This opinion will be unpublished and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,
Valentine Estrada Martinez,
Filed January 20, 2004
Brown County District Court
File No. K202493
Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
James R. Olson, Brown County Attorney, P.O. Box 428, New Ulm, MN 56073 (for respondent)
John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.
Appellant was convicted of a first-degree controlled-substance offense and conspiracy to commit a second-degree controlled-substance offense. On appeal, appellant argues that (1) the prosecutor committed prejudicial misconduct by eliciting inadmissible testimony from a police officer and (2) the court improperly answered a jury question during deliberations without appellant’s personal waiver of his right to be present. Appellant also submitted a pro se brief raising other issues. While we conclude that the district court erred by responding to a jury question without obtaining appellant’s waiver of his right to be present, we affirm because the error was harmless.
The second incident occurred during jury deliberations. The jury submitted a written question to the court, stating “Your honor, [t]he jury is interested in knowing why Mr. Tauer did not testify.” The court responded on the record as follows:
So that you know, I did talk with the attorneys in the matter relative to the question that was presented and they’re aware of what I’m about to tell you. They’re not here because they are elsewhere, actually, attending to a different matter in a different courtroom, but they’ve been consulted. They understand your question. I’ve visited with them.
The question is the jury is interested in knowing why Mr. Tauer did not testify. You’re instructed as follows: You are to decide the case based upon the evidence presented to you during the trial and must not speculate or guess about matters outside of the scope of the record.
After further deliberation, the jury found appellant guilty of both charged offenses. Appellant was sentenced to concurrent terms of 122 months for the first-degree controlled-substance offense and 78 months for the conspiracy offense. This appeal follows.
We first address appellant’s claim that the prosecutor committed misconduct by eliciting inadmissible evidence from Officer Hohensee. When reviewing a claim of prosecutorial misconduct, we “will reverse only if the misconduct, when considered in light of the whole trial, impaired the defendant’s right to a fair trial.” State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003). Generally, a defendant who fails to object to the prosecutor’s question or to seek specific curative instructions is deemed to have forfeited the right to have the issue considered on appeal. State v. Torres, 632 N.W.2d 609, 617-18 (Minn. 2001). But we may review a previously unraised issue if it constitutes plain error. State v. Kelly, 668 N.W.2d 39, 43 (Minn. App. 2003). Plain error is established where (1) there has been error; (2) the error is plain; and (3) the error has affected appellant’s substantial rights. Id. Substantial rights are affected where “the error was prejudicial and affected the outcome of the case.” State v. Lindsey, 654 N.W.2d 718, 724 (Minn. App. 2002).
When considering whether there was prosecutorial misconduct, we focus on the prosecutor’s actual intent, knowledge, and behavior. See, e.g., State v. Ray, 659 N.W.2d 736, 744 (Minn. 2003) (finding misconduct where prosecutor, through leading questions, repeatedly attempted to elicit testimony that had previously been ruled inadmissible); State v. Henderson, 620 N.W.2d 688, 702 (Minn. 2001) (finding no misconduct where there was no showing that the prosecutor persisted in trying to elicit inadmissible evidence); State v. Fuller, 374 N.W.2d 722, 726-27 (Minn. 1985) (holding that negligent conduct in asking question that elicited inadmissible evidence was not misconduct). It is “improper for prosecutors to ask questions that are calculated to elicit or insinuate an inadmissible and highly prejudicial answer.” Kelly, 668 N.W.2d at 43 (quotation omitted).
Here, there is no evidence that the prosecutor attempted to elicit inadmissible testimony, or that the evidence had been previously ruled inadmissible. In fact, appellant’s counsel suggested a similar or related theory in his own opening statement and incorporated a portion of the officer’s testimony into his closing argument. The prosecutor asked a single question about Officer Hohensee’s information regarding appellant, to which Officer Hohensee responded with a narrative answer that included inadmissible evidence. Considering the form and content of the prosecutor’s question, there is no basis for inferring that the prosecutor intended to elicit Officer Hohensee’s narrative answer. Cf. State v. Smallwood, 594 N.W.2d 144, 150 (Minn. 1999) (stating that generally, it is misconduct for a prosecutor to knowingly offer inadmissible evidence for the purpose of bringing it to the jury’s attention). Nothing suggests that the prosecutor might have anticipated the officer’s answer. See State v. Hagen, 361 N.W.2d 407, 413 (Minn. App. 1985) (stating that generally, unintended responses under unplanned circumstances do not require a new trial), review denied (Minn. Apr. 18, 1985). Following the officer’s narrative response, the prosecutor moved on in his questioning to focus on the specific drug buys involving Jarmon. See State v. Marchbanks, 632 N.W.2d 725, 729 (Minn. App. 2001) (finding that prosecutor minimized any prejudice by moving on to other questions). On this record, we conclude that the prosecutor did not commit misconduct.
But even if the prosecutor’s conduct was improper, appellant is not entitled to a new trial. An error is prejudicial only if there is a reasonable likelihood that it had a significant effect on the jury’s verdict. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). Generally, a defense counsel’s “failure to object or seek a cautionary instruction suggests that the conduct was not considered prejudicial.” State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). And misconduct is not prejudicial where there is substantial evidence in the record establishing the defendant’s guilt for the charged offenses. State v. Lange, 372 N.W.2d 822, 824 (Minn. App. 1985).
Appellant was found guilty of selling cocaine in violation of Minn. Stat. § 152.021, subd. 1(1) (2000) and conspiracy to violate Minn. Stat. § 152.022, subd. 1(1) (2000). In order to meet its burden, the state was required to prove beyond a reasonable doubt that appellant (1) sold ten grams or more of cocaine to Jarmon on one or more occasions within a 90-day period, and (2) conspired with Tauer to sell three or more grams of cocaine within a 90-day period. Id. There was ample evidence at trial to establish appellant’s guilt for these offenses. The state’s witnesses included Jarmon and several police officers, all whom identified appellant as the cocaine dealer and witnessed drug sales between appellant and both Jarmon and Tauer. The report by the Bureau of Criminal Apprehension confirmed that the substances exchanged were cocaine in the amount required under the statute. Moreover, the videotapes of the drug transactions between appellant and Jarmon were played for the jury. Therefore, even if there was misconduct, appellant is unable to establish that Officer Hohensee’s statements were prejudicial and affected the outcome of the case. As a result, we conclude that appellant is not entitled to a new trial based on prosecutorial misconduct.
Appellant also argues that he was denied the right to be present at a stage of his trial when the district court judge responded to a jury question during deliberations outside of his presence. The confrontation clause in the Sixth Amendment grants a defendant the right to be present at all critical stages of trial. Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658, 2667 (1987). Minnesota provides an even broader right by requiring that a defendant be present at “every stage of the trial.” State v. Charles, 634 N.W.2d 425, 432 (Minn. App. 2001) (quoting Minn. R. Crim. P. 26.03, subd. 1(1)). With respect to jury deliberations, the supreme court has held that “[a] trial court commits error when it engages in substantive communications with a deliberating jury outside of open court, without the defendant’s knowledge, consent or presence, and without the presence of defendant’s counsel and the prosecutor.” State v. Sessions, 621 N.W.2d 751, 752 (Minn. 2001).
Here, the jury submitted a written question to the court asking why Tauer had not testified. It is clear from the court’s comments on the record that the court consulted with both attorneys prior to responding to the question and that counsel agreed that a proper instruction could be given in their absence. But the record does not indicate that appellant personally waived his right to be present. The court instructed the jury “to decide the case based upon the evidence presented to [them] during the trial and . . . not [to] speculate or guess about matters outside of the scope of the record.”
We conclude that it was error for the court to give the instruction without appellant’s personal waiver on the record. Even if appellant’s counsel decided that appellant’s presence was not necessary, we have previously held that “[a]lthough the right to be present may be waived, the decision to waive is personal and is not one for counsel to make but one for the defendant to make after consultation with counsel.” Charles, 634 N.W.2d at 432. Furthermore, we stated that
[i]f defense counsel asserts that the defendant’s presence is not necessary during any stage of the trial, it should be the practice of the court to make a contemporaneous record and directly question the attorney about whether the defendant has been fully apprised of the right to be present. The district court must ensure that the defendant’s waiver of the right to be present was made voluntarily after consultation with counsel and a record of the waiver must be made. It is the better practice in this situation for the defendant to complete the record, at some point, by affirming the attorney’s decision to waive his presence.
Id. at 433. The district court erred by failing to make a contemporaneous record or to otherwise ensure that appellant waived his right to be present during the instruction.
But it does not necessarily follow that this error results in a new trial. The supreme court has held that, even where a defendant is wrongfully denied the right to be present at a stage of trial, a new trial is not warranted if the error was harmless beyond a reasonable doubt or, in other words, if the verdict was “surely unattributable to the error.” Sessions, 621 N.W.2d at 756. “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. (citations 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).
Taking these factors into consideration, we conclude that the court’s error was harmless. As already discussed, there was substantial evidence demonstrating appellant’s guilt beyond a reasonable doubt. And nothing indicates that appellant would have “contributed to his defense” had he been present, as appellant’s counsel was fully aware of both the jury’s question and the court’s proposed response prior to any communication with the jury. Further, the instruction was limited in scope and the court simply told the jury to decide the case based only upon the record before them. In Sessions, the supreme court found a similar instruction to be harmless, concluding:
The court did not issue any new instructions in its responses, and the instruction repeated did not favor the prosecution or defense. In response to the jury’s question . . . the court appropriately advised jurors that they were to decide the case based upon their own collective recollection of the evidence. As such, the court’s communications with the jury were not prejudicial to the rights of the appellant.
Sessions, 621 N.W.2d at 756-57. Because we conclude that the error was harmless beyond a reasonable doubt, appellant is not entitled to a new trial based on the court’s communication with the jury.
Finally, we have considered the issues raised by appellant in his pro se supplemental brief and find them to be without merit.
 In his opening statement, appellant’s counsel argued that appellant was not and had never been a “colleague drug lord” and insinuated that Jarmon was acting out of “cold-blooded manipulation . . . to create crimes.” In the closing argument, appellant’s counsel attacked Officer Hohensee’s credibility by saying, “remember, again, his testimony, I’ve been after [appellant] for eight years and finally got him in court. For eight years. And what does he come up with? Tauer . . . but what are the proofs as to Martinez?” Defense counsel’s own use of this evidence weighs against a finding of prejudicial error. See, e.g., State v. Woodard, 256 N.W.2d 478, 479 (Minn. 1977) (finding no prejudicial error where defense counsel did not object and, in fact, also relied on improper statement to make a point of his own in closing argument).