State of Minnesota, Respondent, vs. Willie Tounzell Smith, Appellant.

 This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1800

 

State of Minnesota,

Respondent,

 

vs.

 

Willie Tounzell Smith,

Appellant.

 

Filed November 30, 2004

Affirmed in part and remanded

Crippen, Judge

 

Hennepin County District Court

File No. 03033288

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Amy J. Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant Hennepin County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

Katie C. Pfeifer, Special Assistant State Public Defender, Dorsey & Whitney LLP, Suite 1500, 50 South Sixth Street, Minneapolis, MN 55402-1498 (for appellant)

 

Considered and decided by Lansing, Presiding Judge; Toussaint, Chief Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

CRIPPEN, Judge

            Appellant Willie Smith challenges his conviction of first-degree aggravated robbery, arguing that the district court abused its discretion by limiting his cross-examination of the victim and failing to question individual jurors about possible contact with a deputy.  Appellant also challenges his sentence, arguing that the upward durational departure is unconstitutional because it was based on facts not specifically found by the jury.  We remand on the sentencing question but otherwise affirm.

FACTS

            The victim of a 2003 robbery incident identified appellant as the man who took her money as she was leaving a convenience store.  When the victim tried to get the money back, appellant hit her in the face several times, causing her to fall to the ground.

            As appellant walked away, the victim ran toward a nearby police squad car and told the officer that she had been robbed.  She pointed across the street at appellant, who was walking with another man.  When the officer asked which man robbed her, the victim identified appellant by the clothes he was wearing.  After the officer approached appellant and arrested him, the victim ran up and confirmed that appellant was the man who had robbed and hit her.

            Following a four-day jury trial, appellant was convicted of aggravated robbery and simple robbery.  Appellant disputes the conviction because the district court limited his questioning of the victim and because the court failed to question jurors to learn if they had been contacted by a deputy sheriff during the trial; appellant claims that the deputy, in a verbal exchange with appellant, threatened to influence the trial.  Following the conviction, the state moved for an upward durational departure to the statutory maximum sentence, and appellant moved for a downward durational departure.  The district court sentenced appellant as a dangerous offender and as a career offender to the statutory maximum sentence of 240 months.  Appellant now challenges his conviction and his sentence.

D E C I S I O N

1.            Cross-examination

            Absent a clear abuse of discretion, the district court will not be reversed in determining the scope of cross-examination.  State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998).  A court's "wide latitude" to place limitations on cross-examination of prosecution witnesses is based on concerns of potential harassment, confusion of the issues, and repetitive or only marginally relevant questioning.  State v. Lanz-Terry, 535 N.W.2d 635, 639 (Minn. 1995).  Under the constitution, a criminal defendant has the right to confront the witnesses who testify against him.  U.S. Const. amend. VI; State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995).  The purpose of confrontation is "to secure for the [defendant] the opportunity of cross-examination."  Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974) (quotation omitted).

            Appellant argues that the district court abused its discretion by preventing him from questioning the victim about her mental-health history and her related use of methadone and Celexa for treatment.  Appellant asserts that whether a victim was experiencing any side effects of the medications is relevant to give the jury the opportunity to evaluate her credibility.  See State v. Hawkins, 260 N.W.2d 150, 158 (Minn. 1977) (stating intoxication of witness at time of incident is relevant and admissible).

            But appellant was not denied the right to question the victim about her condition; he was precluded only from asking about whether she was on methadone treatment or taking Celexa.  The district court permitted appellant to question the victim about her use of Neurontin and Ambien and whether she experienced any dizziness on the day of the incident.  At trial, defense counsel asked the victim whether she had taken either drug. The victim replied that she was not taking Neurontin and that she had not taken Ambien on the day of the incident.  Because appellant had the opportunity to cross-examine the victim regarding any relevant symptoms of prescription drug side-effects, and the record shows no evidence that her condition was impaired, we conclude that the district court did not abuse its discretion by limiting the cross-examination of the victim. 

            2.            Schwartz Hearing

Appellant argues that the district court should have questioned the jurors regarding any inappropriate contact they might have had from a deputy sheriff who evidently was involved in the verbal argument with appellant on the first day of trial.  Private communication with jury members is presumptively prejudicial.  State v. Erickson, 610 N.W.2d 335, 338 (Minn. 2000).  Once the presumption has been established, the prosecution may rebut the presumption by showing that the error did not contribute to the verdict beyond a reasonable doubt.  State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982).  Appellant argues that because the district court did not question any jurors, the presumption was not rebutted and remand for a full hearing is required.

            When investigating allegations of juror misconduct, the district court may question jurors in the presence of counsel and all interested parties.  Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).  "In order to be entitled to a Schwartz hearing, a defendant must establish a prima facie case which, standing alone and unchallenged, would warrant the conclusion of jury misconduct."  State v. Martin, 614 N.W.2d 214, 225-26 (Minn. 2000) (quotations omitted).  Appellant argues that because the district court called it's relevant inquiry a "Schwartz hearing," the court must have concluded that appellant established a prima facie case of misconduct.  But the district court has broad discretion in determining whether to grant a Schwartz hearing, State v. Wilson, 535 N.W.2d 597, 607 (Minn. 1995), and the manner in which a Schwartz hearing is conducted, State v. Powers, 654 N.W.2d 667, 678 (Minn. 2003).

            Upon learning that a verbal altercation between appellant and a deputy was asserted, the district court held a hearing out of the presence of the jury to question witnesses to the incident.  The court found the testimony of appellant and another inmate witness was not credible and concluded that the deputy did not make any improper threats to appellant about contacting the jury.  See Dale v. State, 535 N.W.2d 619, 623 (Minn. 1995) (reviewing courts defer to fact finders credibility determinations).

            In addition, the district court found that, even if the deputy had made improper threats, the deputy could not have contacted the jury.  First, the court carefully asked the jury, through instructions and a direct question, whether they had been contacted by anyone, and nobody answered affirmatively.  See State v. Martin, 614 N.W.2d 214, 227 (Minn. 2000) (jurors are presumed to follow district court's instructions).  Second, the deputy was on funeral leave beginning the second afternoon of trial and continuing until after the jury returned with its verdict.  The district court did not abuse its discretion by refusing to question individual jurors as to any possible contact by the deputy.

            3.            Sentencing

            Appellant argues that the United States Supreme Court's recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004) applies to his case.  In Blakely, the Court held that a sentence exceeding the statutory maximum sentence is unconstitutional unless the facts upon which the departure was based were duly admitted or found beyond a reasonable doubt by a jury.  Id. at 2537-38.  We remand for resentencing consistent with the demands of Blakely.[1]

            Affirmed in part and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant also contends the district court abused its discretion by imposing an upward durational departure to the statutory maximum sentence.  This issue will not arise in the absence of a confirmation of the sentence on remand.