This opinion will be unpublished and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
Filed June 5, 2007
Dakota County District Court
File No. T6-05-067444
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Alina Schwartz, Campbell Knutson, P.A., 1380 Corporate Center Curve, Suite 317, Eagan, MN 55121 (for respondent)
Stephen V. Grigsby,
Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his conviction of obstruction of legal process, arguing that the district court’s jury instructions violated his right to a unanimous verdict, that the district court erred by admitting prejudicial evidence, and that the state committed prosecutorial misconduct. Because we conclude that neither the jury instructions nor the challenged evidentiary ruling was an abuse of the district court’s discretion and that any prosecutorial misconduct was harmless beyond a reasonable doubt, we affirm.
July 5, 2005, Burnsville Police Officers TerMeer and Yakovlev went to an
Officer Yakovlev knocked on the apartment door, appellant David Gherity answered the door, and the officers asked to speak to the female resident of the apartment. Gherity responded that she was on the phone with her daughter and that she was fine, and when the officers asked again to speak with her, Gherity responded that the officers could not enter without a warrant. Officer Yakovlev continued to speak with Gherity, and Officer TerMeer “started yelling” for the female resident, at which time Gherity “slammed the door into [Officer Yakovlev].” The officers entered, and Officer Yakovlev told Gherity to put his hands behind his back. Gherity “had his right hand in his pocket, was kind of turned and was heading back towards the bedroom area.” After a struggle, the officers handcuffed Gherity.
Gherity was charged with obstruction of legal process, in violation of Minn. Stat. § 609.50, subd. 1 (2004). He was convicted following a jury trial, and this appeal follows.
D E C I S I O N
Gherity argues that the district
court violated his right to a unanimous verdict by “permitting the prosecutor
to charge a single count yet present multiple, discrete events each of which,
if believed, could have been an independent basis to find appellant guilty of
obstructing legal process.” District courts are accorded
great deference in the language of the jury instructions and will not be
reversed absent an abuse of that discretion, although an error in the law is an
abuse of discretion. State v. Babcock, 685 N.W.2d 36, 40
(Minn. App. 2004), review denied (
In an on-the-record discussion of the proposed jury instructions, the state requested that the district court amend the instruction on the third element of obstruction to provide that the jury would have to find that Gherity “acted with the intention of obstructing, hindering, preventing, or interfering with Officer YakovlevorOfficer TerMeer.” The district court agreed to amend the instruction over defense counsel’s objection.
Gherity concedes that the state presented evidence that he (1) slammed the door into a police officer to prevent an investigation, (2) refused to produce the female resident of the apartment, (3) refused to allow the police to enter during a reported domestic dispute, and (4) resisted attempts to be restrained by police. Because any one of these acts could have amounted to obstruction, Gherity argues, the jury may not have unanimously agreed on the occurrence of any one act, and under Blakely v. Washington, he is entitled to a unanimous decision “of every fact necessary for conviction.”
A verdict must be
unanimous. Minn. R. Crim. P. 26.01,
subd. 1(5). This court has held that the
jury must be unanimous in its ultimate conclusion (guilt or not) but need not
unanimously agree on the means the defendant used to accomplish the act that
constituted the offense. State v. Begbie, 415 N.W.2d 103, 106 (
Gherity cites Stempf to support his argument that the
jury may have convicted him without agreeing on the “exact facts,” which would
have violated his right to a unanimous verdict.
In Stempf, the police found narcotics
in the defendant’s workplace; when the defendant arrived at the workplace
during the search, the police also searched his vehicle and found
This court determined in Stempf that because the statute makes possession an element of the
crime, the jury must agree unanimously on at least one act of possession.
In Stempf, the court explained that the incident at issue was not a
single course of conduct—the acts of possession occurred at different places
and at different times.
next argues that the district court abused its discretion by admitting evidence
of the details of the call from a daughter of Gherity’s girlfriend to police
dispatch that led police officers to be present at Gherity’s home. The call “included information there was a
history of domestic violence between [Gherity] and the female resident.” Defense counsel moved to exclude any
reference to any history of domestic violence.
The state explained that it would offer the evidence of the details of
the dispatch call to show only “what the officers had in their mind” and “why
they felt it was necessary to go in that apartment.” The district court concluded that because the
evidence would not be offered for the truth of the matter asserted, it was
“therefore not hearsay,” and the court admitted the evidence “as foundational
evidence only,” assuring counsel that it would prepare a cautionary instruction
for the jury. The district court further
concluded that the probative value of the evidence outweighed its prejudicial
effect, so the evidence was not inadmissible under Minn. R. Evid. 403. See
rulings rest within the sound discretion of the district court. State
v. Amos, 658 N.W.2d 201, 203 (
Gherity asserts that because the caller did not personally observe anything in the apartment and was not available for cross-examination, the evidence of the history of domestic violence “was not relevant to anything” and was “pure prejudice” and therefore “forbidden under Minn. R. Evid. 404(a).” Gherity further argues that the evidence was prejudicial because the district court’s curative instruction was ineffective and because “the evidence was not overwhelming,” so the jury might “perhaps” have been swayed by the “hint that [he] was a repeat domestic assailant.”
an attempt to establish that admission of the evidence was error, Gherity cites
two cases, State v. Williams, 525
N.W.2d 538 (
as in Ford, the district court
limited any potential prejudicial effect by giving a cautionary instruction in
the form that defense counsel requested and by giving the instruction to the
jury three separate times. Although
Gherity asserts on appeal that the cautionary instruction could not cure the
damage, he has not met his burden of showing that any error was
Gherity argues finally that the district court erred when it denied his motion for a mistrial after the prosecutor “commented on [Gherity’s] decision about testifying.” The exchange to which Gherity refers took place after the police officer, the state’s only witness, finished testifying. The district court asked in the jury’s presence, “Do either of you have any objection to my excusing the officer?” And the prosecutor replied, “I don’t know whether Mr. Gherity’s going to testify, and I’ve asked the officer to remain available for possible—.” The prosecutor explained later, after the jury had been dismissed, that he had been about to say that he asked the officer to remain available for possible rebuttal testimony. Defense counsel moved for a mistrial, and the district court denied the motion but offered to give a curative instruction, which defense counsel declined.
Gherity asserts that the comment was prosecutorial misconduct and that it prejudiced him because it compelled him to testify, which he would not have done otherwise. The state argues that the prosecutor’s comment was not misconduct because “it was neither directed at the jury nor did it reference the failure of [Gherity] to testify.” The state further argues that even if the comment was misconduct, it was harmless because the comment was brief and the evidence against Gherity was substantial.
In general, prosecutors “may not
directly or indirectly comment on a defendant’s failure to testify.” State v.
DeRosier, 695 N .W.2d 97, 107 (
even if we were to conclude that the prosecutor’s comment was misconduct,
Gherity is not entitled to relief if the misconduct was harmless beyond a
reasonable doubt, that is, if the jury’s verdict was “surely unattributable” to
 The record does not indicate what the original proposed jury instruction provided, but it is likely that the instruction asked the jury to specify an officer because defense counsel objected on the ground that the instruction as amended would allow the jury to convict without “agreement as to the actual facts of the case.”