Scott County District Court File No. 2000-19596
Considered and decided by Schumacher , Presiding Judge; Shumaker , Judge;
and Poritsky , Judge.*fn1
The defendant in a criminal case has a constitutional right to be present when a judge communicates with a deliberating jury.
The opinion of the court was delivered by: Robert H. Schumacher, Judge
Appellant Walter Barton Peterson challenges his conviction of first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(e)(ii) (1998) (sexual penetration with physically helpless victim resulting in personal injury), third-degree criminal sexual conduct under Minn. Stat. § 609.344, subd. 1(d) (1998) (sexual penetration with physically helpless person without personal injury), and three counts of contributing to the delinquency of a minor under Minn. Stat. § 260B.425, subd. 1(a) (Supp. 1999). Peterson argues the trial court's communication with the jury outside his presence violated his constitutional rights. He also argues he received ineffective assistance of counsel because his defense counsel failed to object to unqualified expert testimony and failed to offer any rebuttal expert testimony. We reverse and remand.
On the evening of June 17, 2000, 17-year-old A.J. began the night intending to stay at her girlfriend's house. The two girls eventually joined D.P. and E.H., two of A.J.'s male friends. All were invited to go boating with Peterson on his boat. A.J.'s girlfriend decided she was not interested in boating and left. However, inclement weather caused them to abandon their plans to go boating and they returned to Peterson's home.
The group gathered in Peterson's garage, and spent the rest of the night drinking beer. The teenagers had brought their own beer, and Peterson offered them marijuana; A.J. had"a couple hits." Later in the evening, E.H. became intoxicated and got sick. D.P. decided to walk him home. When the two boys left, A.J. and Peterson were both in the garage.
What happened during the rest of the night and into the next morning is unclear. A.J. testified that by the time the two boys left, she had drunk approximately seven beers and the effects were amplified by a prescription drug she was taking. A.J. testified at this point, she was"really drunk," and eventually passed out. She does not remember anything after passing out until she woke up in Peterson's bed with him on top of her, having sexual intercourse. Peterson testified A.J. did not appear intoxicated when E.H. and D.P. left; rather she was"in control." He also testified A.J. was not only a willing participant, but was actually the initiator of the sexual conduct.
At the conclusion of the jury trial, the trial court gave the jury final instructions and the jury retired for deliberations. After the jury retired, the court suggested both attorneys leave their telephone numbers and, if there were any questions, the court would"talk to everyone about them before [it] did anything." At the end of the day, the court contacted both attorneys to see if they wished to be present when the court dismissed the jury for the day. Both attorneys waived their presence. At 4:50 p.m., the jury was brought into the courtroom and the court told them to go home and come back the next morning. Before leaving, however, the following exchange took place between the court and the jury:
THE JURY: What happens if we can't decide? What if we can't all agree? Can we stay here until we do or -- I'm not saying that we're miles apart. I don't think we are. I think we certainly still have some issues. We have taken a vote. It was not unanimous. I guess we just don't ...