This opinion will be unpublished and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

A05-738

 

State of Minnesota,

Respondent,

 

vs.

 

Shoodley Lee Cherichel,

Appellant.

 

Filed September 5, 2006

Affirmed

Willis, Judge

 

Dakota County District Court

File No. K8-02-1575

 

 

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

 

James C. Backstrom, Dakota County Attorney, Cheri A. Townsend, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

John M. Stuart, State Public Defender, Bridget Kearns Sabo, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his convictions of criminal vehicular homicide and criminal vehicular operation resulting in substantial bodily harm.  Appellant argues that (1) he was denied a fair trial because the trial judge made disparaging comments about a defense witness while the jury was in the courtroom and made negative facial expressions during the witness’s testimony; (2) the district court abused its discretion by denying appellant’s request for a Schwartz hearing to determine the effect of the trial judge’s misconduct on the jury; (3) the prosecutor committed prejudicial misconduct in closing argument by disparaging the defense expert witness and by making assertions that were not supported by the record; and (4) the district court abused its discretion by denying appellant’s motion for a downward dispositional departure.  Because the errors by the  trial judge and by the prosecuting attorney were harmless and because the district court did not abuse its discretion by imposing the presumptive guidelines sentence, we affirm.

FACTS

Appellant Shoodley Lee Cherichel challenges his convictions of criminal vehicular homicide and criminal vehicular operation arising from an accident that occurred on May 3, 2002, in Eagan.  Cherichel; his girlfriend, Tracy Mastel; and Mastel’s friend Maria Aschan were traveling southbound on Cedar Avenue to Farmington after spending the evening at the Mall of America when the car skidded to the right, rolled down an embankment, and landed upside down in a pond.  Responding police officers found Cherichel and Aschan in the water; Aschan was wading to shore, and Cherichel was trying to free Mastel, who was trapped in the car.  Eventually, police officers pulled Mastel from the car, but she could not be resuscitated and died from drowning.  Cherichel was charged with one count of criminal vehicular homicide and later by an amended complaint with one count of criminal vehicular operation resulting in substantial bodily harm. 

There is a dispute regarding who was driving the car at the time of the accident.  At trial, Aschan testified that Cherichel was the driver of the car; Cherichel testified that Mastel was the driver.  But at the accident scene and at the hospital, Cherichel repeatedly told police that he was the driver.  At trial, Cherichel testified that he lied to police to protect Mastel, who did not have a driver’s license at the time of the accident because of DWI convictions.  A responding police officer noted in his report, and testified at trial, that at the scene of the accident, Aschan stated, “I told her not to drive, I told her not to drive, I told her not to drive.”  But in other statements to police at the accident scene and shortly thereafter, Aschan identified Cherichel as the driver of the car. 

One of the responding police officers who attempted to extract Mastel from the car testified that he “could tell [she was not] seated in the driver’s seat” when they were trying to free her.  Another officer who also tried to rescue Mastel testified that he did not know if Mastel was on the passenger side or on the driver’s side.  The forensic pathologist who performed an autopsy on Mastel could not determine Mastel’s location in the vehicle when it crashed.

Two recorded statements made shortly after the accident were played for the jury.  In both statements, Cherichel admitted to driving the car.  In these statements, Cherichel maintained that he was the car’s driver, even after the police officer asked him repeatedly whether Mastel had been driving and after he learned that Mastel had died.  A videotape taken at the scene of the accident by a responding state trooper was also played during the trial; in the videotape Cherichel admitted to driving the car.

At trial, to support his defense that he was not the driver of the car at the time of the accident, Cherichel introduced testimony by David Daubert, a forensic engineer.  Daubert testified that, according to his observations of Mastel’s injuries, he believed that she was the driver of the car.  Cherichel also called a witness who left the Mall of America with Cherichel, Mastel, and Aschan and passed their car before the accident.  This witness testified that she saw Mastel in the driver’s seat and that she identified Mastel by her hair.

The cause of the accident was also disputed at trial.  Aschan testified that Cherichel was driving very fast, when he yelled at Mastel and jerked the wheel.  This testimony is consistent with the statement that Aschan provided at the accident scene.  But Cherichel told police at the scene that he lost control of the car when another vehicle cut him off. 

A jury found Cherichel guilty of criminal vehicular homicide and criminal vehicular operation.  After the trial, Cherichel moved for a Schwartz hearing and also moved for a judgment of acquittal or, alternatively, a new trial.  Because Cherichel’s motions involved allegations that the trial judge referred to Daubert’s testimony as “junk science” during a bench conference and that the judge made negative facial expressions during Daubert’s testimony, the trial judge recused himself from hearing and ruling on the posttrial motions.

            Another judge sentenced Cherichel to the presumptive guidelines sentence of 48 months for criminal vehicular homicide and a concurrent 13-month sentence for criminal vehicular operation.  The sentences were stayed pending the second judge’s decision on Cherichel’s posttrial motions for a Schwartz hearing and for a judgment of acquittal or new trial.  The second judge subsequently denied Cherichel’s motions and lifted the stay on Cherichel’s sentences.  This appeal follows.

D E C I S I O N

I.          Alleged Judicial Misconduct

Cherichel argues that the trial judge violated the Code of Judicial Conduct and Cherichel’s constitutional right to a fair trial by expressing bias against Daubert, his expert witness, and by telling the prosecutor that there was no foundation for Daubert’s testimony.  We review de novo whether a judge has violated the Code of Judicial Conduct and whether a judge’s conduct deprived a defendant of his right to a fair trial and to an impartial fact-finder.  State v. Dorsey, 701 N.W.2d 238, 246, 249 (Minn. 2005). 

Cherichel argues that the trial judge’s comments regarding his expert witness violated Canon 3D(1)(a) of the Minnesota Code of Judicial Conduct.  Canon 3D(1)(a) provides:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:

 

(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.

 

Cherichel argues that the trial judge violated this canon by indicating that his prior experiences with Daubert negatively influenced his opinion of Daubert’s testimony. 

But the judge did not express a personal bias or prejudice concerning Cherichel or Cherichel’s lawyer.  And the judge’s prior experience with Cherichel’s expert witness did not provide the judge with personal knowledge of “disputed evidentiary facts concerning the proceeding.”  Because the canon does not prohibit a judge from hearing a  case when the judge has an unfavorable opinion of a party’s witness, the trial judge’s statements do not demonstrate that he violated Canon 3(D)(1)(a). 

But “[c]riminal defendants have a constitutional right to be tried before a fair and impartial judge.”  Cuypers v. State, 711 N.W.2d 100, 104 (Minn. 2006).  Therefore, a trial judge must be fair to both sides and must refrain from making remarks or any physical indications that might “injure either of the parties to the litigation.”  Hansen v. St. Paul City Ry. Co., 231 Minn. 354, 360-61, 43 N.W.2d 260, 264-65 (1950).  There is a presumption that a trial judge has properly discharged his or her judicial duties.  State v. Mems, 708 N.W.2d 526, 533 (Minn. 2006).  A new trial is required, however, when the district court departs from the standards of judicial impartiality and prejudices the losing party’s rights.  Greer v. State, 673 N.W.2d 151, 157 (Minn. 2004); Hansen, 231 Minn. at 361-62, 43 N.W.2d at 265.

During a recess, Cherichel’s attorney asked the district court to make a record of his ongoing concerns “concerning partiality.”  He noted that (1) the trial judge had “made particular inflections and facial manners” during Daubert’s testimony that reflected on the judge’s “view of the witness’s credibility”; and (2) the trial judge referred to Daubert’s testimony as “junk science” during a bench conference.  Cherichel has provided no evidence that any juror overheard the trial judge’s remark. 

The trial judge denied “showing or displaying any emotion or feeling about the credibility or believability of [Daubert] as a witness.”  Because the record does not reflect the trial judge’s body language and there is no evidence that any juror observed inappropriate demeanor on the judge’s part, this court cannot determine whether the trial judge made negative facial expressions while Daubert was testifying. 

But the trial judge acknowledged referring to a portion of Daubert’s testimony as “junk science” during a bench conference while the jury was in the courtroom.  The trial judge asserts that he took great care by covering his mouth, muting the microphone, and lowering his voice to make sure that comments made during bench conferences were not heard by the jury.  When Cherichel’s defense attorney first raised his concerns during a recess, the trial judge explained:

The context in which I said this is junk science was in the context of this expert witness that you called, with no medical degrees, no master’s degree in medicine, no doctor’s degree, testifying about injury.  And I likened it to the highway design which is totally irrelevant.  And I said since the County Attorney didn’t object, no ruling was made.  But there was totally insufficient foundation for his testimony regarding injuries that occur inside the car.  He is an engineer.  He is not a medical doctor.  And there was not sufficient basis for it.  You ask any Judge before whom he has appeared, where there is objection, it’s always been sustained, in my experience as a lawyer, in my experience as a Judge.  And it’s true for other witnesses for both the state and the defense.  But no objection was made so it all came in.

 

The trial judge later explained that his comments regarding Daubert were “about the foundation required for a witness to testify” and were intended to be heard by counsel only.  Because no objection was made to Daubert’s testimony, the trial judge’s comment that Daubert’s testimony was “junk science” was improper.

            A new trial is warranted “only in those rare cases where the remark of the trial judge was so prejudicial to one party that it rendered a fair and impartial determination by the jury improbable.”  Fortier v. Ritter’s Hairdressing Studios, Inc., 282 Minn. 382, 386, 164 N.W.2d 897, 899-900 (1969).  An improper remark by the trial judge does not necessarily demonstrate that the judge was not impartial.  See id.  And not every judicial error automatically requires reversal.  State v. Shoen, 598 N.W.2d 370,375 (Minn. 1999). 

            Although the trial judge should not have made the “junk-science” remark, we do not find that the comment disclosed any partiality by the judge against appellant.  Therefore, the error was not a structural error requiring reversal but only a trial error, to which we apply harmless-error analysis.  See Dorsey, 701 N.W.2d at 252 (concluding that when a defendant has been deprived of an impartial judge, a structural error has occurred requiring automatic reversal; but noting that a trial error requires harmless-error analysis).  Harmless-error analysis does not require reversal if the guilty verdict rendered is surely unattributable to the error.  Shoen, 598 N.W.2d at 377.

            Here, the jury heard Cherichel admit a number of times at the scene of the accident and shortly thereafter that he drove the car.  The jury also heard Aschan’s testimony at trial and her statements the night of the accident asserting that Cherichel drove the car.  And, most importantly, there is no evidence that any of the jurors heard the trial judge’s remark about the expert witness.  We therefore conclude that the jury’s guilty verdict is surely unattributable to the trial judge’s remark.

            Cherichel moved for a Schwartz hearing to determine whether the judge’s comment and demeanor during Daubert’s testimony had any effect on the jury’s verdict.  “The purpose of a Schwartz hearing is to determine whether a jury verdict is the product of misconduct.”  State v. Greer, 635 N.W.2d 82, 93 (Minn. 2001).  Generally, Schwartz hearings are conducted to investigate potential juror misconduct, but alleged judicial misconduct may also be the basis for a Schwartz hearing.  See id. at 93-94 (remanding to another judge to consider the defendant’s motion for a Schwartz hearing on the issue of the trial judge’s ex parte contacts with the jury).  For a Schwartz hearing to be required, the defendant must submit sufficient evidence that, if unchallenged, would warrant the conclusion that misconduct tainted the jury’s verdict.  State v. Rainer, 411 N.W.2d 490, 498 (Minn. 1987).  Because Cherichel has presented no evidence that any juror overheard the judge’s comment or observed any inappropriate demeanor on the judge’s part, we find no need to remand for a Schwartz hearing.

II.        Alleged Prosecutorial Misconduct

 

Cherichel next argues that the prosecutor committed reversible error during his closing argument by (1) making disparaging remarks about Cherichel’s expert and (2) referring to facts not in evidence regarding Aschan’s motivation for suing Cherichel.  First, Cherichel argues that the prosecuting attorney committed misconduct when he stated that “[Daubert] came in at the request of the defense [and] couched his testimony on conclusions the defense wanted him to raise.”  Cherichel also claims that the prosecutor’s comments along the same line during rebuttal were misconduct: “Mr. Ho described David Daubert as the objective eye in this case.  The objective eye that was hired on behalf of the defense.  That is not a scientist but he is a professional witness.  He gets paid to come to Court and testify.  He testifies the way they want him to.”  Cherichel did not object to these statements at trial.

Generally, a defendant who fails to object to a prosecutor’s statement or seek a curative instruction waives his right to raise the issue on appeal.  State v. McDonough, 631 N.W.2d 373, 389 (Minn. 2001).  This court may reverse a conviction, even absent the defendant’s objection, when the prosecutor’s comments are sufficiently prejudicial to require reversal.  Id.  When an appellant raises a claim of prosecutorial misconduct but failed to object to the statement or to seek a curative instruction at trial, this court reviews the claim for plain error.  State v. Leake, 699 N.W.2d 312, 327 (Minn. 2005), cert. denied, 126 S. Ct. 745 (2005).  “Plain error requires:  (1) error; (2) that is plain; and (3) that affects substantial rights.”  Id.  An error affects substantial rights if the error was prejudicial and affected the outcome of the case.  Id.  Plain error is prejudicial “if there is a reasonable likelihood that the error had a significant effect on the jury’s verdict.”  Id. (quotation omitted). 

The Minnesota Supreme Court has repeatedly warned prosecutors that it is improper to disparage the defense during closing argument.  State v. Griese,565 N.W.2d 419, 427 (Minn. 1997).  The prosecutor’s statements that Daubert “couched his testimony on conclusions the defense wanted him to raise” and that he “testifies the way they want him to” are improper because they belittle the defense and attack Daubert’s character.  See State v. Bailey, 677 N.W.2d 380, 403-04 (Minn. 2004) (noting in dictum that the prosecutor disparaged the defense by attacking the defense’s expert witness’s character). 

But prosecutorial misconduct requires reversal only when, considered in light of the entire trial, the misconduct affected the defendant’s right to a fair trial.  State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).  Because the evidence against Cherichel is strong, especially his admissions after the accident that he was the driver and Aschan’s statements and testimony identifying Cherichel as the driver, we conclude that there is no reasonable likelihood that the comments had a significant effect on the jury’s verdict. 

Next, Cherichel argues that the prosecutor committed misconduct by his comments during rebuttal regarding Aschan’s lawsuit against Cherichel.  During the defense’s closing argument, Cherichel’s attorney stated, “Aschan also said apparently – or what we found out today is that she’s filed a lawsuit for damages against Mr. Cherichel. . . .  [S]he’s got a motive to really want to go after Mr. Cherichel on a financial basis.”  In response, the prosecutor commented that it was “distasteful” and “improper” to mention the lawsuit and also suggested that Aschan’s motivation for suing Cherichel was for “vindication” and for “somebody to answer for the injuries she suffered, somebody to take responsibility for killing her friend,” not for monetary gain. 

Cherichel argues that the prosecutor’s statement in rebuttal “was not supported by the record and was therefore impermissible” and “prejudicial.”  But a prosecutor’s argument may be based on reasonable inferences from the evidence in the record.  State v. Roman Nose, 667 N.W.2d 386, 402 (Minn. 2003).  Cherichel testified that Aschan brought a civil suit against him for damages arising out of the accident, and in closing argument, Cherichel’s attorney suggested that, in effect, Aschan had a monetary interest in the outcome of the trial.  In rebuttal, the prosecution suggested an alternative motive for Aschan’s suit.  Because the prosecutor drew a reasonable inference from the fact that Aschan brought a civil suit against Cherichel, his comment was not improper.

III.       Sentence

 

            Cherichel argues that the district court abused its discretion by “failing to properly consider the many mitigating factors supporting Cherichel’s motion for a downward dispositional departure,” in which he sought probation instead of an executed sentence.  The sentencing guidelines provide that when substantial and compelling circumstances are present, the sentencing judge “may” depart from the presumptive guidelines sentence.  Minn. Sent. Guidelines § II.D., cmt. II.D.01; State v. Kindem, 313 N.W.2d 6, 7 (Minn. 1981).  The district court has broad discretion in deciding whether to depart downwardly from the presumptive guidelines sentence, and appellate courts “generally will not interfere with the exercise of that discretion.”  Kindem, 313 N.W.2d at 7.

Departures from the presumptive sentence are discouraged and should be granted in few cases.  State v. Misquadace, 644 N.W.2d 65,68 (Minn. 2002).  And in fact, the Minnesota Supreme Court has noted repeatedly that it is a rare case that would warrant reversal of a refusal to depart from the sentencing guidelines.  See, e.g., State v. Bertsch, 707 N.W.2d 660, 668 (Minn. 2006).  But a sentencing judge must consider any compelling circumstances and weigh the factors supporting departure.  State v. Curtiss, 353 N.W.2d 262, 264 (Minn. App. 1984).  In State v. Trog, 323 N.W.2d 28, 31 (Minn. 1982), the supreme court identified factors that are relevant to a court’s decision regarding a downward dispositional departure from a presumptively executed sentence:  the defendant’s age, prior record, remorse, cooperation, attitude while in court, and the support of friends and family.   

The district court here imposed the presumptive guidelines sentence of 48 months for criminal vehicular homicide and a concurrent 13-month sentence for criminal vehicular operation.  Before sentencing, the district court considered Cherichel’s apparent lack of remorse and the absence of a support network, stable job, or stable home environment.  The district court also noted that Cherichel’s “cooperation is somewhat suspect.”  And the district court concluded that because Cherichel had an outstanding warrant, he was not amenable to probation because “[p]eople who are amenable to probation follow rules and guidelines.”  The district court stated that it could not find a single mitigating factor to support a departure. 

            The district court considered whether mitigating factors justified a downward dispositional departure in Cherichel’s sentence and did not abuse its discretion by imposing the presumptive guidelines sentence.

            Affirmed.