a crime.  Martin, 293 Minn. at 128-29, 197 N.W.2d at 226-27; Roy, 408 N.W.2d at 171-72.  Here, the district court did not abuse its discretion when it allowed the state to present evidence of appellant assaulting his girlfriend to complete the picture of the prior crime.

            Affirmed.



[1] The record does not disclose whether the juror attended the wake or was able to attend the funeral.