State v. Nissalke

PAGE, Justice

(dissenting).

The court goes to great lengths to explain why the rule we set out in State v. Mims does not entitle Nissalke to a new trial. But to paraphrase Queen Gertrude in Shakespeare’s Hamlet, the court “doth protest too much, methinks.” See William Shakespeare, Hamlet act 3, sc. 2 (“The lady doth protest too much, methinks.”). In Mims, we set forth the rule “that in any criminal case any communication relating to the case occurring during a judge’s uninvited entry into the jury room during deliberations and in the absence of defendant and counsel constitutes reversible error.” 306 Minn. 159, 165, 235 N.W.2d 381, 386 (1975). In Mims, we explained the rationale for this rule as follows:

*113But a judge of the court occupies a different attitude toward the jury from that of any other person. In the heat and passion often engendered on the trial, in the conflicting arguments and statement of law by opposing counsel, the jury naturally looks to the court to bring certainty out of the confusion. An act, a sentence, or a word from the presiding judge may exert a controlling influence on the verdict. It is for these reasons that a communication by the judge to the jury stands on a different basis from that of another person, and for a like reason the law should throw a higher degree of circumspection around such communications.... [Ojwing to his superior influence, he should make no communication to the jury, except in open court, in the presence of the parties or their counsel, or after a full opportunity has been given them to be present.

Id. at 166, 235 N.W.2d at 386 (alterations omitted) (quoting Danes v. Pearson, 6 Ind.App. 465, 33 N.E. 976, 978 (1893) (internal quotation marks omitted)). The record before us indicates that the trial judge in this case entered the jury room uninvited and communicated with the jury in the absence of the defendant and his counsel after the jury had begun deliberating. Thus, I conclude that Mims applies.

The court concludes that Mims does not apply because the jury had not begun deliberations at the time the trial judge entered the jury room. The record belies that conclusion. Although the court concedes that the court minutes indicate that the jury’s deliberations began before the trial judge entered the jury room, the court contends that the “first indication in the transcript” that deliberations had begun was after the trial judge swore in the jury attendants, which occurred after the trial judge had entered the jury room. Given the court minutes, this contention is obviously inconsistent with the record. Moreover, the reference in the transcript — “Jury Out for Deliberations” — is a statement of what the jury was doing at the time and not a statement about when such conduct began.

The contention that deliberations had not yet begun is also problematic for other reasons. As Nissalke points out, there is no evidence in the record to establish that the jury was ever aware of when the jury attendants were sworn, and therefore there is no basis for the court to conclude that the jury waited until after the attendants were sworn to begin deliberations. After completing the instructions, the trial judge told the jury:

From this point on when the bailiffs are sworn and the jury attendants are sworn and you get into the jury room, you can at long last talk to each other about the ease, which you haven’t been able to do for some weeks, so please do that.

The transcript indicates that shortly after this statement, the bailiffs were sworn and the jury exited the courtroom. It appears from the available record that the attendants were sworn outside of the jury’s presence sometime after the judge entered the jury room, answered the jury’s questions, and returned to the courtroom. It also appears that the jurors were never informed that the jury attendants’ swearing-in had taken place. Because this sequence of events suggests that the jurors were unaware of when the jury attendants were sworn, the fact that the jury attendants were sworn after the trial judge had entered and left the jury room sheds no light on when the jury began its deliberations. Rather, the transcript supports an inference that the jury began deliberations as soon as it left the courtroom and entered the jury room.

*114In addition, a reasonable inference to be drawn from the fact that jurors asked the judge two questions while the judge was in the jury room is that the jury had already begun deliberations. Although the court characterizes the questions asked as “generic and not about specific pieces of evidence,” the questions were not generic. The questions concerned the jury’s ability to get a videotape of witnesses’ testimony as well as the official transcript or a copy of the official transcript. These questions are typical of questions asked by deliberating juries. See, e.g., State v. Haynes, 725 N.W.2d 524, 528-29 (Minn.2007) (jury’s request during deliberations to replay witness’s taped statement); State v. Ming Sen Shiue, 326 N.W.2d 648, 653 (Minn.1982) (jury’s request during deliberations to review videotapes that were admitted as evidence during trial); State v. Schluter, 281 N.W.2d 174, 177 (Minn.1979) (jury’s request during deliberations for transcript of testimony of three witnesses); State v. Scott, 277 N.W.2d 659, 660 (Minn.1979) (jury’s request during deliberations to have court reporter reread entire trial testimony of chief prosecution witness and defendant).1

Interestingly, in reaching the conclusion that there was no Mims violation, the court engages in an extended discussion about why Nissalke was not prejudiced by the trial judge’s entry into the jury room. For example, the court suggests that, because the jurors were expecting the trial judge to provide them with the corrected verdict forms and trial exhibits and because it had been a brief time since the jurors had departed the courtroom, the trial judge’s entry into the jury room did not “undermine the independence of the jury’s final, collective, decisional process.” Supra at 97. The court also notes that other concerns discussed in Mims — i.e., that “the adversarial process be protected” and the “defendant’s right to be present,” — are not implicated in this case because defense counsel declined the trial judge’s offer to bring the jurors back into court for a reading of the corrected verdict forms and because neither counsel objected when the trial judge informed the parties of his intent to walk into the jury room to deliver the corrected verdict forms.

But the court’s extended discussions miss the point because they provide no insight into whether jury deliberations began before or after the trial judge entered the jury room. More importantly, in Mims we expressly rejected the idea that a defendant must show some prejudice in order for a new trial to be granted. See 306 Minn. at 165, 170, 235 N.W.2d at 386, 388. Based on the bright-line rule provided in Mims, if deliberations commenced *115before the judge entered the jury room, Nissalke would be entitled to an automatic reversal and a new trial, and, if deliberations had not begun, there would be no violation of, and no reversal required, by Mims. Either way, the extended discussion of prejudice is unnecessary.

The court argues that this analysis “ignores the importance that the ‘uninvited entry’ played in our adoption of the strict Mims rule” and that “the dissent asserts that we should extend the strict Mims rule to the expected entry in this case.” The court’s argument assumes that there is a distinction between “uninvited entries” and “expected entries” even though this court has never made such a distinction in applying Mims. In any case, the distinction is one without a difference. The purpose of Mims is to preclude judicial intrusion into the deliberative process, whether it is invited or expected. The immeasurable influence of the judge on the jury during the deliberation process does not vanish simply because the jury expected the judge’s entry. Further, the notion that a judge could immunize his or her entry into the jury room when jurors are deliberating by informing the jury in advance that the judge would enter the jury room, thus making the entry “expected,” turns our Mims decision on its head.

The position taken by the court also fails for a more fundamental reason. There is simply nothing in the record to support the court’s contention that the trial judge’s entry in this case was invited or expected by the jurors. After noting several errors on the verdict forms, the trial judge told the jury:

Jurors, I have to — I can either call you back and reread those, but I think I’ll read them in the record. I have to make some corrections that I missed and shouldn’t have missed, but I did. I’m going to correct those. And so that the verdict forms that go into the jury room with you, you can rest assured will be accurate and reflect the law and the charges which are contained.
With you going into the jury room will also be all of the evidence that’s been received by the Court, a stack of it.... We will see that those are brought in to you.

After that announcement was made, the alternate jurors were released, the bailiffs were sworn, and the jurors left the courtroom. At no time, either before or after they left the courtroom, did the jurors invite the trial judge into the jury room, nor did the trial judge indicate to the jury that he would personally deliver the corrected instructions to the jury room. After the jurors left the courtroom, Nis-salke’s counsel, along with the prosecutor, consented on the record to the court reading the corrected instructions into the record without bringing the jury back into the courtroom. At the end of the discussion involving the corrected jury instructions, the trial judge informed counsel, “I’ll walk in with the clerk so that we can deliver this otherwise; we’re in recess.”

Assuming, for purposes of the discussion only, that the trial judge being invited or expected to enter into the jury room is a relevant consideration, the court’s argument still fails on this record because it is clear that the judge was not invited into the jury room. To the extent that the court is suggesting that the trial judge, having informed counsel that he would be entering the jury room to deliver corrected verdict forms constitutes an invitation, it is enough to say that even if the word “invitation” could be stretched to include that circumstance, a judge’s self-invitation does not mitigate the problems that Mims is intended to eliminate. If anything, a judge’s self-invitation may exacerbate those problems.

*116It is also clear that the jury had no reason to expect the trial judge to enter thé jury room. The record establishes that the trial judge informed the jury that the corrected .verdict forms would be delivered to them, but made no mention of who would be delivering the corrected forms. The record further establishes that after the jury had left the courtroom, the trial judge informed counsel and the defendant of his intent to deliver the corrected forms. That counsel and the defendant had reason to expect that the trial judge would enter the jury room after deliberations began does not mean that the jury had the same expectation. And, in the context of the concerns raised in Mims, it is the jury’s expectation that is relevant. No such expectation can be established on this record.

In this case, the trial judge not only delivered the verdict forms and evidence to the jury room, he also answered the jurors’ questions. As highlighted by the cases cited above, supra at 113-14, a judge does not have the authority to respond to a jury’s question or request without bringing the jury back into the courtroom in the defendant’s presence. Minn. R.Crim. P. 26.03, subd. l(l)(f). In addition, the trial judge’s response to the jurors’ questions in this case was outside the scope of the agreement between counsel and the court. After the jury left the courtroom, the trial judge stated that he would correct the verdict forms, and then further stated:

I’m going to read both of them into the record, unless you wish me to bring the jury back in merely to read it to them?
Mr. Gort: No, Your Honor.
The Court: Okay. Mr. Ramsay, do you wish me to bring the jury in to reread that to them?
Mr. Ramsay: No, Your Honor. That’s not necessary.

The trial judge then proceeded to deliver the exhibits and instructions to the jury and, while in the jury room, answered two juror questions.

The court points out that Nissalke failed to demonstrate that “the record does not accurately reflect what transpired in the jury room” and states that it is bound by State v. Martin, 723 N.W.2d 613 (Minn.2006). Supra at 98 n. 7. But as the record indicates, both counsel agreed to forego the option to bring the jury back into the courtroom to read the corrected verdict forms, but mentioned nothing about the trial judge answering juror questions. Therefore, the trial judge’s answering of juror questions satisfies Nissalke’s burden under Martin to produce “evidence suggesting contact with the jury outside the scope of the agreement” reached between counsel and the court. See 723 N.W.2d at 624.

Finally, I am compelled to make three other observations. The first observation is that the court makes a point of the fact that in Mims, the jury had been deliberating for approximately 4 hours before the judge made the uninvited entry into the jury room while, in this case, the trial judge entered the jury room “only a few minutes after the jury left the courtroom.” I fail to see what difference the disparity in time makes. The problems that Mims is designed to avoid do not go away simply because the judge’s intrusion into the jury room occurs shortly after deliberations begin.

The second observation is that the problem here does not lie in the fact that the corrected verdict forms were delivered to the jury; the problem is that the trial judge was the person who delivered them. In Mims, we noted that “the trial judge’s position in performing his role and function before submission of the case is a powerful one and makes him an imposing figure in the minds of the jurors.” 306 *117Minn. at 168, 235 N.W.2d at 387. Accordingly, we stated that:

In view of the judge’s dominant role during earlier stages of the trial, an uninvited entrance into the sanctity of the jury room for any purpose offends the integrity of the proceedings and risks influencing the jury’s decisional process in some degree, however difficult to define or impossible to measure .... When such an intrusion occurs, we believe there is a significant interference with the orderly decisional process, and prejudice to the process results by the implication that the judge has the prerogative of entering the jury room and there exercising the same dominant authority he possesses in the courtroom. ... A strict rule prohibiting such intrusions has the salutary effect of minimizing the interruptions of the jury during deliberations, eliminating the necessity of determining the existence of actual prejudice and, hopefully, discouraging repetition of the intrusions.

Id. at 169-70, 235 N.W.2d at 388.

Here, the trial judge’s intrusion into the sanctity of the jury room offended “the integrity of the proceedings and risk[ed] influencing the jury’s decisional process in some degree, however difficult to define or impossible to measure.” See id. at 169, 235 N.W.2d at 388.

The third observation is that the Mims rule is clear, longstanding, and effective: “owing to [the judge’s] superior influence, he should make no communication to the jury, except in open court, in the presence of the parties or their counsel, or after a full opportunity has been given them to be present.” Mims, 306 Minn. at 166, 235 N.W.2d at 386 (citing Danes, 33 N.E. at 978 (internal quotation marks omitted)). In this case, that rule was violated. Therefore, I respectfully dissent.

. The court states that:

The flaw in this argument is revealed by the fact that if a juror asked during voir dire (or even as the jury is being led out of the courtroom to the jury room) whether a transcript would be available for review, no one would seriously contend that the question demonstrated that the jurors were deliberating.

The court is correct that under either of its hypothetical sets of facts no one could seriously contend that the question demonstrated that the jurors were deliberating. But neither of those circumstances is present in this case. More importantly, neither circumstance involves the judge invading the sanctity of the jury room and therefore no Mims violation would exist. Indeed, with respect to the court's voir dire hypothetical, I would note that voir dire takes place in open court with the defendant and both counsel present. Here, the jurors asked the trial judge the questions while they were in the jury room— the room in which they had been told that they could “at long last talk to each other about the case.” Therefore, any argument about juror questions asked outside the jury room is not relevant to the circumstances of this case.