This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Lennie C. White,
Filed February 13, 2007
Stearns County District Court
File No. K1-04-2020
Lori Swanson, Attorney General,
James B. Early, Assistant Attorney General, 1800
John M. Stuart, State Public
Defender, Benjamin J. Butler, Assistant Public Defender,
Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from conviction of third-degree
assault, appellant argues that he is entitled to a new trial because (1) the
prosecutor committed prejudicial misconduct when cross-examining appellant by
implying that appellant had tampered with a witness and (2) the jury rendered
contradictory verdicts when the jury foreperson signed both the guilty and not-guilty
verdict forms for the count of third-degree assault. This court requested supplemental briefing on
the first issue in light of State v.
Ramey, 721 N.W.2d 294 (
During trial, the prosecutor cross-examined appellant about his interaction with a spectator in the courtroom. The relevant portion of the transcript reads:
now challenges his conviction of third-degree assault. While preparing the appeal, appellant’s
counsel discovered that the district court file contained the guilty and the not-guilty
verdict forms for the third-degree-assault count, both of which had been signed
and dated by the jury foreperson. After oral
argument to this court, we requested supplemental briefing in light of the
supreme court’s analysis of a claim of prosecutorial misconduct in State v. Ramey, 721 N.W.2d 294 (
Appellant argues that the prosecutor committed prejudicial misconduct when she cross-examined him. Specifically, appellant contends that the prosecutor improperly implied that appellant took part in witness tampering and did not provide him with proper notice of her intention to question him about that subject matter.
party does not preserve an objection for appeal if the grounds on which he or
she objected at trial are different from those raised on appeal. State
v. Rodriguez, 505 N.W.2d 373, 376 (
the defendant has failed to object to alleged prosecutorial misconduct, we
review the claim for plain error. State v. Ramey, 721 N.W.2d 294, 299 (
Appellant argues that the prosecutor’s questions were admitted in violation of Minn. R. Evid. 608(b), which governs the use of specific instances of misconduct to impeach a witness’s credibility.
The prosecutor in a criminal case generally may not cross-examine a defendant or defense witnesses pursuant to Minn. R. Evid. 608(b) about prior misconduct unless (a) the prosecutor has given the defense notice of intent to cross-examine pursuant to the rule, (b) the prosecutor is able to provide the trial court with sufficient evidentiary support justifying the cross-examination, and (c) the prosecutor establishes that the probative value of the cross-examination outweighs its potential for creating unfair prejudice to the defendant.
State v. Fallin, 540 N.W.2d 518, 522 (
Here, the subject of the
prosecutor’s questions was a conversation between appellant and a spectator
that took place in the courtroom, not an uncharged prior bad act or an act
similar to the conduct for which appellant was being tried. Thus, this case can be distinguished from
those in which the prosecutor asked about prior uncharged criminal acts or acts
similar to the crimes charged. See Fallin,
540 N.W.2d at 519-20 (concluding that it was error when appellant, charged with
criminal sexual conduct, was asked about whether he had committed specific
uncharged conduct); Harris, 521
N.W.2d at 354 (concluding that it was misconduct for the prosecutor to elicit
testimony of prior bad acts in which the appellant, who was charged with
first-degree murder, planned to beat his girlfriend and made intimidating
statements to a female friend); State v.
Appellant also argues that the prosecutor failed to give notice or provide sufficient evidentiary support for the line of questioning. However, “[t]he standard is not whether the prosecutor actually thereafter calls a witness to support his insinuations, but whether there is a factual predicate for the questions in that the prosecutor is able to produce extrinsic evidence to support the insinuating cross-examination.” Fallin, 540 N.W.2d at 521. Here, appellant’s friend was observed talking to the spectator in the courtroom. And in his appellate brief, appellant admitted to that conversation and that the spectator gave the witness a ride home. Given that the witness’s testimony differed significantly from his statement to the prosecutor’s office, we conclude that there was a factual basis for the prosecutor’s questions, even though the prosecutor’s inference from the contact, and the spectator’s act of giving Mercherson a ride, may be weak. Because the underlying incident occurred during trial, the prosecutor could not have given significant advance notice of the line of questioning. Thus, appellant has not shown that any error in the prosecutor’s questions constituted error that was plain.
even if the prosecutor’s questions constituted error that was plain, appellant
is not entitled to relief unless they significantly affected the outcome of the
case. Appellant argues that the
prosecutor’s questions suggested to the jury that he had engaged in witness
tampering and, therefore, prejudiced the jury against him because the case
largely rested on witness credibility.
Under Ramey, the prosecution now bears the
burden of showing that the alleged prosecutorial misconduct did not
significantly affect the outcome of the case.
721 N.W.2d at 302; see generally
State v. Griller, 583 N.W.2d 736, 741 (
While the prosecutor’s questions suggested improper conduct by appellant, they accounted for only one page of a 200-page transcript. Furthermore, the prosecutor did not revisit the subject of that line of questioning in her closing argument, either directly or indirectly. Instead, she concentrated on the inconsistent statements made by Mercherson, the witness who allegedly had been spoken to, Mercherson’s intoxicated state at the time of the incident, and his previous conviction of a controlled-substance crime. The prosecutor also focused on appellant’s credibility and his previous convictions of social security fraud and check forgery. Even if the jury did credit the prosecutor’s allusion to witness tampering, in light of all the other evidence bearing on the credibility of the witness and of appellant, there is no indication that the prosecutor’s questions had a significant effect on the outcome of the case.
Appellant also argues that the jury returned contradictory verdicts, thereby requiring a new trial. The record establishes that the jury foreperson signed and dated both guilty and not-guilty verdict forms on the third-degree-assault count. The jury was polled without counsel or the court apparently noticing the not-guilty verdict form. The jurors individually affirmed that the not-guilty verdicts on the first two counts and the guilty verdict on the third-degree-assault count were their true verdicts. Appellant argues, however, that the existence of contradictory verdict forms requires a new trial.
Minn. Stat. § 631.17 (2002) provides that
when a verdict such as the court may receive is returned, the court administrator shall immediately file it in open court and read it to the jury, and ask the jurors if it is their verdict. If a juror disagrees, that fact shall be entered upon the minutes, and the court shall send the jury out to deliberate further. If no disagreement is expressed by the jury, the verdict is complete, and the court shall discharge the jury from the case. The court administrator shall immediately record the verdict in full in the court minutes.
When the verdict
is rendered and before the jury is discharged, the jury shall be polled upon
the request of a party or the court’s own motion.
appellant did not raise the claim of contradictory jury verdicts before the
district court, the interests of justice clearly require that we address it for
the first time on appeal. See Minn. R. Crim. P. 28.02, subd. 11
(stating the appellate court “may review any other matter as the interests of
justice may require”); cf. State v.
The jury was provided with six verdict forms—one not-guilty verdict form and one guilty verdict form for each of the three counts. It is undisputed that the jury foreperson signed both the guilty and not-guilty verdict forms for the third-degree-assault count. While the record before this court is incomplete, neither party disputes the existence of the two signed verdict forms on this count. Further, neither party alleges that the district court was aware of the contradictory verdict forms before the jury was discharged. To the contrary, our review of the record indicates that the jury foreperson handed the clerk only three verdict forms, which the clerk immediately read in open court. Those verdict forms did not include the not-guilty verdict on the third-degree-assault count. But somehow the not-guilty verdict form on that count later ended up in the district court file. Because the verdicts on the third-degree-assault count are directly contradictory, they are legally inconsistent.
a legally inconsistent jury verdict warrants reversal. State
v. Crowsbreast, 629 N.W.2d 433, 440 (
relies on two opinions from the Missouri Court of Appeals. In State
v. Dorsey, 706 S.W.2d 478 (Mo. Ct. App. 1986), a jury found the defendant
not guilty of second-degree burglary, but returned both guilty and not-guilty
verdict forms on a charge of stealing.
While the foreman had signed both the guilty and not-guilty verdict
forms on the stealing charge, the trial court, apparently unaware of the
contradictory verdicts, announced that the jury had found the defendant guilty
[b]ecause the obvious inconsistency and ambiguity in the verdict forms on the same charge were neither brought to light by the trial court nor cured by the trial court by returning the jury to further deliberate and correct the mistake or by polling the jury, defendant was prejudiced and denied his right to a fair trial.
in State v. Zimmerman, 941 S.W.2d 821
Zimmerman court determined that the
confusion surrounding the contradictory verdicts could have been alleviated by
polling the jury and that questioning only the jury foreperson was not the
equivalent of individually polling the jurors.
We are confident that had the trial court asked the jury which Count I verdict was its true verdict, the confusion could have been cleared up. However, because there was no polling of the jury as to which of the inconsistent verdicts it agreed, the inconsistent verdicts remain.
the reasoning of the
Despite the weight placed on jury polling, we are unconvinced that here, without the presence of contradictory verdicts having been brought to their attention, the polling of the jury was adequate to insure that each juror understood that he or she was returning a guilty verdict on the third-degree assault charge. Generally, a district court would discover or have brought to its attention inconsistent or contradictory jury verdicts in time to order the jury to deliberate further in order to decide on a single verdict. But in this case, where the existence of contradictory verdicts was not mentioned on the record and there is no evidence that the district court was aware of the circumstances, we conclude that a Schwartz hearing inquiring into the jurors’ awareness of the contradictory verdicts is required.
appellate court may remand on its own motion for further fact-finding. See
Dunn v. State, 486 N.W.2d 428, 433 (
most likely explanation for the contradictory verdicts in this case is clerical
error. There is no indication that the
guilty and not-guilty verdict forms reflected a disagreement among the jurors
so that a Schwartz hearing would invite
an inquiry into the thought processes or deliberations of the jury. See
generally State v. Martin, 614
N.W.2d 214, 226 (
 Appellant’s brief indicates that, at some point, the district court file contained six verdict forms: one “guilty” form and one “not guilty” form for each of the three counts. However, the record before us only contains three verdict forms: two “not guilty” forms for counts one and two, and a “guilty” form for count three. The state does not dispute appellant’s representation of the district court file, nor does it dispute that the two contradictory verdict forms exist. While the actual not-guilty verdict form for the third-degree-assault count is not in the district court record that we received, a photocopy was included in the appendix to appellant’s brief.
 Schwartz v. Minneapolis Suburban Bus Co.,
 Although the scope
of the Schwartz hearing required here
is narrow, the supreme court has ordered a second remand for a Schwartz hearing after the first remand
produced only a partial record, from the presiding judge’s perspective, on the
extent of judge-jury communication. State v. Martin, 723 N.W.2d 613, 618 (