This opinion will be unpublished and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

A05-1828

 

 

State of Minnesota,

Respondent,

 

vs.

 

Lennie C. White,

Appellant.

 

 

Filed February 13, 2007

Remanded

Halbrooks, Judge

 

 

Stearns County District Court

File No. K1-04-2020

 

 

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Janelle Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, Minnesota 56303-4773 (for respondent)

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, Minnesota 55414 (for appellant)

 

 

 

            Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

 

HALBROOKS, Judge

On appeal from conviction of third-degree assault, appellant argues that he is entitled to a new trial because (1) the prosecutor committed prejudicial misconduct when cross-examining appellant by implying that appellant had tampered with a witness and (2) the jury rendered contradictory verdicts when the jury foreperson signed both the guilty and not-guilty verdict forms for the count of third-degree assault.  This court requested supplemental briefing on the first issue in light of State v. Ramey, 721 N.W.2d 294 (Minn. 2006).  On the first issue, we now conclude that the prosecutor did not commit prejudicial misconduct.  But because we conclude that a Schwartz hearing is required to address the second issue, we remand.

FACTS

In May 2004, appellant Lennie White was charged with three counts:  second-degree assault under Minn. Stat. § 609.222, subd. 1 (2002), and third-degree assault under Minn. Stat. § 609.223, subd. 1 (2002), against David Wicklund; and domestic assault under Minn. Stat. § 609.2242, subd. 1(2) (2002), against Cynthia Fisher.

During trial, the prosecutor cross-examined appellant about his interaction with a spectator in the courtroom.  The relevant portion of the transcript reads:

[PROSECUTOR]:      . . . Mr. White, who is this woman?

 

[APPELLANT]:         That’s a friend of mine.

 

Q:        What’s her name?

 

A:        Suzanne.

 

Q:        What’s her last name?

 

A:        Karvitz, K-A-R-V-I-T-Z.

 

Q:        You were here for Mr. Mercherson’s testimony yesterday, correct?

 

A:        Yes, I was.

 

Q:        Did you talk to him about his testimony before he testified?

 

A:        No.  I haven’t seen Mr. Mercherson since the incident.

 

Q:        Yesterday you were giving Ms. Karvitz messages to give to your family; is that correct?

 

A:        No.

 

Q:        You didn’t, after court, turn around and tell her to talk to your daughter?

 

A:        I gave her a phone number.

 

Q:        Did you use her to talk to Mr. Mercherson?

 

A:        No.  She doesn’t—  

 

[DEFENSE ATTORNEY]:    Objection, Your Honor.  Relevance.

 

THE COURT:  Overruled.

 

[APPELLANT]:  She doesn’t know Mr. Mercherson.

 

Q [PROSECUTOR]:  Was it at your direction that she was talking to him during the breaks yesterday in court?

 

A:        No, it wasn’t.

 

Q:        Was it at your direction that she drove him home?

 

A:        No.  I didn’t know nothing about it.

 

At the conclusion of the trial, the district court instructed the jury:

You will also have verdict forms in the room—one not guilty verdict and one guilty verdict—as to each of the three charges.  Once you have arrived at your verdict on each of the three charges, you should then notify the bailiff that you have arrived at a decision, and you are to keep your verdict secret until it’s received in court.

 

Following its deliberations, the jury returned to open court, and with all parties present, the following exchange occurred:

THE COURT:             You can be seated.  Thank you.  Members of the jury, have you arrived at your verdicts?

 

THE FOREPERSON:  We have, Your Honor.

 

THE COURT:             Would you hand the verdict forms to the bailiff, please.

 

THE FOREPERSON:  Yes.

 

THE CLERK:             “Count I:  We, the jury, find the defendant not guilty of the charge of Assault in the Second Degree;

                        “Count II:  We, the jury, find the defendant not guilty of the charge of Domestic Assault;

                        “Count III:  We, the jury, find the defendant guilty of the charge of Assault in the Third Degree.”

 

THE CLERK:Members of the jury — excuse me.  [Juror 1], is this your verdict?

           

[JUROR 1]:             Yes.

 

THE CLERK:          [Juror 2], is this your verdict?

 

[JUROR 2]:             Yes.

 

                                 . . . .

 

THE CLERK:          [Juror 12], is this your verdict?

 

[JUROR 12]:           Yes.

 

Each juror was individually polled and affirmed that the verdict that had been read was that juror’s verdict.  The district court then discharged the jury. 

Appellant now challenges his conviction of third-degree assault.  While preparing the appeal, appellant’s counsel discovered that the district court file contained the guilty and the not-guilty verdict forms for the third-degree-assault count, both of which had been signed and dated by the jury foreperson.  After oral argument to this court, we requested supplemental briefing in light of the supreme court’s analysis of a claim of prosecutorial misconduct in State v. Ramey, 721 N.W.2d 294 (Minn. 2006).

D E C I S I O N

 

I.

 

Appellant argues that the prosecutor committed prejudicial misconduct when she cross-examined him.  Specifically, appellant contends that the prosecutor improperly implied that appellant took part in witness tampering and did not provide him with proper notice of her intention to question him about that subject matter. 

A party does not preserve an objection for appeal if the grounds on which he or she objected at trial are different from those raised on appeal.  State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).  Appellant did not properly object at trial to the prosecutorial conduct challenged here.  “An objection must be specific as to the grounds for challenge.” Id.  Appellant objected on the ground that one question the prosecutor asked was not relevant.  But he did not argue that the questions were without evidentiary support or that they were asked without proper notice.

When the defendant has failed to object to alleged prosecutorial misconduct, we review the claim for plain error.  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  To establish plain error, an appellant must show that there was “(1) error; (2) that was plain; and (3) that affected substantial rights.”  In re Welfare of D.D.R., 713 N.W.2d 891, 899 (Minn. App. 2006) (quotation omitted).  An appellate court may grant relief only if these three elements are met and “the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”  State v. MacLennan, 702 N.W.2d 219, 235 (Minn. 2005) (alteration in original) (quotation omitted).  Under Ramey, a defendant is still required to show that the alleged unobjected-to misconduct was plain and that it was error, but the burden of showing whether the error affected the defendant’s substantial rights is shifted to the prosecution.  721 N.W.2d at 299-300. 

Appellant argues that the prosecutor’s questions were admitted in violation of Minn. R. Evid. 608(b), which governs the use of specific instances of misconduct to impeach a witness’s credibility.  

The prosecutor in a criminal case generally may not cross-examine a defendant or defense witnesses pursuant to Minn. R. Evid. 608(b) about prior misconduct unless (a) the prosecutor has given the defense notice of intent to cross-examine pursuant to the rule, (b) the prosecutor is able to provide the trial court with sufficient evidentiary support justifying the cross-examination, and (c) the prosecutor establishes that the probative value of the cross-examination outweighs its potential for creating unfair prejudice to the defendant. 

 

State v. Fallin, 540 N.W.2d 518, 522 (Minn. 1995).  Id.  A prosecutor may use only convictions, not arrests or accusations, to impeach a defendant’s credibility.  Id.at520-21.  “[T]he state will not be permitted to deprive a defendant of a fair trial by means of insinuations and innuendos which plant in the minds of the jury a prejudicial belief in the existence of evidence which is otherwise inadmissible.”  State v. Harris, 521 N.W.2d 348, 354 (Minn. 1994) (quotations omitted).  A prosecutor’s insinuations and innuendos are grounds for reversal “whether the allusion to prior misconduct is contained in the question which the prosecutor asks or in the answer which the witness gives.”  Id. (quotation omitted).  But improper questions may be excused when “they are brief, not repeated, and unlikely to have had a substantial effect on the jury.”  Id. at 354 n.9.   

Here, the subject of the prosecutor’s questions was a conversation between appellant and a spectator that took place in the courtroom, not an uncharged prior bad act or an act similar to the conduct for which appellant was being tried.  Thus, this case can be distinguished from those in which the prosecutor asked about prior uncharged criminal acts or acts similar to the crimes charged.  See Fallin, 540 N.W.2d at 519-20 (concluding that it was error when appellant, charged with criminal sexual conduct, was asked about whether he had committed specific uncharged conduct); Harris, 521 N.W.2d at 354 (concluding that it was misconduct for the prosecutor to elicit testimony of prior bad acts in which the appellant, who was charged with first-degree murder, planned to beat his girlfriend and made intimidating statements to a female friend); State v. Flowers, 262 Minn. 164, 164-65, 114 N.W.2d 78, 78-79 (1962) (concluding that the defendant, who was convicted of second-degree assault, was denied a fair trial when the prosecutor asked questions on cross-examination about physical assaults committed by the defendant that were not in evidence).

Appellant also argues that the prosecutor failed to give notice or provide sufficient evidentiary support for the line of questioning.  However, “[t]he standard is not whether the prosecutor actually thereafter calls a witness to support his insinuations, but whether there is a factual predicate for the questions in that the prosecutor is able to produce extrinsic evidence to support the insinuating cross-examination.”  Fallin, 540 N.W.2d at 521.  Here, appellant’s friend was observed talking to the spectator in the courtroom.  And in his appellate brief, appellant admitted to that conversation and that the spectator gave the witness a ride home.  Given that the witness’s testimony differed significantly from his statement to the prosecutor’s office, we conclude that there was a factual basis for the prosecutor’s questions, even though the prosecutor’s inference from the contact, and the spectator’s act of giving Mercherson a ride, may be weak.  Because the underlying incident occurred during trial, the prosecutor could not have given significant advance notice of the line of questioning.  Thus, appellant has not shown that any error in the prosecutor’s questions constituted error that was plain.

But even if the prosecutor’s questions constituted error that was plain, appellant is not entitled to relief unless they significantly affected the outcome of the case.  Appellant argues that the prosecutor’s questions suggested to the jury that he had engaged in witness tampering and, therefore, prejudiced the jury against him because the case largely rested on witness credibility.  Under Ramey, the prosecution now bears the burden of showing that the alleged prosecutorial misconduct did not significantly affect the outcome of the case.  721 N.W.2d at 302; see generally State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).

While the prosecutor’s questions suggested improper conduct by appellant, they accounted for only one page of a 200-page transcript.  Furthermore, the prosecutor did not revisit the subject of that line of questioning in her closing argument, either directly or indirectly.  Instead, she concentrated on the inconsistent statements made by Mercherson, the witness who allegedly had been spoken to, Mercherson’s intoxicated state at the time of the incident, and his previous conviction of a controlled-substance crime.  The prosecutor also focused on appellant’s credibility and his previous convictions of social security fraud and check forgery.  Even if the jury did credit the prosecutor’s allusion to witness tampering, in light of all the other evidence bearing on the credibility of the witness and of appellant, there is no indication that the prosecutor’s questions had a significant effect on the outcome of the case. 

II.

Appellant also argues that the jury returned contradictory verdicts, thereby requiring a new trial.  The record establishes that the jury foreperson signed and dated both guilty and not-guilty verdict forms on the third-degree-assault count.  The jury was polled without counsel or the court apparently noticing the not-guilty verdict form.  The jurors individually affirmed that the not-guilty verdicts on the first two counts and the guilty verdict on the third-degree-assault count were their true verdicts.  Appellant argues, however, that the existence of contradictory verdict forms requires a new trial.

Minn. Stat. § 631.17 (2002) provides that

when a verdict such as the court may receive is returned, the court administrator shall immediately file it in open court and read it to the jury, and ask the jurors if it is their verdict.  If a juror disagrees, that fact shall be entered upon the minutes, and the court shall send the jury out to deliberate further.  If no disagreement is expressed by the jury, the verdict is complete, and the court shall discharge the jury from the case.  The court administrator shall immediately record the verdict in full in the court minutes.

 

When the verdict is rendered and before the jury is discharged, the jury shall be polled upon the request of a party or the court’s own motion.  Minn. R. Crim. P. 26.03, subd. 19(5).  “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, 62 (Minn. App. 2001) (alteration in original) (quotation omitted), review denied (Minn. Feb. 21, 2001).

Although appellant did not raise the claim of contradictory jury verdicts before the district court, the interests of justice clearly require that we address it for the first time on appeal.  See Minn. R. Crim. P. 28.02, subd. 11 (stating the appellate court “may review any other matter as the interests of justice may require”); cf. State v. Moore, 458 N.W.2d 90, 93 (Minn. 1990) (considering appellant’s claim of inconsistent verdicts that was raised for the first time on appeal). 

The jury was provided with six verdict forms—one not-guilty verdict form and one guilty verdict form for each of the three counts.  It is undisputed that the jury foreperson signed both the guilty and not-guilty verdict forms for the third-degree-assault count.  While the record before this court is incomplete, neither party disputes the existence of the two signed verdict forms on this count.[1]  Further, neither party alleges that the district court was aware of the contradictory verdict forms before the jury was discharged.  To the contrary, our review of the record indicates that the jury foreperson handed the clerk only three verdict forms, which the clerk immediately read in open court.  Those verdict forms did not include the not-guilty verdict on the third-degree-assault count.  But somehow the not-guilty verdict form on that count later ended up in the district court file.  Because the verdicts on the third-degree-assault count are directly contradictory, they are legally inconsistent.

Generally, a legally inconsistent jury verdict warrants reversal.  State v. Crowsbreast, 629 N.W.2d 433, 440 (Minn. 2001).  Appellant argues that a new trial is required because contradictory verdict forms were signed, even though only one verdict was treated as the jury’s correct verdict in court and that verdict was substantiated by the polling of the jury in open court.

Appellant relies on two opinions from the Missouri Court of Appeals.  In State v. Dorsey, 706 S.W.2d 478 (Mo. Ct. App. 1986), a jury found the defendant not guilty of second-degree burglary, but returned both guilty and not-guilty verdict forms on a charge of stealing.  While the foreman had signed both the guilty and not-guilty verdict forms on the stealing charge, the trial court, apparently unaware of the contradictory verdicts, announced that the jury had found the defendant guilty of stealing.  Id.at 480.  Both parties declined to have the jury polled, and the conflicting verdict forms were not discovered until the defendant was preparing for appeal.  Id. at 480.  The Dorsey court, focusing on the duty of the trial court to examine the verdict, concluded that the trial court erred because it did not notify the parties of the inconsistency or correct it before accepting the jury’s verdict.  Id.  The court of appeals reversed and remanded for a new trial, stating that

[b]ecause the obvious inconsistency and ambiguity in the verdict forms on the same charge were neither brought to light by the trial court nor cured by the trial court by returning the jury to further deliberate and correct the mistake or by polling the jury, defendant was prejudiced and denied his right to a fair trial.

 

Id. at 480-81 (citation omitted).      

Similarly, in State v. Zimmerman, 941 S.W.2d 821 (Mo. Ct. App. 1997), a jury returned signed guilty and not-guilty verdict forms on a charge of assault in the third degree and returned a single signed not-guilty verdict form on a charge of armed criminal action.  After reading the not-guilty verdicts, but before discovering the signed guilty verdict form, the trial court asked the jury foreperson to indicate whether the verdicts as read were correct, and the foreperson responded affirmatively.  Id. at 823.  Neither party requested that the jury be polled, and the jury was discharged.  Id.  The trial court only discovered the signed guilty verdict form on the charge of assault in the third degree after the jury had been discharged.  Id.  The trial court noted its discovery on the record and also stated that it had already accepted the not-guilty verdict.  Id.  After allowing the state to make a statement on the record, the trial court refused to accept the guilty verdict and entered a judgment of acquittal on both charges.  Id. 

The Zimmerman court determined that the confusion surrounding the contradictory verdicts could have been alleviated by polling the jury and that questioning only the jury foreperson was not the equivalent of individually polling the jurors.  Id. at 825.  The court stated:  

We are confident that had the trial court asked the jury which Count I verdict was its true verdict, the confusion could have been cleared up.  However, because there was no polling of the jury as to which of the inconsistent verdicts it agreed, the inconsistent verdicts remain.

 

Id. at 826.  The Missouri Court of Appeals, therefore, reversed and remanded the case for a new trial on the charge of assault in the third degree.  Id.  

While the reasoning of the Missouri appellate court in Zimmerman and Dorsey is helpful, the facts of those cases are distinguishable from the case before us.  Here, the members of the jury were individually polled, and each jury member independently indicated his or her agreement with the verdict after the clerk stated that the jury found appellant guilty of third-degree assault.  Accordingly, we conclude that a new trial is not automatically required.  However, we are not convinced that the jury polling by itself was adequate to ensure that the jury’s proper verdict was returned in the absence of some evidence that the jury was aware of the contradictory verdicts.  Therefore, we conclude that a remand for a Schwartz hearing is required.[2]

Minnesota caselaw has consistently recognized the importance of jury polling and has placed great trust in that process.  Polling of the jury is relied on to ensure unanimity of the verdict in criminal cases.  Even when a jury had not been given an instruction on unanimity, we have held that the polling of a jury is a guarantee of unanimity and satisfies a defendant’s constitutional right to a unanimous verdict.  State v. Plantin, 682 N.W.2d 653, 662 (Minn. App. 2004), review denied (Minn. Sept. 29, 2004).  When there has been concern that jury members have been exposed to news reports about the case on which they are serving, district courts in Minnesota have used a jury poll to establish the extent to which the jurors have been exposed to such information.  State v. Johnson, 307 Minn. 501, 506-07, 239 N.W.2d 239, 243 (1976); State v. O’Donnell, 280 Minn. 213, 217-18, 158 N.W.2d 699, 702 (1968).  Jury polling also gives individual jurors the opportunity to object to the verdict after it has been read.  It is one means of ensuring that no juror is coerced.  State v. Ware, 498 N.W.2d 454, 457-58 (Minn. 1993); Burns, 621 N.W.2d at 62.  The polling of the jury “ascertain[s] for a certainty that each of the jurors approves of the verdict as returned.”  Hoffman v. City of St. Paul, 187 Minn. 320, 325, 245 N.W. 373, 375 (1932) (quoting Humphries v. District of Columbia, 174 U.S. 190, 194, 19 S. Ct. 637, 638-39 (1899)).

Despite the weight placed on jury polling, we are unconvinced that here, without the presence of contradictory verdicts having been brought to their attention, the polling of the jury was adequate to insure that each juror understood that he or she was returning a guilty verdict on the third-degree assault charge.  Generally, a district court would discover or have brought to its attention inconsistent or contradictory jury verdicts in time to order the jury to deliberate further in order to decide on a single verdict.  But in this case, where the existence of contradictory verdicts was not mentioned on the record and there is no evidence that the district court was aware of the circumstances, we conclude that a Schwartz hearing inquiring into the jurors’ awareness of the contradictory verdicts is required.  

An appellate court may remand on its own motion for further fact-finding.  See Dunn v. State, 486 N.W.2d 428, 433 (Minn. 1992) (remanding for further fact-finding concerning appellant’s allegation that the jury included the brother-in-law of the police officer who arrested her).  When there is “reason to believe that the verdict is subject to impeachment,” a Schwartz hearing may be ordered.  Minn. R. Crim. P. 26.03, subd. 19(6).  A Schwartz hearing “was originally conceived as a vehicle for the district court to address questions of jury misconduct,” but its use has been expanded to other posttrial issues involving the jury.  State v. Shoen, 578 N.W.2d 708, 716 (Minn. 1998).  The contradictory verdict forms here appear to be far more likely the result of clerical error than of jury misconduct.  But a Schwartz hearing may be ordered to inquire into a clerical error in a verdict.  See Bianchi v. Nordby, 409 N.W.2d 835, 838 (Minn. 1987) (holding that a clerical error in a civil verdict could be corrected by means of a Schwartz hearing); Erickson by Erickson v. Hammermeister, 458 N.W.2d 172, 175 (Minn. App. 1990) (noting that Schwartz hearing may be used to correct clerical error), review denied (Minn. Sept. 20, 1990).[3]

The most likely explanation for the contradictory verdicts in this case is clerical error.  There is no indication that the guilty and not-guilty verdict forms reflected a disagreement among the jurors so that a Schwartz hearing would invite an inquiry into the thought processes or deliberations of the jury.  See generally State v. Martin, 614 N.W.2d 214, 226 (Minn. 2000) (noting rule against inquiry into “jurors’ thought processes or deliberations to impeach a verdict”).  Accordingly, we remand to the district court for a Schwartz hearing at which the court may inquire into the jurors’ awareness, if any, of the contradictory verdicts prior to the jury polling.  

            Remanded.