This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Zachary Shane Fitzgerald,



Filed September 6, 2005


Worke, Judge


Benton County District Court

File No. K1-04-558


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


Robert Raupp, Benton County Attorney, Karl Schmidt, Assistant Benton County Attorney, Benton County Courts Facility, P.O. Box 189, Foley, MN 56329 (for respondent)


John M. Stuart, State Public Defender, Steven P. Russett, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Hudson, Presiding Judge; Worke, Judge; and Parker, Judge.*        

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from a conviction of third-degree and fifth-degree assault, appellant argues that the district court erred by providing jurors with a copy of the pamphlet entitled “Behind Closed Doors – A Guide to Jury Deliberations” prior to deliberating and by instructing the jurors that appellant had a duty to retreat.  Because we do not conclude that the district court erred in providing jurors the pamphlet and that giving the duty-to-retreat instruction was not plain error, we affirm. 



            On April 29, 2004, appellant Zachary Shane Fitzgerald and Robert Holcomb were involved in a fight with the victim, T.H.  The fight occurred at the apartment of J.N. where appellant was temporarily staying until the first of the month when he would obtain new housing.   As a result of the fight, appellant was arrested and charged with one count of third-degree assault and two counts of fifth-degree assault. 

            At trial, the 911 call that J.N. placed was played for the jury.  In that call, J.N. informed the operator that “a guy got confronted about his beer and they beat the sh-t out of him.”  J.N. told the operator that Holcomb did most of it but that appellant kicked T.H. once in the mouth.  On the tape, appellant can be heard telling J.N. that he had nothing to do with it and J.N. saying to appellant, “You had nothing to do with it?  There’s blood on your shoe.  You kicked him in the face; I watched you kick him in the face, Zack.”  When the police officers arrived at the scene, Holcomb and appellant were not there.  After providing aid to the victim and taking his statement, the officers went to a neighboring apartment and located appellant and Holcomb.  The officers testified at trial that while they did not observe any blood on appellant, appellant was not wearing shoes, and he told the officers that he did not have any.  Appellant testified that he did not physically intervene in the fight and that T.H. had thrown the first punch at Holcomb.  Appellant further testified that his shoes were in the apartment, but the officers would not allow him to retrieve them.  Another witness, who was in the apartment at the time of the fight, testified that appellant was not involved in the fight. 

            After all of the evidence was presented, the district court’s instructions to the jury included, but were not limited to, the elements of the charged offenses, self-defense, defense of others, and the duty to retreat.   The district court further informed the jurors that copies of a pamphlet entitled “Behind Closed Doors – A Guide to Jury Deliberations” were in the deliberation room, and he encouraged them to read the pamphlets before they began deliberating.  The jury found appellant guilty of third-degree and fifth-degree assault.  Appellant was sentenced to prison for 31 months. 



Jury Deliberation Pamphlet


Appellant argues that the district court erred by providing the jury with a copy of the pamphlet entitled “Behind Closed Doors – A Guide for Jury Deliberations” and suggesting that the jurors read the pamphlet prior to deliberating.  “[A] criminal defendant seeking a new trial for an alleged defect in proceedings bears the burden of showing not only that there was a defect but that the defect was prejudicial.”  State v. Dame, 670 N.W.2d 261, 266 (Minn. 2003) (alteration in original) (quotation omitted).

“The trial court, in the final charge to the jury, has an obligation to clearly instruct the jurors on exactly what it is that they must decide.”  State v. Peterson, 673 N.W.2d 482, 485 (Minn. 2004).  The instructions must be given orally.  Minn. R. Crim. P. 26.03, subd. 18(5) (“the court shall state all matters of law which are necessary for the jury’s information in rendering a verdict and shall inform the jury that it is the exclusive judge of all questions of fact” (emphasis added)).  There is a presumption of prejudice “only in those cases where the district court’s procedural choices resulted in a high probability of prejudice to the defendant.”  Dame, 670 N.W.2d at 266.  Here, the court orally instructed the jury on the following: proof beyond a reasonable doubt, the duties of the court and jury, the evaluation of witnesses, the substantive law of the case, unanimous verdict, and the duty to discuss the case.  Further, the pamphlet repeatedly instructs the jurors to refer to the written copy of the jury instructions that have been provided to the jury if they had any questions.  Appellant has provided no evidence of actual prejudice; his argument suggests that prejudice should merely be presumed. 

Appellant argues that the district court, by suggesting that the jurors read the pamphlet, has imposed his views upon the jury or interjected himself as the thirteenth juror.  In State v. Dahlstrom, 276 Minn. 301, 150 N.W.2d 53 (1967), prior to sending the jury into the deliberation room, the district court suggested a procedure to the jury that would help them work their way through deliberation on a multitude of charges.  In Dahlstrom, the supreme court held that

[w]hile it is important that the trial judge should not in any way impose his views as to the order of procedure to be followed by the jurors in their decision of the case, we do not think that prejudicial error was committed in that regard in the context of the present problem.


Dahlstrom, 276 Minn. at 311, 150 N.W.2d at 61.  The pamphlet in this case is similar to the judge’s procedural suggestion in Dahlstrom as it provides the jurors with options on housekeeping issues and refers the jurors to the court’s written instructions if there are any questions.  As in Dahlstrom, the district court here did not commit prejudicial error by providing the jurors with a copy of the pamphlet prior to deliberating.

Duty-to-Retreat Jury Instruction


            Appellant argues that the district court erred in the final jury instructions because they did not adequately distinguish self-defense from defense of others and included a duty-to-retreat instruction.  Appellant concedes that the jury instructions were not objected to at trial.  Generally, “an appellate court will not consider an alleged error in jury instructions unless the instructions have been objected to at trial.”  State v. Baird, 654 N.W.2d 105, 113 (Minn. 2002) (citing State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998)).  However, even when a defendant does not object to the instructions, the reviewing court “could reverse if the instructions were misleading or confusing on fundamental points of law such as burden of proof and presumption of innocence.”  State v. Butler, 295 N.W.2d 658, 659 (Minn. 1980).  The Minnesota Supreme Court has adopted a three-prong test for plain error to determine whether the court should review an unobjected-to error.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Under the test, “there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.”  Id.  Here, the district court used the exact language of 10 Minnesota Practice, CRIMJIG 7.06 (1999) (self-defense) and 10 Minnesota Practice,CRIMJIG 7.08 (1999) (self-defense–retreat).  Prior to trial, appellant’s counsel gave notice of self-defense as a potential argument at trial, and counsel did not object to the jury instructions given by the court.  Further, appellant’s counsel made no request that the court modify the language from the standard jury instruction.  The standard jury instructions on these issues were read verbatim to the jury and these instructions comport with the legal standard for self-defense and the duty to retreat.  State v. Johnson, 310 N.W.2d 96, 97 (Minn. 1981) (stating the supreme court approves the self-defense instruction modeled in 10 Minnesota Practice, CRIMJIG 7.05-7.08 (1977)).  Therefore, it is unlikely that the instructions misled or confused jurors on a fundamental point of law. 

Finally, appellant argues that he had no duty to retreat because the incident occurred in “his place of abode” while he was defending Holcomb against an attack by the victim.  At trial, however, appellant testified that he had slept there one night and had only planned to stay for a few days.  Appellant did not own or rent the apartment where the incident occurred; in fact, J.N. testified that appellant did not have a key.  Even if the jury believed that appellant resided in the apartment and the first two prongs of the test were met, appellant failed to show that giving the instruction affected a substantial right.  With or without the instruction, there was more than sufficient evidence to rebut the claim of self-defense, and it is unlikely that appellant suffered prejudice.  Based on the evidence presented, the district court did not commit plain error by instructing the jury on self-defense, defense of others, and duty to retreat. 


*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.