2008-M-078           State of Minnesota, Respondent, vs. Grant Benjamin Everson, Appellant.

BACKGROUND: Appellant Grant Benjamin Everson was convicted of aiding the first-degree premeditated murder of his mother and sentenced to life in prison.  On direct appeal, he argues that the district court erred in allowing the jury to review recorded witness statements after it had begun deliberations.  He also contends that the district court committed reversible error by allowing two non-jurors to be present with the jury while it reviewed this evidence. We affirm.

 This action arises from the shooting death of appellant’s mother, Nancy Everson.  The evidence during trial established that appellant, Grant Benjamin Everson (Everson) lived with his parents, Nancy and Thomas Everson, in Chaska, Minnesota at the time of the shooting.  Everson attended Hennepin Technical College, but he was failing his classes.  He was not employed and spent a great deal of time with his friends, Joel Beckrich and Christopher Fuhrman, at Beckrich and Fuhrman‟s apartment in Burnsville.  

The day before the shooting, Friday, January 13, 2006, Everson told Beckrich and Fuhrman that he wanted to kill his parents.  The next day, Nancy and Thomas Everson discussed with Everson and his girlfriend his failing performance at school and his conduct generally. After that discussion, Nancy Everson found her husband's pistol hidden under a hat.  Everson denied knowing how it got there.  Thomas Everson hid the pistol in his bedroom closet.  At about 10:30 p.m., Everson left the house to take his girlfriend home.   Everson arrived at Beckrich's apartment with a shotgun case at approximately 11:45 the same night.  Everson, Beckrich, and Fuhrman went upstairs, where Everson showed his friends the shotgun and they discussed how Everson and Beckrich would kill Everson's parents.  Everson and Beckrich decided to slit Nancy and Tom Everson’s throats with box cutters, and to use the shotgun if anything went wrong.  Everson said that he was a beneficiary of his mother’s life insurance policy, and he agreed to give half the proceeds of that and anything else he obtained upon his parents‟ death to Beckrich, who planned to move to Amsterdam to open a coffee/marijuana shop.  Everson and Beckrich left the apartment at 2:30 a.m. on Sunday, dressed in two layers of clothing, carrying box cutters and the shotgun.  They planned to dispose of the outer layer of clothing after the murders, in case there were any identifiable traces of the victims on the clothing.  Both wore gloves, and they wiped down the shotgun before departing.  

 Everson and Beckrich parked some distance from the Everson home, walked to the house, and entered through the garage on the lower level.  They used duct tape to seal their clothing around their wrists and ankles, and went upstairs to the mudroom where they put on ski masks.  They entered the master bedroom, but stopped immediately when Nancy Everson moved in her bed.  They stayed there, frozen, for a few minutes, and then backed out of the room and returned to the mudroom.  They talked about not being able to go through with their plan.  Then Everson apparently heard a noise, and he pointed the gun into the hallway and removed the safety.  A light came on, and Nancy Everson came down the hall toward Everson, who pointed the gun at her and told her to sit down.  She asked if they could talk, and when Everson did not respond, she went into the kitchen.

 Everson told Beckrich to shoot her, because Everson could not, and the two went back and forth a few times about who would do it, with each insisting he could not.  Then Everson pushed the gun into Beckrich‟s hands; Beckrich took it and began walking down the hall toward the master bedroom.  Nancy Everson went back into the hallway, and Everson told Beckrich to turn around because she was behind him.  At this point, Beckrich and Nancy Everson were both in the hallway between the kitchen and the master bedroom.  The gun safety was still off, and Beckrich held the gun pointed down. 

Beckrich said to Nancy Everson “head or chest.”  She did not respond, and he asked again.  She took a step towards Beckrich, and he raised the gun and aimed it above her head.  She yelled at her son to get out of the house, and started to walk toward Beckrich.  Beckrich fired a warning shot over her head.  When she lunged at him, Beckrich fired a second shot at her head, and she fell over.  Beckrich went back to the Eversons‟ bedroom, to find Tom Everson.  He looked briefly in the room, saw no one, and then fled down the hall and out the garage.  He and Everson met on the way back to their vehicle, and Beckrich discarded the gun.  They also disposed of some of their clothing and the gun case.   Beckrich and Everson arrived back at Beckrich‟s apartment at about 5:30 a.m., and told Fuhrman and another friend what had happened.  They agreed on an alibi, that all had spent the night in the apartment. Everson left at about 7:00 a.m., intending to go home, and on the way he called Beckrich to discuss the alibi further.  Everson was arrested before he arrived home.  

At about 5:00 p.m. the same day, investigators went to Beckrich‟s apartment to talk to Everson's friends.  Fuhrman told the investigators that Beckrich had shot Nancy Everson, after which Beckrich confessed.  Beckrich‟s conversation at his home with an investigator was recorded on audiotape and a transcript was made.  In addition, Beckrich and Fuhrman gave statements that were recorded on videotape at the police station that night.

MAJORITY:  The Court affirmed Everson’s conviction for the execution of his mother.

First, the Court held that any error in allowing the jury to review recorded witness statements that

had been admitted into evidence was harmless.

Second, the Court held that the procedure established for the jury‟s review of evidence, as agreed to by the defense, was not structural error, and appellant has not demonstrated that the presence

of nonjurors during this review should be reviewed for plain error.

Third, the Court held that appellant's request for a Schwartz hearing is denied.  As an alternative to his request for a new trial based on the procedures used for the Jury’s review of the recorded statements, Everson requests a Schwartz hearing to create a record of any communications that may have occurred between the jury and the non-jurors.  In Schwartz, we crafted a procedure for inquiring into jury conduct that may have prevented a fair trial.    To avoid the harassment of jurors by a defeated litigant, the matter is to be brought to the attention of the trial court, which may permit an examination of the jurors on the record in the presence of counsel.  A defendant may move for a Schwartz hearing, and to obtain a Schwartz hearing, the defense has the “burden of adducing ‘sufficient' evidence which, standing alone and unchallenged, would warrant the conclusion of jury misconduct.‟

CONCUR & DISSENT:  Justice Paul Anderson opined:  “I concur in part and respectfully dissent in part.

 I agree with the majority that any error in allowing the jury to review the recorded witness   statements that had been admitted into evidence was harmless.  I also agree the procedural error in how the jury was permitted to review the evidence in the presence of an employee of the county attorney was not structural error and that this error can be reviewed under the plain error doctrine. 

But, I do not agree with the majority that on the information before us, we can conclude that there was no plain error.   Further, while I agree with many of the concerns expressed by Justice Meyer in her dissent, I do not agree that on the record before us, we must grant a reversal. 

Rather, I would remand to the district court for a Schwartz hearing in order to create a proper record of any communications that may have occurred between the jury and the employee of the county attorney’s office who played the recordings for the jury.  I conclude that such a record is necessary for us to determine whether we can affirm the conviction or whether we must remand for a new trial.

DISSENT:  Justices Meyer and Page opined:  “I respectfully dissent.  The majority today dilutes this court‟s strict rule that an intrusion upon jury deliberations by an officer of the court is not subject to harmless error analysis.  I would re-affirm our strict rule and hold that the presence of a representative from the county attorney’s office and a court clerk during secret jury deliberations is a defect in the trial proceedings that requires reversal.”

Gildea (Russell Anderson, Barry Anderson, and Dietzen)

Concur and Dissent:  Paul Anderson

Dissent:  Page and Meyer

[MURDER}