State v. Holly
Decision Date | 05 June 1984 |
Docket Number | No. C8-84-62,C8-84-62 |
Citation | 350 N.W.2d 387 |
Parties | STATE of Minnesota, Respondent, v. Elliot B. HOLLY, Appellant. |
Court | Minnesota Court of Appeals |
Syllabus by the Court
When the defense objects to the non-sequestration of jurors overnight during deliberations, the non-sequestration is presumptively prejudicial.
Hubert H. Humphrey, III, State Atty. Gen., Thomas L. Johnson, Hennepin County Atty., Minneapolis, for respondent.
C. Paul Jones, State Public Defender, Kathy King, Asst. Public Defender, Minneapolis, for appellant.
Considered and decided by LANSING, P.J., and FOLEY and LESLIE, JJ., with oral argument waived.
Elliot B. Holly appeals from an order denying a petition for postconviction relief. On January 29, 1982, Holly was convicted of criminal sexual conduct in the first degree in violation of Minn.Stat. Secs. 609.342(d) and 609.11. Holly moved for a new trial or a Schwartz hearing. Minn.R.Crim.P. 26.03, subd. 19(6). Both were denied. On September 30, 1983, Holly petitioned for postconviction relief contending that (1) the evidence was insufficient as a matter of law to convict him; (2) the court committed reversible error by refusing to permit cross examination of the complainant regarding her prior delusion of pregnancy; (3) the trial court committed reversible error when it refused to sequester the jury during deliberations; and (4) the trial court committed reversible error when it reinstructed the jury during deliberations. The petition was denied. Holly now appeals. We reverse and remand for a new trial.
The trial court submitted this matter to the jury at about 11:30 a.m. on the second day of the trial. Over the objections of both the prosecution and the defense, the trial court allowed the jury to return home overnight during the deliberations.
In the morning of the third day of deliberations, the following took place:
(The jury was sent back to deliberate)
Approximately three hours later the jury returned with a verdict of guilty.
1. Did the trial court err when, over objection of both the prosecutor and defense, it allowed the jury to go home in the evenings during deliberations?
2. Did the trial court err when it reinstructed the jury during deliberations?
1. Minn.Stat. Sec. 631.09 provides for jury sequestration after the charge has been given and states in part that the jury
shall be kept together in some private and convenient place, without food or drink except water, unless otherwise ordered by the court ... and it shall be returned into court when agreed, or when so ordered by the court. In the case of mixed juries counties shall provide adequate, separate quarters for male and female jurors with proper accommodations and, in the event the county fails to provide proper accommodations, the court shall order the jurors kept in a suitable hotel for the night.
At the time of Holly's trial, Rule 26.03, subd. 5(1), Minn.R.Crim.P. was silent with regard to sequestration during deliberations. The statute, however, is clear. A jury "shall be kept together" and if the county does not have proper accommodations, the court "shall order the jurors kept in a suitable hotel for the night."
The State maintains that the phrase "unless otherwise ordered by the court" modifies the clause beginning "shall be kept together" in addition to the phrase "without food or water" and consequently gives the trial courts discretion to decide whether to sequester the jury during deliberations. This construction is contrary to a plain reading of the statute and to case law. In 1871, the Supreme Court construed a sentence which is almost identical to the one the State construes and held that in a criminal case all separations of the jury after the case has been given to them is contrary to the plain meaning of the statute and an error in law. State v. Parrant, 16 Minn. 178, 180-1, Gil. 157 (1871). By 1914, the case law had liberalized somewhat. The court in State v. Georgian, 124 Minn. 515, 517, 145 N.W. 385 (1914), held that "[t]he separation of jurors is presumptively prejudicial, unless it clearly and affirmatively appears that no prejudice has resulted." This holding controls decision in this case. The trial court's allowing the jurors to separate over the objection of both the prosecution and the defense was presumptively prejudicial and is reversible error.
Since the separation was presumptively prejudicial the trial court, at the least, should have conducted a voir dire of the jury on the following morning to determine from juror testimony if any outside influences, including newspapers, radio, television and conversation, were improperly brought to bear upon the jury. The trial court should then have estimated the probable effect of those influences on a hypothetical average jury. State v. Cox, 322 N.W.2d 555 (Minn.1982). Since no such determination was made by the trial court in this case, the presumption of prejudice was not overcome.
The possibility of exposure to potentially prejudicial material creates a...
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