Hennepin County District Court File No. 04048710.
The submission to a jury of the issue of dangerousness to public safety under former Minn. Stat. § 609.1095, subd. 2 (2002), was error because it was not authorized by the language of the statute in effect at the time of the offense.
The opinion of the court was delivered by: Minge, Judge
Affirmed in part, reversed in part, and remanded
Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.
Appellant challenges his conviction on the basis of prosecutorial misconduct and challenges his sentence on several grounds. Because any prosecutorial misconduct was not unduly prejudicial and because appellant failed to object at trial, we affirm appellant's conviction. But because we conclude the district court erred by submitting interrogatories on the statutory sentencing factors to the jury, we reverse and remand appellant's sentence.
After a home break-in, appellant David S. Hobbs was found close by, recognized by police as the intruder, and charged with burglary in the first degree, a violation of Minn. Stat. § 609.582, subds. 1(a), 1a (2002). At a pretrial hearing the day before trial, the state indicated its intention to request that appellant be sentenced under Minn. Stat. § 609.1095, subd. 2 (2002), authorizing upward durational departures for offenders who have a history of violent crime. Based on Blakely v. Washington, 512 U.S. 296, 124 S.Ct. 2531 (2004), the state noted that the district court should conduct a jury hearing on the factors justifying a durational departure. Appellant objected to the sentencing enhancement on the basis that he was not given adequate notice. He also objected that empaneling a sentencing jury is not authorized in Minnesota. The district court rejected appellant's arguments and the case proceeded to trial.
During the trial, the prosecutor criticized a defense witness, spoke favorably of a state's witness, discussed the jury's role as fact-finder, and urged conviction. Appellant did not object to the prosecutor's statements. The jury found appellant guilty of burglary in the first degree. The district court indicated that it would reconvene the jury to consider factors set forth in Minn. Stat. § 609.1095, subd. 2 (2002), that affect the length of the sentence. Appellant again objected to the sentencing jury procedure and moved for imposition of the presumptive sentence. The motion was denied and the jury was reconvened. The jury found that appellant met the requirements for an upward durational sentence departure as a danger to public safety, and the district court sentenced appellant to 90 months in prison, an upward durational departure. This appeal follows.
1. Did unobjected-to, improper statements of the prosecution impair appellant's right to a fair trial?
2. Did the district court err in reconvening the jury to consider ...