State v. Everson

MEYER, Justice

(dissenting).

I respectfully dissent. The majority today dilutes this court’s strict rule that an intrusion upon jury deliberations by an officer of the court is not subject to harmless error analysis. I would reaffirm our strict rule and hold that the presence of a representative from the county attorney’s office and a court clerk during secret jury deliberations is a defect in the trial proceedings that requires reversal.

Structural errors require automatic reversal, whether or not an objection was made, because they “call into question the very accuracy and reliability of the trial process.” State v. Brown, 732 N.W.2d 625, 630 (Minn.2007) (citing State v. Osborne, 715 N.W.2d 436, 448 n. 8 (Minn.2006)). Structural error affects the “framework within which the trial proceeds,” rather than being simply an “error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (Rehnquist, J., writing for the Court in part). Although we did not call it “structural error,” this court in State v. Mims, 306 Minn. 159, 235 N.W.2d 381 (1975), reversed a conviction when the judge made an uninvited entry into the jury room. Id. at 171, 235 N.W.2d at 389. The question of a new trial did not turn on whether the judge’s entry into the jury room was prejudicial to the defendant. Rather we reversed for a new trial based on the effect of the intrusion “upon the integrity of the proceedings and the independent role and function of a jury during its deliberations on its verdict.” Id. at 163, 235 N.W.2d at 384.

The majority, in an effort to distinguish this case from Mims by calling attention to the fact that the judge did not intrude on this jury, fails to consider that the intrusion of an employee of the county attorney’s office is potentially more egregious than that of a judge. Whereas the judge is neutral, the prosecutor’s office most certainly is not. The New York Court of Appeals, in distinguishing the presence in *351the jury room of a sign language interpreter from that of a court employee, said that

[cjertain outsiders, such as a bailiff or other court official, may inhibit or influence the jury by their mere presence. They may be perceived as having pertinent legal knowledge or as being aligned with the law enforcement community. In either case, their presence could have an adverse impact on the deliberations.

People v. Guzman, 76 N.Y.2d 1, 556 N.Y.S.2d 7, 555 N.E.2d 259, 263 (1990). Regardless of the specifics of Weldon’s conduct while he played the recordings for the deliberating jury, his very presence created the potential for prosecutorial influence on the jury’s decision-making. Weldon’s alignment with the law enforcement community was more than a mere perception; it was a fact known by the jury for whom he played the recordings. His presence with the deliberating jury, even though he is not a judge, is precisely the kind of error that “call[sj into question the very accuracy and reliability of the trial process.” See Brown, 732 N.W.2d at 630 (quoting Osborne, 715 N.W.2d at 448 n. 8).

Even a bailiff, as an officer of the court, is an official whose status has the potential to influence a jury. The United States Supreme Court has concluded that a bailiffs comments about a defendant’s case to jury members, even when a majority of jurors did not hear the comments, violated the defendant’s Sixth Amendment rights to an impartial jury and to be confronted with the witnesses against him. Parker v. Gladden, 385 U.S. 363, 365-66, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966). The Court cautioned that “the official character of the bailiff — as an officer of the court as well as the State — beyond question carries great weight with a jury which he had been shepherding for eight days and nights.” 385 U.S. at 365, 87 S.Ct. 468.

I am also deeply concerned by the majority’s willingness to blur the lines between jury deliberations, which must be secret, and trial proceedings, which must be open to the public and in the presence of counsel and the defendant. It is undeniable that the jury was in deliberations while Weldon, an employee of the county attorney’s office, was present. The judge gave the following instructions regarding the playing of the statements:

First of all, the attorneys and Mr. Ever-son will not be present. This is your deliberation and your deliberations should be secret and up to you. So we will all be leaving the courtroom including myself and my reporter. Mr. Chris Weldon from the County Attorney’s Office will be playing the recordings for you. He has been instructed that he is not to communicate to you in any way. He’s not to make any comment if either Mr. Weldon or the clerk can advise you as to which exhibit you are about to hear, but that is all that they should say to you. If you make any statements during the time that Mr. Weldon is present, he’s instructed specifically not to make any comment to any of the attorneys or parties regarding any statements that you may make during your listening.
* * * *
Ladies and gentlemen of the jury, it will take us a couple of minutes to get all of this set up. I’ll ask that the bailiff take you back to the jury room for just a couple of minutes. While we do that, you can continue your deliberations and the bailiff will bring you back into the courtroom when they’re ready to start the playing of the recordings.

(Emphasis added.) Not only did the trial judge remind the jury that these were secret deliberations, but he also indicated that they could talk freely in front of Wei-*352don, who had been instructed not to comment on anything the jury said. The proceeding was not open to the public. The courtroom where the jury was deliberating, and where judge, counsel, and defendant were all absent, was the functional equivalent of a jury room.

More than once we have affirmed the secrecy of jury deliberations in no uncertain terms: “It has always been deemed essential to the integrity and efficiency of the jury system, that the jurors should retire and consult together in secret, * * * and that they should be permitted to conduct their deliberations in their own way free from any outside control or interference.” Weber v. Stokely-Van Camp, Inc., 274 Minn. 482, 493, 144 N.W.2d 540, 546 (1966) (quoting Hurlburt v. Leachman, 126 Minn. 180, 183, 148 N.W. 51, 52 (1914)). Here, the courtroom was transformed into a jury room by the judge’s instructions that the jury was free to continue its deliberations in the courtroom. The majority finds that the presence of nonjurors was “limited to a period during which the jury was reviewing evidence in the courtroom,” and thus avoids recognizing that these were secret jury deliberations. I cannot find in the “limited” nature of the nonju-rors’ presence justification for the violation of the sanctity of the jury room.

Nor can I find justification for closing the proceeding. The majority offers none. In reaffirming our “strict rule” in Mims, we said that “[i]t is fundamental that all proceedings in the trial of a criminal case shall be open and public and shall be conducted in the presence of defendant and counsel.” 306 Minn. at 167, 235 N.W.2d at 387 (emphasis added). A defendant has a constitutional right to a public trial, and though that right may give way when there is an “overriding interest that is likely to be prejudiced,” the court must consider alternatives to closure, make findings supporting the closure, and allow a closure limited to what is necessary to protect the interest. State v. Mahkuk, 736 N.W.2d 675, 684-85 (Minn.2007) (quoting Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). None of these requirements have been met in this case. Thus the majority creates, without pointing to any authority for doing so, a nebulous third category of proceedings, where the jury is deliberating but the presence of an employee of the prosecutor’s office poses no problem. Under this court’s precedent, the jury’s deliberations should have been suspended and the recordings should have been replayed in open court, in the presence of the judge, counsel, and the defendant.

The record in Mims suggested that the trial judge intruded upon the jury deliberations because he was trying to avoid inconveniencing court personnel. Mims, 306 Minn. at 163 n. 1, 235 N.W.2d at 384 n. 1. Similarly, the record in this case suggests that the trial judge and counsel developed the erroneous procedure to avoid inconveniencing the judge and the jury. I do not question the intentions or motives of the court and counsel in settling upon this procedure, but I am unwilling in the name of convenience and judicial efficiency to close my eyes to a procedure that “risks 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.

There is no need for an employee of the prosecutor’s office or a court clerk to have contact with the jury, outside that occurring in open court. I would reaffirm our strict rule from Mims by holding that the presence of these two nonjurors with the deliberating jury for a period of nearly three hours was structural error necessitating a new trial.