State v. Varner, C4-00-801.

• Decision Date: 09 May 2002
• Docket Number: No. C4-00-801.,C4-00-801.
• Citation: 643 N.W.2d 298
• Parties: STATE of Minnesota, Respondent, v. Theodore Stevie VARNER, Petitioner, Appellant.
• Court: Minnesota Supreme Court

643 N.W.2d 298

STATE of Minnesota, Respondent, v. Theodore Stevie VARNER, Petitioner, Appellant.

No. C4-00-801.

Supreme Court of Minnesota.

May 9, 2002.

John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, Minneapolis, MN, for Appellant.

Mike Hatch, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for Respondent.

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

OPINION

PAGE, Justice.

On August 2, 1999, Theodore Varner was charged by complaint in Ramsey County District Court with one count of possession of a firearm by an ineligible person. Additional charges were added by amended complaint, including promotion of prostitution, false imprisonment, controlled substance crime in the third degree, two counts of criminal sexual conduct in the first degree, two counts of assault in the second degree, and two counts of kidnapping. Varner pleaded not guilty and stipulated that he was not eligible to possess a firearm. On January 22, 2000, a Ramsey County jury found Varner guilty of two of the charges — possession of a firearm by an ineligible person in violation of Minn.Stat. § 624.713, subd. 1(b) (2000), and controlled substance crime in the third degree in violation of Minn.Stat. § 152.023, subd. 1(1) (2000). The jury acquitted him of all the other charges.

In this appeal, Varner raises three issues: (1) whether the trial court abused its discretion when it denied him a hearing under Minn. R.Crim. P. 26.03, subd. 9, after a juror was overheard making a racially derogatory comment to other jurors and after that same juror acknowledged commenting to other jurors that he was concerned for his safety;¹ (2) whether the act of trading cocaine for sex constitutes a sale within the meanings of Minn.Stat. § 152.01, subd. 15a, and State v. Carithers, 490 N.W.2d 620 (Minn.1992); and (3) whether the evidence adduced at trial was sufficient to sustain his conviction for being an ineligible person in possession of a firearm. We reverse and remand to the district court for a new trial.

The relevant facts from the record are as follows. Tonya Stelzer and Zachurus Turner were the primary witnesses against and alleged victims of Varner. Their testimony reveals that, on May 8, 1999, Stelzer and Turner traveled from Rochester, Minnesota, to St. Paul's Frogtown area with plans to obtain crack cocaine in exchange for sex with Stelzer. They encountered Varner in the area and gave him a ride in exchange for crack cocaine. The next day, they encountered Varner again. He told them that he had friends who would be willing to exchange crack cocaine for sex with Stelzer, and took them to a house located on Blair Avenue in the Frogtown area. There, Stelzer engaged in sex with one of Varner's friends in exchange for crack cocaine. At some point, Turner left the house and went outside. While outside, Turner overheard Varner and others talking inside the house. What Turner heard led him to hide the keys to his car. When Turner went back to the house, he was met at the door by Varner, who had a gun in his hand. Varner ordered Turner into the house and asked him for the keys to his car. When Turner said that he did not have the keys, Varner hit Turner in the head with the gun. Turner eventually told Varner where the keys were. Varner then forced Turner to strip naked, threatened him, and ultimately locked him in the basement. After Turner was locked in the basement, Stelzer was forced to have sex with Varner and others, but not in exchange for crack cocaine. According to Stelzer, she had sex with Varner and the others at that point because she was afraid of Varner after witnessing what he had done to Turner. Turner eventually was released from the basement. Two days later, Stelzer escaped from Varner and called the police. When the police arrived and searched the house on Blair Avenue, they found four or five men, a number of dogs, drug paraphernalia, and a semi-automatic pistol. Varner was not present at the time, but was arrested later.

Varner's trial began on January 18, 2000. On January 20, 2000, Varner's cousin reported that during a break in the trial he overheard one juror, "Juror M.," make a racial comment to other jurors and that the jurors listening appeared amused. Juror M. was subsequently interviewed by the trial court outside the presence of the other jurors. In response to questioning, the following exchange took place:

[Juror M.]: I believe exactly what I said was the area from Dale down Van Buren to Western at a place that I used to work at considered that place the miracle mile.

* * *

[Juror M.]: I made a reference to the fact if you were to walk down that street being a white person and if you were not either beat up or robbed, it was considered a miracle.

The Court: [Juror M.], that comment certainly by many people can be considered a racial-biased comment.

[Juror M.]: I understand that.

The Court: Do you understand that?

[Juror M.]: Yes, I do.

It is unclear from the record how many jurors were exposed to Juror M.'s "miracle mile" comment. Juror M. identified at least two jurors who he believed did hear him, although he stated that "possibly" others also heard him. Juror M. testified that the other jurors had "no reaction [to the comment] as far as [he] could see." Juror M. also indicated that he had told other jurors that he was concerned for his safety and that other jurors expressed similar concerns. At the end of this questioning, the trial court dismissed Juror M. from further service.

Based on Juror M.'s remarks about the "miracle mile" and his discussion of safety concerns with other jurors, Varner requested that the trial court question each juror under Minn. R.Crim. P. 26.03, subd. 9, or declare a mistrial. The trial court declined to question any of the other jurors or grant a mistrial, reasoning that Juror M.'s "miracle mile" comment had not prejudiced the other jurors.²

Explaining his reasoning, the trial court stated:

I do not think that it is necessary to poll each of the members of the jury that may have heard this and ask them about how it's affected them. I think the comment was one that he made. It does not appear there was any response from other people. In any event, it's the type of comment that probably people have heard all of their lives at one time or another about various things. In my judgment I don't believe that it would have influenced anybody to change their minds about this case based on that comment. And I don't think it's necessary to examine each juror member with that. So I don't believe that it's poisoned the rest of the panel.

The trial court also stated:

Very simply, one of the basic grounds for me believing it does not prejudice the other jurors in this case is that the testimony basically from all the witnesses presented by the state at least was that this was the kind of area where a lot of high crime took place. So the location is already suspect despite what [Juror M.] may have said to the other jurors and who may have heard it. So I just don't think that that comment is going to prejudice the other jurors.

The trial court did give the following curative instruction to the jury before deliberations began:

[Y]ou must not consider feelings of prejudice, bias, including racial prejudice or sympathy, toward either the defendant or the State. You are to disregard anything you may have heard outside of this courtroom, including any comments regarding the area in question. You are to take a neutral position and decide the case on the evidence and the law.

After his conviction, Varner brought a post-trial motion for a new trial, asserting that the trial court erred by refusing to question the jurors to assess the impact of Juror M.'s remarks under Minn. R.Crim. P. 26.03, subd. 9. The trial court denied Varner's motion and stated:

And my sense of this matter was at the time that it occurred and remains, that the remark in question did not raise serious questions of possible prejudice. The remark was made at most to two to four jurors as I recall, the discussion, but it was certainly a limited number of jurors. * * * The juror in question was dismissed even though I don't believe that any actual prejudice of that juror was shown, in fact, he denied on questioning that he himself was in any way prejudice [sic]. But because of that potential, we did dismiss that juror.

On appeal, the court of appeals affirmed Varner's convictions, concluding that the trial court did not abuse its discretion by denying Varner's motion for a new trial. The court of appeals reasoned that Juror M.'s "miracle mile" comment did not have a prejudicial effect on Varner's trial because: (1) Varner was black, as was Turner, the principal witness against him; (2) had the jurors been prejudiced by Juror M.'s comment, the jury would not have acquitted Varner of most of the charges against him; and (3) Varner's trial counsel, in his argument to the trial court, had minimized Juror M.'s comment by referring to it as a joke. The court of appeals also concluded that the act of exchanging crack cocaine for sexual favors constituted the sale of a controlled substance under Minn.Stat. § 152.01, subd. 15a, and that the jury could have reasonably concluded from the evidence adduced at trial that Varner possessed a firearm. Finally, with respect to Varner's sentence, an issue not presented in this appeal, the court of appeals reversed and remanded for resentencing.

I.

In reviewing a trial court's denial of a motion to question the jurors under Rule 26.03, subdivision 9, we consider whether the trial court properly determined that serious questions of possible prejudice were not raised.³ See Minn. R.Crim. P. 26.03, subd. 9. Our review is de novo. With respect to the denial of a new trial motion, we review the trial court's decision for an abuse of discretion. State v. Landro, 504 N.W.2d 741, 745 (Minn. 199...