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State v. Sam

Court of Appeals of Minnesota

November 13, 2017

State of Minnesota, Respondent,
v.
Christopher Michael Sam, Appellant.

         Mille Lacs County District Court File No. 48-CR-16-984

          Lori Swanson, Attorney General, Michael Everson, Assistant Attorney General, St. Paul, Minnesota; and Joe Walsh, Mille Lacs County Attorney, Milaca, Minnesota (for respondent)

          Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Considered and decided by Florey, Presiding Judge; Rodenberg, Judge; and Bratvold, Judge.

         SYLLABUS

         A district court does not err by instructing the jury that it should not draw any adverse inference from a defendant's decision not to testify where the instruction is requested by defense counsel and, because the defendant is voluntarily absent from trial, his personal consent is not obtained on the record.

          OPINION

          RODENBERG, Judge

         Appellant Christopher Sam challenges his conviction of second-degree assault, arguing that the district court erred by giving a no-adverse-inference jury instruction without obtaining his personal consent on the record. At trial, appellant's attorney requested the instruction on behalf of appellant, who was voluntarily absent on the final day of trial. We affirm.

         FACTS

         Appellant was charged with first-degree aggravated robbery in violation of Minn. Stat. § 609.245, subd. 1 (2014), and second-degree assault in violation of Minn. Stat. § 609.222, subd. 1 (2014). Appellant was absent on the second and final day of his jury trial. Defense counsel was unable to contact appellant regarding his absence, although defense counsel spoke with appellant's mother, who said that appellant had left her residence that morning and that she thought he was heading to the trial. The district court waited for appellant to appear and, when he did not appear, issued a warrant for appellant's arrest. The district court determined that appellant's absence was voluntary, and the jury trial continued in appellant's absence.

         As it prepared to submit the case to the jury for decision, the district court asked if defense counsel was requesting a no-adverse-inference jury instruction. Despite a lack of clarity in the transcript, the conversation between the district court and defense counsel is to the general effect that counsel wanted the instruction given. The district court included the no-adverse-inference instruction from 10 Minnesota Practice, CRIMJIG 3.17 (2015), in the final jury instructions and provided a written copy of the instructions to the attorneys to review. Defense counsel did not object to the proposed instructions. Appellant's personal consent to the no-adverse-inference instruction is not on the record because he was not in court for the instruction discussion. The record contains no indication concerning whether defense counsel had earlier discussed the no-adverse-inference instruction with appellant. Appellant's attorney prominently referred to appellant's decision not to testify in his closing argument, stressing to the jury that it should not hold against appellant his decision not to testify at trial. The jury found appellant guilty of second-degree assault, and he was sentenced to 54 months in prison.

         No valid excuse was provided for appellant's absence from trial. He was eventually located by law enforcement and arrested on the warrant. At a bail hearing after his arrest, defense counsel represented to the district court that appellant had overslept. But appellant's mother had told his attorney that he had left her residence on the morning of trial.

         This ...


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