964 N.W.2d 659

Minn. Ct. App.

2021

Stаte of Minnesota, Respondent, vs. Rodney Donta Jackson, Appellant.

A20-0779

STATE OF MINNESOTA IN COURT OF APPEALS

Filed July 19, 2021

Ross, Judge

Affirmed in part, reversed in part, and remanded

Hennepin County District Court
File No. 27-CR-18-27618

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Brittany D. Lawonn, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Julie Loftus Nelson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Smith, Tracy M., Judge.

SYLLABUS

The Sixth Amendment right to a public trial extends to a Schwartz hearing.
The remedy for an improperly closed Schwartz hearing is a remand for a new, publicly accessible Schwartz hearing rather than a new trial if, under the circumstances, a properly conducted hearing might obviate the need for a retrial.

OPINION

ROSS, Judge

Rodney Jackson shot and killed a man at a gas station in north Minneapolis. During voir dire for jury selection in his murder trial, Jackson, a black man, unsuccessfully raised a Batson challenge to the state’s peremptory strike to remove a black juror. After trial, he successfully moved for a Schwartz hearing to assess the impact of extraneous information thаt a juror purportedly introduced during deliberations. The district court closed the bifurcated Schwartz hearing to the public, citing concerns about media attention, and concluded that the purportedly extraneous information did not affect the verdict. On appeal, Jackson challenges the district court’s Batson and Schwartz decisions on their merits, and he argues that closing the Schwartz hearing violated his right to a public trial and constituted a structural error entitling him to a new trial. We hold that Jacksоn’s Batson challenge is not persuasive, that the district court improperly closed the Schwartz hearing, and that we will not now address any impact of the purportedly extraneous jury information. We therefore affirm in part, reverse in part, and remand for a public Schwartz hearing.

FACTS

The state charged Rodney Jackson with second-degree intentional murder for shooting and killing a man at a gas station in north Minneapolis. The following facts derive frоm a ten-day trial at which 22 witnesses testified and after which the jury found Jackson guilty.

In November 2018 Jackson and his companion, whom we will anonymize by calling Girlfriend, parked at a gas pump of a Speedway convenience store. They entered the store briefly and returned to find a vehicle parked in front of their car, blocking their exit. Girlfriend asked the vehicle’s driver, whom we will call Victim, to move his car. She testified that Victim and his passenger refused and began threatening her. Girlfriend and Jackson threatened Victim, and Girlfriend threw a bottle of lotion and water bottles at him. A bystander intervened, and Jackson and Girlfriend drove away. But Jackson stopped his car after Girlfriend told him that she had dropped something near the convenience store. Jackson parked across the street and Girlfriend approached on foot. She enсountered Victim again, threw a can at his car, and began running back to Jackson’s car. Victim retaliated, throwing rocks at Girlfriend. Girlfriend entered Jackson’s car, and Jackson, still sitting inside, shot and killed Victim. Jackson and Girlfriend then drove away. They went out to dinner and attended a movie. Minneapolis police arrested them as they left the theater.

No witness reported seeing Victim holding a gun, and the record does not indiсate that police found one at the scene. But Jackson claimed that he thought Victim had a gun.

During voir dire and jury selection, the prosecutor peremptorily removed Juror 34 after asking her to elaborate on some of her questionnaire responses about her reaction to Jackson’s charges. She had stated that Jackson could be her family member or neighbor. She thought that it would be difficult for her to judge Jackson and believed that the justice system is unfair to black people. She acknowledged ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that, based on police encounters with people she knew, she had “some concern about being biased” against the state. She also indicated that she was currently taking a criminal-justice class and that receiving instructions from the court would “throw [her] off a bit” if they differed from what she had learned in class. She did say thаt she would follow the law that the court provided.

Jackson unsuccessfully raised a Batson challenge to the state’s peremptory strike of Juror 34 who, like Jackson, is black. His attorney contended that the prosecutor struck her because of her race, evidenced by allegedly changing from questioning about how she would feel about judging the evidence to how she would feel about judging Jackson. The district court found that Jackson failed to make a prima facie case establishing the state’s peremptory strike as racially motivated. It concluded that the strike was justified for nonracial reasons, emphasizing that Juror 34 had volunteered the notion that Jackson could have been her friend or neighbor and that she had implied that her own training on legal matters might make it difficult for her to follow instructions from the court.

The jury found Jackson guilty of second-degree murdеr. The district court received a posttrial evaluation form from a juror implying that the jury had possibly considered extraneous evidence during their deliberations. Specifically, the juror indicated that the state should have “[p]resented info on conceal + carry — responsibility of self-defense. Should have explained what [Jackson] would have learned in conceal and carry class regarding MN law about obligation to retreat. This jury was going for self-defense and not guilty before I shared [during deliberations] what’s taught in permit class.”

Jackson moved the district court to conduct a Schwartz hearing, citing the juror’s introduction of extraneous evidence during deliberations. See Schwartz v. Minneapolis Suburban Bus Co., 104 N.W.2d 301, 303 (Minn. 1960). The district court agreed to conduct a Schwartz hearing, and it held a prehearing conference. During that conference the district court noticed a journalist in the gallery and reminded attendees of the importance of not disclosing the reason for the eventual Schwartz hearing, which was scheduled to occur about a month later. But the Star Tribune published direct quotes from the juror-evaluation form anyway, revealing the reason for the Schwartz hearing. Learning that two of the jurors had travel plans that would prevent them from attending the Schwartz hearing as scheduled, the district court decided to bifurcate the hearing to allow those two to attend an early session and the remaining ten to аttend a second session on schedule. But believing that the newspaper would potentially “contaminate” the second session by reporting on what happens in the first, the district court ordered the first session closed to the public. The district court carried out that plan, deeming the closure justified and reasoning that it had considered and rejected as unsatisfactory various alternatives to closure, including аdmonishing the media, postponing the hearing, or ordering all jurors to forgo any travel plans and attend the hearing as scheduled. After both sessions of the Schwartz hearing, the district court concluded that the extraneous information did not affect the jury’s verdict.

Jackson unsuccessfully moved the district court to order a new trial. The district court sentenced him to 280 months in prison. This appeal follows.

ISSUES

Did the district court clearly err by denying Jackson’s Batson challenge?
Did the district court violate Jacksоn’s right to a public trial by closing the courtroom during the first half of the bifurcated Schwartz hearing?
Did the district court abuse its discretion by denying Jackson’s motion for a new trial based on the jury having received extraneous information during deliberations?

ANALYSIS

I

Jackson argues that he made a prima facie showing of jury-selection race discrimination. The challenge presents essentially fact issues, and we review the district court’s findings on the issue for clear error. State v. Wilson, 900 N.W.2d 373, 378 (Minn. 2017). A party may peremptorily exclude a prospective juror for almost any reason, or for no reason at all, but a race-based peremptory strike violates the Equal Protection Clause of the Fourteenth Amendment. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986); State v. Reiners, 664 N.W.2d 826, 831 (Minn. 2003). The defendant accusing the state of a race-based peremptory strike triggers a three-step analysis. Batson, 476 U.S. at 96, 106 S. Ct. at 1723; see also Minn. R. Crim. P. 26.02, subd. 7(3). The objecting party must first establish a prima facie case of intentiоnal discrimination, which is “evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” Wilson, 900 N.W.2d at 382 (quotation omitted). Second, the striking party then has the burden to provide a race-neutral explanation. Id. at 378. Third, the burden then shifts back to the objecting party, who may prevail in claiming an unconstitutionally race-based ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍motive by establishing that the proffered race-neutral reason is merely a pretext for discrimination. Id. We focus our attention on the first step, where the claim failed in the district court and fails here.

Jackson failed to point the district court to evidence supporting an inference that the prosecutor excluded Juror 34 because of her race. The district court invited Jackson’s attorney to identify evidence that race motivated the prosecutor to exclude thе juror. He responded by asserting only that he “saw a change in the nature of the questions” the prosecutor asked this juror, contending that the prosecutor altered his questioning to focus on fairly judging Jackson rather than fairly judging the evidence. The district court reasonably asked how this change might be construed as racially based, in that the line of questioning responded to Juror 34’s statement that she saw Jackson with a degreе of familiarity, like a relative or neighbor. Jackson’s attorney did not make any connection between the juror’s race and the challenged questions, replying only that the change in focus showed “a different thought process going on for this juror.” And the record informs us that it was the juror, not the prosecutor, who redirected attention from notions of fair treatment of evidence generally to potential bias fаvoring Jackson specifically. Nearly all jurors, including Juror 34, were asked questions with the same themes about the jury system, their ability to be fair, their ability to find guilt, and their opinion on firearms and self-defense. Lawyers on either side of a case will probe to identify and eliminate any jurors significantly predisposed against their clients’ positions. The prosecutor here asked comparable questions across the field and, likе Jackson’s attorney, reasonably followed up with relevant, more specific questions about bias whenever any juror’s questionnaire or courtroom answer tended to flag any potential bias. We hold that the district court did not clearly err by not extrapolating a racial motive from these apparently race-neutral and evenly applied circumstances.

Jackson’s attorney advancеd one other theory to connect the juror’s race and the prosecutor’s strike, but it too failed. He added that “this juror . . . has seen a homicide that was prosecuted by the Hennepin County Attorney’s Office,” and that, therefore, “there’s reason to believe she would come into this with a positive feeling toward their office” in contrast with how other jurors might have perceived the office. In essence, he wаs asking the district court to speculate that the prosecutor must have assumed that Juror 34 held these alleged positive feelings about the prosecutor’s office, and asking the district court to speculate further that it must have been racial discrimination that overcame the prosecutor’s reasonable urge to retain such a prosecution-favoring juror. The district court was unpersuaded by the highly speculative and attenuated theory, and so are we.

The district court did not clearly err by denying Jackson’s Batson challenge. We turn to Jackson’s other juror-related challenge.

II

Jackson contends that the district court unnecessarily closed the courtroom during part of the Schwartz hearing, violating his right to a public trial and requiring a retrial. The Sixth Amendment affords Jackson the right to a public trial by an impartial jury. See also Minn. Const. art. I, § 6. We review de novo the constitutional question of whether a distriсt court’s decision to close the courtroom violated Jackson’s right to a public trial. See State v. Benton, 858 N.W.2d 535, 539–40 (Minn. 2015). We are convinced that the district court’s decision to close part of the trial violated Jackson’s right to a public trial, particularly its process in the Schwartz hearing.

In Schwartz the supreme court developed a process for district courts to inquire into jury conduct that might have affected a party’s right to a fair trial. 104 N.W.2d at 303. The Schwartz heаring, as it is now known, allows the district court—in the presence of counsel and on the record —to inquire about any jury-conduct issues while protecting jurors from being harassed by a defeated litigant. See Minn. R. Crim. P. 26.03, subd. 20(6); Schwartz, 104 N.W.2d at 303. In this case of first impression, we must decide whether the right to a public hearing applies to a Schwartz hearing, and if it does apply and the right is violated by an unconstitutional closure, we must decide on the remedy.

The Sixth Amendment public-trial right aрplies to “all phases of trial, including pretrial suppression hearings and jury voir dire.” State v. Brown, 815 N.W.2d 609, 617 (Minn. 2012). By exception, the right does not extend to a district court’s tending to administrative issues, like scheduling, routine evidentiary rulings, and discussions typically dealt with at a private bench conference or in chambers. State v. Smith, 876 N.W.2d 310, 329 (Minn. 2016). We conclude that a Schwartz hearing is not, by its nature, merely administrative. It involves examining jurors under oath, requires factual findings, and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍results in a significant legal determination that could undеrmine the results of an entire trial and require a new one. See Minn. R. Crim. P. 26.03, subd. 20(6). The evidence sought in a Schwartz hearing will answer the fundamental question of whether a party was denied a fair trial because of improper jury influence. It is inconceivable how a pretrial voir dire inquiry about a prospective juror’s suitability to decide a defendant’s guilt falls within the defendant’s public-trial right while a posttrial inquiry into the fairness of the juror’s actual conduct in deciding the defendаnt’s guilt does not.

We are not persuaded otherwise by the state’s position in briefing (which it abandoned during oral argument) that “[t]he Schwartz hearing at issue was effectively an administrative proceeding” that falls outside a defendant’s Sixth Amendment right to a public trial. The state offered no caselaw from Minnesota or elsewhere to support its position, and it offered no argument except to recognize the lack of precedent for or against its position. The state’s failure to offer any reasons supporting its briefed position and its concession during oral argument that its position is untenable agree with our conclusion. We acknowledge that, in Smith, the supreme court treated part of a trial proceeding as outside the Sixth Amendment right to a public trial. 876 N.W.2d at 327, 330. But it did so because, unlike the Schwartz hearing here, “[t]he essence of the nonpublic proceeding was the court explaining the parameters of its [prior] written decision,” and was merely “an issue of evidentiary boundaries, similar to what would ordinarily and regularly be discussed in chambers or at a sidebar conference—on the record, but outside the hearing of the public.” Id. at 330. The posttrial inquiry into the fairness of the juror’s primary duty of deciding guilt is instead a substantive phase of the criminal trial, therefore implicating the defendant’s constitutional right to a public trial.

We turn to whether the district court properly closed the proceeding. The Supreme Court has identified circumstances justifying a trial court’s decision to close a criminal-trial proceeding: (1) the situation presents “an overriding interest that is likely to be prejudiced”; (2) the closure is narrowly tailored to the interest; (3) the district court has considered and rejected reasonable alternatives; and (4) the district court makes sufficient factual findings supporting the closure. Waller v. Georgia, 467 U.S. 39, 48, 104 S. Ct. 2210, 2216 (1984). The district court here implied the possible prejudice; it was concerned that the media would attend the first session of the Schwartz hearing involving two of the jurors and then report about the issues and questions in a manner that would inform the remaining ten jurors about questions they would later face in the second session. We need not consider whether this was the kind of overriding interest that might in theory justify closing the court, because, even assuming it was, it is plain that at least two other Waller elements for closure were not met.

First, the district court did not consider and reject the most reasonable alternative to closing the court to the public. District courts are understandably and commonly concerned about media influence on jurors, and they routinely allay this concern not by closing the court to the public but by instructing jurors to vigilantly ignore any media reports about the case. Thе district court here identified various other alternatives, but not this one. Second, the district court did not narrowly tailor the closure. It cited only media “contamination” but then excluded everyone, not just the media, from attending the hearing. This contrasts with the district court’s limited closure in Smith, which declared that it was “not allowing the press in for this ruling, because otherwise it could be printed” and exposed to jurors. 876 N.W.2d at 327. If the district court had narrоwly tailored the closure only to the media—the only stated source of its concern—it would have left the hearing open to those whom the Supreme Court, in interpreting the Sixth Amendment, has long deemed free to attend: “And without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.” In re Oliver, 333 U.S. 257, 271–72, 68 S. Ct. 499, 507 (1948). By excluding Jackson’s friends and relatives along with the media, the district court did not narrowly tailor the closure. Because the closure failed to meet two of the Waller elements, it was improper.

We now address how to remedy the improper closure. Jackson contends that we must remand for a new trial because an improper closure is a structural error. He is correct that the violation of a public-trial right is a structural error not subject to a hаrmless-error review. State v. McRae, 494 N.W.2d 252, 259–60 (Minn. 1992). But despite the “structural” label to the violation, the remedy for denying a defendant’s right to a public trial ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍“should be appropriate to the violation, and a retrial is not required if a remand will remedy the violation.” State v. Bobo, 770 N.W.2d 129, 139 (Minn. 2009). In this case, a limited remand rather than a retrial is the appropriate remedy.

The Supreme Court has done just that. The Waller Court remedied a trial court’s improper closure of an evidence-suppression hearing by remanding the case for a new suppression hearing without requiring a new trial. 467 U.S. at 48–50, 104 S. Ct. at 2216–17. In rejecting the defendant’s quest for a new trial, the Court reasoned, “If, after a new suppression hearing, essentially the same evidence is suppressed, a new trial presumably would be a windfall for the defendant, and not in the public interest.” Id. at 50, 104 S. Ct. at 2217. Schwartz hearings, like suppression hearings, are fact-finding proceedings that, after a new hearing on remand, might not result in any need for a new trial. The public has no interest in retrying a murder case based on the district court’s improper closure of only a relatively small segment of the Schwartz hearing, involving only two of the twelve jurors and leaving only a possibility that a new and public hearing will result in different findings.

Jackson fails to convince us otherwise by attempting to parallel a Schwartz hearing with jury selection through voir dire, which, he urges, should result in a new trial if administered behind closed doors. His argumеnt ignores the obvious difference between the purpose of the jury-selection process and that of a Schwartz hearing. During jury selection, the parties question jurors prospectively to uncover partiality, informing their challenges with or without cause. State v. Gillespie, 710 N.W.2d 289, 295 (Minn. App. 2006) review denied, (Minn. May 16, 2006). Voir dire therefore shapes the composition of the jury, which is unique to each trial depending on its members. A process that might conceivably replace even one of them would almost certainly have an immeasurable and unknowable effect on how jury deliberations might have gone. Indeed, changing jury composition might result in an entirely different verdict. An improperly closed voir dire by its nature calls into question the very accuracy of the trial process, necessitating a new trial. See State v. Petersen, 933 N.W.2d 545, 550–51 (Minn. App. 2019). Schwartz hearings are, by comparison, a retroactive opportunity to answer only whethеr an already-conducted trial was free of unfair influence by extraneous prejudicial information. See State v. Greer, 635 N.W.2d 82, 93 (Minn. 2001); Minn. R. Evid. 606(b). The improperly closed first session of Jackson’s Schwartz hearing was transcribed in only eight pages of testimony. Granting a new trial would be grossly disproportionate to the minor violation, which could not have influenced the trial, and we are satisfied that the Waller remedy is the appropriate one here. We therefore remand for the district court to conduсt a new Schwartz hearing involving the first two jurors, closing only those portions, if any, that can be justified in light of Jackson’s rights under the Sixth Amendment. If the two jurors testify in the public Schwartz hearing in a manner materially different from their original, private testimony, the district court should also conduct a new public Schwartz hearing involving the other ten jurors.

III

This result renders moot Jackson’s argument that the district court abused its discretion by determining that juror misconduct did not impact the verdict. The district court’s Schwartz hearing determination is vacated for the reasons we have outlined. After it conducts the Schwartz hearing on remand, the district court will have the opportunity ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to issue new factual findings and legal conclusions.

DECISION

The district court did not clearly err by denying Jackson’s Batson challenge. The district court did violate Jackson’s right to a public trial by closing the courtroom during the first segment of the bifurcated Schwartz hearing, but remanding for a new hearing, not a new trial, is the appropriate remedy. We do not decide whether the district court abused its discretion by denying Jackson’s motion for a new trial based on the jury having received extraneous information during deliberations.

Affirmed in part, reversed in part, and remanded.