This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Justin Michael Buermann,
Filed on September 11, 2007
Otter Tail County District Court
File No. K8-05-396
Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, 121 Junius Avenue, Fergus Falls, MN 56537 (for respondent)
John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Kalitowski, Judge; and Muehlberg, Judge.*
Appellant challenges his conviction of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h) (2004), arguing that the district court abused its discretion by (1) admitting Spreigl evidence of his sexual relationship with an underage friend of the victim and (2) denying his motion for a Schwartz hearing to investigate potential juror misconduct. In a pro se supplemental brief, appellant also contends that he was denied the effective assistance of counsel. We affirm.
Jacqueline Buermann and appellant Justin Michael Buermann were married in 1991. At that time, Jacqueline had an eight-month-old daughter, K.T.B.; appellant is not K.T.B.’s father. Jacqueline and appellant had two children together during their marriage; daughter K.B. and a son. In May 2004, Jacqueline moved out of the home with K.B. and her son, after problems arose between her and appellant. K.T.B. remained with appellant at the time. Jacqueline later testified that K.T.B. stayed with appellant because “she wanted to stay there at that time and that’s who [appellant] wanted with him so that he wasn’t by himself.” K.T.B., who was then 13 years old, later testified that she decided to stay with appellant because she was afraid that he would commit suicide if she moved out.
But in October 2004, K.T.B. moved in with Jacqueline after K.T.B. got poison ivy and appellant allegedly refused to take her to a doctor. While K.T.B. lived with Jacqueline, appellant often told K.T.B. that he was going to commit suicide because “nobody love[d] him.” In February 2005, Jacqueline moved back into appellant’s home with all three children, in an attempt to “work on [her] marriage with appellant.” But once again, Jacqueline and the children eventually moved out.
In March 2005, K.T.B. told her sister, K.B., that appellant had been sexually abusing her since she was in the fourth grade. K.B., in turn, told K.T.B. that appellant had also sexually abused her on one occasion. The girls decided that they should tell their school counselor, Sara Pender, about the incidents of sexual abuse. On March 4, 2005, K.B. and a friend went to see Pender. Because K.B. was unable to tell Pender orally what had happened to her, at Pender’s request, she wrote about the abuse on a piece of paper that she then gave to Pender. K.B. indicated that on one occasion, when she was about ten years old, appellant had “fingered” her when she was sleeping in a bed with appellant and Jacqueline. K.T.B. was also unable to tell Pender orally about her abuse, so Pender asked K.T.B. to write down what had happened to her. K.T.B. indicated that appellant had been sexually abusing her since she was in the fourth grade and had forced her to have sexual intercourse on a number of occasions.
That same day, appellant was arrested and subsequently charged with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h) (2004), for the sexual abuse of K.T.B., and one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(g), for the sexual abuse of K.B.
K.T.B. at trial testified that appellant began sexually abusing her when she was in the fourth grade and continued abusing her over the next five years, often forcing her to perform fellatio, give him a “hand job,” and have sexual intercourse several times a day. K.T.B. also testified that appellant would videotape her getting out of the shower and the two of them having sexual intercourse. At the end of her eighth grade year in school, K.T.B. told appellant that she wanted the sexual abuse to end. But in response, appellant threatened K.T.B. that if she told anyone of the abuse he would kill her and Jacqueline and would go to prison.
The state sought to introduce Spreigl evidence through the testimony of Jess Wifall, a former roommate of appellant, and Steve Anderson, a prison inmate, that appellant had had a sexual relationship with a 15-year-old friend of K.T.B. The district court allowed the state to introduce the testimony as evidence of a common scheme or plan. Wifall testified that in November 2004 he observed appellant talking on the Internet with one of K.T.B.’s friends. Appellant told Wifall that the girl was 15 years old and that “they had fooled around before” and had had “intercourse.” Wifall testified that the conversation between appellant and the girl was “pretty graphic,” and when Wifall told appellant that it was wrong, appellant responded that “it was fun.” Anderson testified that he met appellant in jail and that appellant said various things, such as “Families that play together, stay together,” and “When they’re old enough to bleed, they’re old enough to breed.”
Appellant was convicted of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(h), for the sexual abuse of K.T.B. and was subsequently sentenced by the district court to 144 months in prison. Appellant moved for a new trial and/or a Schwartz hearing after receiving a telephone call from one of the jurors approximately one week after trial. The juror stated that he did not want to vote guilty but was pressured to do so by the other jurors and that he could not continue deliberations because of a heart condition. Appellant also argued that a Schwartz hearing was justified based on the juror’s failure to indicate that he had a heart condition when the panel asked during voir dire whether anyone had a medical condition that would prevent them from deliberating for an extended period of time. The district court denied appellant’s motion for a Schwartz hearing, determining that the district court would not have been able to inquire into such issues pursuant to Minn. R. Evid. 606(b) and relevant case law.
This appeal follows.
Appellant argues that the district court abused its discretion by admitting Spreigl evidence that he had a sexual relationship with a 15-year-old friend of K.T.B. “Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citations omitted).
Generally, evidence of prior bad acts is “not admissible to prove the character of a person in order to show action in conformity therewith.” Minn. R. Evid. 404(b). But evidence of prior bad acts may be admissible as proof of “motive, opportunity, intent preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. Such evidence is commonly referred to in Minnesota as Spreigl evidence. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). The “admission of Spreigl evidence lies within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion.” State v. Spaeth, 552 N.W.2d 187, 193 (Minn. 1996); see also State v. Scruggs, 421 N.W.2d 707, 715 (Minn. 1988). The appellant bears the burden of establishing that the district court’s evidentiary rulings were in error and that he was thereby prejudiced. State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981).
The district court may admit Spreigl evidence of other bad acts when: (1) the state gives notice of its intent to admit the evidence; (2) the state clearly indicates what the evidence will be offered to prove; (3) there is clear and convincing evidence that the defendant participated in the prior act; (4) the evidence is relevant and material to the state’s case; and (5) the probative value of the evidence is not outweighed by its potential prejudice to the defendant. State v. Ness, 707 N.W.2d 676, 686 (Minn. 2006). “When it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded.” Kennedy, 585 N.W.2d at 389.
Here, the state sought to admit the testimony of Jess Wifall and Steve Anderson concerning a sexual relationship that appellant had with a 15-year-old friend of K.T.B. to show appellant’s motive, intent, preparation, plan, knowledge, and absence of mistake or accident. During trial, the state also argued that the testimony was admissible as evidence of a common scheme or plan. The district court allowed the state to introduce the testimony as evidence of a common scheme or plan, specifically noting that the state gave notice of its intent to use the evidence, there was clear and convincing evidence that appellant participated in the prior act, the state’s case was “sufficiently weak to justify the admission” of the additional evidence, and the probative value of the evidence outweighed any prejudice to appellant.
Appellant does not dispute that: (1) the state gave proper notice of its intent to admit the evidence, (2) the state adequately indicated what the evidence would be offered to prove, (3) there was clear and convincing evidence of appellant’s participation in the prior act, and (4) the probative value of the evidence outweighs any potential prejudice to appellant. But appellant argues that the evidence of his prior acts was not relevant and material to the state’s case.
In determining the relevance and materiality of Spreigl evidence, the [district] court should consider the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place or modus operandi. The closer the relationship between the events, the greater the relevance or probative value of the evidence and the lesser the likelihood the evidence will be used for an improper purpose.
Kennedy, 585 N.W.2d at 390 (quotations omitted). In Ness, 707 N.W.2d at 688, the Minnesota Supreme Court stated that a Spreigl offense need not be identical to the charged crime but “must have a marked similarity . . . to the charged offense.” See also State v. Matteson, 287 N.W.2d 408, 411 (Minn. 1979) (noting that when evaluating Spreigl evidence, the more similar the prior crime is “to the crime charged in time, place or modus operandi, the greater the chance that the other crime is relevant”).
The main issue in this case was whether and to what extent appellant had sexually abused his stepdaughter, K.T.B. The Spreigl evidence was significant because it tended to show that appellant, by engaging in a sexual relationship with one of K.T.B.’s 15-year-old friends, had a common scheme or plan to engage in sexual relationships with underage girls. Further, as the state notes, the evidence also tended to rebut appellant’s claim that K.T.B.’s allegations were fabricated or that Jacqueline forced K.T.B. to make up the allegations. In addition, a number of marked similarities exist between the prior act with K.T.B.’s friend and the abuse of K.T.B., including: both acts of abuse were committed against young, underage girls, who were close in age at the time of the acts; both acts took place at approximately the same time; both girls were friends at the time of the abuse and shared a circle of friends; appellant established a friendship-type relationship with both girls, despite the fact that one of them was his stepdaughter; appellant had conversations with others (i.e., Wifall and Anderson) about his sexual relationships with both girls; and appellant used online conversations with both girls in an attempt to develop a deeper relationship with them. Because the state had a reasonable need for the evidence and because there were marked similarities between the charged offense and the evidence of appellant’s relationship with K.T.B.’s friend, we conclude that the Spreigl evidence was relevant. Therefore, the district court did not err in admitting the Spreigl evidence under the common-plan-or-scheme exception.
But even if the district court erred in admitting evidence of appellant’s prior bad acts, a reviewing court must determine 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); see also Ness, 707 N.W.2d at 691 (stating that if the district court erroneously admitted Spreigl evidence, this court must determine whether there is a reasonable possibility that wrongfully admitted evidence significantly affected the verdict).
Here, an overwhelming amount of evidence supports the jury’s conclusion that appellant was guilty of first-degree criminal sexual conduct as a result of his sexual relationship with K.T.B. K.T.B. gave detailed testimony about the history and nature of the sexual assaults committed by appellant. K.T.B.’s testimony was supported by additional evidence, including: (1) the testimony of witnesses who stated that K.T.B. was appellant’s favorite child, that appellant ignored the other children, and that the only reason appellant wanted the family to stay together was so that he could spend more time with K.T.B.; (2) testimony by Wifall and K.T.B.’s grandfather that appellant and K.T.B. had been in a bed/bedroom together on separate occasions under suspicious circumstances; (3) evidence of notes, e-mails, and Internet conversations written by appellant to K.T.B. expressing appellant’s love and desire for K.T.B. and stating that he would commit suicide if she did not love him in return and move back in with him; (4) appellant’s statement to K.B. that K.T.B. might tell her some things but that she should not believe them because they were not true; (5) evidence that appellant would tell K.T.B., in front of the other children, that if she loved him, she would give him back rubs and cuddle with him; (6) the videotape of K.T.B. going to the bathroom, which was later recorded over; and (7) testimony by a number of witnesses that appellant and K.T.B. did not have the typical father-daughter relationship but instead acted more like friends.
Based on this evidence, we conclude that even if the district court erred in admitting the Spreigl evidence through the brief testimony of Wifall and Anderson, any error did not significantly affect the verdict.
Appellant also argues that the district court abused its discretion when it denied his motion for a Schwartz hearing. When a party alleges juror misconduct, the district court may order a hearing with the jurors to investigate the claim, in the presence of all interested parties. Minn. R. Crim. P. 26.03, subd. 9; Opsahl v. State, 677 N.W.2d 414, 421-22 (Minn. 2004) (citing Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960)). But “[i]n order to be entitled to a Schwartz hearing, a defendant must establish a prima facie case presenting sufficient evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.” State v. Martin, 614 N.W.2d 214, 225-26 (Minn. 2000) (quotation and citation omitted). If a defendant has established a prima facie case, a district court should liberally grant a request for a Schwartz hearing. State v. Church, 577 N.W.2d 715, 720 (Minn. 1998). We review a district court’s denial of a Schwartz hearing for an abuse of discretion. Martin, 614 N.W.2d at 226.
Appellant moved for a Schwartz hearing, alleging that “[o]n or about February 2, 2006,” approximately a week after trial had ended, a juror called appellant’s attorney “and declared that he did not want to vote guilty” but “that he was pressured by the other jurors and that he could not continue deliberations any longer because of a heart condition.” During a hearing on appellant’s motion, the district court stated that after the jurors had been excused from jury duty, the district court became aware that one of the jurors had mentioned to a bailiff that he thought there was going to be a break during deliberations during which he could take his heart medication. The juror never requested a break during deliberation or advised any court personnel of any medical condition. The district court denied appellant’s motion for a Schwartz hearing, determining that despite the juror’s posttrial statements, it would not have been allowed to inquire into the issue during a Schwartz hearing because the statements were “not a proper basis for the [c]ourt to determine whether the verdict [wa]s to be impeached” under Minn. R. Evid. 606(b) and relevant case law. We agree.
The evidence that the district court may consider in a Schwartz hearing is limited. State v. Buchmann, 380 N.W.2d 879, 883 (Minn. App. 1986). Specifically, Minn. R. Evid. 606(b) provides:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention, or whether any outside influence was improperly brought to bear upon any juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
In addition, the rule 606(b) comments state that
[t]he amended rule allows jurors to testify about overt threats of violence or violent acts brought to bear on jurors by anyone, including by other jurors. Threats of violence and use of violence is clearly outside of the scope of the acceptable decisionmaking process of a jury. The pressures and dynamics of juror deliberations will frequently be stressful and jurors will, of course, become agitated from time to time. The [district] court must distinguish between testimony about “psychological” intimidation, coercion, and persuasion, which would be inadmissible, as opposed to express acts or threats of violence.
Minn. R. Evid. 606(b) 1989 comm. cmt.
Here, the juror at issue did not allege that he was pressured to reach a certain verdict by outside influence, express threats of violence, or violent acts. Instead, the juror claimed that his decision was influenced by pressure from other jurors, as well as his inability to continue deliberations due to a heart condition. But Minnesota courts have held on a number of occasions that a district court may not inquire into such issues on motions for a new trial or a Schwartz hearing. See State v. Gavle, 234 Minn. 186, 208-11, 48 N.W.2d 44, 56-58 (1951) (affirming denial of new trial where “physical discomforts suffered by jury forced at least one juror to accede to a verdict of guilty in order to escape such discomforts”); State v. Hook, 176 Minn. 604, 607-08, 224 N.W. 144, 145-46 (1929) (affirming conviction despite juror’s affidavit indicating that she voted for a guilty verdict only because she was ill on the day of the verdict and because of the inconvenience and lack of separate accommodations for the women jurors); State v. Jackson, 615 N.W.2d 391, 396 (Minn. App. 2000) (affirming denial of Schwartz hearing under Minn. R. Evid. 606(b) when juror was allegedly pressured into finding defendant guilty by another juror), review denied (Minn. Oct. 17, 2000); Buchmann, 380 N.W.2d at 883 (denying motion for Schwartz hearing when juror remarked that she did not believe defendant was guilty even though she voted that way, reasoning that such testimony was not admissible under Minn. R. Evid. 606(b)).
In addition, after the jury had returned its verdict, the district court polled each member of the jury, and each member answered affirmatively, including the juror in question. Now it appears that the juror in question is having second thoughts about his decision. But this court has stated that “[a]bsent a showing of juror bias or prejudice or outside influence, claims of second thoughts are too late and cannot be used to impeach a verdict.” Buchmann, 380 N.W.2d at 883; see also State v. Fitzgerald, 382 N.W.2d 892, 896 (Minn. App. 1986) (holding that a juror’s “second thoughts about a verdict [do] not necessitate a new trial” after the jury was polled and all agreed with the verdict), review denied (Minn. Apr. 24, 1986). Furthermore, the record indicates that the juror did not make any of his concerns known to anyone during deliberations and did not communicate his medical condition to a bailiff or the district court until after the verdict had been returned.
Because the juror was not improperly pressured by outside influences and was not threatened with violence but instead was allegedly pressured into voting guilty by other jurors and as a result of his heart condition, circumstances that the district court is prohibited from examining, we conclude that the district court did not abuse its discretion when it denied appellant’s motion for a new trial or a Schwartz hearing.
Appellant argues in his pro se brief that he was denied effective assistance of counsel. Generally, the merits of an ineffective-assistance-of-counsel claim should be raised in a petition for postconviction relief rather than on direct appeal. State v. Gustafson, 610 N.W.2d 314, 321 (Minn. 2000). But this court may consider an ineffective-assistance-of-counsel claim on direct appeal when an appellant requests that we do so and when the record is sufficient to allow proper review of the ineffective-assistance-of-counsel claim. Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001).
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. State v. Wright, 719 N.W.2d 910, 919 (Minn. 2006) (citing McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 1449 (1970)). To show ineffective assistance of counsel, appellant “must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). An insufficient showing on one of these requirements defeats an ineffective-assistance claim. Strickland, 466 U.S. at 686, 104 S. Ct. at 2063; Gates, 398 N.W.2d at 561. This court need not address both the performance and prejudice prongs if one is determinative. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069; Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997).
Appellant first argues that he was denied effective assistance of counsel when his trial attorney failed to raise his suicidal tendencies as a defense, failed to seek out medical attention for appellant, and failed to present expert medical testimony regarding appellant’s medical state on the dates of the offenses and during trial. Appellant also argues that his representation was deficient because his trial attorney allegedly asked appellant’s wife, Jacqueline, to lie in court. Finally, appellant contends that his counsel failed to properly argue pretrial issues, failed to request “particular” jury instructions, and prejudiced him by wearing a tie on the first day of trial that stated “Not Guilty.” Because the record on direct appeal is sufficient to review appellant’s ineffective-assistance-of-counsel claims without additional fact-finding, we will address the merits of appellant’s claims rather than remand for a postconviction evidentiary hearing.
Appellant fails to affirmatively show, as is required, that his counsel’s representation fell below an “objective standard of reasonableness.” First, as the state notes, expert testimony regarding appellant’s medical state would be of little consequence, as first-degree criminal sexual conduct is not a specific-intent crime. Second, there is nothing in the record to indicate that appellant’s counsel asked Jacqueline to lie. Instead, the record indicates that it was appellant himself who sought such testimony from Jacqueline. In addition, appellant’s own testimony at trial contradicted Jacqueline’s testimony that she was asked to lie, and the jury had the opportunity to evaluate the credibility of both witnesses and come to a reasonable conclusion.
The remainder of appellant’s complaints, including his counsel’s failure to raise appellant’s alleged suicidal tendencies as a defense, to present medical testimony, and to request certain jury instructions, concern the decisions of appellant’s counsel with regard to trial strategy. Appellate courts give particular deference to counsel’s decisions regarding trial strategy and will not reverse a conviction where a defendant disagrees with his counsel’s strategic decisions and trial tactics. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998); see also State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999) (concluding that “[w]hat evidence to present to the jury, including which defense to raise at trial and what witnesses to call, represent an attorney’s decision regarding trial tactics which lie within the proper discretion of trial counsel and will not be reviewed later for competence”); State v. Doppler, 590 N.W.2d 627, 635 (Minn. 1999) (stating that the supreme court does not “review for competence matters of trial strategy”); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (noting that appellate court, having benefit of hindsight, should not review trial tactics; trial counsel must be given flexibility to represent client to the fullest extent possible); Brown v. State, 292 Minn. 174, 177, 193 N.W.2d 613, 616 (1972) (stating that trial tactics are not to be confused with competence).
We do not agree with appellant that his counsel was ineffective. But even if appellant could show that his counsel’s representation fell below an objective standard of reasonableness, appellant has not demonstrated any prejudice. The supreme court has said that a “defendant must show that counsel’s errors ‘actually’ had an adverse effect in that but for the errors the result of the proceeding probably would have been different.” Gates, 398 N.W.2d at 562 (quoting Strickland, 466 U.S. at 693-94, 104 S. Ct. at 2067-68). In making this determination, the reviewing court considers “the totality of the evidence before the judge or jury.” Id.
Here, appellant has not shown that, but for his counsel’s alleged errors, the result would have been different. The record evidence supporting the verdict is notably strong. Therefore, we conclude that appellant was not denied his right to effective assistance of counsel.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
It is well-settled law that ordinarily “a verdict to which, on a poll, every
member assented may not be thus impeached.”
State v. Flaherty, 158 Minn.
254, 255, 197 N.W. 284, 285 (1924). “The
purpose of jury polling is to ensure that each of the jurors approves of the
verdict as returned [and] that no one has been coerced or induced to sign a
verdict to which he does not fully assent.”
Burns v. State, 621 N.W.2d 55,