Becker County District Court File No. 03-CR-11-2357
Lori Swanson, Attorney General, Robert A. Plesha, Assistant Attorney General, St. Paul, Minnesota; and Michael D. Fritz, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Smith, Judge.
Appellant challenges his first-degree-criminal-sexual-conduct conviction, arguing that the district court erred by refusing to (1) grant a mistrial after a deliberating juror heard a radio report that appellant had "priors" and repeated the information to the jury; and (2) question the entire jury at the Schwartz hearing. We affirm.
Appellant Troy Ray Gibson argues that he should have been granted a mistrial after the jury informed the district court that it had been exposed to potentially prejudicial information. The district court stated that appellant "waived his claim to a mistrial because he failed to bring a motion for mistrial when he became aware of the potential misconduct." This court reviews the denial of a motion for a mistrial for an abuse of discretion. State v. Jorgensen, 660 N.W.2d 127, 133 (Minn. 2003). "[A] mistrial should not be granted unless there is a reasonable probability that the outcome of the trial would be different." State v. Spann, 574 N.W.2d 47, 53 (Minn. 1998).
During appellant's jury trial on a charge of first-degree criminal sexual conduct, the deliberating jury sent the district court a note that read: "[One] of our jurors had heard on the radio something about [appellant] having a prior[.] It was inadvertent [and] was mentioned to [the] jury!" The note was signed by the jury foreperson. The district court suggested reading a curative instruction, and appellant agreed to the curative instruction and to proceed with trial. Appellant's attorney stated that "th[e] curative instruction would be appropriate at this point. It may give rise later, depending on what the verdict is, to further exploring to determine whether or not there is grounds for a new trial, but I don't see the harm in doing this at this point." The district court read the following curative instruction:
[T]he court has received a note from your foreperson. And as a result, the [c]ourt will give you some additional instruction concerning your deliberations.
The only information that you may consider in reaching your verdict is evidence that was admitted during the course of this trial. Anything that you may have heard or seen elsewhere must not be considered and shall play no part in your deliberation or verdict. Evidence received at trial has been determined to be admissible under our rules and has been subject to challenge through cross-examination. Information obtained ...