This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-278

 

Charles Lee Spann, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed July 25, 2006

Affirmed in part and remanded

Kalitowski, Judge

 

Ramsey County District Court

File No. K7-00-1016

 

Bradford Colbert, Legal Assistance to Minnesota Prisoners, 875 Summit Avenue, Room 254, St. Paul, MN 55105 (for appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

The supreme court remanded this appeal from a postconviction order denying appellant Charles Spann’s petition challenging his 2000 conviction and sentence on two counts of first-degree criminal sexual conduct.  Initially the district court sentenced appellant to two consecutive terms of 118 months, each of which was an upward departure from the presumptive sentence of 86 months.  Appellant filed a direct appeal, but that appeal was dismissed pursuant to an agreement under which appellant waived his right to appeal (or seek postconviction relief) in exchange for the state’s agreement to request a remand for a reduction in his sentence to the presumptive terms.  Spann v. State, 704 N.W.2d 486, 488 (Minn. 2005).  In this postconviction appeal, the supreme court later ruled that this agreement was invalid and unenforceable.  Id. at 495.  The court reinstated appellant’s appeal rights and remanded to this court.

In this appeal, appellant argues that the district court violated his right to be present at trial, that the prosecutor committed prejudicial misconduct, that the upward departure was not supported by substantial and compelling circumstances, and that the departure violated appellant’s right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).[1]  Because we conclude that there was no trial error and no prosecutorial misconduct, but that the upward departure originally imposed violated Blakely, we affirm in part and remand for re-imposition of the 2001 sentence  reduction. 

D E C I S I O N

I.

Appellant argues that he was denied his right to be present at all the stages of his trial when the district court communicated with three jurors outside his presence after receiving a report of a statement made by a juror to a witness. 

A criminal defendant has a right to be present at every stage of his trial.  State v. Thompson, 430 N.W.2d 151, 152 (Minn. 1988);  Minn. R. Crim. P. 26.03, subd. 1(1).  The denial of the right to be present, however, is not always reversible error.  See State v. Sessions, 621 N.W.2d 751, 756 (Minn. 2001) (holding that exclusion of defendant from judge-jury communications may be harmless if harmless beyond a reasonable doubt).  In Thompson, the supreme court declined to reverse when neither the defendant nor defense counsel asserted the defendant’s right to be present.  Id. at 153. 

When, during one witness’s testimony, defense counsel overheard a comment made by one of the jurors, apparently to the witness, counsel objected to it.  The district court offered to give a curative instruction.  But when defense counsel suggested that a further inquiry of the jurors might be appropriate, the court offered to conduct such an inquiry.  Defense counsel expressed agreement with this procedure.

The court then questioned three jurors as to whether they had spoken, or heard, the comment.  All three jurors denied making, or hearing, the comment.  The court then summoned the attorneys, but there was no record made of their discussion.

Defense counsel not only failed to object to the court questioning the jurors in private, she may have suggested the procedure by noting the need for further inquiry and then stating that she left that to the court’s discretion.  And defense counsel agreed with the court’s suggestion that it should conduct the inquiry.

In State v. Sessions, 621 N.W.2d at 756-57, the supreme court looked to the strength of the state’s evidence and the substance of the judge’s responses in concluding that the district court’s error in communicating with the jury during deliberations outside the presence of the defendant was harmless beyond a reasonable doubt. 

The state here relied on the testimony of the two victims, the corroboration of one victim’s testimony by the other’s, and on the generally corroborating circumstances of appellant’s opportunity to commit the offenses, the victims’ consistent out-of-court statements, and appellant’s alleged flight following the reporting of the offenses.  The state’s evidence, despite its dependence on the credibility of the two victims, was strong.  And the district court’s inquiries of the three jurors it questioned were not prejudicial.  When the three jurors each denied making, or hearing, the alleged comment, the court did not pursue the subject, except with a warning against premature deliberations on the case.  We conclude that any error in questioning the three jurors outside the presence of appellant was harmless beyond a reasonable doubt.

II.

Appellant argues that the prosecutor committed prejudicial misconduct in her presentation of evidence, her cross-examination of appellant, and her closing argument.  The determination whether a prosecutor engaged in misconduct is largely within the discretion of the district court.  State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  This court will generally reverse only if the misconduct, “considered in light of the whole trial, impaired the defendant’s right to a fair trial.”  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  If prosecutorial misconduct is found, and the misconduct is serious, it will be considered harmless beyond a reasonable doubt only if the verdict was surely unattributable to the misconduct.  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  For less-serious misconduct, the error is harmless if the misconduct did not likely play a substantial part in influencing the jury to convict.  Id.

The victim’s statement to the nurse at Midwest Children’s Resource Center contained references to appellant using an alias, to his getting in trouble frequently, to his having sex with a woman at the hotel room in front of her, to his having raped someone, and to his having beat her mother and herself “with sticks, 2x4s and stuff.”  These references constituted prejudicial character evidence, for which the state had not given Spreigl notice.  But, as the district court noted, the defense did not object to any particular portions of the statement, except one reference that was redacted, and did not ask that the statements appellant now objects to be redacted from the statement.  The court ruled that appellant’s general objection to the admission of the statement as a whole did not preserve objections to the particular unredacted statements, only one of which he had challenged.  We agree.

A prosecutor commits misconduct by intentionally eliciting inadmissible character evidence.  See State v. Harris, 521 N.W.2d 348, 353-54 (Minn. 1994).  But the prosecutor here merely presented the victims’ statements as prior consistent statements of the sexual acts, having disclosed them to the defense months before trial.  And defense counsel had a duty to review the statement, make objections to specific parts of it, and request redactions before the statement was offered into evidence.

In addition, other prejudicial character evidence was introduced, including the 1999 domestic-assault conviction for an assault against one of the victims, S.S., admitted as Spreigl evidence.  Most of this character evidence was introduced in the course of exploring the family dynamics in which appellant and the two victims were involved, and some of it was introduced by defense counsel.  We conclude that the failure to redact the videotaped statement of S.S., if error, did not likely play a substantial part in influencing the jury to convict.  See generally Hunt, 615 N.W.2d at 302.

The charges against appellant involved two victims, S.S. and T.S., of about the same age, who were his children by different mothers, who each had a number of children fathered by appellant, many of whom were about the same age.  It is not clear how the context of the charged offenses could have been explained to the jury without bringing out these facts, which were prejudicial to appellant.  Similarly, that Sharon Spann, who was 31 years old, had a nearly 16-year-old child by appellant necessarily meant that appellant had sexual relations with her when she was young.  Moreover, defense counsel elicited a number of prejudicial facts in her direct examination of appellant, including the fact that he was usually booked under the name of Taylor (implying that he was periodically arrested) and that he had violated the order that he have no contact with Sharon Spann.

Appellant also argues that the prosecutor committed prejudicial misconduct in cross-examining him, particularly as to his beliefs concerning incest, the number of children he had, and on prior bad acts in general.  But appellant stated that he hated incest.  Thus, rather than prejudice him, the question gave appellant another opportunity, to, in effect, deny the offenses he was charged with.

The prosecutor in cross-examining appellant questioned him about a number of bad acts, but she was largely following up on evidence that had already been introduced, without objection.  As discussed above, the jury could have done the math itself and realized when appellant had begun a sexual relationship with Sharon Spann.

The prosecutor asked appellant whether he had called his son from Seattle after the offenses were reported and asked him to kill Sharon Spann and Nicole Jones. But appellant does not claim there was no factual predicate for this question.  And the evidence would have been relevant to show a consciousness of guilt, as much as Spann’s alleged flight to Indiana and then Seattle, Washington.  We also conclude that the prosecutor’s questions about him allegedly changing his appearance at that time were not improper because evidence of changed appearance would have been relevant in the same way as evidence of the alleged flight. 

In addition, the prosecutor’s focus in cross-examination on “character” questions was a response to aspersions appellant had cast on his wife’s character on direct examination.  Appellant continued to refer to Sharon Spann’s alleged drug use and to insinuate that she was engaged in prostitution and had recruited her daughter S.S. as a prostitute, although the district court had ruled such evidence inadmissible before trial started.  Although some of the prosecutor’s “character” questions may have been improper, they were not objected to, and they gave appellant an opportunity to respond by reiterating his claims that Sharon Spann was doing drugs and that she was prostituting herself and her daughter.

Appellant also argues that the prosecutor committed prejudicial misconduct in closing argument.  As the state points out, this argument is directed at a single paragraph in a 20-page argument, in which the prosecutor contended that appellant had developed a “pattern and ritual” of having sex with underage women and stated there was “no doubt the defendant is attracted to and prefers young girls.”  Defense counsel did not object to this, or to any part of the closing argument.

The state concedes that it was improper to argue that appellant had a propensity for seeking out underage girls.  See generally Jackson v. State, 447 N.W.2d 430, 434-35 (Minn. App. 1989) (holding that testimony that defendant had a sexual preference for younger girls was improperly admitted because it was character evidence offered when appellant had not put his character in issue, but that the error was not prejudicial).  But as discussed above, the jury could itself have noted that appellant’s wife was probably underage when their relationship began.  We conclude that the prosecutor’s brief “propensity” argument did not likely play a substantial part in influencing the jury to convict.

Appellant compares the prosecutorial misconduct in this case to that in Harris.  But in Harris, the district court itself was found to have erred in allowing evidence that several witnesses were in the witness-protection program to be used to create an inference that the defendant was a violent man and in giving no curative instruction.  521 N.W.2d at 352.  The district court also erred in admitting over numerous defense objections highly inflammatory evidence that the defendant had masturbated over a photo of the murder victim.  Id. at 353.  Finally, the prosecutor had intentionally elicited character evidence that the court had ruled inadmissible.  Id. at 354.

Thus, in Harris, the conviction was reversed in part because the district court had erred in admitting evidence and, in part, because the prosecutor had persistently violated the court’s rulings excluding evidence.  Here, defense counsel did not make specific objections that would have elicited a ruling excluding the allegedly prejudicial “character” evidence.  And the prosecutor did not violate any court rulings in asking the questions, or making the arguments, that she did.  We conclude that, although the jury heard much “character” evidence, appellant has not shown that his right to a fair trial was violated.

III.

Appellant also argues that the district court abused its discretion, and violated his right to a jury trial, in imposing upward durational departures on both counts based on its own findings.  Appellant argues that the aggravating factors cited by the court are invalid or inadequate to support the departure.  But because we conclude that the departures violated appellant’s right to a jury trial, we need not reach this argument.

A criminal defendant’s right to a jury determination of sentencing factors was recognized in Blakely v. Washington, 524 U.S. at 303, 124 S. Ct. at 2537.  The state concedes that the Blakely holding would apply to appellant’s original sentence, in which upward departures were imposed based on judicial findings, but argues that Blakely does not apply retroactively to appellant’s 2000 sentencing.

The supreme court has held that Blakely does not apply retroactively on collateral review to convictions that were final on June 24, 2004, when Blakely was released.  State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005).  Appellant, however, had his direct appeal dismissed in 2001 based upon his waiver of his appeal rights, a waiver that the supreme court has determined to be invalid.  The supreme court “reinstated” appellant’s appeal rights, which we interpret to mean that, for purposes of retroactive application of Blakely, appellant’s direct appeal has been reinstated.  See Spann v. State, 704 N.W.2d 486, 495 (Minn. 2005).  By ruling the stipulation under which appellant waived his right to direct appeal was “invalid and unenforceable,” id., the supreme court necessarily returned this case to the direct-appeal stage.

We also note that, pursuant to appellant’s agreement with the state under which he waived his appeal rights, the district court resentenced him in October 2001 to the presumptive 86-month terms.  This agreement was still in effect when Blakely was released in June 2004.  Therefore, up to the time Blakely was released, and even after, at least until the supreme court’s vacating of appellant’s waiver of his appeal rights, appellant was not subject to a sentencing departure against which he could raise a Blakely challenge.

This court has held that “when a district court stays the imposition of a sentence, thereby precluding a challenge to the sentence duration on direct review,” but later revokes probation and imposes an upward departure, the defendant can raise the Blakely challenge on appeal from the probation revocation.  State v. Beaty, 696 N.W.2d 406, 411 (Minn. App. 2005).  Like the defendant in Beaty, appellant’s sentence was not subject to a Blakely challenge at the time his conviction would have become final.  In Beaty, this occurred due to a decision of the district court to stay imposition, while here it was due to appellant’s own agreement to waive an appeal in exchange for the court’s eliminating the durational departures.  Nevertheless, for retroactivity purposes, we believe appellant is in a similar position as the defendant in Beaty and, like that defendant, is entitled to the retroactive application of Blakely.  And we note that the supreme court’s holding that appellant’s appeal waiver was not valid has clouded the status of his sentence.  Therefore, we remand for re-imposition of the 2001 sentence reduction.

Affirmed in part and remanded.