This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1996).




State of Minnesota,



David Eugene Neal,


Filed April 15, 1997


Randall, Judge

Hennepin County District Court

File No. 96-6485

Hubert H. Humphrey, III, Minnesota Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent).

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender 2829 University Ave., SE, Suite 600, Minneapolis, MN 55414 (for Appellant).

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Appellant David Neal challenges the district court's decision not to interview all jurors upon learning that some of the jurors had discussed the case during trial, and seeks review of the court's imposition of a 150-month, rather than the presumptive 119-month, sentence. We affirm.


On January 23, 1996, Minneapolis police arrested Neal for his involvement in a robbery and multiple assaults and kidnappings. The state charged Neal with first-degree aggravated robbery, four counts of second-degree assault, and three counts of kidnapping, in violation of Minn. Stat. §§ 609.222, 609.245, subd. 1, and 609.25 (1996).

All of Neal's adult co-defendants pleaded guilty to charges ranging from gross misdemeanor endangerment of a child to criminal sexual conduct, and received prison sentences of between zero and 86 months.

Neal pleaded not guilty and demanded a jury trial. On the third day of trial, a member of the jury notified the court that she had overheard three jurors discussing the case. The reporting juror informed the court that the jurors in question had discussed the lifestyles of some of the witnesses and, in an attempt to determine how long the trial would last, had speculated as to which witnesses the parties would call to testify. The reporting juror stated that she did not hear any jurors discuss Neal's lifestyle, his guilt or innocence, or whether he would testify. She also said that what she overheard would not affect her ability to remain fair and impartial.

The court denied a defense request to interview all of the jurors, but did interview the one juror who the reporting juror was able to identify as having discussed the case during the trial. The identified juror confirmed that he had discussed the lifestyles of some of the witnesses and the length of the trial, but not the issue of Neal's guilt or whether Neal would testify. The defense moved for a mistrial, which the court denied. The court did, however, remind the jurors

how important it is that you not discuss the case among yourselves, you do not discuss or speculate about who may be called as a witness or not called as a witness, and that you understand the Defendant is presumed innocent.

He has no burden to go forward with any evidence or call any witnesses on his behalf. The burden is on the State to prove the Defendant guilty beyond a reasonable doubt and he has that presumption of innocence so if -- if there's a break or recesses, it's imperative that you not discuss the case among yourselves. You can talk about anything under the sky except this case.

The jury found Neal guilty of all charges except one count of second-degree assault. The presumptive sentence for the aggravated robbery conviction was 62 months, and the presumptive sentence for the two counts of second-degree assault were 21 and 36 months, respectively. The district court imposed consecutive sentences of 93 months for the aggravated robbery conviction, and 21 and 36 months for the two counts of second-degree assault. The court did not sentence Neal for his other convictions.


"The decision to grant a new trial based upon juror misconduct rests within the discretion of the trial court and will not be reversed unless there is an abuse of discretion." State v. Landro, 504 N.W.2d 741, 745 (Minn. 1993), cert denied 510 U.S. 1114, 114 S. Ct. 1059 (1994). The decision to depart upward from a presumptive sentence also lies in the district court's discretion where substantial and compelling circumstances exist for such a departure. State v. Best, 449 N.W.2d 426, 427 (Minn. 1989).


Neal argues that the jurors' communications concerning the lifestyles of the witnesses and the length of the trial constituted misconduct. Neal asserts that, in light of this alleged misconduct, the district court erred by failing to separately question each of the jurors about the communications to determine whether any prejudice had resulted from them.

While jurors must generally avoid contact with third persons during the course of a trial, see U.S. v. Heller, 785 F.2d 1524, 1528 (11th Cir. 1986) (finding mistrial where juror solicited explanation from accountant neighbor regarding tax issues involved in trial), and should not discuss a case before its conclusion, United States v. Tierney, 947 F.2d 854, 869 (8th Cir. 1991), Neal cites no binding authority, and we find none, for the proposition that communications among jury members concerning witnesses' lifestyles and which witnesses the parties will call to the stand constitute misconduct as a matter of law. It is not that the trial court could not have granted Neal's request to interview more jurors or all the jurors. The point is, on this record, the trial court's use of its discretionary power does not mandate a reversal and a new trial.

To justify a new trial on the basis of jury misconduct a defendant must prove not only misconduct, but also prejudice due to the misconduct. State v. Peterson, 262 N.W.2d 706, 707 (Minn. 1978). Assuming, for argument's sake, that the communications at issue here did constitute misconduct within the meaning of Minn. R. Crim. P. 26.04, subd. 1(3), Neal has not shown that such communications prejudiced him. Neal urges the court that some of the jurors might have understood, based on the comments they heard, that Neal "might have some obligation to come forward with witnesses." The jurors interviewed by the court did not, however, indicate that they or any of the other jurors had such an understanding. Nor did Neal produce any other evidence supporting his claim of prejudice. In fact, the juror who reported the intra-jury communications to the court stated that the comments did not affect her impartiality, and that two of the jurors who had overheard the comments "blocked them out." On this record, we are satisfied that the jurors' discussions did not prejudice Neal.

Here, the allegedly prejudicial information reached at least four jurors--the reporting juror and the three jurors who participated in the conversation. But the information was speculative, did not concern Neal's guilt or innocence, and came from the jurors themselves. The district court reminded the jury not to discuss the case among themselves and to remember that Neal had "no burden to go forward with any evidence or call any witnesses on his behalf." On this record, we conclude that the district court did not abuse its discretion by declining to interview all of the jurors.


Neal challenges the district court's upward departure from the 62-month presumptive sentence for his aggravated robbery conviction. In deciding whether to depart from a presumptive sentence, a district court should

(1) consider whether any mitigating or aggravating factors are present, (2) determine whether these circumstances are substantial and compelling circumstances justifying departure, and (3) if there are substantial and compelling circumstances, decide whether or not to depart.

State v. Skinner, 450 N.W.2d 648, 653-54 (Minn. App. 1990) (quoting State v. Leibfried, 309 N.W.2d 36, 36 (Minn. 1981), review denied (Minn. Feb. 28, 1990). A reviewing court will affirm a departure where the record shows that the reasons cited by the district court justify the departure, or where the district court relies on improper or inadequate reasons, but the record otherwise justifies the departure. Williams v. State, 361 N.W.2d 840, 844 (Minn. 1985).

Under the Minnesota Sentencing Guidelines, aggravating factors include particularly cruel treatment of a victim for which the offender should be held responsible. Minn. Sent. Guidelines II.D.2(b)(1), (2); see State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995) (affirming less than double departure where crime involved "gratuitous violence"); State v. Brown, 455 N.W.2d 65, 72 (Minn. App. 1990) (affirming less than double departure based on victim's permanent hearing loss and partial face paralysis), review denied (Minn. Jul. 6, 1990).

Here, the court noted the particular cruelty of the crime at the sentencing hearing when it stated that the victim

was assaulted in the head with an axe handle * * * suffered severe fractures to his skull and face, says he can't hear as well as he used to, says he's got vision troubles * * * .

The record discloses that the court did not cite any mitigating factors at the sentencing hearing.

In determining whether substantial and compelling circumstances exist, the court should examine whether the "defendant's conduct was significantly more or less serious than that typically involved in the commission of the crime in question." State v. Cox, 343 N.W.2d 641, 643 (Minn. 1984). Although the district court did not explicitly find that substantial and compelling reasons supported an upward departure here, the court did state that the

upward departure is justified because of the cruelty of the assault. You didn't seek treatment for this man, I think there was some talk about killing him and dumping his body in the river. It was gratuitous violence.

The court's comments regarding the particular cruelty of the robbery show that the court found Neal's conduct significantly more serious than that involved in a typical robbery. We conclude there is enough in the record to support the district court's upward departure.

Neal asserts in his pro se brief that "because the first sentence of 93 months was a departure, use of any consecutive sentencing was a departure * * * ." A court may impose consecutive sentences without such sentencing constituting a departure, however, where the court sentences for multiple current felony convictions for crimes against different persons and "the sentence for the most severe current conviction is executed according to the guidelines." Minn. Sent. Guidelines § II.F.2. The phrase "executed according to the guidelines" means "when the sentence for the most severe current conviction is, according to the guidelines, required to be executed and not stayed." State v. Lindsey, 314 N.W.2d 823, 825 (Minn. 1982).

Here, Neal was convicted of multiple felonies for crimes against different persons, the guidelines provide for a presumptively executed sentence for the most severe current conviction, aggravated robbery, and the court imposed consecutive executed sentences. As a result, the consecutive sentencing imposed by the district court did not constitute a departure.

Neal further urges this court to find his sentence excessive in light of the shorter sentences received by Neal's co-defendants. Neal's co-defendants, however, were charged with different, lesser crimes than Neal. Moreover, Neal's co-defendants pleaded guilty in exchange for lower charges and shorter sentences. Neal, in contrast, elected to forego the opportunity to plead guilty, sought a not guilty verdict, and accepted the risk of multiple convictions, consecutive sentences, and upward durational departure. On this record, we conclude the district court did not abuse its discretion by departing upward from the presumptive sentence for Neal's first-degree aggravated robbery conviction.