State v. Bey

975 N.W.2d 511

STATE of Minnesota, Respondent,

v.Deangelo Shaheed BEY, Appellant.

A20-1097

Supreme Court of Minnesota.

Filed: June 15, 2022

Keith M. Ellison, Attorney General, Saint Paul, Minnesota, and Janelle Kendall, Stearns County Attorney, River D. Thelen, Assistant County Attorney, Saint Cloud, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Suzanne M. Senecal-Hill, Assistant Public Defender, Saint Paul, Minnesota, for appellant.

OPINION

ANDERSON, Justice.

In February 2020, a jury found appellant Deangelo Shaheed Bey guilty of two counts of first-degree burglary and two counts of second-degree assault. After the jury announced its verdicts, Bey exercised his right to poll the jury. Despite several facts in the record tending to show that the jury was composed of the constitutionally required 12 members, and that those members returned unanimous verdicts, the transcript of the jury polling contains only 11 responses. The 11 responses were unanimously "guilty." No person present—the district court judge, the judge's clerk, the court reporter, the jury attendants, the attorneys, the jurors, or Bey himself—raised any objections at the time. Bey argues for the first time on appeal that, because the record contains only 11 individual responses to jury polling, it is insufficient to prove that he was afforded his constitutional right to a unanimous, 12-person jury. The State argues that the record adequately supports the verdict and that jury polling is merely one mechanism to ensure a unanimous, 12-person jury. We hold that because sufficient evidentiary support in the record demonstrates that Bey was found guilty by a unanimous, 12-member jury, Bey has not established a violation of his constitutional right to a unanimous, 12-member jury. We further hold that Bey is not entitled to relief for any error in the jury polling because he did not object before the district court, it was not a structural error, and he has not satisfied the plain error doctrine. Consequently, we affirm the decision of the court of appeals.

FACTS

Bey married J.B., and the couple had four children. By September 2019, the children varied in age from 2 to 12 and Bey and J.B. had informally separated. On September 4, 2019, J.B. and the children were staying in the apartment of J.B.’s boyfriend, S.S. Around midnight, S.S. opened the door after a woman knocked and claimed to be a neighbor in need of assistance. As soon as the door opened, several people—including Bey—rushed in. Bey struck S.S. with the butt of a handgun. J.B. testified that Bey pointed the gun at her and said, "Kids, let's go," and "don't make me do this." J.B. was carrying one of her children until another assailant struck J.B. with a taser and took the child from her arms. Bey and the other assailants then left with the four children, and J.B. called 911.

The State charged Bey with two counts of first-degree burglary, Minn. Stat. § 609.582, subd. 1(b)–(c) (2020), and two counts of second-degree assault, Minn. Stat. § 609.222, subd. 1 (2020). At Bey's 3-day trial, the evidence against Bey included testimony from J.B., S.S., one of S.S.’s roommates, and one of the children. The State presented photographs of S.S.’s injuries, taken by police the night of the incident. The State also presented security footage from the apartment building that showed Bey hiding out of view of S.S.’s door with four other individuals, rushing into S.S.’s apartment when the door was opened, and then leaving with the children. The video showed Bey holding an object that both J.B. and S.S. identified as a handgun. One of the children also testified that Bey was armed.

Bey testified in his own defense. He claimed that he had not been violent, that he was entitled to custody of the children, and that J.B. was at fault for wrongfully failing to return the children. He testified that the item he held, which was seen in the surveillance video, was either a toy gun belonging to one of the children or his daughter's cell phone. The State did not find or present the alleged gun and witness descriptions of the gun were not entirely consistent. S.S. described the gun as black with a silver barrel. J.B. described the gun as black. J.B.’s 11-year-old daughter initially testified that the events were too difficult to talk about, but she was eventually able to state that Bey was holding a gun, which she described as gray. Bey claimed that his daughter testified for the prosecution only because "somebody turned [his] daughters against [him]."

The district court initially seated 14 jurors—12 members and 2 alternates. During the second day of trial, one of the jurors was dismissed because he knew a witness. After closing arguments, the court dismissed the other alternate juror, stating that "the law dictates how many jurors can deliberate, so unfortunately I have to excuse you from deliberation." The court verbally instructed the remaining jurors that, "for you to return a verdict, whether guilty or not guilty, each juror must agree with that verdict. Your verdict must be unanimous." The court also provided written jury instructions, which again stated that "each juror must agree with that verdict. Your verdict must be unanimous."

Immediately after final jury instructions, the district court swore in jury attendants. The jury followed these attendants to the jury room to deliberate. Later that same day, the jury returned guilty verdicts on all counts. The clerk read the verdicts aloud. The court asked the jury as a group whether "this is your verdict so say you all?" The jury responded as a group, "Yes," and no juror objected.

Bey requested that the district court poll the jury under Minnesota Rule of Criminal Procedure 26.03, subd. 20(5).¹ The clerk asked the jurors individually by name whether they supported the verdicts. The transcript records the clerk questioning 11 jurors, all of whom responded in the affirmative. The court then stated, "I think that's everyone." No objections were made to either the polling process or the court's conclusion that "everyone" had been polled.

Bey appealed, arguing that his right to a unanimous jury of 12 members was violated because only 11 jurors found him guilty of the charged offenses. In a nonprecedential opinion, the court of appeals noted that the record strongly implied that 12 jurors were present when the verdicts were announced, even if the record showed only 11 responses during the jury polling. State v. Bey , No. A20-1097, 2021 WL 2794672, at *2 (Minn. App. July 6, 2021). The court held that the missing response was because "the transcript does not accurately reflect what occurred in the courtroom." Id. The court therefore held that Bey failed to show that he was found guilty by fewer than 12 jurors and affirmed Bey's convictions. Id. at *2–3. We granted review.

ANALYSIS

We review questions of constitutional law de novo. State v. Grigsby , 818 N.W.2d 511, 517 (Minn. 2012). Likewise, we review the interpretation of the rules of criminal procedure de novo. State v. Nerz , 587 N.W.2d 23, 24–25 (Minn. 1998).

It is undisputed that the record in Bey's case reflects an irregularity: felony juries must have 12 members, but the transcript of the jury poll in Bey's trial record reflects responses from only 11 members of the jury. We must first determine the significance of this inconsistency. Bey argues that he was denied his constitutional right to a unanimous jury of 12 members because the district court may never assume facts not in the record. The State argues that there is sufficient evidence in the record to establish that a 12-member jury returned a unanimous verdict and that, at most, Bey has demonstrated an error with the jury polling process. It is also undisputed that Bey never objected at trial that the jury was less than 12 members and that he raised the claimed error for the first time on appeal. We first consider the scope of the potential error—whether Bey has in fact raised a claim that his constitutional right to a unanimous verdict was violated, or whether any error is limited to the failure to properly poll the jury. After resolving that question, we turn to whether Bey is entitled to any relief for the irregularity in the record.

I.

Defendants charged with felony offenses have a right to a trial by a jury of 12 members. Minn. Const., art. I, § 6. Under the Fourteenth Amendment to the United States Constitution, jury verdicts in felony criminal trials must be unanimous. Ramos v. Louisiana , ––– U.S. ––––, 140 S. Ct. 1390, 1395, 206 L.Ed.2d 583 (2020). To protect these rights, defendants have the procedural right to poll each juror after the verdict is announced. Minn. R. Crim. P. 26.03, subd. 20(5). Polling is optional, but the district court must poll the jury after a party has requested it. Id. The purposes of polling the jury are to ensure that the verdict is unanimous and to give jurors an opportunity to object if they disagree. Hoffman v. City of St. Paul , 187 Minn. 320, 245 N.W. 373, 375 (1932) ; State v. Plantin , 682 N.W.2d 653, 662 (Minn. App. 2004).

The dispute here concerns the role of the jury polling process. If polling all 12 members of the jury is necessary to ensure that a defendant's right to a unanimous verdict by a 12-member jury is respected, then Bey's jury trial rights were categorically violated by the failure to properly poll the jury. On the other hand, if polling the jury is simply one mechanism to ensure that Bey's rights were respected, then an error in the jury polling does not give rise to a violation of the constitutional right to a unanimous jury so long as the record contains other evidence sufficient to establish that the verdicts returned by the jury were proper. This is an issue of first impression.

A.

Few other courts have considered the effect of an error during jury polling. Only one court has agreed with Bey's arguments. The Illinois Appellate Court recently considered the issue in People v....