Remand to Ascertain Whether Counsel Conceded Guilt Without Defendant’s Consent; Other Errors Held Harmless.

State v. Prtine, Minn.S.Ct. 6/30/2010.  A jury convicted Mr. Prtine of first degree premeditated murder but convicted him of first degree felony murder.  Mr. Prtine allegedly stabbed Brent Ward some sixty-three times.  Mr. Prtine told both the police and the jury that the two men had argued over the purchase of drugs, that Mr. Ward hit him with his fists after which Mr. Prtine grabbed a knife and went to work on Mr. Ward.

During jury selection, a prospective juror opined, sometimes inconsistently, that she would be inclined to believe the testimony of a police officer because of the officer’s status as an officer.  Here’s more of what she had to say:

Upon further questioning by the court, J.B. indicated that she would not automatically credit a police officer over other witnesses but “would listen to the facts, I think.” After examination by the prosecutor, defense counsel asked J.B. if she would be more inclined to believe those witnesses she recognized on the witness list. J.B. replied, “If it was a police officer.” Upon further examination, J.B. stated, “I think that’s human nature to believe a police officer. You want to believe that police officer.” However, J.B. indicated she would “try and be fair” and “would weigh the facts.” Finally, when defense counsel asked J.B. if the facts were unclear and she had to make a judgment call between an officer and an unknown person which way would she lean, J.B. responded, “[t]oward the police officer.” When defense counsel asked if that was simply by virtue of the witness being a police officer, J.B. replied, “I guess so.”

The trial court denied the defense motion to strike for cause so the defense used a peremptory strike.  This was a mistake, State v. Logan, 535 N.W.2d 320 (Minn. 1995).  The key was that when given the chance to express her sentiments in her own words she always said that she would be more inclined to believe the cop.  Harmless error analysis applies to this error, however, and because the defense exercised a peremptory to excuse this potential juror, the error was harmless.  State v. Barlow, 541 N.W.2d 309 (Minn. 1995).  Chief Justice Gildea, joined by Justice Dietzen, said that denying the challenge for cause was not a mistake at all.  This potential juror uttered the correct mantra, “I could be fair.”

Over objection, the medical examiner testified that Mr. Ward’s assailant acted with an intent to kill.  This was another mistake.  State v. Chambers, 507 N.W.2d 237 (Minn. 1993).  More harmless error analysis:  because Prtine’s defense was self defense, this error was harmless.

During deliberations, the jury had a question, “If we agree on a higher charge, do we need to rule on the lesser charges?”  The trial court answered by saying that the jury did not need to consider lesser-included offenses if they found Mr. Prtine guilty of a greater offense.  This was mistake number three.  It was also plain error, but in light of all of the instructions, which everyone said were correct, this plain error did not affect Mr. Prtine’s substantial rights because it turned out that he was not entitled to the instruction on the lesser charge anyway!

Ineffective assistance, conceding intent for the first time during closing argument without Mr. Prtine’s without his consent.  The appellate court could not determine whether Mr. Prtine acquiesced in his counsel’s concession so they remand to the trial court to answer that question.  Chief Justice Gildea rejects this conclusion, joined by Justices Dietzen and Paul Anderson.