State v. Ware
| Citation | 498 N.W.2d 454 |
| Decision Date | 16 April 1993 |
| Docket Number | No. C9-91-2289,C9-91-2289 |
| Parties | STATE of Minnesota, Respondent, v. Charles Wilson WARE, Petitioner, Appellant. |
| Court | Supreme Court of Minnesota (US) |
Syllabus by the court.
1. Trial court has authority and obligation to maintain order among spectators during a criminal trial but ordinarily should impose least severe sanction appropriate to correct any breach of the courtroom peace.
2. Criminal defendant has a right to be present "at every stage of the trial including * * * the return of the verdict"; "return of the verdict" includes the polling of the jurors as to whether the verdict is their true and correct verdict.
3. Decision whether to waive right to be present during return of verdict in criminal trial is for defendant to make after consultation with attorney.
4. Trial court has discretion during polling of jurors to question any juror in noncoercive way in order to clarify any confusion about whether the verdict is the juror's true and correct verdict.
John M. Stuart, State Public Defender, Michael F. Cromett, Asst. State Public Defender, St. Paul, for petitioner, appellant.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, and Michael O. Freeman, Hennepin County Atty., Linda K. Jenny, Asst. County Atty., Minneapolis, for respondent.
Heard, considered and decided by the court en banc.
In an unpublished decision the court of appeals affirmed the conviction of defendant Charles Wilson Ware of second-degree intentional murder. State v. Ware, C9-91-2289, 1992 WL 189447 (Minn.App., filed August 11, 1992). We granted defendant's petition for review in order to examine the circumstances surrounding the polling of the jurors during the return of their verdict, which was done in defendant's absence and after the courtroom had been cleared of spectators because of some spectators' disruptive conduct. From our review of those circumstances, we conclude that in the interests of justice defendant should receive a new trial.
Defendant was present during the reading of the verdict, but immediately thereafter, before the jurors were polled, he was removed from the courtroom. According to an affidavit filed during the course of this appeal by the trial judge, Honorable Deborah Hedlund, the prosecutor and the defense counsel told the trial judge before the verdict was read that "they had agreed with the deputies that, to avoid further disruption in the courtroom, Mr. Ware should be taken out of the courtroom immediately after the verdict was read by the jury."
Defense counsel left the courtroom to confer with his client. On counsel's return to the courtroom several minutes later, counsel asked that the jury be polled. He did not ask that defendant be returned to the courtroom.
During the polling of the jurors, one juror, who was sobbing, answered "no" when asked if the verdict was her true and correct verdict. An unidentified spectator interjected, "She said no." The judge then said, "I'm going to exclude parties from the courtroom and from the floor unless you remain absolutely silent." After asking the remaining jurors if the verdict was their true and correct verdict, the trial judge returned to the juror in question and again asked her whether the verdict was her true and correct verdict. When unidentified spectators began to clap, the trial judge allowed a deputy to clear the courtroom of spectators.
The trial judge then told the juror in question, number 4, that she was not sure she had heard her answer and needed an audible answer. The judge added, "[I]f you need to consider it longer, we're certainly going to give that time." The following exchange then occurred:
Juror No. 4: It doesn't matter. I haven't anything to say. Everybody else--I want to believe what he said: no one else does.
The Court: Well, let me ask you this: Do you need more time to consider your verdict or have you--have you personally arrived at a verdict of yes or no that a guilty verdict is the correct verdict?
Juror No. 4: The evidence shows that he's guilty, but myself, I don't want to believe he is.
The Court: Well,--
Juror No. 4: But you have to go by the rules * * * go by the rules.
The Court: Do you understand the question that I've put to you? A verdict of guilty has been returned. The jury is being polled as to whether or not that's your personal true and correct verdict. Is the answer to that question yes or no?
Juror No. 4: The evidence shows that he was guilty. There wasn't enough evidence to show that he wasn't guilty, so I have to say yes. I just in myself believe that--I want to believe that he's telling the truth.
The Court: Okay. Well, you had the jury instructions with you in the room. It asks you to dispassionately rule on the evidence, and that's a difficult task. Because eleven people feel one way and you feel a different way doesn't mean that you aren't entitled to your convictions. Now, the question is whether you are satisfied that the State has proven the case of murder in the second degree, each of four elements, beyond a reasonable doubt so that you are satisfied that it's appropriate to return a verdict of guilty.
Juror No. 4: With the evidence that was presented, yes.
The trial judge then excused all the jurors but the juror in question and said she wanted to ask the juror out of the presence of the other jurors if the verdict was her true and correct verdict. The juror said it was her true and correct verdict and that her verdict would not change if she were given more time to think about it.
Minn.R.Crim.P. 26.03, subd. 1(1) provides:
The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules.
As we said in State v. Thompson, 430 N.W.2d 151, 152 (Minn.1988), the right to be present under the rule is broader than the right to be present under the Federal Constitution. We need not address the question whether a criminal defendant has a constitutional right to be present during the return of the verdict, including the polling of the jury, because it is clear that in Minnesota a criminal defendant has such a right under the rule. The court of appeals narrowly construed the phrase "return of the verdict" to refer only to the reading of the verdict and not to include the polling of the jury after the verdict has been read. A defendant has a right to a polling of the jury upon request, Minn.R.Crim.P. 26.03, subd. 19(5). In our opinion, a defendant is entitled to insist that the jurors be required, in a sense, to look defendant in the eye and answer whether or not the verdict is their true and correct verdict.
The right to be present may, in certain circumstances, be forfeited. Thus, e.g., in State v. Thompson, 430 N.W.2d 151, 152-53 (Minn.1988), when the issue was whether a defendant was entitled to relief because he was not present at an evidentiary hearing held outside the presence of the jury, we held that the defendant forfeited his right to be present by not asserting the right to be present at the hearing. We are less inclined to rely on the doctrine of forfeiture where the defendant, as here, is not present during proceedings actually occurring in open court. 1 We conclude that a trial court ought not proceed with the return of the verdict, including the polling of the jury, in the absence of the defendant unless the defendant has waived the right to be present. Moreover, this decision to waive is a decision not for counsel to make but a personal decision for defendant to make after consultation with counsel.
Of course, the fact that a personal waiver does not appear of record on appeal does not mean that there was no waiver. 2 Furthermore, even if a defendant is wrongly denied the right to be present, the defendant is not entitled to relief if it can be said that the error was harmless error beyond a reasonable doubt. 3
In this case, we do not know the circumstances leading to defense counsel's agreement with the prosecutor that defendant should be removed from the courtroom immediately after the reading of the verdict but before the polling of the jurors. Moreover,...
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State Of Minn. v. Finnegan
...Like other constitutional rights, the right to be present can be waived. See, e.g., Martin, 723 N.W.2d at 619; State v. Ware, 498 N.W.2d 454, 457 (Minn.1993). The right may be waived expressly or impliedly, and a court may imply waiver from a defendant's conduct. Cassidy, 567 N.W.2d at 709;......
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Holt v. State, No. A08-223.
...to be present is broader under the Minnesota Rules of Criminal Procedure than under the United States Constitution. State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993) (citing State v. Thompson, 430 N.W.2d 151, 152 (Minn.1988)); Minn. R.Crim. P. 26.03, subd. The examination of a juror for bias ......
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State v. Martin, A04-279.
...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 i......
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Brown v. State
...so, we have held that a waiver by counsel is ineffective unless it is made with the informed consent of the defendant. State v. Ware, 498 N.W.2d 454, 457 (Minn. 1993); State v. Sessions, 621 N.W.2d 751, 756 (Minn.2001). There is no indication in this record that Brown personally waived the ......