source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    STATE of Minnesota, Respondent, v. Terri GUSTAFSON, petitioner, Appellant.
    No. CX-98-1465.
    Supreme Court of Minnesota.
    May 18, 2000.

      John M. Stuart, Minnesota State Public Defender, and Michael F. Cromett, Assistant State Public Defender, Minneapolis, for appellant.

      Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, and John J. Muhar, Itasca County Attorney, Grand Rapids, for respondent.
   OPINION

BLATZ, Chief Justice.

Appellant Terri Gustafson appeals from a Minnesota Court of Appeals decision affirming her convictions for first- and second-degree assault for shooting her husband in the leg. Gustafson sought a new trial on the grounds that the jury should have received instructions on the defenses of self-defense and accident, or that her attorney’s failure to request such instructions was ineffective assistance of counsel. The court of appeals concluded in a 2-1 decision that the evidence in the record did not support a self-defense instruction, and that because the jury was instructed on intent, the failure to give an accident instruction was not error. The court also held that Gustafson’s attorney’s representation was not deficient. We affirm because we agree that the trial court’s failure to sua sponte instruct the jury on accident or self-defense was not plain error. We decline to reach Gustafson’s ineffective assistance of counsel claim, but it is preserved so she may pursue it in a petition for postconviction relief.

On the evening of October 12, 1996, Gustafson and her husband Tim Peterson began arguing while driving home from a nearby bar where they had each consumed several alcoholic beverages. They arrived at their cabin-home sometime after 9 p.m. and Gustafson went inside, but Peterson decided to go to a friend’s house for the night. Instead of leaving the property, however, Peterson drove to the end of their 120-foot driveway, “stayed there for awhile,” and then drove back to the cabin.

A neighbor who overheard the incident testified that when Peterson returned to the cabin he was swearing and yelling “heck with this” and “I live here too.” Peterson attempted to enter the cabin but found the door locked. He located a hammer and began pounding on the door handle in an attempt to break it. Two neighbors and a boater on the lake heard Peterson continue to swear and repeatedly yell “let me in” while he was pounding on the door handle. They also heard a muffled female voice, which sounded like it was coming from inside the cabin, yelling back.

Peterson eventually broke off the door handle. He punched the latch through, opened the door, and stepped into the cabin. He testified that when he turned on the light he saw Gustafson holding his shotgun so he yelled “well, why -don’t you just go ahead and shoot me then.” In contrast, the neighbors testified that Peterson was still outside the cabin, banging on the door, when they heard him yelling “go ahead and shoot me” repeatedly.

Inside the cabin Peterson and Gustafson had a “discussion” about Peterson leaving for the night and needing his jacket and cigarettes. Peterson testified that Gustaf-son was holding the gun while they talked, but that it was pointed toward the floor. At some point the gun went off, striking Peterson in his right thigh. Peterson also testified that he believed Gustafson shot him accidentally, explaining that the sawed-off shotgun was over 20 years old, rusted, did not have a safety, and that the hammer had slipped in the past.

Gustafson called 911 and requested an ambulance for her husband. When asked by the 911 dispatcher what the problem was, Gustafson responded “uh - gunshot - accident,” and “I shot him accidentally. I shot him accidentally.” Later in the call, she said “I thought he was - I thought he was um - breaking in. * * * I - I didn’t know. I thought he was breaking in.”

When the police arrived on the scene, Gustafson initially told them that Peterson was cleaning his gun and shot himself. Shortly thereafter she admitted that she shot Peterson. Gustafson told the police that her husband told her if she ever heard an intruder breaking in she should grab the shotgun and shoot them. She added that she was awakened by somebody pounding on the door, so she got the shotgun and shot him.

After Peterson was taken by ambulance to a hospital for treatment, the police recorded Gustafson’s statement. She told them that she and Peterson had an argument, he went for a walk, and she fell asleep. She was awakened by a noise and grabbed her husband’s gun, explaining that her husband “always told me - when I lived in Los Angeles, he always told me that that’s - I should always use that [gun] if anybody’s coming into the house.” She added that Peterson “always told me if anybody’s tryin’ to come through that door, you take that and use that [gun]. Always.” Gustafson was then asked by the police if she shot Peterson. Gustafson responded “It [sic] really didn’t pull the trigger. It just went off. The g— d— thing went off.” When asked if she had aimed the gun, Gustafson replied, “Did I - oh, no, no. I just went like this. The g— d— thing went off. I didn’t even [unintelligible]. Oh, my God. I don’t think I could even shoot somebody that’s cornin’ through my door. Oh, God. * * * And I shot my husband.”

Gustafson was charged with intentional discharge of a firearm; assault in the second degree; and assault in the first degree. At trial, the state and the defense both discussed the defense of accident in their-closing arguments. The state explained that the “one real defense is that the gun went off by accident.” The defense argued that Gustafson repeatedly claimed the shooting was an accident at the scene, and that Peterson testified that the shooting was accidental. The defense also argued that given the old weapon and the influence of alcohol, “[i]t’s almost a presumption of accident if not, in fact, a presumption of accident.”

After closing arguments, the trial court instructed the jury that to find Gustafson guilty of intentional discharge of a firearm the jury needed to find that she intentionally discharged the shotgun. The court’s instructions specifically defined “intentionally.” The court also explained that to find Gustafson guilty of assault in the first- or second-degree, the jury must find that she either (1) performed an act intending to cause fear in another of immediate bodily harm, or (2) intentionally inflicted or attempted to inflict bodily harm upon another. See Minn.Stat. § 609.02, subd. 10 (1998). The trial court did not give the jury instructions on the defenses of accident or self-defense. Gustafson did not request those instructions or object to the instructions given by the trial court.

After deliberation, the jury found Gus-tafson not guilty of intentional discharge of a firearm, but guilty of first- and second-degree assault. The trial court sentenced Gustafson to the presumptive sentence of 81 months for first-degree assault. Gus-tafson appealed to the court of appeals, Seeking a new trial on the grounds that the jury should have been instructed on self-defense and accident even though she did not request such instructions or object to the ■'•instructions given by the trial court. See State v. Gustafson, No. CX-98-1465, 1999 WL 308621, at *1 (MinmApp. May 18, 1999). Gustafson also sought a new trial for ineffective assistance of counsel because her defense attorney failed to request those instructions. See id. at *4. Further, Gustafson claimed that the trial court erred by not exercising discretion in sentencing. See id.

The court of appeals affirmed the conviction and sentence in a 2-1 opinion. See id. at *5. The court of appeals held that the trial court’s failure to instruct the jury on self-defense was not error because there was no evidence in’ the record that Gustafson had reasonable grounds to believe she needed to use force to prevent an assault against her person. See id. at *2. Citing to State v. Boitnott, 443 N.W.2d 527, 533 (Minn.1989), the court further held that “[bjecause the trial court correctly instructed the jury on intent, it did not err by not giving an accident instruction.” Gustafson, 1999 WL 308621, at *3. Finally, the court of appeals denied Gustafson’s ineffective assistance of counsel claim and affirmed her sentence without modification. See id. at ⅜4-5.

In contrast to the majority opinion, the dissent focused on the not guilty verdict on the count of intentional discharge of a firearm. See id. at *5 (Davies, J., dissenting). The dissent explained that assault requires an intentional act — either an intent to cause fear or an intent to inflict harm. See id. The dissent then reasoned that because the jury, by its not guilty verdict for intentional discharge of a firearm, determined that Gustafson did not fire the gun intentionally, “the only intentional act that could constitute the predicate assault is that appellant picked up and brandished the shotgun.” Id. If Gustaf-son’s intentional act of picking up and brandishing the shotgun was reasonable self-defense, then Gustafson was not guilty of assault. See id. Therefore, the dissent concluded, because the jury might have found that “brandishing the gun was not an excessive use of force in light of appellant’s .reasonable apprehensions,” the failure to instruct on self-defense was a “fundamental error” requiring reversal. Id. at *6.:

Gustafson petitioned this court for review on the grounds that she is entitled to a new trial because the trial court should have instructéd the jury on self-defense and accident, and that she received ineffective assistance of counsel because her defense attorney did not request such instructions:

I.

Gustafson first requests a new trial on the grounds that the trial court should have given self-defense and accident instructions to the jury, or more particularly, a self-defense instruction modified to embody accident. However, Gustafson did not submit a self-defense, accident, or combined self-defénse/accident instruction to the trial -court, and did not object to the court’s failure to include these instructions. “The general rule is that if defense counsel fails to object to error at trial, the defendant * * * is deemed to have forfeited his right to have this court consider that error on appeal.” State v. Malaski, 330 N.W.2d 447, 451 (Minn.1983).

, However, even when there is no objection to jury instructions at trial, this court has the discretion to consider on appeal whether there was plain error affecting substantial .rights. See State v. Griller, 583 N.W.2d 736, 740 (Minn.1998); Minn. R.Crim. P. 31.02. The three-prong test for plain error requires

that before an appellate court reviews an unobjeeted-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.

Griller, 583 N.W.2d at 740 (citations omitted). Thus, we must decide whether it was error for the trial court not to sua sponte instruct the jury on accident, self-defense, or some combination of these defenses.

First we address Gustafson’s claim of error as to the failure to instruct on her accident defense. We have held that the failure to give an accident instruction is not error if the trial court’s instructions adequately inform the jury that a finding of intent is a prerequisite to a finding of guilt, and the arguments of the prosecutor and defense counsel further ex-r plain this to the jury. See State v. Stapek, 315 N.W.2d 603, 604 (Minn.1982); see also State v. Schluter, 281 N.W.2d 174, 177 (Minn.1979). For example, in Schluter, the trial “court made it very clear that the jury could not convict defendant of either second-degree murder or first-degree manslaughter unless the jury was convinced defendant intentionally killed [the victim].” Schluter, 281 N.W.2d at 177. In addition, the prosecutor stated at trial “that the jury could not find defendant guilty of either second-degree murder or first-degree manslaughter if it believed defendant’s claim that the gun discharged accidentally.” Id.

Similarly, at Gustafson’s trial, the court instructed the jury that each of the charged crimes had an intent requirement, and defined “intentionally.” In closing arguments, the defense argued that the shooting was an accident, emphasizing that the weapon was old and dangerous, and that Gustafson was under the influence of alcohol. In addition, as in Schluter, the state referred to the defense of accident repeatedly in closing arguments, conceding that one defense to the charges was that the gun went off by accident. The state told the jury that the question they had to answer was whether there was an assault or an accident.

Even so, Gustafson directs our attention to State v. Crisler, 285 N.W.2d 679, 682 (Minn.1979), where this court concluded that a trial court’s instructions were deficient when “they did not adequately explain the defense of accidental death.” In Crisler, the defendant’s theory of the case was that he pulled out a gun in self-defense, and then a friend hit his hand causing the gun to fire. See id. at 680. As part of the self-defense instruction, “the trial court stated: ‘If [the victim] was accidentally killed in the lawful use of force, then, of course, the defendant would not be guilty of any homicide.’ ” Id. at 682. This was the only reference to accidental death in the instructions, and as here, defense counsel did not request an accidental death instruction or object to the court’s instructions. See id. at 682-83.

We are not persuaded that Crisler mandates a new trial here. In Crisler we remanded the case for a new trial on other grounds, and then added in dicta that upon retrial the defendant was “entitled to a more complete instruction on the effect of a finding that the shooting was accidental.” Id. at 683. Importantly, in Crisler the defendant was found guilty of second-degree murder, see id. at 680, while here Gustafson was acquitted of intentional discharge of a firearm. Therefore, we conclude that the intent instructions, together with the closing arguments, made the jury aware that accident was a defense, and hold that the trial court did not err when it failed to give the jury an accident instruction.

Next, Gustafson argues that there was sufficient evidence in the record to support a claim of self-defense, and that the trial court erred in failing to instruct the jury accordingly. In support- of her claim that the jury should have been instructed on self-defense, Gustafson points to the following evidence in the record: (1) witnesses testified to hearing Peterson yelling obscenities while pounding on the door handle and then eventually breaking the handle and gaining entry to the cabin; (2) on the 911 tape introduced at trial Gustafson is heard telling the dispatcher that she thought “he” was “breaking in”; and (3) Gustafson told police at the scene that she reacted as she had been instructed by her husband when confronted by the sounds of an intruder.

While this evidence suggests that Gus-tafson , could have argued self-defense to the jury as a defense against the charges, we disagree that the trial court should have instructed the jury, sua sponte, on self-defense. First, this is a case where the defendant not only failed to request a self-defense instruction, but also failed to object to the trial court’s failure to give such an instruction. Moreover, Gustafson did not argue self-defense at trial, or otherwise suggest a reliance on self-defense in questions to witnesses.

Critical to our analysis is the fact that self-defense is an affirmative defense, requiring that the defendant give notice to the state of an intent to rely on self-defense. See Minn. R.Crim. P. 9.02, subd. l(3)(a) (“The defendant shall inform the prosecuting attorney in writing of any defense, other than that of not guilty, on which the defendant intends to rely at the trial, including but not limited to the defense of self-defense * * * .”). Gustafson made no claim on appeal that defense counsel notified the prosecutor in writing of an intent to rely on the defense of self-defense, and the record before us does not indicate otherwise. Thus, while the trial court has the “ultimate responsibility to ensure that all essential instructions are given” under the law, see State v. Leinweber, 303 Minn. 414, 421/228 N.W.2d 120, 125 (1975), that responsibility does not require the court to instruct the jury, sua sponte, on the affirmative defense of self-defense when it was not raised, argued, or requested. Therefore, we conclude that under these particular facts the trial court did not err in failing to give the jury a self-defense instruction.

As the trial court did not err by failing to instruct the jury sua sponte on accident or self-defense, it follows that the trial court did not plainly err by failing to give the jury a self-defense instruction modified to include accident. Accordingly, we hold that Gustafson is not entitled to a new trial on these grounds.

II.

Gustafson also requests a new trial because she claims she received ineffective assistance of counsel. The two-prong test for reversing a conviction for ineffective assistance of counsel requires that-the defendant: (1) show defense counsel’s performance was deficient, and then (2) show that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defense counsel’s performance is deficient if it falls below an objective standard of reasonableness. See State v. Voorhees, 596 N.W.2d 241, 255 (Minn.1999). To act within an objective standard of reasonableness, an attorney must provide his or her client with the representation that an attorney “exercising the customary skills and diligence * * * [of a] reasonably competent attorney would perform under similar circumstances.” Id. “There is a strong presumption that a counsel’s performance falls within the wide range of ‘reasonable professional assistance.’ ” State v. Jones, 392 N.W.2d 224, 236 (Minn.1986).

Gustafson argues that her attorney’s assistance was ineffective because he failed to ensure that the jury was adequately instructed as to the defense of accident, and failed to argue self-defense. She contends that accident was not a defense to the assault charges, only the charge of intentional discharge of a firearm. Assault is defined as either intentionally causing fear or intentionally inflicting harm upon another. See Minn.Stat. § 609.02, subd. 10 (1998). In essence, Gustafson claims that in light of her acquittal of the charge of intentional discharge of a firearm, the jury could not have found that she intended to inflict harm. In her view, the only way the jury could have found her guilty of assault was to find that she intended to cause fear, such as by brandishing the shotgun. Gustafson argues that this conduct could not be excused or justified by accident because one does not accidentally pick up and hold a shotgun. Instead, Gus-tafson contends that brandishing the shotgun was a reasonable use of force in self-defense. Thus, she claims that her attorney’s failure to argue self-defense constituted deficient professional assistance because it left her without a defense to the assault charges.

Generally, an ineffective assistance of counsel claim should be raised in a postconviction petition for relief, rather than on direct appeal. See Robinson v. State, 567 N.W.2d 491, 494 & n. 3 (Minn. 1997); Black v. State, 560 N.W.2d 83, 85 n. 1 (Minn.1997). A postconviction hearing provides the court with “additional facts to explain the attorney’s decisions,” so as to properly consider whether a defense counsel’s performance was deficient.RZacfc, 560 N.W.2d at 85 n. 1. Gustafson argues that here, however, the record provides sufficient grounds for a determination of ineffective assistance of counsel because it clearly shows that she was left without a defense to the assault charges. We disagree. While it is arguable that Gustafson may have been left without a defense against some of the charged crimes, the record before us is devoid of the information needed to explain the attorney’s decisions. Under these facts, any conclusions reached by this court as to whether Gus-tafson’s attorney’s assistance was deficient would be pure speculation on our part. Therefore, while we decline to reach the merits of this issue, Gustafson’s right to pursue an ineffective assistance of counsel claim in a petition for postconviction relief is preserved. Accordingly, we vacate that part of the court of appeals decision that is inconsistent with this holding.

Affirmed.

      . Minn.Stat. § 609.66, subd. la(a)(2) (1998) (stating that it is a felony to "intentionally discharge!] a firearm under circumstances that endanger the safety of another”). In pretrial proceedings, the trial court, prosecutor, and defense counsel agreed for unknown reasons to identify this charge as "reckless discharge of a firearm” at trial even though recklessness is not an element of the crime. We refer to this charge as intentional discharge of a firearm here.

      . Minn.Stat. § 609.222, subd. 2 (1998) ("Whoever assaults another with a dangerous weapon and inflicts substantial bodily harm may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.”)

      . Minn.Stat. § 609.221, subd. 1 (1998) ("Whoever assaults another and inflicts great bodily harm may be sentenced to imprisonment for not more than 20 years or to payment of a fine of not more than $30,000, or both.”)

      .The court's instructions provided:
      Intentionally means that the actor either had a purpose to do the thing or to cause the result specified, or believes that her act, if successful, will cause that result. In addition, the actor must have knowledge of those facts which are necessary to make her conduct criminal. Intent is something that exists in a person's mind. It is seldom, if ever, that a person’s intent can be proven by direct evidence. The intent may be inferred by the nature of the acts, what the defendant did, what the defendant said, and how the defendant acted.


author: PAUL H. ANDERSON, Justice.

text:
    Gerardo MORENO, Respondent, v. CROOKSTON TIMES PRINTING CO., d/b/a Crookston Daily Times, petitioner, Appellant, Dennis McDaniel, Respondent.
    No. C6-98-2421.
    Supreme Court of Minnesota.
    May 18, 2000.

      Paul R. Hannah, St. Paul, and Kenneth F. Johannson, Johannson, Taylor, Rust & Fagerlund, Crookston, for Appellant.
    Kay Nord Hunt, Stephen C. Rathke, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, for Respondent Moreno.
    Dennis McDaniel, Crookston, pro se Respondent.
    William R. Space and Edward N. Man-sur, Mendota Heights, for amicus curiae MN Police and Peace Officers Ass’n.
    Stephen R. McSpadden, Washington, D.C., for amicus curiae Nat’l Assn, of Police Org.
    Mark R. Anfinson, Minneapolis, for ami-cus curiae MN Newspaper Ass’n.
    Terrance Moore, Edina, for amicus curiae MN Broadcasters’ Ass’n.
   OPINION

PAUL H. ANDERSON, Justice.

Crookston Times Printing Co., d/b/a Crookston Daily Times, appeals a Minnesota .Court of Appeals decision reversing a district court grant of summary judgment on a defamation claim brought by Crook-ston Police Officer Gerardo Moreno. The Times asks us to decide whether the fair and accurate reporting privilege protects a Times’ article that reported allegedly defamatory statements made by a local citizen during a city council meeting. Officer Moreno cross-appeals on whether the district court properly applied the fair and accurate reporting privilege to the Times’ article. We reverse the court of appeals’ holding that a showing of common law malice will defeat the fair and accurate reporting privilege. We also reverse the district court, concluding that it erred in its application of the fair and accurate reporting privilege to the Times’ article. We reverse and remand to the district court.

The facts of this matter are essentially undisputed and are recounted here as presented to the district court on summary judgment. On March 10, 1998, the Crook-ston City Council held a regularly scheduled council meeting. Near the end of the council meeting, Vice Chair Frank Lind-gren recognized respondent Dennis McDaniel, a local citizen who wished to address the council. Comments from local citizens are regularly permitted at council meetings. McDaniel told the council that “our kids have problems” and requested that the council “stop Officer Moreno from dealing drugs out of his Police car.” McDaniel asserted that he had witnesses to prove his statements. After McDaniel concluded his remarks, Lindgren stated that the council “would take this under advisement.” The council concluded its business and adjourned shortly thereafter.

Michael Christopherson, city editor of appellant Crookston Times Printing Co., d/b/a/ Crookston Daily Times, was present at the city council meeting. However, the Times did not immediately report McDaniel’s remarks. On March 20, 1998, Christopherson became aware of rumors circulating in Crookston about the possible arrest of a Crookston police officer. That same day, Christopheréon interviewed Crookston Police Chief Paul Mon-teen. Monteen told Christopherson that the rumors about a police officer having been arrested were untrue generally, and specifically that respondent Officer Gerardo Moreno had not been arrested. When questioned about McDaniel’s accusations at the city council meeting, Monteen said that the police department “would be remiss” if it did not follow up on McDaniel’s accusation. Monteen also indicated that the Crookston Police Department either could not or would not investigate its own officers.

On March 23, 1998, the Times ran a front-page article titled “CPD reacting to accusation,” which article is central to the dispute in this case. The article recounted the events of the previous 13 days with regard to McDaniel’s accusation and the subsequent follow-up, including Christo-pherson’s interview with Chief Monteen recounting the rumors of police arrests and Monteen’s statement that those rumors were untrue. The report also noted that McDaniel was a frequent contributor to the Times’ editorial page. The article as published read as follows:

CPD reacting to accusation
By Mike Christopherson
City Editor
The Crookston Police Department is following ¡up on a citizen’s accusation of wrongdoing by a police officer made at the conclusion of the March 10 City Council meeting.
Council meetings are open to public comment at their conclusion, but rarely are any comments made. At that meeting, however, as ward-six alderman and Vice-Mayor Frank Lindgren — sitting in for the absent Mayor Don Osborne— prepared to adjourn for the evening, ward one resident Dennis McDaniel asked for an opportunity to speak.
When recognized and told he had the floor, McDaniel said that young people in Crookston have a lot of problems, including drugs, and he said their drug problems would be decreased if someone would do something to stop Crookston Police officer Gerry Moreno from selling drugs out of the trunk of his squad car. McDaniel also said he had witnesses.
After getting McDaniel’s name and address, Lindgren said the council would take the matter under advisement.
Police Chief Paul Monteen on Friday limited his comments on the matter, saying only that the police department “would bé remiss” not to see that McDaniel’s accusation is followed up on. When the process is concluded, Monteen said more information would be forthcoming.
After McDaniel’s comments at the March 10 meeting, Monteen spoke with him.
“I . asked him if he wanted to make a formal complaint, and he declined to do so,” Monteen said. “I haven’t talked to him since.”
As Friday wore on, rumors of an officer or officers being “busted” for wrongdoing circulated around town. Monteen said the rumors were untrue. He said he had been at a training session with officer Moreno for the better part of Friday.
If McDaniel’s name sounds familiar, that’s because it is. He’s an outspoken citizen, and is a frequent contributor to the Times’ Editorial Page.

The Times asserts that Officer Moreno called the Times the day after the article was published, but that subsequent efforts to make contact failed. Moreno, through his counsel, then sent a letter to the Times demanding a retraction of the March 23 article. This letter was sent in accordance with Minn.Stat. § 548.06 (1998). The Times did not retract the article, and continued a follow-up investigation into the story.

On April 15, 1998, Christopherson spoke by telephone with McDaniel who reiterated the truth of his accusation at the council meeting. In another interview later that same day, McDaniel stated that he had been “looking after” a boy who informed him that Officer Moreno had appeared at a local party in his patrol car and had been dealing drugs. McDaniel also told Chris-topherson that he knew of other witnesses to Moreno’s activities, but would not reveal names because the witnesses were scared. McDaniel did identify one person by name who he claimed also heard the boy’s statement. However, when Christopherson attempted to contact that person, he learned that the person had died.

On April 16, 1998, Christopherson contacted the U.S. Drug Enforcement Agency’s Fargo, North Dakota Field Office and inquired about any investigation related to McDaniel’s accusation. An agent informed Christopherson that the DEA had investigated Officer Moreno, that the investigation was complete, and that the DEA found no support for McDaniel’s aecusation. On April 20, 1998, the Times ran a second article recounting the results of the DEA investigation, stating that the DEA had found no evidence of wrongdoing by a Crookston police officer.

In an action for damages for the publication of a libel in a newspaper, the plaintiff shall recover no more than special damages, unless a retraction be demanded and refused as hereinafter provided. The plaintiff shall serve upon the publisher at the principal place of publication, a notice, specifying the statements claimed to be libelous, and requesting that the same be withdrawn. If a retraction thereof be not published on the same page and in the same type and the statement headed in 18-point type or larger "RETRACTION,” as were the statements complained of, in a regular issue thereof published within one week after such service, the plaintiff may allege such notice, demand, and failure to retract in the complaint and recover both special and general damages, if the cause of action be maintained. If such retraction be so published, the plaintiff may still recover general damages, unless the defendant shall show that the libelous publication was made in good faith and under a mistake as to the facts.

A few weeks after the second article, Officer Moreno brought an action against the Times in Polk County District Court, alleging that the March 23 article was defamatory and was made with negligent and reckless disregard for the truth and with malice. The Times’ answer asserted several defenses of privilege, including that the article was a fair comment on the conduct of a public official, made in the public interest on a matter of public concern, and was a fair and accurate report of a public proceeding. It is only this latter defense — that the article was a fair and accurate report of a public proceeding— that is the subject matter of this appeal. On July 23, 1998, the Times moved for “judgment on the pleadings or for summary judgment,” arguing that its March 23 article was privileged as a fair and accurate report of a public proceeding.

The district court granted the Times’ motion for “judgment on the pleadings or, in the alternative, summary judgment.” In its attached memorandum, the court concluded that the fair and accurate reporting privilege as described in the Restatement (Second) of Torts § 611 (1976) was applicable under Minnesota law. The court then concluded that the Times’ March 23 article was a fair and accurate report of a public proceeding and that it was therefore privileged. The court also noted that a showing of malice would not defeat this privilege. At Officer Moreno’s request, the court amended its order to permit immediate entry of final judgment for the Times and against Moreno to allow Moreno to commence his appeal pursuant to Minn. R. Civ. P. 54.02.

The publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.

The court of appeals reversed the district eourt and remanded, concluding that the Restatement (Second) of Torts § 611 was not the law in Minnesota and that a showing of common law malice would defeat any privilege attaching to the fair and accurate reporting of public proceedings. See Moreno v. Crookston Times Printing Co., 594 N.W.2d 555, 559 (Minn.App.1999). We accepted review of the court of appeals’ decision and, on cross-appeal by Officer Moreno, review of the issue of whether the district court properly applied the fair and accurate reporting privilege to the entire Times’ article.

I.

Before addressing the specific legal questions presented on review, we must resolve two preliminary issues. First, we address the procedural posture of the matter before us. The record is unclear about what the district court intended when it granted the Times’ motion for “judgment on the pleadings or, in the alternative, summary judgment.” The court did not specify which it was granting — judgment on the pleadings or summary judgment. The court of appeals treated this matter as an appeal from an entry of judgment on the pleadings under Minn. R. Civ. P. 12.03. See Moreno, 594 N.W.2d at 556. Because the court of appeals concluded that the district court applied an incorrect legal standard, it did not consider whether the district court correctly applied that standard to the Times’ article.

Both the rules of civil procedure and the decisions of our court are clear, “[i]f, on [a motion for judgment on the pleadings], matters outside the pleadings are presented to and not exclu'ded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in Rule 56 * ⅜ *.” Minn. R. Civ: P. 12.03; see also McAllister v. Independent Sch. Dist. No. 306, 276 Minn. 549, 551, 149 N.W.2d 81, 83 (1967). The district court ruled that the Times’ March 23 article was a fair and accurate report of the March 10 city council meeting. To do this, the court considered the article, which was attached and incorporated into Officer Moreno’s complaint. However, in order to reach its conclusion, the court also had to compare the article with the official transcript of the city .council meeting. Neither party incorporated a transcript of the city council meeting into the pleadings, but the Times attached a copy of the minutes to its motion for summary judgment. The court therefore considered matters outside the pleadings in making its ruling. Accordingly, we conclude that the court decided this matter as a summary judgment motion under the rules of civil procedure and our review will proceed accordingly.

The second preliminary issue to resolve is whether Officer Moreno alleged that the entire March 23 article was defamatory or merely those parts that relayed McDaniel’s accusation at the city council meeting. Moreno asserts that his complaint was not limited to any particular part of the article, but rather alleged that the article as a whole was defamatory. The Times claims that Moreno’s complaint alleged as defamatory only that part of the article — paragraph three — which relayed McDaniel’s accusation. • Neither the district court nor the court of appeals addressed this issue; however, our analysis requires that it be resolved.

Minnesota law has generally required that in defamation suits, the defamatory matter be set out verbatim. See American Book Co. v. Kingdom Pub. Co., 71 Minn. 363, 366, 73 N.W. 1089, 1090 (1898). In the case of an allegation that a newspaper article contained defamatory material, a plaintiff need set out only so much of the article as contains the defamatory material. See Blethen v. Stewart, 41 Minn. 205, 206, 42 N.W. 932, 932 (1889). Otherwise, our general rules of pleading only require “a short and plain statement of the claim showing that the pleader is entitled to relief ⅜ ⅜ ⅜.” Minn. R. Civ. P. 8.01.

In this case, Officer Moreno’s complaint set forth that:

4. On March 23, 1998, Defendant Daily Times published the newspaper article which is attached to this Complaint as Exhibit A and incorporated herein.
5. On information and belief, at the March 10, 1998 meeting of the city council of the City of Crookston, Defendant McDaniel made the statements contained in the third paragraph of the newspaper article referred to in the preceding paragraph.
6. The statements made by Defendants are defamatory.
7. The statements made by Defendants are false and Defendants either knew or, exercising the care of a reasonable person under the circumstances, should have known that they are false.
9. Defendant Daily Times made and published the newspaper article containing the statements with malice.

Paragraph five of the complaint puts McDaniel’s accusation as contained in paragraph three of the article at issue, but paragraphs four, six, and nine put the Times’ article in its entirety at issue. Further, the Times’ answer neither limits its response to any particular part of the article nor does it specifically ask the district court to limit Officer Moreno’s claim. The plain language of the complaint and our general rules of pleading indicate that Moreno pleaded facts sufficient to place the entire March 23 article at issue in this matter. We will treat it accordingly.

II.

The central dispute in this appeal focuses on the nature and the scope of the fair and accurate reporting privilege as it applies to civil claims of defamation for reporting the events of a city council meeting. The Times urges us to affirm the district court’s conclusion that the Restatement (Second) of Torts § 611 articulates the fair and accurate reporting privilege in Minnesota and that the privilege may not be defeated by a showing of malice. Officer Moreno argues that the fair and accurate reporting privilege in Minnesota is a qualified privilege and may be defeated by a showing of malice. Because this matter comes before us from a grant of summary judgment and does not involve any disputed facts, only questions of law, we review it de novo. See Christensen v. Eggen, 577 N.W.2d 221, 224 (Minn.1998).

This court has never specifically addressed the application of a fair and accurate reporting privilege in the context of a city council meeting. Nor have we adopted the Restatement (Second) of Torts § 611 as the law in Minnesota. Therefore, we proceed to address the questions of whether, under Minnesota law, we recognize a fair and accurate reporting privilege; if so, whether we should adopt section 611 as the specific articulation of the privilege; and finally, if we do recognize a fair and accurate reporting privilege, whether this privilege protects the Times’ March 23 article.

History of Defamation Law

We begin our discussion with a review of those developments in the history of the law of defamation that are central to the issues presented in this case. The corn-mon law claim of defamation at civil law sought to redress those injuries to reputation caused by the publication of false information damaging to another’s reputation. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111, at 772 (5th ed.1984). Earlier in the state’s history, Minnesota law followed the English common law rule, imposing strict liability for defamation. See Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 480 (Minn.1985). Under the English common law rule, “[t]he defendant was liable, regardless of fault, for unprivileged publication of false and defamatory statements which injured the reputation of the plaintiff.” Id. at 480-81.

This strict liability rule was limited by several types of privileges that protected a publisher from liability for potentially defamatory statements. In Minnesota, these privileges generally have been divided into two categories, absolute and qualified privileges. See Matthis v. Kennedy, 243 Minn. 219, 223; 67 N.W.2d 413, 416 (1954). Absolute privileges, once established, protect a publisher of potentially defamatory statements regardless of motive and cannot be defeated by any showing of malice. See id. An absolute privilege applies to protect the public service or the administration of justice. See, e.g., id. at 223, 67 N.W.2d at 417 (discussing matters published in a judicial proceeding related to the subject matter of the proceeding); Peterson v. Steenerson, 113 Minn. 87, 129 N.W. 147 (1910) (discussing publications in the course of legislative proceedings).

Qualified privileges have attached to a broader range of circumstances where the interest in shielding the defendant is considered less compelling, but still requiring some protection. See Jadwin, 367 N.W.2d at 481. Historically, a qualified privilege has protected a publication when it was made by a person in the discharge of a public or private duty, legal or moral, or in the conduct of his own affairs and in matters, where his interest is concerned. See id.; see also Restatement (Second) of Torts §§ 593-598A (conditional privileges). Unlike absolute privileges, however, a showing of common law malice, ill will, or improper motive would defeat a qualified privilege. See Jadwin, 367 N.W.2d at 481.

The United States Supreme Court historically treated issues of defamation as being solely within the province of the states because defamatory comments were, by definition, not protected speech under the First Amendment. See Chaplinsky v. New Hampshire, 315 U.S. 568, 671-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). However, in New York Times v. Sullivan, the Court articulated a First Amendment concern with the law of defamation as it was applied in the public forum, specifically public comment on public officials. 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Our court has also recognized the tension between common law defamation and the First Amendment. We have observed that “[t]he law of libel originated to promote certain- interests of the state by means antipathetic to values central to our First Amendment guarantees.” Jadwin, 367 N.W.2d at 480.

The Sullivan Court, while recognizing the strong interest in redressing harms to reputation, stated that public debate on matters of general concern should be “uninhibited, robust, and wide-open” and that such debate might well include “vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials.” 360 U.S. at 270, 79 S.Ct. 1173. The Court, balancing the constitutional and policy interests in free and open public discourse and an individual’s right to compensation for harm to reputation, concluded that public officials could only recover for defamation upon a showing of “actual malice.” See id. at 279-80, 79 S.Ct. 1173. The Court defined “actual malice” as a showing that the publisher of a defamatory statement acted with knowledge that the statement was false or with reckless disregard for the truth or falsity of the statement. See id. at 280, 79 S.Ct. 1173.

A few years later, the Supreme Court extended Sullivan’s application by ruling that a state may no longer impose strict liability for defamation. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345-48, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In response to Gertz, we adopted a negligence standard for private individuals asserting defamation claims in Minnesota, stating that “a private individual may recover actual damages for a defamatory publication upon proof that the defendant knew or in the exercise of reasonable care should have known that the defamatory statement was false.” Jadwin, 367 N.W.2d at 491.

The Supreme Court’s definition of actual malice has generated some confusion in the law of defamation. Therefore, in the context of privileges in defamation law, it is important to distinguish between “actual malice” and “common law malice.” See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 666 n. 7,109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (commenting on the confusing nature of the phrase “actual malice”). The Supreme Court provided a technical definition of “actual malice” as a knowing or reckless disregard for the truth or falsity of a statement that has nothing to do with motive or ill will in the publishing of otherwise defamatory statements. See id. at 666-67, 109 S.Ct. 2678. Conversely, common law malice was generally proved in a defamation matter by a showing of ill will or improper motive for the publication of defamatory statements. See Jadwin, 367 N.W.2d at 481 n. 5.

Minnesota Case Law

Until now, our court has directly addressed the fair and accurate reporting privilege only in the context of judicial proceedings and has never stated whether it was an absolute or a qualified privilege. Almost a century ago, we held that the fair and accurate report of a judicial proceeding was privileged, as long as the matter reported fell within the control of the proceeding. See Nixon v. Dispatch Printing Co., 101 Minn. 309, 311, 112 N.W. 258, 258 (1907).

In Nixon, we addressed whether statements taken from a complaint filed in district court for a divorce proceeding and published in the local newspaper were privileged. See id. The Nixon court stated that “[t]he law is well settled that a publication of judicial proceedings, if fair and impartial, is privileged.” Id. But the court then concluded that the pleadings in that case had not yet been presented to the district court for action so they were not yet part of a judicial proceeding and therefore their publication was not privileged. See id. at 313, 112 N.W. at 259.

Nixon’s holding that pleadings not yet accepted by a court are outside the scope of the fair and accurate reporting privilege was incorporated into comment e of Restatement (Second) of Torts § 611 and has been recognized by commentators as defining one of the limits of the privilege. See Restatement (Second) of Torts § 611, cmt. e; see also Prosser and Keeton on Torts § 115, at 837 n. 51. In Nixon, we did not state whether a showing of common law malice would defeat the fair and accurate reporting privilege, nor did we directly address whether the privilege was an absolute or a qualified privilege. Consequently, while1 adopting the fair and accurate reporting privilege in the context of a judicial proceeding, our discussion of the privilege in Nixon provides little guidance on whether it is an absolute or qualified privilege and whether a showing of common law malice would defeat the privilege once it has been determined to be applicable. Nixon was also decided nearly 60 years before the Supreme Court articulated the First Amendment implications of defamation sanctions in Sullivan.

Federal Case Law in Minnesota

The Times cites to federal court decisions to support its claim that Minnesota law recognizes the fair and accurate reporting privilege as articulated in section 611. While a federal court’s interpretation of a lacuna in Minnesota law may be persuasive, we are not bound to follow it. See Northpointe Plaza v. City of Rochester, 457 N.W.2d 398, 403 (Minn.App.1990), aff'd, 465 N.W.2d 686 (Minn.1991). The Times refers us to Schuster v. U.S. News & World Report, Inc., where the U.S. District Court for Minnesota granted summary judgment for the defendant news agencies that had reported that the plaintiffs had been indicted on charges of smuggling laetrile into the United States. 459 F.Supp. 973, 974 (D.Minn.1978), aff'd, 602 F.2d 850 .(8th Cir.1979). The district court, applying Minnesota law, held that the reports were privileged as fair and accurate reports on official actions or judicial proceedings, citing to section 611 and Nixon as authority. See 459 F.Supp. at 978.

In reaching its conclusion, the Schuster court cited Minn.Stat. § 609.765, subd. 3(4) dealing with criminal defamation. See Schuster, 459 F.Supp. at 978. That statute provides several privileges, specifically: that a'Violation of “subdivision 2 is justified if:1 * * * (I) The communication consists of a fair and true report or a fair- summary of any judicial, legislative or other public or official proceedings ⅜ * *.” MinmStat. § 609.765, subd. 3(4) (1998) (emphasis added). In reviewing this statute, the federal district court relied on the 1963 advisory committee comment to section 609.765 that stated:

Subd. 3, 4: This will supercede Minn. St. § 619.55 which, however, is directed toward newspapers and seems to imply liability in the -case of a true and fair report if actual malice is present. Under the recommended section, if the report is fair and true, malice is immaterial and no criminal liability arises. The public interest in publication of the proceedings referred to would seem to call for this position.
It was not intended to change the holding in Nixon v. Dispatch Printing Co., 1907, 101 Minn. 309, 112 N.W. 258, to the effect that Minn. St. § 619.55 did not warrant a newspaper copying portions of a complaint on file with the clerk of court.

Minn.Stat.Ann. § 609.765, advisory committee cmt. (West 1964) (emphasis added).

While section 609.765 is limited in direct application to the criminal context, the Schuster court appears to have found this section persuasive in the civil context as well. See Schuster, 459 F.Supp. at 978. It is worth noting that in Nixon we similarly turned to the predecessor of section 609.765, Rev. Laws 1905, § 4920, for guidance in our discussion of the privilege. See Nixon, 101 Minn. at 311, 112 N.W. at 258.

The Eighth Circuit Court' of Appeals affirmed Schuster, agreeing with the district court that these reports were privileged under Minnesota law as fair and accurate reports of public proceedings, citing Nixon and Minn.Stat. § 609.765, subd. 3(4). See Schuster v. U.S. News & World Report, Inc., 602 F.2d 850, 854, 854 n. 8 (8th Cir.1979). However, the Eighth Circuit did not cite section 611 to support its conclusions on the fair and accurate reporting privilege in Minnesota. Recently, the federal district court for Minnesota, again citing to section 611 as the law in Minnesota, followed the Schuster rule in Conroy v. Kilzer, 789 F.Supp. 1457, 1463 (D.Minn.1992).

Restatement (Second) of Torts § 611

As previously noted, in Nixon we recognized a privilege for the fair and accurate reporting of judicial proceedings. See Nixon, 101 Minn, at 311, 112 N.W. at 258. However, in Nixon, we did not discuss the nature and scope of the privilege nor did we discuss its application to other public proceedings. In determining whether the fair and accurate reporting privilege should be applied to the Times’ article, a review of Restatement (Second) of Torts § 611’s specific articulation of the common law is helpful to our analysis.

Section 611 states that [t]he publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.

Restatement (Second) of Torts § 611. Section 611 is set apart both from the absolute privileges in sections 585 to 592A and the conditional or qualified privileges in sections 594 to 598A. See generally Restatement (Second) of Torts §§ 585-598A.

Comment a to section 611 describes the nature of this privilege as applied in various jurisdictions and states that it is not “an absolute privilege. It is, however, somewhat broader in its scope than the conditional privileges covered in §§ 594 to 598A.” Restatement (Second) of Torts § 611, cmt. a. Additionally, comment a notes that the purpose of the fair and accurate reporting privilege is to ensure that the public interest is served by the dissemination of information about events occurring at public proceedings and public meetings. See id. The privilege rests on two basic principles. First, because the meeting was public, a fair and accurate report would simply relay information to the reader that she would have seen or heard herself were she present at the meeting. See Prosser and Keeton on Torts § 115, at 836. The second principle is the “obvious public interest in having public affairs made known to all.” Id. As stated earlier, the privilege may be lost by a showing that the report is not a fair and accurate representation of the proceedings or meetings. See id. § 115, at 837.

Comment b to section 611 directly addresses the situation where the person alleging defamation is a public figure, stating:

The constitutional requirement of fault is met in this situation by a showing of fault in failing to do what is reasonably necessary to insure that the report is accurate and complete or a fair abridgment. The distinction as to the measure of fault as set forth [for public figures] and [for private persons] is applicable to the requirement of fault for this purpose, too.

Restatement (Second) of Torts § 611, cmt. b. In other words, once it is established that the report is within the scope of the fair and accurate reporting privilege, fault is not determined by the truth or falsity of the content of the defamatory statement. It is determined by the accuracy with which the statement is reported.

As the above quotation from comment b makes clear, the level of care required in making a fair and accurate report under this section will depend on the status of the person claiming to be defamed. Once it has been determined that the report is inaccurate or is not a fair abridgment, then under the Supreme Court’s holdings in Sullivan and Gertz, there must be some showing of fault before liability for defamation may be imposed. For public figures, as stated in Sullivan, there would need to be a showing that the publisher was at least reckless in failing to accurately and completely report or produce a fair abridgment. 360 U.S. at 279-80, 79 S.Ct. 1184. For a private person, there would need to be only a showing of negligence. Jadwin, 367 N.W.2d at 491.

While the protection provided by section 611 is broad, this broad protection is balanced by a narrow application. First, this protection only applies to reports of public proceedings. Second, the report must be either an accurate and complete report of events at the proceeding or a fair abridgment thereof. Comment f notes that a report cannot be edited in such a manner as to misrepresent the proceeding and become misleading. See Restatement (Second) of Torts § 611, cmt. f. A reporter also may not make additional comments, not part of the meeting, that would convey a defamatory impression or “impute corrupt motives to any one, [or] * * *' indict expressly or by innuendo the veracity or integrity of any of the parties.” Id. at comment h (stating that while reports of arrest and charging are privileged under section 611, statements made by the police, complaining witnesses, or the prosecuting attorney not confined to the facts of the arrest or charge are not).

Section 611 in Other Jurisdictions

In the case before us, both the Times and Officer Moreno have made reference to the decisions of other jurisdictions to support their claim that section 611 is or is not accepted by the majority of jurisdictions. However, the patchwork nature of the law of defamation and confusion across jurisdictions makes articulating a clear statement concerning a majority or minority position on section 611 difficult. See generally Prosser and Keeton on Torts § 111, at 772. Defamation actions in many of the jurisdictions cited are regulated by statute, not the development of the common law. See, e.g., WKRG-TV, Inc. v. Wiley, 495 So.2d 617, 618-19 (Ala.1986) (rejecting section 611 as contrary to Alabama statutory provisions for a fair and accurate reporting privilege). Other jurisdictions, while accepting section 611 as a general description of the privilege, have retained their own common law interpretations of its limits. See, e.g., Sciandra v. Lynett, 409 Pa. 595, 187 A.2d 586, 589 (1968) (accepting section 611, but stating that the privilege is lost upon a showing that the material was published solely for the purpose of causing harm to the person defamed). Further, much of the law of defamation developed before Sullivan and it is not clear if it subsequently has been reevaluated. See, e.g., id.

Probably the clearest generalization that can be made concerning the holdings of other jurisdictions on section 611 is as follows. Those jurisdictions that have expressly rejected section 611 have done so on statutory grounds or for reasons related to the development of their own common law, also reasoning that the First Amendment protections of Sullivan are sufficient to protect the public interest in a free exchange of information. See, e.g., WKRG-TV, 495 So.2d at 619. Those jurisdictions that have expressly adopted section 611 have done so because they have agreed with the reasons expressed in the Restatement: that the information was already public at its release and that the public interest in knowing the events of public proceedings is better served by protecting a fair and accurate relaying of these events. See, e.g., Chesapeake Pub. Corp. v. Williams, 339 Md. 285, 661 A.2d 1169, 1174-75 (1995); Jones v. Taibbi, 400 Mass. 786, 512 N.E.2d 260, 266 (1987); Hayes v. Newspapers of N. H., Inc., 141 N.H. 464, 685 A.2d 1237, 1238-39 (1996). Minnesota’s Fair and Accurate Reporting Privilege

We agree with the policy objective that the fair and accurate reporting privilege supports. — that, the public, interest is served by the fair and accurate dissemination of information, concerning the events of public proceedings. Further, we find persuasive the Restatement (Second) of Torts § 611’s articulation of the common law on, the fair and accurate reporting privilege. However, our decision here must be limited to the legal questions presented by the facts of this case and made within the context of our own common law.

In Nixon, we recognized a privilege for the fair and accurate reporting of a judicial proceeding. The same policy considerations found in Nixon support extending that privilege to fair and accurate reports of legislative proceedings as well, including city council meetings. Also, our legislature has stated that, in the criminal context, the policy objectives of a fair and accurate reporting privilege are furthered by protecting such reports from challenges of common law malice. See Minn.Stat. § 609.675, advisory committee cmt. (1964). We believe that the policy objectives of the fair and accurate reporting privilege warrant such protection in the civil context as well. Accordingly, we conclude that the fair and accurate reporting privilege extends to protect the accurate and complete report or a fair abridgment of events that are part of the regular business of a city council meeting. This privilege will not be defeated by a showing of common law malice, but is defeated by a showing that the report is not a fair and accurate report of that proceeding. The Supreme Court’s decisions in Sullivan and Gertz and our subsequent decisions should then be used to determine the standard of care required by a publisher to ensure the fairness and accuracy of such a report. See generally Jadwin, 367 N.W.2d at 491-92.

m..

Having concluded that the fair and accurate reporting privilege extends to city council meetings, we must now decide whether the Times’ March 23 article was a fair and accurate report of the March 10 city council meeting. Our examination of the Times’ article leads us to conclude that the district court erred in its application of the fair and accurate reporting privilege to this article. We reach this conclusion because the article included material reporting on events other than those that occurred at the city council meeting.

Section 611’s description of what additions will generally defeat the fairness and accuracy of a report is helpful to our analysis in this case. Section 611’s commentators note that a “reporter is not privileged under this Section to make additions of his own that would convey a defamatory impression, nor to impute corrupt motives to any one, nor to indict expressly or by innuendo the veracity or integrity of any of the parties.” Restatement (Second) of Torts § 611, cmt. f. This limitation on the privilege also is expressed with respect to arrests. See id. at cmt. h. While an arrest or indictment is an official act generally covered by this section, “statements made by the -police or by the complainant or other witnesses or by the prosecuting attorney as to the facts of the case or evidence expected to be given are not yet part of the judicial proceeding or, of the arrest itself and are not privileged under this Section.” Id.

We have applied a similar rule in the context of the official immunity that a police officer has with respect to allegedly defamatory statements made in a police report. See Carradine v. State, 511 N.W.2d 733, 737 (Minn.1994). In Curra-dme, we were asked to decide whether comments made by a police officer to the press concerning the officer’s arrest of the plaintiff were absolutely privileged, protecting the, officer from civil liability for defamation. See id. We stated that as long as the officer’s comments, only reiterated .the contents of his official report, he was protected. See id. However, we also stated that to the extent that his comments departed from his report and those comments not in his report significantly added to the plaintiffs injury,- then, such comments would not be privileged. , See id. We remanded that issue to the district court to make the necessary factual determinations. See id.

Even though a fair and accurate report of a city council meeting is privileged, that privilege can be defeated if additional contextual material, not part of the proceeding, is added that conveys a defamatory impression or comments on the veracity or integrity of any party. The entire report then would be subject to evaluation as any other allegedly defamatory statement. As we noted in Carra-dine, determining whether additional material affected the nature of the report is a question- best left to the district courts. Id.

In his complaint, Officer Moreno alleges that the Times’ March 23 article was defamatory. He does not distinguish any particular part, but addresses the article as a whole and we concluded earlier that he has pleaded facts sufficient to place the entire article at issue. Of the nine paragraphs in the article, only three actually report on the events of the city council meeting. While it appears that these three paragraphs are fair and accurate descriptions of the events of the city council meeting, the other six paragraphs relate to subsequent events. Viewing this article in the light most favorable to the nonmoving party, as we must on appeal from summary judgment, the article contains information and facts which could raise material issues of fact. See Fahrendorff ex rel. Fahrendorff v. North Homes, Inc., 597 N.W.2d 905, 910 (Minn.1999).

More particularly, the article deals with the activities of local authorities in response to McDaniel’s accusation. The article also discusses local rumors about the arrest of police officers. Finally, the article relays an interview with Chief Monteen about the investigation and about McDaniel. The report of the fact that there is an official investigation underway arguably adds credibility to McDaniel’s accusation and could increase the defamatory effect of this article. The article also contains references to McDaniel that could be interpreted as commenting on his “veracity or integrity.” The record before us does not indicate that these issues were argued before the district court nor did the court make any findings concerning these issues.

We conclude that the record on appeal does not permit us to determine as a matter of law whether the material in the Times’ article that reported events other than those of the city council meeting conveyed a defamatory impression or imper-missibly commented on McDaniel’s veracity or integrity. Accordingly, we remand to the district court for further determination of the question of whether the material in the Times’ article, which did not report on the events of the council meeting, conveyed a defamatory impression or commented on the veracity or integrity of any party.

In summary, we hold that the fair and accurate reporting privilege extends to protect the accurate and complete report or a fair abridgment of events that are part of the regular business of a city council meeting and that this privilege is not defeated by a showing of common law malice, but is defeated by a showing that the report is not a fair and accurate report of that proceeding. We also hold that the district court erred in its application of the fair and accurate reporting privilege to this article in failing to determine whether the additional material included in the article either conveyed a defamatory impression or commented on the veracity or integrity of any party. However, as we noted earlier, the Times asserted several defenses of privilege in its answer. The fair and accurate reporting privilege is the only one presented to us on appeal. Therefore, our analysis should not be construed to imply that if the fair and accurate reporting privilege does not apply, the Times’ article is defamatory or that other privileges are not appropriate. See, e.g., Britton v. Koep, 470 N.W.2d 518, 520 (Minn.1991) (recognizing a qualified privilege for fair comment on performance of public officials).

We reverse the court of appeals and remand this matter to the district court for further proceedings consistent with this opinion.

Reversed and remanded.

RUSSELL A. ANDERSON, J., took no part in the consideration or decision of this case.

      . Minnesota Statutes § 548.06 states that:

      . Restatement (Second) of Torts § 611 (1976) states:

      . We note that Minnesota does afford immunity from criminal liability for defamation if the "communication consists of a fair and true report or a fair summary of any judicial, legislative or other public or official proceeding ⅞ ⅜ *.” Minn.Stat. § 609.765, subd. 3(4) (1998).

      . Minnesota's criminal law also provides for ■ the prosecution of defamation as a crime under Minn.Stat. § 609.765 (1998).

      . All the parties appear to agree that for the purposes of this case Officer Moreno, as a police officer, is a public official for the purposes of defamation law. See, e.g., Britton v. Koep, 470 N.W.2d 518, 523-24 (Minn.1991) (holding a parole officer, like other law enforcement officials, is a public official for the purposes of a defamation analysis).


author: BLATZ, C.J.

text:
    STATE of Minnesota, Respondent, v. Steven James ERICKSON, Appellant.
    No. Cl-98-1418.
    Supreme Court of Minnesota.
    May 18, 2000.

      Michael F. Cromett, Assistant State Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, Robert A. Stanich, Assistant Attorney General, St. Paul, and Patrick A. Oman, Mower County Attorney, Austin, for respondent.
   OPINION

BLATZ, C.J.

On direct appeal of appellant Steven James Erickson’s multiple felony convictions, we determined that four errors occurred during his trial. See State v. Erickson, 597 N.W.2d 897, 899 (Minn.1999) (.Erickson I). We remanded to the trial court for a Schwartz hearing to determine the degree of prejudice, if any, caused appellant by the errors. See id. The trial court found that the errors had no effect on the jurors’ deliberations or their opinion of appellant’s guilt or innocence. After considering the evidence gathered at the Schwartz hearing, we conclude that appellant was not prejudiced by the errors and is therefore not entitled to a new trial. Affirmed.

On May 5, 1998, appellant Steven James Erickson was found guilty of aiding and abetting first-degree murder, conspiracy to commit first-degree murder, and the theft of three handguns. Convicted of first-degree murder and theft, appellant was given a life sentence and a concurrent sentence of one year and one day. On direct appeal to this court, appellant raised a number of procedural errors that he claimed rendered his trial unfair. See id. Appellant claimed (1) that he was ordered to wear a leg restraint without the trial court making timely findings justifying the order; (2) that the bailiff had improper contact with the jurors during deliberations and that appellant was not present during the trial court’s subsequent hearing to determine any prejudice caused by the bailiffs jury contact; and (8) that the jury was allowed to separate during deliberations without appellant’s consent. See id. Appellant further claimed that his right to due process and a fair trial was violated by the trial court’s disparaging treatment of defense counsel.

In appellant’s direct appeal, we did not reach the issue of disparaging treatment of defense counsel, but did hold that the trial court erred on the balance of these issues. We further determined that none of the individual errors was serious enough to require a new trial, or to justify a SchwaHz hearing. See id. at 902-04. Nonetheless, we were “concerned that the cumulative effect of these errors may have deprived appellant of a fair trial,” and for that reason remanded for a SchwaHz hearing to determine if appellant was prejudiced by these errors. Id. at 904. Accordingly, the trial- court held a SchwaHz hearing to gather -evidence of (1) whether the jury became aware that appellant was wearing a leg brace for security purposes; (2) the nature and scope-of the bailiffs improper contact with the jury; and (3) whether the jurors were subject to any improper outside influences during their overnight separation. The trial court found that the jurors were unaware of the leg brace; that they were unaffected by the bailiffs misconduct; and that their separation did not affect, their deliberations or their opinion of appellant’s innocence or guilt. We now consider the evidence gathered at the SchwaHz hearing to determine the degree of prejudice, if any, caused appellant by these errors. We also address appellant’s claim -that the trial court’s allegedly disparaging treatment of defense counsel violated appellant’s constitutional right to due process and a fair trial. .

I.

-.First, we examine possible prejudice to appellant caused by the trial court’s error in failing to justify the leg restraint it ordered appellant to wear during the trial. In addressing this issue we must determine what, if anything, the jurors knew about appellant wearing a leg restraint and whether that knowledge contributed to the verdict. If the jurors were unaware of the restraint, the trial court’s error in ordering the restraint is not presumptively prejudicial. See State v. Scott, 323 N.W.2d 790, 792 (Minn.1982). In addition, even if the jurors observed the restraint, and thus the presumption of prejudice applies,' the trial court’s error will be considered harmless if the guilty verdict is shown to be surely unáttributable to the error. See State v. Shoen, 598 N.W.2d 370, 377 (Minn.1999) (Shoen II); State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997).

Testimony given at the Schwartz hearing shows that nine of the twelve jurors were unaware that appellant was wearing a leg restraint during trial. While two of these nine jurors, R.B. and C.S., assumed appellant was restrained, the trial court found that this assumption was unsupported by any actual observations of the restraint.

Three of the twelve jurors believed appellant was wearing a restraint based on their own observations or alleged conversations between jurors. One of the three jurors, T.J., testified that he saw some sort of chain or device on appellant’s feet from the jury box, although he was unable to recall what the device looked like and assumed all defendants wore restraints. After the Schwartz hearing, the trial court found that T.J. could not have seen what he claimed to have seen because appellant wore no chain or device around his ankle that would have been visible from the jury box. In addition, the trial court found that T.J. did not discuss his “observation” with other jurors and that it did not affect his opinion of appellant’s guilt or innocence.

Juror S.M. noticed appellant in the hallway toward the end of the trial and thought he was wearing a leg restraint or walking differently as his legs were not bending normally. Although S.M. testified that she noticed that appellant seemed to pull his pant leg down in the courtroom, she never observed the restraint. Like T.J., S.M. did not discuss her observation with other jurors, and testified at the Schwartz hearing that nothing about this observation affected her deliberations on appellant’s guilt or innocence.

M.S. is the only juror who testified that there might have been some discussion among the jurors concerning appellant’s leg restraint. However, as M.S. was questioned further, it became apparent that she had made no personal observation of appellant’s restraint. She also indicated that the discussion, if it occurred at all, was a “general conversation” rather than a discussion of someone’s actual observation of appellant’s restraint.

Having reviewed the jurors’ testimony in conjunction with the trial court’s findings of fact and memorandum, we conclude that the jurors were unaware of appellant’s restraint inside the courtroom. Because the jurors were unaware of appellant’s restraint, there is no presumption of prejudice. See Scott, 323 N.W.2d at 792. Accordingly, it is unnecessary to perform harmless error analysis.

II.

Next, we must determine the extent of any prejudice to appellant caused by the bailiffs improper contact with the jury during trial. We held in Erickson I that the bailiff violated Minn. R.Crim. P. 26.03, subd. 5(1), when he brought in an enlarged diagram not received into evidence and suggested to the foreman that the jurors “review the video” tape if they were unsure of the layout of the back of the victim’s house. See Erickson I, 597 N.W.2d at 902. One of the purposes of the Schwartz hearing was to determine the nature and scope of the bailiffs improper contact, as well as any prejudicial consequences. See id. at 904.

We have held that private communication with a juror is presumptively prejudicial. See State v. Sanders, 376 N.W.2d 196, 205 (Minn.1985); State v. Cox, 322 N.W.2d 555, 558 (Minn.1982) (citing Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954)). To rebut the presumption, the state must show “beyond a reasonable doubt that the asserted error did not contribute to the verdict obtained.” Cox, 822 N.W.2d at 558.

When determining whether the state has met its burden of rebutting the presumption of prejudice, Cox instructs courts to “determine from juror testimony what outside influences were improperly brought to bear upon the jury and then estimate their probable effect on a hypothetical average jury.” Id. at 559. The relevant factors to be considered are (1) the nature and source of the prejudicial matter; (2) the number of jurors exposed to its influence; (3) the weight of the evidence before the jury; and (4) the likelihood that curative measures were effective in reducing prejudice. See id.

When the trial court became aware of the improper conduct in the instant case, it proceeded to sentence appellant and then held a hearing two days later to determine the extent of the bailiffs contact with the jurors. Only the bailiff and the jury foreman testified at this hearing. The trial court found that while 'the jury was deliberating, the foreman left the jury room and asked the bailiff if the jury could have the large diagram of the victim’s house which was used by both parties throughout the trial. While the large diagram was an enlargement of a diagram already admitted into evidence, the large diagram itself had never been admitted.

After the completion of the post-trial hearing, the trial court found the following: the bailiff brought the large diagram into the jury room between 9:00 and 9:30 p.m., shortly before deliberations ended for the night. After deliberations had ended' for the night, the bailiff informed the’ judge that the jury had requested the large diagram and the judge then instructed the bailiff not to give the diagram to the jury as it was not in evidence. The' following morning, the, bailiff entered the jury room before deliberations commenced and removed the large diagram. Only the foreman, J.A., was present at that time. The bailiff told J.A. that he was removing the diagram because it was not in evidence. J.A. told the bailiff that the jury had not looked at the diagram the previous night. The bailiff then suggested to J.A. that the jurors should view the video if they had concerns about the layout of the back of the house.

The trial court found that the bailiff said nothing else to J.A. and spoke to no other jurors. The court further found that by the time the bailiff brought the large diagram into the jury room, the topic of the jurors’ deliberations had changed, and that the enlarged diagram was never used as a part of the jury’s deliberations. Finally, the trial court found that the large diagram’s presence in the jury room had no effect on the jurors’ assumptions about appellant’s guilt or innocence.

Appellant contests the trial court’s findings and instead points to the testimony of two jurors who testified differently than the foreman and the other nine jurors. Specifically appellant focuses on the testimony of jurors R.H. and C.S., who testified that the bailiff brought in the diagram, left, and then returned a few minutes later to retrieve it. This testimony conflicts with the balance of juror testimony that the bailiff returned the next morning to retrieve the diagram. However, the court found that for both R.H.. and C.S., the diagram’s presence had no effect on their deliberations or assumptions.

A review of the record leads us to the conclusion that the state has met its burden under Cox of establishing that the verdict was not tainted by prejudice caused by the bailiffs improper conduct. In addition to the fact that the nature and scope of the improper conduct was quite limited, and the fact that the jurors’ exposure to the misconduct did not affect their deliberations, the evidence of appellant’s guilt, including his confession to two different persons and the testimony of his accomplice, was overwhelming. See Cox, 322 N.W.2d at 558.

III.

Having determined that appellant was not prejudiced by the use of the leg restraint or the bailiffs contact with the jury, we next examine whether any prejudice was caused appellant by the trial court’s error in allowing the jury to separate once overnight without appellant’s consent, in violation of Minn. R.Crim. P. 26.03, subd. 5(1). See Erickson I, 597 N.W.2d at 901-02. Minnesota Rule of Criminal Procedure 26.03, subd. 5(1), allows trial courts, with the defendant’s consent, to permit jurors to separate during recesses and adjournments. In Erickson I we noted that appellant had made no showing of prejudice, and that the trial court had cautioned the jury three separate times to avoid outside influences. See id. at 902. Nonetheless, we were reluctant to view the error as presumptively harmless due to the presence of the other errors discussed above. See id.

In State v. Sanders, this court set aside the rule first pronounced in State v. Georgian, 124 Minn. 515, 517, 145 N.W. 385, 385 (1914), that jury separation was presumptively prejudicial. See Sanders, 376 N.W.2d at 206. We held in Sanders that “mere separation of the jury in violation of Minn. R.Crim. P. 26.03, subd. 5, without more, does not raise a presumption of prejudice * * Sanders, 376 N.W.2d at 206.

After reviewing the record in this case, we conclude that the erroneous separation did not prejudice appellant. The trial court found that no jurors were contacted in any way by media representatives in regard to the trial or deliberations during the separation. The court further found that eight of the twelve jurors were not exposed to any radio or television, and did not discuss the trial or deliberations with anyone while separated. Of the four jurors who watched television or listened to the radio during the separation, the trial court found that they avoided the news and heard nothing about the case during the separation. Supporting this is the trial court’s finding, following the hearing held two days after the trial, that there was no contemporaneous media coverage of the trial. Importantly, appellant admits in his brief that “there is no direct evidence of any [improper] influence,” and that “prejudice is less readily apparent” in the context of this issue. We thus conclude that while the separation was improper, and determined by this court to be error, it is clear from the record that the error caused no prejudice.

rv.

Even though we have concluded from our review of the record that none of the trial errors we recognized in Erickson I caused appellant prejudice, we still must determine whether “the cumulative effect of these errors may have deprived appellant of a fair trial.” Erickson I, 597 N.W.2d at 904. In State v. Underwood, 281 N.W.2d 337 (Minn.1979), and State v. Ware, 498 N.W.2d 454 (Minn.1993), we granted appellants a new trial due to multiple trial court errors that cumulatively denied appellants a fair trial. In Underwood, a jury convicted Underwood of aggravated assault on very conflicted witness testimony. See Underwood, 281 N.W.2d at 340. Several errors were committed during the trial: one of the state’s witnesses, a police officer, commented on the fact that appellant did not take the stand in his own defense; the state brought in evidence of appellant’s other crimes for inadmissible purposes; and the trial court’s jury instructions contained an improper credibility instruction. See id. at 342-44. On appeal, we held that the cumulative effect of these errors, in a “very close factual case,” warranted a new trial, even though individually none of the errors necessarily would have. See id. at 344. Unlike Undei'wood, the facts in the instant case are not close. The evidence against appellant was very strong, and included two confessions and his accomplice’s testimony.

This case can also be distinguished from State v. Ware. Ware was convicted of second-degree murder after the trial court cleared the courtroom of spectators and polled jurors in appellant’s absence. See Ware, 498 N.W.2d at 456. The court asked somewhat coercive and intimidáting questions, possibly causing one juror to change her original answer. See id. at 457-59. As in Underwood, we held in Ware that these errors may not have warranted a new trial individually,, but the “synergy” of the errors required a new trial in the interests of justice. See id. at 459. In contrast to Ware, the evidence presented here, as well as the trial court’s Findings of Fact, Certification, and Memorandum from the Schwartz hearing, shows that the errors did not affect the jurors’ deliberations or their 'assumptions about appellant’s innocence or guilt. Unlike the situations in Underwood and Ware, in this case none of the errors prejudiced appellant. Therefore, we hold that the cumulative effect of the trial errors did not deprive appellant of his right to a fair trial, and that appellant is not entitled to a new trial on this basis.

V.

We next address appellant’s claim that the trial court frequently departed from its neutral role and disparaged defense counsel, chilling counsel’s advocacy and depriving appellant of his right to a fair trial. A new trial is required when the trial court departs from the standards of judicial impartiality and prejudices the losing party’s rights. See Hansen v. St. Paul City Ry. Co., 231 Minn. 354, 361-62, 43 N.W.2d 260, 265 (1950).

In the instant case, appellant’s contention that the trial court repeatedly demeaned defense counsel is not supported by the record. Appellant complains of eight separate exchanges, only two of which occurred in front of the jury. In the first of the two exchanges before the jury, defense .counsel was cross-examining the victim’s fiancée. Counsel, who was from out of town, asked the witness where the police station was located. The witness said it was “Right here,” and after counsel, who clearly did not understand the answer, repeated the question the trial court stated that “[the police station is] connected to the court, counsel.” Appellant claims the court’s correction of his counsel undermined counsel’s credibility with the jury. In the second exchange, the court overruled a defense objection without comment.

Exchanges out of the jury’s view include one at the bench-where the court, in reference, to defense counsels repeated objections, stated that defense counsel’s objections were “getting fairly close to being simply obstructionist, and I’m probably not going to sustain additional objections unless they have to do with material matters.” When defense counsel complained of the comment, stating “Well, if it’s not - Your Honor, if it’s [not] material, then why is it even being discussed,” the court stated “You have heard my ruling,. Counsel.” The court then explained in chambers, “The Court’s point was not to in any fashion chill Counsel’s obligation to act in the fashion that he feels necessary. * ⅜ * The choice of the word obstructionist was, perhaps, if not ill chosen, then perhaps not completely correct.” Appellant claims this and similar exchanges out of the jury’s view had a chilling effect on his counsel’s advocacy..

We are not persuaded by appellant’s argument. Trial courts have discretion in managing the trials before them. See, e.g., State v. Jones, 556 N.W.2d 903, 912 (Minn.1996). Based on our review of the record, we conclude that the trial court’s statements before the jury did not disparage defense counsel and thereby undermine his credibility with the jury. Further, the court’s comments to defense counsel during bench conferences and m chambers were not caustic or combative in such a way as to chill defense counsel’s representation of appellant. Rather, the court’s comments demonstrate an effort to keep the trial progressing and focused. Accordingly, appellant is not entitled to a new trial on this ground.

Affirmed.

      . At a Schwartz hearing, the trial judge examines jurors to determine whether and to what degree they were prejudiced by some error committed at trial. See State v. Shoen, 578 N.W.2d 708, 716 (Minn.1998) (Shoen I). While a Schwartz hearing was "originally conceived as a vehicle for the district court to address questions of jury misconduct, its applicability has expanded to address other post-trial issues involving juries.” Id.

      . For a more detailed explanation of the facts of appellant’s case, see Erickson I, '-597 N.W.2d at 899-901.

      . The only juror who the trial court found to be aware of the restraint- was S.M. However, the trial court also found that S.M.'s knowledge was based on her observation of appellant in the hallway - not the courtroom - and was not shared with the other jurors. This alleged observation does not indicate prejudice. As we stated in Shoen II, the sight of a criminal restrained during transport is "likely to be seen for just what it is - standard law enforcement practice.” 598 N.W.2d at 378.

      . Appellant was not present at this hearing, and we held in Erickson I that this constituted error on the part of the trial court. See Erickson I, 597 N.W.2d at 902. However, by agreement of counsel, the transcript of the hearing was made part of the Schwartz hearing récord for the purpose of our consideration. '