State v. Martin, A04-279.

• Decision Date: 16 November 2006
• Docket Number: No. A04-279.,A04-279.
• Citation: 723 N.W.2d 613
• Parties: STATE of Minnesota, Respondent, v. Lennell Maurice MARTIN, Appellant.
• Court: Minnesota Supreme Court

723 N.W.2d 613

STATE of Minnesota, Respondent, v. Lennell Maurice MARTIN, Appellant.

No. A04-279.

Supreme Court of Minnesota.

November 16, 2006.

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John Stuart, Minnesota State Public Defender, Lydia Villalva Lijo, State Public Defender's Office, Minneapolis, MN, for Appellant.

Mike Hatch, State Attorney General, St. Paul, MN, Robert M.A. Johnson, Marcy S. Crain, Anoka County Attorneys, Anoka, MN, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

GILDEA, Justice.

This case is before us following a remand for reconstruction of the record regarding communications between the judge and the jury. An Anoka County jury found Lennell Maurice Martin guilty of first-degree premeditated murder, first-degree murder while committing a burglary, second-degree assault, and two kidnapping offenses. On direct appeal to this court, one of Martin's arguments was that the district court committed reversible error by communicating four times with the deliberating jury outside his presence. The district court record as transmitted to this court contained no information about the substance of the four communications. We affirmed Martin's conviction in part, but also retained jurisdiction and remanded to the district court to make a record of the communications. State v. Martin, 695 N.W.2d 578, 587 (Minn.2005).¹ We have now received that record and we affirm.

In the file originally sent to this court for Martin's direct appeal, the only record of any communications between the deliberating jury and court personnel consisted of certain notations made by the in-court deputy, Della Davidson, identified as "Anoka County District Court Minutes of Criminal Proceedings." Many of these notations indicate routine, non-prejudicial communications between the jury and deputy —such as requests for smoke breaks and meals.² In Martin's initial appeal, however, he argued "that the trial court erred by failing to have him present when the court responded to [four] jury questions and by failing to secure his waiver of the right to be present." Id. The minutes note the date and time of the four jury questions with which Martin took issue but do not describe either the questions asked by the jury or the responses given by the judge.

In remanding, we stated:

Our review of the record leaves us with some doubt as to whether the four communications at issue relate to housekeeping matters or substantive matters. Because there is some doubt about the nature of the communications, we remand to the trial court to make a record of the four communications at issue, so that we may make an informed decision regarding the matter.

Id. at 587. Two evidentiary hearings were conducted, the transcripts of which have been transmitted to this court.

The evidence gathered during the remand proceedings provides the following information about the four communications:

(1) On October 28, 2003, at 5:29 p.m., the jury asked a question which the judge answered at 5:30 p.m. The written content of this communication was not located, but Davidson testified that the "question was to the Judge indicating or questioning what time [the jury] would have to leave for the hotel." The deputy also recalled that the judge responded to this question at 5:30 p.m. telling the jury they would leave for the hotel at 8:00 p.m.

(2) On October 28, at 8:18 p.m., the jury asked a question which the judge answered at 8:21 p.m. The written content of this communication was not located and neither the deputy nor the trial judge could recall the content.

(3) On October 29, at 9:58 a.m., the jury submitted a note to the judge asking "Can we have a dictionary? If so give us one." The judge's response, written on the note, is "No," followed by "Judge Olson 10:04 10/29/03[.]"

(4) On October 29 at 10:08 a.m., the jury submitted a note to the judge asking "Does [the] rule of law define rash impulse? What is it?" The response, again written on the note, is, "You have the law the Judge has given you. That is the only law that applies to this case[.] Judge Olson 10:10 am 10/29/03[.]"

At the first hearing on remand, conducted on August 19, 2005, deputy Davidson and presiding Judge Lynn Olson (now retired) testified as to their recollections regarding communications between the judge and the jury. Judge Olson also testified regarding the agreement she reached with counsel about how questions from the jury would be handled.

After excusing the jury to begin deliberations in Martin's trial, the district court discussed with the parties' attorneys and in Martin's presence the "typical questions" or requests the jury might make as it deliberated. The purpose of the discussion, Judge Olson said, was to "get your assent that I don't need to contact you first before answering them." The judge said she would grant a request for equipment to watch the video tape of the crime scene that was admitted at trial, but would deny a request to review testimony. She also said she would deny a request for definitions, unless the question presented was "[c]omplicated * * * even if it's pretty minor but still complicated, I would feel a need to talk with both of you, but I wouldn't necessarily need to have you come in, if that's okay with you." Counsel for the state and for Martin agreed, without discussion or modification, to the judge's proposal.

In the agreement initiated by the district court, the court also stated that "the only time I would really want you actually here, with Mr. Martin here, is if there's something of real substance that they ask about that I feel I just * * * [s]houldn't do alone." Martin's counsel replied, "sure" before the court had finished and "that's fine" when the court had finished. The court then asked, "Is that okay with everybody?" Martin's counsel replied, "Fine with me, Judge." The court's language indicates that the parties understood the court would have broad discretion in determining whether a question fell within the scope of the agreement. Martin has conceded as much, stating: "This agreement * * * gave the judge unchecked discretion to determine what constituted `something of real substance' * * *."³

On remand, Judge Olson testified that she believed that she followed the agreement every time there was a question and an answer between her and the jury. She also testified that in the absence of an agreement, she would have brought the attorneys "back [for] every question." Finally, she explained during her testimony that if the jury had asked a question that was outside the terms of the agreement, she would have called the attorneys.

After our receipt of the transcript from the first remand hearing and the parties' supplemental briefs, we remanded for a Schwartz⁴ hearing so jurors could be examined regarding the communications. At the Schwartz hearing, conducted March 30, 2006, the twelve jurors from Martin's trial testified.

In the second remand, we also ordered findings of fact from the district court. Because Judge Olson had retired, the remand proceedings were conducted before Judge Thomas Hayes. Judge Hayes found that "[n]o juror has a concrete recollection of the specific communications occurring at 5:29 p.m. and 8:18 p.m. of the first day of deliberation." He also found that "[s]pecific recollections regarding communications between the jury and the trial court were generally confined to the five notes preserved in Schwartz hearing Exhibit 2." The reference to five notes includes the dictionary and "rash impulse" notes plus the following notes: the jury's request at 8:00 p.m. on October 28 requesting an additional half hour to deliberate, the jury's request on October 29 at 9:37 a.m. for a VCR, and the jury's note at 3:10 p.m. on October 29 stating that it had reached a verdict.⁵ Judge Hayes also found that "[n]o person entered the deliberation room during the jury's deliberation," and that "[a]ll questions submitted by the deliberating jury were submitted to the trial court in writing."

I.

We first address whether the district court committed reversible error when it communicated with the deliberating jury outside of Martin's presence. A defendant in a criminal proceeding has a Fourteenth Amendment due process "right to be present at all critical stages of trial." Ford v. State, 690 N.W.2d 706, 712 (Minn.2005). Minnesota's criminal rules state that the defendant shall be present "at every stage of the trial." Minn. R.Crim. P. 26.03, subd. 1(1). We have previously determined that a district court erred when it communicated with a jury on a substantive matter outside the defendant's presence without the defendant's consent. State v. Sessions, 621 N.W.2d 751, 753 (Minn.2001) ("We hold that the trial court erred by engaging in substantive communications with a deliberating jury outside of open court, without the appellant's knowledge, consent or presence, and without the presence of appellant's counsel and the prosecutor * * *.").⁶

It is clear, however, that "[l]ike any constitutional right, the right to be present at trial may be waived by the accused." State v. Cassidy, 567 N.W.2d 707, 709 (Minn.1997). Although a "defendant can waive his right to be present at a stage of trial, the decision to waive the right is `not for counsel to make but a personal decision for defendant to make after consultation with counsel.'" Martin, 695 N.W.2d at 586 (quoting State v. Ware, 498 N.W.2d 454, 457 (Minn.1993)). While it is plainly the preferred practice, we have not required, either in our original opinion in the instant case or in any other opinion, a defendant to explicitly affirm to the district court his personal waiver of his right to be present. See id. (listing the parties' arguments regarding whether Martin had waived his right to be present, but ultimately not deciding the question); cf. State v. Osborne, 715 N.W.2d 436, 442 (Minn.2006) ("When it comes to the waiver of at least two...