State of Minnesota,

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STATE OF MINNESOTA

IN SUPREME COURT

A20-1097

Court of Appeals Anderson, J.

State of Minnesota,

Respondent,

vs. Filed: June 15, 2022
Office of Appellate Courts
Deangelo Shaheed Bey,

Appellant.

________________________

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.
________________________
S Y L L A B U S
1. The omission of a single juror’s response to jury polling in the trial transcript
does not establish a violation of appellant’s constitutional right to a unanimous, 12-member
jury so long as the record sufficiently demonstrates the existence of other safeguards
ensuring that the jury was properly impaneled and returned a unanimous verdict free of
coercion or pressure, as is the case here.

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2. Appellant is not entitled to relief based on a jury polling error because he did
not object during trial, it was not a structural error, and he has not satisfied the plain error
doctrine.
Affirmed.
O P I N I O N
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

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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 ass istance. 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.

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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 B ey 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 verdict s on all counts. The clerk read the verdict s aloud. The court

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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 verdict s. 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 verdict s 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 becau se “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.

1 When a jury agrees on a verdict, the foreperson returns that verdict to the court on
behalf of the entire jury. Jury polling is then a process of asking each juror on the record
whether he or she agrees with the verdict. Minn. R. Crim. P. 26.03, subd. 20(5).

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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 t rial by a jury of 12
members. Minn. Const., art. I, § 6. Under the Fourteenth Amendment to the United States
Constitution, j ury verdicts in felony criminal trials must be unanimous. Ramos v.
Louisiana, ___ U.S. ___, 140 S. Ct. 1390, 1395 (2020). To protect these rights, defendants

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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, 245 N.W. 373, 375 (Minn. 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 ri ght 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. Jackson , 170 N.E.3d 1075 (Ill. App. Ct. 2021), appeal
allowed, 175 N.E.3d 71 (Ill. 2021). There, although all 12 jurors individually signed the
verdict form, only 11 jurors responded individually to the jury poll. Id. at 1078. Over a
strong dissent, the court held that this error required reversal as it “challenge[d] the integrity
of the judicial process.” Id. at 1086. According to the court, “jury polling is not only a

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procedural device designed to ensure the unanimity of the jury’s verdict; it is the procedural
device for accomplishing that goal.” Id. at 1083. The court held that no other procedural
device accomplished the aims of jury polling—namely, no other procedure gave the jurors
an opportunity to state individually any reservations that he or she may have had during
group deliberations. Id.
However, Jackson directly conflicts with two earlier decisions of the Illinois
Appellate Court: People v. Sharp, 26 N.E.3d 460 (Ill. App. Ct. 2015), abrogated on other
grounds by People v. Veach, 89 N.E.3d 366, 376 (Ill. 2017), and People v. McGhee, 964
N.E.2d 715 (Ill. App. Ct. 2012). Both Sharp and McGhee involved failures to properly
poll the jury , and both held that this failure did not implicate the defendant’s right to a
unanimous verdict. Sharp, 26 N.E.3d at 482; McGhee, 964 N.E.2d at 723. Indeed, McGhee
explicitly held that “the requirement that the trial court poll the jury upon request is a
common-law rule that is designed to help ensure that the jury ’s verdict is unanimous, but
it is not the sole means of ensuring a unanimous verdict.” 964 N.E.2d at 723. And just
5 months after Jackson, a different panel of the Illinois Appellate Court disagreed with the
Jackson panel’s holding and instead concluded that “[a] jury poll is not a necessary element
of any trial; it is available upon the defendant's request as a means by which the defendant
can test the unanimity of the verdict to protect that fundamental right.” People v. Flores,
No. 1-19-2219, 2021 WL 4891579, at *2–3 (Ill. App. Ct. Sept. 30, 2021).
Every other court to consider the issue agrees with the reasoning of Sharp, McGhee,
and Flores. The Supreme Court of Arizona considered this issue in State v. Diaz and held
that the “reporter’s transcript reflecting that only eleven jurors were polled following return

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of the verdicts,” on its own, “failed to establish any error, fundamental or oth erwise,
relating to the number of jurors who determined his guilt .” 224 P.3d 174, 175, 178 (Ariz.
2010). In Diaz, the record reflected the views of only 11 jurors but contained other indicia
that 12 jurors participated—the district court stated that “[a]ll 12 of [the jurors] must agree
on a verdict,” sufficient jurors were empaneled, and no party objected. Id. at 175 (internal
quotations omitted). The Minnesota Court of Appeals, in turn, followed Diaz in State v.
Mohamud, No. A09 -0843, 2010 WL 1963434 (Minn. App. May 18, 2010), rev. denied
(Minn. Aug. 10, 2010), another case in which, although the record reflected only 11 jurors’
views, it contained other indicia that 12 jurors participated.2 Mohamud concluded that, “as
in Diaz, it is not reasonable that the judge, all of the lawyers, the court reporter, the judicial
clerks, the other jurors and deputy sheriffs present in the courtroom would fail to realize
the jury was only comprised of 11 people” and found that the jur y instructions and
remaining record were sufficient to prove a proper and unanimous jury verdict. Mohamud,
2010 WL 1963434, at *4–5 (citing Diaz, 224 P.3d at 177–78).
We agree with the weight of authority and conclude that jury polling is but one
mechanism to ensure a unanimous jury verdict , such that an error in polling the jury does
not categorically create a violation of the constitutional right to a unanimous jury . The
right to poll the jury is not found in either our state or federal constitutions. Instead, it
originated as a common law procedure to protect the constitutional right s of jury size and

2 The court of appeals here relied on Mohamud in concluding that “the omission of
one juror from the transcript of the jury polling does not establish a constitutional
violation.” Bey, 2021 WL 2794672, at *1–2 (citing Mohamud, 2010 WL 1963434, at *4).

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unanimity. Indeed, jury polling is optional, to be done at the request of a party or the
presiding judge. Minn. R. Crim. P. 26.03, subd. 20(5)(a). In many trials the jury is never
polled; thus, it cannot be that polling is the only way to prove a proper jury verdict. An
error in jury polling does not violate the constitutional right to a unanimous jury when the
record sufficiently demonstrates the existence of other safeguards ensuring that the jury
was properly impaneled and returned a unanimous verdict free of coercion or pressure.
B.
Here, jury polling did not serve as the only safeguard of Bey’s right to a unanimous
jury verdict. Instead, the record in this case amply demonstrates other safeguards that the
jury was properly impaneled and returned a unanimous verdict. As to the number of jurors,
14 jurors were originally seated and one was dismissed during the trial. T he district court
explicitly commented on the proper number of jury members by dismissing the one
remaining alternate. The jury then left the courtroom, accompanied by sworn jury
attendants, to deliberate. It returned verdict s shortly thereafter. The jury was neither
dismissed in the interim nor adjourned overnight, nor were there any other opportunities
for jurors to leave. No one present—the judge, the jury attendants, the attorneys, Bey, the
judge’s clerk, the court reporter, or the other jurors —commented on a missing or
overlooked juror. It is not reasonable to presume that one of the jurors simply vanished
without anyone noticing.
As to unanimity, the jury was instructed on at least two separate occasions that any
verdict must be unanimous. We presume that a jury follows the instructions it is given,
Frazier v. Burlington N. Santa Fe Corp., 811 N.W.2d 618, 630 (Minn. 2012), and Bey has

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presented no evidence to suggest otherwise. The jur ors were further asked as a group
whether the verdict s were unanimous, the jur ors agreed as a group, and no juror voiced
disagreement. Nor was it the case that any juror affirmatively refused to endorse the
verdicts. Because the record includes substantial evidence that the jury was properly
constituted and acted unanimously, and because there is no evidence that any juror was
coerced or pressured into agre eing with the jury’s verdicts , Bey has at most shown that
what occurred was an error with the jury polling process,3 rather than a denial of his
constitutional right to a unanimous 12-member jury.
II.
Having clarified the scope of the irregularity, we now turn to what relief, if any, Bey
would be entitled to receive for an error in the jury polling . “[F]orfeiture refers to the
failure to timely assert a right.” Leiendecker v. Asian Women United of Minn., 895 N.W.2d
623, 631 n.3 (Minn. 2017). “When a defendant fails to object at trial, the forfeiture doctrine
generally preclude s appellate relief.” State v. Lilienthal , 889 N.W.2d 780, 78 4 (Minn.
2017).

3 It is possible that the error in the record reflects a genuine trial error wherein one
juror was not asked to endorse the jury’s verdicts. It is also possible that all 12 jurors
responded to polling at trial, and the missing response was omitted either by a recording
error or an error during the preparation of the transcript. The State argues that it is not
reasonable to assume that a juror would fail to speak up if overlooked and that the only
reasonable inference is that the transcript reflects an error in recording or transcription. But
we need not resolve this question. Whether the record reflects a genuine trial error in the
conduct of the jury poll, or whether it was merely a recording or transcription error, our
analysis remains the same. We therefore proceed by presuming, without deciding, that the
record reflects an error in the conduct of the polling itself.

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Bey made no objection suggesting that any jurors were missing or overlooked
before the district court when the jury was polled. Bey nevertheless claims that the error
is a structural error that automatically entitles him to relief. In the alternative, Bey claims
that he is entitled to relief under the plain error doctrine. We consider each claim in turn.
A.
Structural error is a very limited class of error, which generally requires automatic
reversal. See S tate v. Dalbec , 800 N.W.2d 624, 627 (Minn. 2011) . This is because
structural errors are “defects in the constitution of the trial mechanism” such that the entire
course of the trial is affected. Arizona v. Fulminante, 499 U.S. 279, 309–10 (1991).
Structural errors defy an analysis of the harmfulness of the error. Weaver v. Massachusetts,
578 U.S. ___, ___, 137 S. Ct. 1899, 1907 –08 (2017). This is because “the effects of the
error are simply too hard to measure,” “harm is irrelevant to the basis underlying the right,”
or “the error always results in fundamental unfairness.” Id. at ___, 137 S. Ct. at 1908.
Bey asserts that claims of structural er ror are not subject to forfeiture, citing to our
decision in State v. Brown in which we stated that “[s]tructural errors always invalidate a
conviction whether or not a timely objection to the error was made.” 732 N.W.2d 625, 630
(Minn. 2007). Brown, however, was resolved on other grounds —making this statement
dicta. See id. at 629. We recently addressed whether a defendant was entitled to automatic
reversal of his conviction because of an unobjected -to structural error —specifically, a
claimed violation of the defendant’s right to a public trial —in Pulczinski v. State , 972
N.W.2d 347 (Minn. 2022). In Pulczinski we held that, absent an objection during trial, we
lack the discretion to grant relief for structural errors unless the error “seriously affected

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the fairness, integrity, or public reputation of judicial proceedings.” Id. at 359. But
reaching this inquiry requires us to accept the underlying assumption that Bey’s argument
makes—namely, that the polling error here was structural error. Because we conclude that
no structural error occurred here, we need not determine whether Bey forfeited his claim
of structural error.
Structural error occurs in circumstances in which the effect of the error cannot be
assessed. Dalbec, 800 N.W.2d at 627. For example, in State v. Dorsey, we found structural
error when the judge independently conducted factual research. 701 N.W.2d 238, 253
(Minn. 2005). Because d efendants are entitle d to a neutral decisionmaker, the judge’s
independent factual investigation compromised this singularly important safeguard. Id. In
this case, however, it is possible to evaluate whether the alleged polling error affected the
result because it was not the only safeguard assuring a constitutional jury verdict. The jury
instructions, comments and instructions from the district court , the conduct of the jurors ,
and the lack of objections also served to guarantee the integrity of the trial.
Another way an error may be structural is that any harm to the final verdict resulting
from the error is irrelevant; in other words, structural error cannot be excused as harmless
error because the structural right that was violated exists to protect something other than
the fairness of the final verdict. An example of a structural error in which harm is irrelevant
is the denial of the right to self-representation. Weaver, 578 U.S. at ___, 137 S. Ct. at 1908.
This is because the right to self -representation protects “the fundamental legal principle
that a defendant must be allowed to make his own choices about the proper way to protect
his own liberty,” regardless of whether the exercise of the right is helpful for the defendant.

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Id. A denial of the right to self -representation may not necessarily harm the defendant .
But if a defendant were convicted after a denial of the right to self-representation, it would
be structural error even i f it could be proven that the defendant still would have been
convicted absent the denial because the right exists to protect the “defendant’s free choice
independent of concern for the objective fairness of the proceeding.” State v. Richards ,
456 N.W.2d 260, 263 (Minn. 1990) (citation omitted) (internal quotation marks omitted).
Jury polling, however, is an optional and nonexclusive procedural mechanism designed to
protect a defendant from an erroneous guilty verdict. Because a defendant’s right to poll
the jury exists to safeguard the verdict, the effect of a violation of the right to poll the jury
may be assessed if other evidence proves that the jury verdict was fair and proper.
Finally, it cannot be said that an error in jury polling always results in fundamental
unfairness. Jury polling is optional and does not always occur . And more importantly,
there are other procedures during a trial to ensure the right to a unanimous verdict. As a
result, we conclude that, because Bey has failed to demonstrate that a structural error
occurred, he is not entitled to relief on this ground.
B.
Bey also asserts that he is entitled to relief under the plain error doctrine. Under the
plain error doctrine , an appellate court has a limited power to grant relief based on
unobjected-to trial errors. Minn. R. Crim. P. 31.02; State v. Beaulieu , 859 N.W.2d 275,
279 (Minn. 2015). A plain error is (1) an error, (2) that is plain, and (3) affects the party’s
substantial rights. State v. Watkins, 840 N.W.2d 21, 28 (Minn. 2013). An error is plain
when it is clear or obvious. State v. Reek, 942 N.W.2d 148, 160 (Minn. 2020). An error is

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clear when it contravenes case law or court rules. State v. Reed , 737 N.W.2d 572, 583
(Minn. 2007). An error affects a party’s substantial rights whe n there is a reasonable
likelihood that the error influenced the verdict. Id. In other words, the issue is whether
there is a reasonable possibility that a reasonable jury might have reached a different verdict
but for the error. Cf. State v. Gutierrez, 667 N.W.2d 426, 435 (Minn. 2003) (holding that
an improper jury instruction did not affect the defendant’s substantial rights because the
defendant could not establish that a proper instruction could have changed the outcome of
the case). But even when these three prongs are established, a plain error does not justify
granting a new trial unless “our failure to do so will cause the public to seriously question
the fairness and integrity of our judicial system.” Pulczinski, 972 N.W.2d at 359.
Again, it is undisputed that the record reflects an irregularity. When requested,
“[e]ach juror must be asked individually whether the announced verdict or finding is that
juror’s verdict or finding.” Minn. R. Crim. P. 26.03, subd. 20(5)(b). But an alleged error
does not affect a defendant’s substantial rights unless the defendant proves that “there is a
reasonable likelihood that the absence of the error would have had a significant effect on
the jury’s verdict.” Reed, 737 N.W.2d at 583 (citation omitted) (internal quotation marks
omitted).
Bey argues that the jury may have reached a different conclusion because the trial
concerned a highly emotional event and the witness testimony about the gun was not
entirely consistent. We disagree. Contrary to Bey’s claim, the evidence of his guilt was
strong: multiple witnesses testified that Bey entered the apartment without consent and
then used a gun to forcibly remove the children from the apartment , and video recordings

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corroborated this testimony . See State v. Davis , 735 N.W.2d 674, 682 (Minn. 2 007)
(stating that one factor in determining whether an error affected a defendant’s substantial
rights is “the strength of the evidence against the defendant”). Bey also does not present
any evidence that any juror disagreed, had doubts, or was pressured into agreeing with the
verdicts. Cf. State v. Everson, 749 N.W.2d 340, 349 (Minn. 2008) (holding that an alleged
error in the jury process “without even any allegation of misconduct . . . much less any
evidence of the same” was insufficient to demonstrate that the defendant’s substantial
rights were affected). The district court repeatedly instructed the jury that any verdict must
be unanimous. The jurors were asked as a group whether they all agreed with the verdicts,
and they responded affirmatively without any objection. Bey has not established that there
is a reasonable likelihood that the jury would have reached a different result had the twelfth
juror been polled. As a result, Bey is not entitled to relief under the plain error doctrine.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.