State v. Breaux
| Decision Date | 02 January 2001 |
| Docket Number | No. C0-00-309.,C0-00-309. |
| Citation | 620 N.W.2d 326 |
| Parties | STATE of Minnesota, Respondent, v. Terry Kim BREAUX, Appellant. |
| Court | Minnesota Court of Appeals |
Mike Hatch, Minnesota Attorney General; and Susan Gaertner, Ramsey County Attorney; and Jeanne L. Schleh, St. Paul, MN, (for respondent).
Frederick J. Goetz, Goetz Law Office, Minneapolis, MN, (for appellant).
Considered and decided by KLAPHAKE, Presiding Judge, HARTEN, Judge, and ANDERSON, Judge.
Appellant Terry Kim Breaux was convicted of possession of a firearm by an ineligible person in violation of Minn.Stat. § 624.713, subd. 1(b) and subd. 2 (1998). Appellant claims he was prejudiced by a mid-trial in camera hearing held outside his presence. Appellant further challenges the court's ruling allowing the prosecutor to make a rebuttal argument pursuant to Minn.Stat. § 631.07 (Supp.1999). Finally, appellant asserts there was insufficient evidence to sustain his conviction. We affirm.
On August 2, 1999, St. Paul police officers responded to a domestic disturbance call at 311 West George Street, in St. Paul, where J.N. lived with her mother1. A female caller identified appellant as an ex-boyfriend in possession of a handgun in his waistband and reported he was walking east toward an apartment building at the end of the block. Officers responding to the call observed appellant walk into a nearby apartment building and into a first floor apartment in the building. Police followed appellant and found him in the apartment bathroom.
After searching appellant and finding no weapon, appellant and the officers were walking out of the apartment and into the entryway together when an officer noticed a rolled-up newspaper in a plastic delivery bag. The bag was approximately eye-level, adjacent to the wall on the sixth step of the stairway leading from the entryway up to the second floor apartments. There are only four apartments in the building.
The bag was examined and contained a silver .22 caliber handgun. Police seized the gun and arrested appellant. The state charged appellant with possession of a firearm by an ineligible person. As the police were preparing to leave the scene, J.N. turned over appellant's Newport cigarette box which contained five .22 caliber bullets.
At trial, J.N. testified that, from a distance of three or four feet, she saw appellant slide something silver, later presumed to be the handgun, under a sofa in her living room the night before the 911 call. She then saw appellant put the Newport cigarette box on a stand next to the television. At trial she identified the cigarette box as the one appellant left in her front room which she helped to find and then ultimately turned over to the police. J.N. further testified that appellant was the only person in her house who smoked Newport cigarettes.
Appellant would not tell J.N. what the silver object was and so she told him if it was something illegal to take it out of the house. Appellant, with his back to J.N., reached under the couch, grabbed the silver item, made a motion towards the front of his body and walked out the door. He was gone for a few hours and then returned to the house.
The following day appellant demanded the return of the Newport cigarette box which he had left in the living room. He looked for it but could not find it. J.N. testified that appellant got upset because the box could not be found. J.N.'s mother asked appellant to leave the house if he was going to be upset about the missing box. J.N. testified that appellant said "don't let me catch you outside" as he left the house. After leaving the house J.N. saw appellant momentarily in her backyard bushes before finally leaving.
J.N. testified that her cousin had put the cigarette box in another room. She and the cousin went to the front room where the cousin produced the Newport cigarette pack. After J.N. saw the bullets in the cigarette box, she told her mother and the decision was made to call the police
During cross-examination at trial, J.N., a prosecution witness, refused to provide the first name of the cousin. The district court called a recess and ordered the court reporter, the witness, and both counsel to retire to chambers for an in camera on-the-record discussion. Appellant remained in the courtroom. Appellant's counsel did not object to the defendant's absence from the conference.
In chambers the district court was unable to convince J.N. to answer the question. The court instead concluded it would be able to obtain the name from J.N.'s mother. Court then adjourned for the day. The following day, discussions continued outside the presence of the jury regarding what, if any, jury instruction should be given in light of J.N.'s refusal to give her cousin's name. Ultimately, nothing further was said to the jury regarding the matter by the district court, and the issue was not revisited in the testimony of any witnesses.
After the close of evidence, the prosecution requested automatic rebuttal pursuant to Minn.Stat. § 631.07 (Supp.1999). The court granted the request over appellant's objection that the statute violated the separation of powers doctrine, and was thus unconstitutional. The jury found appellant guilty of possession of a firearm by an ineligible person. This appeal followed.
Respondent has also filed a motion to strike a portion of appellant's brief on the ground that it refers to matters outside the record on appeal.
The central issue in this case is the construction and application of Minn. Stat. § 631.07 (Supp.1999) in light of a conflicting provision found in Minn. R.Crim.P. 26.03, subd. 11. "In evaluating challenges to the constitutionality of statutes, this court recognizes that the interpretation of statutes is a question of law * * * ." In re Blilie, 494 N.W.2d 877, 881 (Minn.1993) (citation omitted). Accordingly, "this court `is not bound by the lower court's conclusions.'" Id. (quoting Sherek v. Independent Sch. Dist. No. 699, 449 N.W.2d 434, 436 (Minn.1990)). Our review of this matter, however, is guided by principles of comity:
Due respect for the coequal branches of government requires the court to exercise great restraint before striking down a statute as unconstitutional, particularly when it involves a determination of what is a legislative and what is a judicial function.
State v. Willis, 332 N.W.2d 180, 184 (Minn. 1983).
"Minnesota statutes are presumed constitutional, and our power to declare a statute unconstitutional should be exercised with extreme caution and only when absolutely necessary." In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989) (citation omitted). To successfully challenge a statute, a party must demonstrate "beyond a reasonable doubt a violation of some provision of the Minnesota Constitution." Id. (citation omitted).
Following the close of evidence in this case, the prosecution requested automatic rebuttal under revised Minn.Stat. § 631.07, and the court granted the request over appellant's objections. Minn.Stat. § 631.07 provides that:
When the giving of evidence is concluded in a criminal trial, unless the case is submitted on both sides without argument, the prosecution may make a closing argument to the jury. The defense may then make its closing argument to the jury. The prosecution shall then have the right to reply in rebuttal to the closing argument of the defense.
At the time this new statute took effect on August 1, 1999, Minn.R.Crim.P. 26.03, subd. 11 provided, in relevant part, the following:
Thus, Minn.Stat. § 631.07 modified the existing order of final argument and gave the prosecution the right of automatic rebuttal. After the 1999 legislature amended the statute, the supreme court invited comment by interested parties on the issue of prosecutor rebuttal argument. The supreme court subsequently issued an order on February 11, 2000 amending Rule 26.03, subd. 11. The new rule provides as follows:
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