State of Minnesota, Respondent, vs. Gregory Todd Ballauf, Appellant.

State of Minnesota, Respondent, vs. Gregory Todd Ballauf, Appellant. A05-2228, Court of Appeals Unpublished, March 20, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2228

 

 

State of Minnesota,

Respondent,

 

vs.

 

Gregory Todd Ballauf,

Appellant.

 

 

Filed March 20, 2007

Affirmed in part, reversed in part, and remanded

Collins, Judge*

 

 

Stearns County District Court

File No. K4-05-1289

 

 

Lori Swanson, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Janelle Kendall, Stearns County Attorney, Administration Center, 705 Courthouse Square, Room 448, St. Cloud, MN 56303 (for respondent)

 

John M. Stuart, State Public Defender, Marie Wolf, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Ross, Judge; and Collins, Judge.

U N P U B L I S H E D   O P I N I O N

COLLINS, Judge

            Appellant challenges his conviction of two counts of second-degree assault, contending that the district court erred by (1) communicating with the jury during deliberations without appellant's knowledge or presence, not in open court, and without a record, (2) giving a no-adverse-inference instruction absent appellant's personal consent, and (3) determining that the second count of conviction was a "second or subsequent offense" under Minn. Stat. § 609.11, subd. 4 (2004), supporting a sentence of 36 months consecutive to the sentence of 51 months on count I.  We affirm in part, reverse in part, and remand. 

FACTS

            One night in March 2005, officers responded to a 911 call made from the residence of Tara Ann Miller in Waite Park.  Miller was interviewed and said that she and appellant Gregory Todd Ballauf were in her home consuming alcohol when appellant gradually became belligerent, calling her names and throwing things.  Miller stated that at some point appellant took a knife out of his pocket, eventually threatening to kill her with it.  When Miller asked appellant to leave, he refused, and instead became more belligerent.  Miller then called Lawrence Joseph Roering, a family friend, to help her remove appellant from her home. 

            At trial, Roering testified that when he arrived at Miller's home he asked appellant to leave and attempted to escort appellant outside.  When appellant reached the top of the stairs outside the front door, he stumbled down the steps and into the neighbor's trailer.  Roering testified that appellant accused Roering of pushing him down the steps, pulled out a knife, and told Roering that he was going to kill him.  According to Roering, appellant then climbed the stairs and attempted to stab Roering through Miller's screen door.  Roering alerted Miller that appellant had a knife and told her to call 911. 

            Officer Derek Whitehead was one who responded to Miller's 911 call.  Officer Whitehead was given a description of appellant, left to find him, and eventually confronted appellant on foot in the area of a parking lot.  A pat-down search revealed a pocketknife in appellant's pants pocket.  Appellant admitted that he had been drinking with Miller when Roering arrived and told him to leave, but denied threatening anyone with a knife; claiming, instead, that he was assaulted by Roering.  Officer Whitehead noted that appellant smelled strongly of alcohol and staggered when he walked.  Appellant was returned to Miller's residence, where he was arrested after both Roering and Miller identified him as their assailant. 

            Appellant was initially charged in count I with assault in the second degree in violation of Minn. Stat. §§ 609.222, subd. 1, .11, subd. 4 (2004), and in count II with terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2004).  The state subsequently filed an amended complaint, substituting a second count of second-degree assault in violation of Minn. Stat. §§ 609.222, subd. 1, .11, subd. 4, in place of the terroristic threats charge in count II.[1]  Following a jury trial, appellant was convicted on both counts of second-degree assault and sentenced to serve consecutive terms of 51 months on count I and 36 months on count II, for the aggregate term of 87 months.  This appeal follows. 

D E C I S I O N

I.

            Appellant argues that the district court committed reversible error when it communicated with the jury during deliberations without appellant's knowledge or presence and without making a contemporaneous record of the communications.[2]  The Confrontation Clause of the Sixth Amendment of the United States Constitution ensures to a defendant the right to be present at all stages of trial.  State v. Sessions, 621 N.W.2d 751, 755 (Minn. 2001).  "Responding to a deliberating jury's question is a stage of trial."  Id. (citing State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995)).  Fundamentally, a trial judge should not have any communication with the jury during deliberations "unless that communication is in open court and in the defendant's presence."  Id. at 755-56 (citing State v. Schifsky, 243 Minn. 533, 543, 69 N.W.2d 89, 96 (1955)).  Minn. R. Crim. P. 26.03, subd. 1(1), provides that "[t]he 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."  The right to be present under rule 26.03 "is broader than the federal constitutional right to be present at all critical stages of trial."  State v. Breaux, 620 N.W.2d 326, 332 (Minn. App. 2001).  Further, "the Criminal Rules require that a deliberating jury be conducted into open court whenever the jury requests a review of testimony or other evidence or desires to be informed on any point of law."  Sessions, 621 N.W.2d at 756 (citing Minn. R. Crim. P. 26.03, subds. 19(2), 19(3)).  

            But "[e]ven if a defendant is wrongfully denied the right to be present at every stage of trial, a new trial is warranted only if the error was not harmless."  Id. at 756 (citing Schifsky, 243 Minn. at 542, 69 N.W.2d at 95); see also State v. Hannon, 703 N.W.2d 498, 506 (Minn. 2005) (holding that defendant's exclusion from in-chambers conference was harmless); Breaux, 620 N.W.2d at 332 (stating that "[e]ven if a defendant's right to be present is violated, the defendant is not entitled to relief if it can be said that the error was harmless error beyond a reasonable doubt") (quotation omitted).  "If the verdict was surely unattributable to the error, the error is harmless beyond a reasonable doubt."  Sessions, 621 N.W.2d at 756 (citing State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).  "When considering whether the erroneous exclusion of a defendant from judge-jury communications constitutes harmless error, we consider the strength of the evidence, and substance of the judge's response."  Id. (citations omitted). 

            In Sessions, defendant was tried for first-degree murder.  Sessions, 621 N.W.2d at 752.  After the jury had retired to deliberate, the trial judge asked counsel if they wished to be contacted should the jury request additional instructions or have any questions, and both counsel answered in the affirmative.  Id. at 754.  The jury returned with a guilty verdict.  Id. at 752, 754.  But the district court had failed to make a record of what transpired regarding written questions and answers exchanged between the jury and the district court during deliberations.  Id. at 754.

Seven months later, in anticipation of appeal, the state moved to reconstruct the record from the memories of the trial judge and counsel.  Id.  The judge recalled contacting each counsel by phone after the jury submitted its questions, and also recalled "that counsel agreed to the answers that the court proposed and also agreed that the answers could be written and delivered to the jury room."  Id.  Although the state's trial counsel confirmed the judge's recollection of events, defendant's trial counsel could not remember if the telephone conversation took place.  Id.  It was not disputed that Sessions was not personally informed of the jury's questions, was not consulted regarding the proposed answers, and did not waive the right to be present.  Id. at 754-55.  The district court incorporated into the record the original notes that contained the jury's questions along with the answers given.  Id. at 755. 

Sessions appealed the conviction, arguing, inter alia, that the district court committed reversible error by communicating with the jury outside of open court, absent Sessions's knowledge, consent or presence, and without making a contemporaneous record of the preliminary discussion with counsel or the communications with the jury.  Id. at 752-53.  The supreme court determined that because, as a general rule, a judge should not communicate with the jury in writing during deliberations unless the communications are in open court and in the defendant's presence, the district court violated defendant's Sixth Amendment right to be present, rule 26.03, subd. 1(1), and rule 26.03, subds. 19(2) and 19(3), when it responded to jury questions in writing and in defendant's absence, without obtaining a waiver.  Id. at 756.  The supreme court was equally "troubl[ed]" by the district court's "failure to place on the record any communications with counsel or jury during deliberations," stating that "a reconstructed record cannot be as precise or comprehensive as a record made at the time of trial."  Id. (admonishing trial judges "to make a contemporaneous record of each stage of trial, particularly a stage as delicate as communications with the jury and with counsel during deliberations," as "[a] record is critical to ensure adequate appellate review and a fair process"). 

But despite the conclusion that the district court had thus erred, the supreme court held that Sessions was not entitled to a new trial because "under the circumstances, the error was harmless beyond a reasonable doubt."  Id. at 753, 756-57.  In reaching that conclusion, the supreme court reasoned that the state's evidence of defendant's guilt was strong, and that the district court's communications with the jury did not favor the prosecution or defense, and thus were not prejudicial to the rights of defendant.  Id. at 756-57.         

The present facts are similar to those in Sessions.  More than seven months after he was sentenced, appellant sought a remand to the district court to supplement the record pursuant to Minn. R. Civ. App. P. 110.05.  The district court promptly filed supplemental findings of fact and order to these effects: That during deliberations the jury made a written request to rehear the recording of Miller's 911 call that was played during trial; that the district court telephoned both trial counsel, who agreed that the request should be denied; that the district court denied the request in writing to the jury on the paper containing the jury's request; that the telephone conference between the court and counsel was not recorded; that the note paper containing the jury's request and the court's response was not retained; and that the communication between the court and the jury transpired not in open court, without a record, and when appellant was not present.  On that basis, we conclude that the district court violated appellant's Sixth Amendment right to be present, as well as rule 26.03, when it communicated in writing with the jury in appellant's absence, without a waiver. 

We next turn to whether the district court's error was harmless.  As previously noted, in making this determination, this court should consider the strength of the evidence and the substance of the district court's response to the jury's question.  Sessions, 621 N.W.2d at 756.          

Appellant argues that the strength of the evidence of second-degree assault, especially with regard to Miller (count II), is weak because it does not show that appellant actually threatened Miller and Roering with the knife.  But the testimony of both Miller and Roering, as well as the 911 call made by Miller, all support the state's contention that appellant assaulted both individuals with a knife.  For instance, Miller testified that appellant placed the knife against her throat and said, "I'm going to kill you, you F'ing fat b-tch."  Roering testified, in part, that after appellant fell down the front steps he threatened Roering, stating, "Now you mother f-cker I'm going to kill you."  Roering further testified that appellant then attempted to stab him with the knife.  Miller confirmed Roering's testimony, stating that after she heard a scuffle outside, Roering exclaimed, "Call 911.  He's got a knife."  Additionally, in her 911 call, Miller stated:

Yeah, I have a guy outside my househe was in my house.  I couldn't get rid of him so I called my friend.  He come and got him out the door and he pulled a knife on him and I just want him out of here.

 

. . . .

 

He's out there and he pulled a knife on my friend.

 

When asked by the 911 dispatcher whether appellant assaulted her, Miller replied, "No, he pulled a knife on me earlier and I was gonna call the cops, but I couldn't even get near the phone till my son come."  Both Miller and Roering testified that they were "scared" during the incident.  In addition to the testimony of Miller and Roering, the state entered into evidence the knife, which was found in appellant's pants pocket at the time he was apprehended, and pictures of Miller's screen door, which was allegedly cut by appellant while attempting to stab Roering.  Although Miller's 911 call casts some doubt regarding whether appellant actually threatened her with a knife, the record as a whole adequately supports our conclusion that the evidence of appellant's guilt on both counts was reasonably strong.

            We also must consider the district court's response to the jury's question.  Although the specific language used by the district court in responding to the jury's question was not preserved, the supplemental findings of fact and order filed by the district court states, "[t]he Court determined that the jury would not be allowed to listen to the tape again and would have to rely on their recollection of the tape," which the district court "communicated . . . to the jury in writing on the same paper the jury used to ask the question."  In responding as it did, the district court did not supplement the jury instructions, nor does it appear that the response favored the prosecution over the defense.  See Sessions, 621 N.W.2d at 756-57.  Indeed, not allowing the jury to rehear the arguably incriminating 911 callthe ruling that appellant's attorney argued for during the telephone conferencemore likely favored appellant.      

            Also relevant to the harmless-error inquiry is the fact that during the trial, in open court, on the record, and in appellant's presence the district court alerted the jury that it would not be permitted to replay the 911 call during deliberations, stating:

THE COURT:  Very well.  While he's passing that out, I'll just tell members of the jury that even though you are going to get a copy of the transcript now while this CD is being played, you will not get a transcript in there, in the jury deliberation room, and you will not be allowed to listen to the CD again, because that way otherwise you are giving more emphasis to one piece of evidence than another.  So listen carefully when this is being played. 

 

            Because the state's evidence at trial was strong, and the substance of the district court's response to the jury's question was nonprejudicial, we conclude that the verdict was "surely unattributable to the error"; therefore, appellant is not entitled to a new trial on this ground.[3] 

II.

            Despite the fact that it was in response to the request of appellant's attorney that the district court instructed the jury regarding appellant's right not to testify, appellant argues that the district court committed reversible error entitling him to a new trial when it gave the instruction without first eliciting his consent.  A defendant who elects not to testify at trial has a right to not have his silence used against him.  McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002); see also Minn. Stat. § 611.11 (2004).  The district court should not give a jury instruction regarding a defendant's right not to testify without first obtaining defendant's permission on the record.  State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002) (citing State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1998)); see also McCollum, 640 N.W.2d at 616 (stating "[a] [district] court ordinarily should not give a no-adverse-inference instruction unless the defense requests it and, then, the better practice is for the [district] court to inquire of the defendant himself whether he wishes to have such an instruction").  Mere failure to object to the instruction is not an adequate substitution for express permission.  Id. 

But where a party fails to object to a jury instruction on the record at trial, this court has discretion to review the giving of the instruction under a plain-error analysis.  Darris, 648 N.W.2d at 240; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  Under that analysis, a party must show: (1) error, (2) that was plain, and (3) the error affected substantial rights.  Darris, 648 N.W.2d at 240 (citing Griller, 583 N.W.2d at 740). 

Here, when discussing proposed jury instructions, the district court asked appellant's counsel, "And you want that paragraph left in regarding the [appellant's] right not to testify?"  Appellant's counsel responded, "Yes, Your Honor."  As a result, the district court gave the following jury instruction drawn from 10 Minnesota Practice, CRIMJIG 3.17 (2006):

The State must convince you by evidence beyond a reasonable doubt that [appellant] is guilty of the crime charged.  [Appellant] has no obligation to prove innocence.   [Appellant] has the right not to testify.  This right is guaranteed by the federal and state constitutions.  You should not draw any inference from the fact that [appellant] has not testified in this case.[4] 

 

But appellant did not personally request or consent to the instruction.

   

As the state concedes, giving this no-adverse-inference instruction absent appellant's prior consent was error.  Darris, 648 N.W.2d at 240; Thompson, 430 N.W.2d at 153.  Therefore, the first prong of the plain error test is satisfied. 

In order for the error to be plain, the law on the issue must be clear or obvious.  See Griller, 583 N.W.2d at 741.  The law here is clear, as the state also concedes, that the district court should not have given a no-adverse-inference instruction without appellant's permission.  Darris, 648 N.W.2d at 240; Thompson, 430 N.W.2d at 153.  Therefore, the error here was plain. 

"The third prong, requiring that the error affect substantial rights, is satisfied if the error was prejudicial and affected the outcome of the case."  Griller, 583 N.W.2d at 741.  "The defendant bears a heavy burden of showing that substantial rights have been affected."  Darris, 648 N.W.2d at 240; see also Griller, 583 N.W.2d at 741 (noting that plain error is prejudicial when there is a "reasonable likelihood that the giving of the instruction . . . would have had a significant effect on the verdict of the jury" (quotation omitted)). 

Appellant fails to show how this error resulted in prejudice and significantly affected the outcome of the case.  Moreover, appellant does not cite any authority supporting the general proposition that a district court's failure to obtain a defendant's consent prior to giving a no-adverse-inference instruction, though requested by his attorney, affects a defendant's substantial rights.  In fact, a number of cases have held otherwise.  See Darris, 648 N.W.2d at 240-41 (holding that appellant was not entitled to a new trial despite fact that the district court failed to obtain appellant's permission before giving the instruction because the error was not prejudicial and appellant did not show "a reasonable likelihood that giving the instruction had a significant effect on the jury's verdict"); Thompson, 430 N.W.2d at 153 (holding that defendant was not entitled to a new trial "simply because the record on appeal [wa]s silent as to whether the defendant and his attorney wanted [a no-adverse-inference] instruction"). 

Even though the district court plainly erred in giving the no-adverse-inference instruction without first obtaining appellant's personal consent, appellant has failed to demonstrate that the error affected his substantial rights.  Therefore, we conclude that the error does not warrant reversal of appellant's convictions and a new trial.        

III.

            Appellant was sentenced to serve 51 months on count I and, under Minn. Stat. § 609.11, subd. 4 (2004), a consecutive 36 months on count II because the district court determined that his conviction on count II was a "subsequent weapons offense with a dangerous weapon."  But appellant argues that "[b]ecause the record gives no indication that appellant had a prior weapons offense other than Count I, and because Count II cannot be an offense ‘subsequent to' Count I, appellant must be resentenced to no more than 21 months on Count II." 

Minn. Stat. § 609.11, subd. 4, provides that:

Any defendant convicted of an offense listed in subdivision 9 [which includes second degree assault] in which the defendant . . . at the time of the offense, used, whether by brandishing, displaying, threatening with, or otherwise employing, a dangerous weapon other than a firearm, shall be committed to the commissioner of corrections for not less than one year plus one day, nor more than the maximum sentence provided by law.  Any defendant convicted of a second or subsequent offense in which the defendant . . . at the time of the offense, used a dangerous weapon other than a firearm, shall be committed to the commissioner of corrections for not less than three years nor more than the maximum sentence provided by law. 

 

(Emphasis added.)  Under Minn. Stat. § 609.02, subd. 11 (2004), a "‘second or subsequent offense' means that prior to the commission of the violation or offense, the actor has been adjudicated guilty of a specified similar violation or offense."  (Emphasis added.)  See also State v. Yant, 376 N.W.2d 487, 492 (Minn. App. 1985) (holding that the district court improperly sentenced defendant when it treated defendant's second conviction as a "subsequent offense" where the assault on the two victims occurred contemporaneously), review denied (Minn. Jan. 17, 1986).   

            Based on the definition of "second or subsequent offense" in Minn. Stat. § 609.02, subd. 11, and the fact that appellant does not appear to have been previously convicted of any other section 609.11 offenses or other crimes where appellant employed a dangerous weapon, we conclude that appellant is correct, as the state concedes, in his contention that the district court erred when it sentenced him to 36 months on count II.  Instead, the proper sentence on count II under the sentencing guidelines is 21 months, consecutive to 51 months on count I, for the aggregate term of 72 months.  Accordingly, we reverse and remand for resentencing consistent with this opinion.      

            Affirmed in part, reversed in part, and remanded.

 

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

[1]  Appellant was charged in count I of assault in the second degree against Roering, and in count II of assault in the second degree against Miller. 

 

[2] Respondent argues that this court does not need to even reach the issue of whether the district court erred by responding to the jury's question during deliberations absent appellant's approval.  Citing State v. Thompson, 430 N.W.2d 151 (Minn. 1988), respondent contends that, having failed to raise the issue in the district court, appellant has forfeited the issue on appeal.  But in Thompson, the issue was whether the defendant had the right to be present at a hearing to determine the competency of a child witness, not whether appellant should be present when the court responded to jury questions.  Id. at 152.  Thus, State v. Sessions, 621 N.W.2d 751 (Minn. 2001), where the defendant similarly did not object to being absent when the district court considered a jury question, is authority more applicable to this appeal. 

[3] Citing State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993), appellant also argues that even if this court finds the district court's error to be harmless, it should still reverse for prophylactic reasons.  But Salitros was a case involving prosecutorial misconduct and appellant fails to articulate a persuasive analogy.  As an error-correcting court, we decline to expand the remedy. 

 

[4] The comment to CRIMJIG 3.17 explicitly informs district courts that this instruction "should not be given without the personal and clear consent of the defendant" (citing Thompson, 430 N.W.2d at 153).