*1 fоr resentenc- court to the district the case propriety opinion on the express no
ing. We court imposed by the district any sentence
on remand. to district and remanded
Reversed resentencing.
BY THE COURT: A. Blatz Kathleen
/s/ A. Blatz
Kathleen
Chief Justice Minnesota, Respondent,
STATE BUGGS, Appellant.
Louis Cardona
No. C0-97-833. of Minnesota.
Supreme Court
July Aug.
Rehearing Denied
that the trial court committed' reversible er- admitting ror the victim’s statements assailant, identifying appellant as her in not limiting scope of the state’s evidence of victim, prior assault of the and in providing any guidance Ap- resolve a deadlock in its deliberations. pellant deprived further claims that he was right improper to a fair trial his juror in exclusion of a violation of his both juror’s equal protection rights and the *4 through pattern prosecutorial miscon- duct. We affirm.
Appellant
Talley
began
and Kami
met and
dating
they
high
when
both
school.
relationship
approximately
Their
lasted
years.
they
years
When
were both 18
old
they
daughter,
Buggs
had a
Ambreen Denise
purchased
together.
and later
a home
In the
however,
spring of 1995
when their relation-
founder,
ship began
Talley
to
and Ambreen
Talley’s
moved out
to live with
maternal
grandmother,
Napue.
Rose
19, 1995,
August
appellant
On
learned that
Talley
dating
Appellant
was
someone else.
immediately
Talley
punched
confronted
repeatedly
her
in her head with closed fists.
pled
Appellant
guilty
fifth-degree
to
assault
days
jail,
and was sentenced to 365
all but
stayed,
days
placed
probation
and was
years.-
probation
for two
Part of his
included
Talley
the condition that he not contact
daughter. Despite
their
the no-contact order
Russett,
Steven P.
Assist.
Public De-
however, appellant
Talley
to call
continued
fender,
Paul, Appellant.
St.
for
Talley
occasionally bring
would
their
se,
Buggs, pro
Louis Cardona
Stillwater.
daughter
appellant
appel-
to
with
visit
when
jail
Appel-
lant was out of
on work release.
III,
H. Humphrey,
Hubert
Minnesota At-
completed
jail
January
lant
his
sentence on
General,
Paul,
torney
St.
Michael 0. Free-
9, 1996,
Friday, February
appel-
On
man, Hennepin County Attorney, Donna J.
Products,
Talley
lant called
at Electric Wire
Wolfson,
County Attorney,
Assistant
Minne-
assembly plant Minneapolis
where Tal-
apolis,
Respondent.
mother,
ley
Talley’s
a clerk.
worked as
Deb-
Woods,
orah
testified that she listened in on
through
three-way
this call
conference and
appellant
money
Talley
heard
demand
that Talley
“get
and threaten
would
what’s
OPINION
coming”
immediately
to her. Woods
notified
STRINGER, Justice.
probation department.
appel-
Because
Following jury
Hennepin County
probation
trial in
Roy
lant’s
officer
Elliot was not
Court,
there,
Louck,
District
appellant
spoke
Louis Cardona
Woods
with Renee
Buggs
first-degree
was
probation
spoke
convicted
murder
fellow
officer. Louck
Talley.
appeal, apрellant
Talley,
Kami
On
appellant
claims
confirmed that
violated
blood,
“I
I
order,
saying
can’t breathe.
can’t
an arrest and
and drafted
no-contact
McCarthy asked her who did this
appellant. The order
breathe.”
order for
detention
her,
replied
she
“Butch.” When he
day.
issued
Talley replied
again,
“Buggs.”
her
asked
12,1996, appellant’s
Monday, February
On
appellant’s nickname.
Butch was
the arrest and
officer learned of
probation
appellant
called
warrant and
detention
paramedics
arrived around 9:34 a.m.
him
him the situation and
advise
inform
transported Talley
hospital.
him that
Appellant told
turn himself in.
route,
paramedics
one of the
asked
While en
Talley
of the warrant because
he was aware
her,
Talley who shot
but she was unable
him
the weekend and left
called
over
had
respond.
emergency
in the
room
The doctor
Appel-
his back.
message for him to watch
Talley
gunshot
had
determined that
six
sister,
Buggs, about the
his
Lena
lant told
area, a
wounds in her chest and abdominal
told
and she testified
warrant
thigh,
a wound on her
wound on her left
have to be shot or
that he would either
hypovolemic
left arm and
she was
suicide,
but he was
he would commit
a.m., Talley
approximately
shock. At
10:10
jail.
Buggs
Lena
also testified
going back
surgery
taken into
and аlmost immedi-
Talley’s
one week before
approximately
pro-
ately
into
arrest. She was
went
cardiac
upset
her that he was
murder
told
autopsy
An
nounced dead at 11:06a.m.
deter-
*5
to see
Talley
he was not able
with
because
Talley’s
the cause of
death was
mined that
kept
up,
daughter,
that “if she
it
their
and
multiple gunshot
to her chest and
wounds
to make him kill her.”
going
she was
The medical examiner testified
abdomen.
wounds,
Talley
eight gunshot
most
had
Talley
February
a.m. on
At 8:30
likely resulting from seven shots. One bullet
Products.
arrived to work at Electric Wire
her
entered her left arm and fractured
radi-
a.m., Talley’s supervi-
9:15
Sometime around
us,
thigh
her left
and the
one bullet entered
McLellan,
sor,
voices in
heard raised
William
liver,
lungs,
struck her
dia-
other bullets
upon investigation
lunchroom area and
kidney,
phragm, spleen, left
and colon.
coming
the voices
he determined
located off of the
the women’s restroom
a.m.,
day,
approximately
at
9:00
That same
Talley’s
two
lunchroom. He heard
voices—
appellant
Buggs
Lena
and told her
called
male. McLellan
and that of an unidentified
leaving town and he would con-
that he was
push open
he
was about to
the door when
things
Some-
tact her after
“cooled down.”
times,
male
Talley say “no” three
heard
appellant and two
morning
time later that
bitch,”
gunshot.
say “You
and then a
voice
Garcia,
friends,
Ramon
Joaquin Bowers and
immediately
ran to
turned and
McLellan
Antonio,
for
Minneapolis
left
and headed
San
building.
employees from the
evacuate his
Ra-
girlfriend
former
Texas where Bowers’
repeated gunfire.
As he did so he heard
Appellant
his
lived.
and
chel Contreras
a.m.,
home
about
Minneapolis
friends arrived at Contreras’
approximately
At
9:18
day.
learned
Contreras
dispatched to Electric
7:30 a.m. the next
police officers were
Talley
morning
had
been
speaking with some
later
Wire Products. After
appellant
suspect
her
L.
was
building, Sergeant
killed
people outside
Carl
appellant and
confronted
two other murder. Contreras
McCarthy determined that he and
[Talley]
that “he made sure
building
he told her
would
to enter the
officers
have
spend money,
to
his
going
was not
to be able
might
hurt. At about
because someone
to
some
going
not
to be able
screw
a.m.,
she was
McCarthy and the two officers
9:31
going
not
to be
guy, and that she was
steps
floor
other
up the
to the second
walked
During
daughter, either.”
steps
to see
McCarthy noticed on one of the
able
where
gun in
small,
exchange, Contreras observed
bag
a hole in the
paper
red
he
apрellant’s pants that
of
McCarthy
the officers
the waistband
of it. As
bottom
placed-on the couch. She
out and
they heard a
later took
the lunchroom area
entered
type gun
automatic
because
an
help from the
knew was
crying
faint voice
women’s
asked to use
gun clip. Appellant
she saw a
McCarthy
and found Tal-
restroom.
entered
he
Mexico because
go
car to
pool
in a
of Contreras’
ley lying on the floor on her back
deliberation,
days
want to use a car with Minnesota
After two
jury
did not
plates.
initially refused but
appellant
Contreras
she
guilty
first-degree
found
murder
eventually
appellant
609.185(1) (1996)
allowed
and his friends
§
in violation of Minn.Stat.
to drive her car to the border.
he was
mandatory
sentenced to a
term
imprisonment. Appellant appeals
of life
his
Force,
Fugitive
Minnesota
Task
(1)
grounds:
conviction on five
the trial court
organization
up
made
of members from vari-
by admitting
committed reversible error
Tal-
agen-
ous local
federal law
enforcement
ley’s
Sergeant McCarthy
statements to
iden-
cies,
appellant
tracked
locations in
several
tifying appellant as her assailant under the
Alexandria,
eventually
Mexico and
Virgi-
dying
exception
declaration
hearsay
to the
nia,
appellant
stаying
where
was
with his
(2)
rule;
the trial court committed reversible
sister,
20,1996,
Buggs.
April
appel-
Lori
On
by refusing
error
scope
to limit the
Alexandria, Virginia
lant was arrested in
relating
appellant’s
state’s
prior
evidence
was later extradited to Minnesota and indict-
(3)
Talley;
assault of
trial court
commit-
first-degree
ed for
murder.
ted reversible
providing any
error
trial, strong
At
circumstantial evidence
guidance
they
on how
should
presented
link appellant
Talley’s
was
(4)
deadlock;
resolve their
Blilie,
receptionist
murder.
Julie
at Elec-
deprived
right
of his
through
to a fair trial
Products,
tric
briefly
Wire
testified that she
improper
exclusion of a
in violation
a man
description possibly
observed
whose
juror’s
equal protection
both his and the
matched
run
the front office
(5)
rights;
deprived
bag
with a
red
his hand around 9:15 a.m.
right
his
to a fair
through
pattern
trial
day
on the
bag
the murder. The red
prosecutorial misconduct. We consider each
by McCarthy
steps
observed
on the
was de-
of these issues.
to be a
gift bag
termined
Hallmark
with the
Dying
I.
Declaration
words “Filled with Love” written on the out-
*6
side, which Blilie
bag
identified as the
she
The trial
Talley’s
court ruled that
examination,
Upon
had observed earlier.
Sergeant McCarthy
statements to
identifying
crime scene technician and a forensic scien-
appellant as hеr assailant were admissible
gunshot
tist found
residue and a 9-millimeter
dying
under the
declaration and residual ex
Luger
casing
shell
bag.
fired
inside the
The
ceptions
hearsay
to the
rule. The admission
gift bag
fingerprints,
was tested for
and sev-
of evidence rests within the sound discretion
prints
en latent
developed.
were
Appellant’s
court,
of the trial
and a determination that a
right
thumbprint was a
print
match for a
statement
require
meets the foundational
recovered on the
gift bag, by
outside of the
ments of a hearsay exception will not be
the letter “D.” No
fingerprints
other
were
found
showing
erroneous absent a clear
recovered from the crime scene.
abuse of discretion.
Bergeron,
State v.
452
presented
Other evidence
at trial further
918,
(Minn.1990).
N.W.2d
923
appellant
linked
to the shooting.
police
recovered from the
Talley
restroom where
prosecution,
a homicide
“a state
paper fragments
was shot
matching
gift
thé
ment made
a declarant
believing
while
bag
spent
and six.
casings stamped
bullet
imminent,
that the declarant’s death was
con
Luger.”
“FC 9 mm
Although
gun
no
cerning
was
the cause or circumstances of what
recovered, it was determined that the mur-
the declarant
impending
believed
be
weapon
likely
der
most
was a 9-millimeter
exception
death” is admissible as an
pistol.
Buggs
804(b)(2).
semi-automatic
Lena
hearsay
testified
rule under Minn. R. Evid.
that when
appellant
Talley
she lived with
Appellant argues
and
the record does not
1995,
in
early
late 1994
and
support
Talley
had a
made the statements un
gun.
9-millimeter
A search
Buggs’
of Lori
impending
der a belief of
According
death.
house incident to
ly,
arrest
appellant argues,
revealed
the trial court’s
gun
magazine
case and a
that contained
prejudi
decision to admit the statements was
bullets,
twelve 9-millimeter
five of
requires
which
cial error
that the
be
stamped
“FC 9 mm Luger.”
granted a new trial.
court laid out the foundational
asked her at least twice who had done this to
This
dying
appel-
of a
decla
her and both
she identified
requirements for admission
times
Elias,
156,
arrived,
paramedics
Talley
in
205 Minn.
285 lant. When the
ration
(Minn.1939).
breathe,
in
We noted that
told them that she could not
N.W. 475
dying
oxygen.
for a
declaration to be admissi
that she
She
taken
order
needed
was
ble,
hospital
than
something
emergency
phy-
more must be shown
room
where
hypovolemic
sician
in.
simply that
the declarant
is aware
determined she was
injuries
approxi-
or her
and the
shock. She
seriousness of his
died
cardiac arrest
158,
mately
at
possibility of death.
Id. at
285 N.W.
two hours after she had been shot.
spoken
476. The statement “must have been
This court has stated that the seriousness
recovery
hope
without
the shadow of a decedent’s wounds and the fact
159,
impending
death.” Id. at
285 N.W. at
making
decedent dies soon
the declara
after
factor is the declar-
Thus
decisive
tion are circumstantial evidence of the de-
of mind which must be shown
ant’s state
in impending
clarant’s belief
Berger
death.
and cannot
left to
competent evidence
on, 452
at
N.W.2d
923. The declarant
conjecture.
Id. “Fear or even belief that
times,
Bergeron
eight
had been stabbed
illness will end
death will not avail of itself
pool
lying
in a
of blood. Id. His
found
dying
to make a
declaration. There must be
lungs
cavity
and abdominal
were filled with
expectation’
hopeless
‘a settled
that death is
wounds,
blood from the
one of the
stab
hand,
near at
and what is said must have
cord,
spinal
likely
wounds severed his
most
spoken
impending
been
of its
hush
paralyzing
par
him.
Id. The officer and
159, 285
presence.”
(quot
Id. at
N.W.
scene
amedic
testified that
the vic
States,
ing
Shepard v. United
U.S.
breathing
extremely
tim’s
labored and
(citation
(1933)
L.Ed.
54 S.Ct.
breathe,”
kept saying
that he
“I can’t
omitted)).
paramedic
that the victim start
testified
go
into
ed
severe shock. Id. The one dis
Later cases from this court reiterate
tinguishing
Bergeron
fact between
and the
something
more than the seriousness of
present
Bergeron
case is that
victim in
injdries-and
possibility
the victim’s
dying
stated “I’m
aren’t I?” to which the
death must be shown in order to make a
paramedic replied
good.”
“It
look too
declaration,
doesn’t
dying
statement
as a
admissible
case, Talley
Id. In the instant
never said “I
and that the decisive factor is the declarant’s
*7
dying,”
am
nor was she ever told that she
Bergeron,
state of
452
922-
mind.
N.W.2d at
However,
probably
would
die.
this court
(Minn.1990);
Lubenow,
23
v.
State
310
Elias,
“[djespair
recovery
in
noted
that
of
52,
(Minn.1981);
N.W.2d
56
and State v. Eu
may
gathered from the circum
indeed be
banks,
257, 262,
453,
277
152
Minn.
N.W.2d
support
facts
the inference.
stances
(1967).
456-57
The declarant’s
of mind
state
unyielding
is no
ritual of words to be
There
may
only through
be shown not
direct evi
Minn,
159,
spoken by
dying.”
at
285
205
dence,
expressing
such as
statement
(quoting Shepard,
at 477
290
at
N.W.
U.S.
dying,
that
declarant’s conviction
he or she is
(citations omitted)).
100,
22
54 S.Ct.
See also
may
but it also
be inferred from all of the
Brown,
484-85,
appellant with probative whether the value of the evidence of Because the admission evidence death. substantially danger outweighed is of of trial within the sound discretion rests here, prejudice. unfair court and we find no abuse of discretion not err in we hold that the trial court did prejudice This court “to mean has defined ruling Talley’s statements met the foun- only advantage ‘the unfair that results from requirements dying of a declaration. dational capacity persuade by of the evidence ” Townsend, illegitimate II. Prior Assault means.’ State v. (Minn.1996) 292, (quoting 546 N.W.2d Appellant argues next that the trial Cermak, State v. 365 N.W.2d 247 n. reversible error in not limit court committed (Minn.1985)). Townsend, the defendant scope relating appel ing the of evidence charged attempted with murder and prior Talley. Evidence of a lant’s assault of murder. Id. at 295. The moved defendant assault, evidence,” in prior or “character is attempted to sever the murder and murder prove of a admissible to the character defen suppress relating trials all evidence dant in order to show that the defendant attempted murder in his murder trial. conformity with that acted character trial Id. The court denied defendant’s motion committing the offense with which he or she- and allowed state to introduce evidence However, charged. prior is evidence of' a murder, regarding attempted the defendant’s pur for assault admissible other including testimony from the victim in the motive, poses, including “proof opportuni case, attempted testimony murder from six intent, plan, ty, preparation, knowledge, iden appearance other witnesses as to the of the tity, or absence mistake or accident.” appearance crime scene and the the vic- 404(b). Minn. R. Evid. To evi admit the wounds, large photographs tim’s color dence the trial court must determine that the crime scene. Id. This court held that convincing there clear evidence that repetitious admission of extensive and evi- prior the defendant committed the act bad error, relating dence to the other crime was probative and that the value of the evidence nothing because it but “could do inflame the outweighs any potential prejudice. fоr unfair jury improperly.” Id. at 296. Mills, (Minn. State v. 562 N.W.2d 1997) Here, reviewing generally variety A defers to the state introduced a admitting prior relating August the trial court’s discretion in evidence only upon prior Talley, including bad acts and will reverse a show assault evi- ing of clear abuse of discretion. lifting weights Id. dence that assault, up” was “bulked at the time The trial court admitted this evidence as testimony Talley assaulted motive, intent, proof identity. Appel- four-year-old front daughter, of their testi- probation assaulting Talley lant was on mother, Woods, mony Talley’s Deborah facing prospect the unwelcome of re- Talley immediately called her after the turning jail proba- because she notified the *8 picked up assault and Woods and took tion office that he violated the no-contact hospital, testimony her to the from the emer- Appellant’s stop Talley order. desire to gency physician Talley room who treated testifying probation about his violation and assault, right testimony after the from the jail going avoid back to demonstrates a mo- police appellant officer who arrested and Additionally, tive to kill her. prior the as- police report, testimony wrote the from the clearly sault demonstrates the strained na- police Talley, officer whо interviewed relationship appellant ture of the between photographs Talley’s injuries. four Talley. “Character evidence which relationship’ Although may tends to show the ‘strained be- some of this evidence have cumulative, it, the majority tween accused and the victim is relevant been the of with the establishing exception testimony, only motive and intent and is of Woods’ took a Mills, portion excessively therefore at morning admissible.” N.W.2d of a and was not Here, question appel- explicit inflammatory. photo- there is no that or The four prior graphs overly lant the jury committed assault or that the shown to the were not quest morning was denied. In the of Febru- graphic, especially com- inflammatory or 11, ary jury requesting autopsy photographs. In ad- the sent note either the parison to dition, scope reports police the of the limit the written officers on the trial court did by excluding certain the scene the murder or the answer to the introduced the evidence questions McCarthy of whether the victim made to the included in hearsay statements report Talley the as- his as interviewing officer her after identified police hearsay any all statements her assailant and whether he told of the excluding as sault and by Talley concerning abuse and threаts officers at the scene of her made identification. Finally, beginning by appellant. opposed granting the The request, the defense either during testimony relating to again asking jury the that the be left to its collective specifically prior the trial court memory p.m., the assault as to the evidence. At 2:30 the they only use jury the jury instructed could a note to refusing sent the its purpose of show- the evidence for the limited request charging “try it to to resolve intent, motive, identity, or and that the ing so, yourselves, you these issues can do jury not convict on the could basis my answering questions you without the The trial court re- prior of the incident. rereading testimony.” peated jury to the at the these instructions jury point The sent another note at some trial. conclude that on the basis close of We p.m. February stating after 2:30 on that it facts, clearly not of these the trial court impasse, had reached an and that it would be admitting prior discretion in the' abuse its impossible to reach unanimous verdict assault evidence. testimony police without the of the officers Jury III. Instructions time, on the This scene. the defense re- quested jury that the court instruct appellant next contends that
The guilty a verdict of not does not need to be error not trial court committed reversible unanimous, jury and that either the court not providing any guidance to the as to how testimony jurors After testimo reread that the it should resolve deadlock. Instead, requested, it all it. ny, charged jury. The or that reread the trial court 3.04, response jury telling the standard the court sent a trial court read CRIMJIG “[ejontinue they try jury charge regarding unanimous verdicts them should work charged through your impasse.” jury The one The trial court also sent criminal eases.1 asking long jury you agree “All of must more note that afternoon how as follows: they that eve- upon your you have had to continue to deliberate verdict. Some they you ning, that while were still at an jurors on matters where were civil been impasse, introspective contemplation many of delibera “further permitted, after so hours tion, might helpful. The court verdict. of the issue” to return a so-called five-sixths they may re- responded by informing in criminal them are no fractional verdicts There evening. morning, The next on jury’s must be unani tire for the case. The verdict February jury guilty ver- returned mous.” dict. after- jury began deliberating Although Appellant argues that the trial court erred February noon of instructing jury continue deliberat- sketchy, appears long that not record is ing rereading CRIMJIG 3.04 to day, after deliberations commenced testimony jury, jury may have conclud- entire because requested that the they required to until ed that deliberate Sergeant McCarthy paramedic and the they unanimous If a trial re- reached a verdict. the scene be read back to them. Their *9 your views provides part: should not hesitate to reexamine 3.04 1. CRIMJIG change your opinion you if become con- and another, with You discuss the case one should you they that are erroneous but should vinced reaching agree- and deliberate with a view to ment, simply your opinion honest be- not surrender your you can do so without violence to if jurors disagree merely or in order cause other judgment. You should decide individual .the a to reach verdict. only you yourself, dis- case for but after have Practice, Assn., Judges Minn. Dist. Minnesota your jurors 10 fellow and cussed the case with (3d ed.1990). carefully You CRIMJIG 3.04 have considered their views. 338 jury agree, your impasse” would not lead the to jury a is unable to
court believes
jury to continue their delib-
“may require the
they
deliberate
required
conclude
were
may
repeat an instruc-
give
and
or
erations
reached;
until a unanimous verdict was
fur-
* *
require
or
tion
*. The court shall
jury
ther
were
to the
with trial
the notes
sent
jury
require the
to deliberate for
threaten to
necessarily
knowledge,
counsel’s
albeit not
length of time or for unrea-
an unreasonablе
approval.
with their
Kelley,
State v.
517
sonable intervals.”
(Minn.1994)
Our decision in State v. Jones is more on
(quoting A.B.A.
909
N.W.2d
4.4(b)
Jones,
§
point.
judge
for Criminal Justice
In
the trial
not read
Standards
did
15—
(1986)).
error in Minneso-
is reversible
3.04,
“[I]t
charge
jury
but
al-
CRIMJIG
did
jury
a unanimous
ta to coerce
towards
most
verbatim
the “fractional verdict”
court, therefore,
in-
A
can neither
verdict.
Jones,
charge used in the case at
hand.
decided,
jury
must
nor
form a
that a case
day
N.W.2d at 907. After a
of deliberation
jury
allow the
to believe that
‘deadlock’ is
jury
indicating
sent a note
it had reached
Jones,
option.”
not an available
impasse,
judge
and the trial
advised the
(Minn.1996) (citations
omit-
N.W.2d
jury
continue
an-
deliberation.
Id. After
ted).
day
jury
other
sent another note indicat-
Kelley
Appellant’s reliance on State v.
(11-1
ing
split
guilty)
the exact number
Kelley
granted
misplaced. While in
we
holding
and the reason the one
was
out.
a new trial because the trial court
defendant
Id. at 907-8. The trial court denied a mistri-
provided virtually
guidance on
no
how the
request
al
and read CRIMJIG 3.04 to the
deadlock,
jury
the facts are
was to handle
jury.
day
at
Id.
908. After a third
of delib-
Kelley,
quite different from those
hand.
jury
guilty
eration
returned a
verdict.
Kelley,
at 910. In
the trial court
N.W.2d
Id.
We held
the combination of the trial
initially
jury.
read CRIMJIG 3.04 to the
Id.
instructions,
whole,
court’s two
taken as a
jury subsequently
at 907. The
sеnt the trial
adequate description
to an
“amounted
of the
indicating
court two notes
deadlock and the
jury’s
duty,”
role and
and did not coerce the
split,
requesting
exact numerical
advice.
jury
to reach
unanimous verdict.
Id. at
notes,
responded
The trial court
to those
period
911-12. We further noted that the
jury
telling the
to “continue deliberations”
jury
light
deliberations was not excessive in
“keep working,”
consulting
without
or
length
complexity
of the
of the trial and
counsel,
notifying
making
a record of the
“[njeither
paraphrased
in-
initial
communication. Id. at 907-8. We concluded
keep
structions nor the later instructions to
the trial court’s communications were
deliberating
beyond
went
the discretion af-
face,
not coercive on their
but
have led
a trial
in management
forded
court
of the
jury
they
required
to conclude
trial.”2 Id. at 912.
deliberate until a unanimous verdict was
reached on each count.
Id. at 909.
so
initially
Given
the trial court
read
concluding,
particularly
by
we were
troubled
CRIMJIG 3.04 and the
nature of
noncoercive
parte
the ex
nature of the communications
notes,
the trial court’s
the fact that the de
requested
because the defense could have
notes,
fully
fense was
advised
and that
that the court reread
3.04 or some
CRIMJIG
jury!s
deliberations werе not excessive
other suitable course of action.
Id. at 909-
trial,
light
length
complexity
of the
contrast,
10. In
the notes sent
the trial
jury
fully
we conclude that the
able to
“try
present
stating
case
obligations
discern the limits of its
yourselves,
you
resolve these issues
can do
try
through
so”
“continue
Accordingly
work
not coerced to reach a verdict.
part
2. While the Jones court did mention that
court in Jones did not read
3.04 in the
CRIMJIG
instructions,
finding
its decision in
no error was influenced
initial
a fact that this court noted
reading
the trial court’s
of CRIMJIG 3.04 when
pose
creating
did
some risk of
misunderstand-
deadlock,
not,
jury
reached a
it did
as the
contrast,
ing.
present
Id. In
the trial court in the
appellant suggests, require that a trial court must
charge
case
read CRIMJIG 3.04 in the final
always
charge
read that
if a
indicates dead-
jury.
Jones,
lock. See
339
correctly.determined
its
The trial court
trial court did not abuse
hold the
we
prima
the defendant did not make a
charging
jury.
discretion
challenge
facie case that the
was exercised on
of a Potential Juror
IV. Exclusion
the basis of
We have stated the “[a]
race..
prima facie case of racial discrimination is
jury
the state exer
During
selection
by showing that
or
established
one
more
po
peremptory challenge to remove
cisеd a
group
per
of a racial
have
members
been
is
juror number 32. Juror number 32
tential
emptorily
jury
excluded from the
and that
daughter
but has an African-American
white
circumstances of
an
the case raise
inference
mistaken for a Native
and is sometimes
that the exclusion was based on race.” State
opposed
The defense
the use
American.
Stewart,
(Minn.1994)
559,
v.
514 N.W.2d
563
juror
arguing that
number 32 was
the strike
added).
32,
(emphasis
Juror number
as a
expressed
she
concerns
removed because
woman,
any
Caucasian
is not a
member
jury panel
the lack of minorities on the
about
minority, despite
composition
racial
are
people
how
of color
treated
family.
While
is true
Batson has
general.
The
contended
system
defense
been extended to white venire members who
racially
peremptory challenge was
race,3 juror
are struck on the basis of their
deprived appellant
and the
motivated
number 32 was not
on the basis of
excluded
juror
right
equal protection.
The
their
accepts
if
appel
her race even
one
as true
appropriate
that it was an
trial court ruled
argument
solely
lant’s
that she was excluded
peremptory strike.
people
of her
because
beliefs
color are
unfairly
system.
pro
treated
Batson
peremptory
use of
chal
The
status,
potential juror’s
tects the
racial
lenges
persons
to exclude
from the
sole
political
philoso
her racial and
beliefs
prohibited by
ly on the basis of race is
phies.
juror
may
While
number 32
have
Equal
Clause of the United States
Protection
appeared to be an ideal
from the de
Kentucky,
v.
476
Constitution. Batson
U.S.
perspective, the state could well have
fense
(1986).
79, 89,
1712,
the trial court must determine whether there at purposeful been discrimination. Id. has prosecutor A not seek con Gaitan, 98, 1712; v. 536 106 S.Ct. obligation cost and has the victions “ (Minn.1995). 11, prosecutor If a 15 N.W.2d rights of accused as well guard ‘to discriminatory racially intent or motive had rights public.’” as to enforce the striking juror, a defendant is automati (Minn. Salitros, N.W.2d 817 State v. 499 cally trial harmless 1993) to new because entitled I ABA (quoting Standards Criminal impact analysis “inappropriate in the Justice, error is Function 3-1.1 and The Prosecution ed.1979)). by petit jury (2 ease of a convicted Commentary defendant at 3.7 But even prosecutorial present, if there was racial discrimination the selec the de misconduct new-, McRae, jury.”. 494 to a trial where tion of that State v. fendant is not entitled (Minn.1992). certainty that the miscon- say can 260 we N.W.2d Knox, So,2d 803, (3d (La. 1992); Cir.1989). 3. State v. F.2d Forte, Virgin Islands Government of *11 that questions police officers beyond a reasonable asked was harmless duct hearsay: Ashby, 27-28 in the admission of v. 567 N.W.2d have resulted doubt. State (Minn.1997). actually “If verdict ren any Q: you able to obtain informa- Were error, surely unattributable to dered was employees you spoke with? tion from these beyond harmless a reasonable the error is They A: Yes. stated that— Juarez, 28; Id. at doubt.” attorney]: Objection, Your [Defense (Minn.1997). 286, 292 N.W.2d hearsay. Honor. It calls for matter, highly- we note the As a threshold testimony trial. The charged context of this spanned presented almost two
and evidence to finish both sides weeks and from start Q: you get information did What every their case. Almost vigorously tried dispatch, sir? at times ruling motion and was contested and attorney]: Objection, Your [Defense high. Against backdrop, emotions ran Honor. appellant categories sets forth several hearsay On neither occasion admitted. prosecutorial misconduct. prosecutor Obviously it was not error for the briefly appellant’s We first address only questions designed that were to ask prose- claims that do not rise to the level of elicit evidence from the officers as to what cutorial misconduct: they they actions took based on information police reports. Offering the contents of (cid:127) — hearsay. received and did not call for prosecutor attempted police to offer a Next, appellant’s sev we address report and the contents of a recorded dis- although eral claims of that tech misconduct patch call an effort to rebut the de- nically rising inappropriate to the level of McCarthy suggestion Sgt. fense’s fa- conduct, clearly sufficiently prejudi are not idеntification, Talley’s and that bricated warrant cial as to reversal: only suspect reason became —Attempts to introduce evidence the trial police was because were told co-work- Appellant couH ruled inadmissible. con- Talley ex-boy- ers had abusive prosecutor elicit tends that tried to friend. On both occasions the defense Talley’s employer implemented had objection.4 hearsay Appellant ar- made security prior measures for her after the gues improper prosecu- that it was for the repeatedly assault incident over sustained tor to offer evidence or to ask inadmissible defense, relevancy objections by the legally objectionable questions. The state Talley to elicit made to tried statements police reports contends both the others about abuse and threats. message clearly the recorded were admis- prosecutor persist While it is error for a they sible not because were offered for improper in asking questions ruled or elicit their truth but rather to show that it was inadmissible, unlikely Sergeant McCarthy Har- fabricated evidence ruled State v. ris, (Minn.1994), Talley’s identification. the trial 521 N.W.2d our While police report, court did not admit the careful review of the record leаds us to the dispatch ruled that the contents of the inappropriate conclusion that conduct recording surely admissible under not here was inadvertent and theory. state’s We conclude that it was contribute to the verdict. attempt not error to to offer the two items —Asking appellant to comment prosecutor
if the believed there was le- credibility another witness. On cross- evidentiary argument gitimate for their ad- appellant, prosecu- examination of the mission. tor asked about Rachel Contrer- events, —Attempts appel- account of the when to introduce inadmissible evi- as’ occasions, why prosecutor two lant denied that Contreras asked him dence. On point hearsay objection by improper, 4. At the trial court that it was one after a found defense, intentionally prosecutor personally the de- directed her done in order to force attorney. object. While this comments to the defense fense *12 just go through the courts to counsel to rehabilitate the did not he defendant’s daughter, prose credibility. the get Additionally, visitation his Id. at 708. the Agard if Rachel testified to that prosecutor cutor asked: “So court -noted that the [cjourt jury, then Ra and insinuating fact before made the comments fabrication mistaken, true, lying summation, or sir?” is either during chel for the first time a fact Appellant question that the contends troubling, the court found because the re- improper cred argumentative and because marks occurred too late for the defense ibility are within the sole determinations attorney respond. to even Id. at n. province jury. The state contends 709, 711. attempt high legitimate
that it was a to prosecutor’s We hold that the re credibility namely, light a serious issues— prejudicial marks did not amount to error testimony appellant of and that the Contr because in addition to the defense’s to failure error, reconciled. The eras could not be object preserve appeal, that issue the appellant any, was harmless because the opportunity defense to had rehabilitate simply claim that he not reiterated his did appellant respond the on re-direct and to to any depth in at all. speak with Contreras in closing argument, clearly the remarks —Asking jury to draw adverse the infer lessening possibility the that the remarks ences exercise his con of However, given contributed to the verdict. rights. prosecutor The asked stitutional implications the constitutional that such com questions on of several cross-examination raises, mentary prosecutors we cаution that opportunity appellant highlighted that his dwelling presence extensive on a defendant’s all see all the to hear the evidence and may during the trial result in reversible er Later, reports. closing arguments, in the cases, in especially ror future where there prosecutor argued appellant that took ad support are no facts in evidence to an infer vantage opportunity of his to observe the fabrication, opportunity ence of or there is no presentation full the in the court of case to rehabilitate the defendant. room then took the witness stand and —Attempts proof. to the burden story exonerating himself.5 concocted a shift cross-examining appellant, pros- When Appellant argues although .that the defense object, receipts ecutor asked him if he had plain not it was error that car, right, to substantiate his claims that he sold his violated his Sixth Amendment be present during stopped morning that he at an ATM the trial and confront the wit him,- murder, stopped buy against citing Agard Talley’s v. Por that he nesses (2d tuondo, Cir.1997), Texas, way pur- or that gas 117 F.3d 707-08 on the he gift in principle improper bag for the it is chased the November. objec- overruled the argue gained that the defendant a tactical trial court defendant’s prosеcutor attempting tion that advantage through the exercise of or his appellant, proof It but rights.6 her constitutional should be shift burden during interrogation and in the final Agard only noted that addresses com prosecutor closing jury charge it instructed that the defen- ments made cross-examination, addition, proof. arguments, during dant had no burden objection by the the trial court sustained an to the because constitutional issues raised “incumbent,” prosecutor’s the word present “either are not or are of use of remarks incum- upon prosecutor’s question: in the “it’s less concern when made cross-exami nation”, upon you as a witness who takes the opportunity of defense bent due Washington, closing argument, an intermediate court in In the defense's counsel em- as well as phasized every right commentary improper. had to be agreed is have However, that such present vance, Court, in ad- trial review Supreme evidence Michigan and the defendant, just every and that like other Minnesota, appellate intermediate courts of see adverse should be drawn from no conclusions Grilli, (Minn.Ct.App. 369 N.W.2d rights. appellant’s exercise of those denied, 30, 1985), 1985), (Minn. Aug. rev. New opposite. Jersey, and Texas hold Agard highest *13 borhood all the citizens [and affected] produce 360,
to
evidence.
of the state of Minnesota.” 547 N.W.2d
(Minn.1996).
Appellant
364
We noted that the remarks
—Improper Closing Argument.
family
“simply
prosecutor committed mis-
about the
of the victim
de-
claims that the
murder,”
by
closing arguments
attempt-
in
scribed the
result of the
conduct
inevitable
victim,
ing
generate sympathy
jury’s
for the
and were not made to inflame the
to
by commenting improperly
passions.
on the effect
Id. We conclude that while the
community
Talley’s
family
on her
and com-
remarks about the
on the
death had
effects
munity,
appellant’s
problematic
attacking
potentially
char-
here were
divert-
ing
jury’s
away
him a
for
the
attention
role of
acter when she called
“coward”
from its
committing
determining
appellant
guilty
Tal-
or
not
suicide after he shot
whether
is
ley.
guilty,
not
reversal is not warranted because
up only
portion
a
the comments made
small
prosecution,
In a homicide
the state
closing
simply
argument
of the
described
life,
may offer information about the victim’s
the
result of the
inevitable
murder.
attempt
it
but
not use
as an
to influence
jury’s
prejudice
the
on the basis of
decision
Finally,
prosecu
we hold
passion.
Hodgson,
or
v.
512 N.W.2d
State
appellant
to
a
tor’s references
as
“coward”
(Minn.1994)
(allowing
play
97
the state to
thought process
with a “twisted”
im
tape
playing
a 45-second video
of the victim
comments,
prоper
but the remarks do not
person).
basketball to show victim as a
See
They
require a new trial.
were isolated com
Graham,
also State v.
207
N.W.2d
given
ments
of
the mass
evidence
(“The
(Minn.1985)
just
victim was not
bones
lengthy
they surely
trial
not
to
contribute
flesh,
and sinews covered with
was im
but
Ives,
jury’s-
verdict. See
v.
spark
prosecution
bued with
of life. The
(Minn.1997) (it
N.W.2d
713-15
was mis
leeway
spark
has some
to show that
prosecutor
argue
conduct for the
to
the de
present
being
long
the victim as a human
as
punk[
]”
fendant was
“would-be
attempt
as it is not ‘an
to evoke
undue
any
li[fe]”,
“pathetic little
but the comments were
”)
sympathy
jury’s passions.’
or inflame the
prejudicial
require
so
as to
a new trial
appear
prosecutor’s
It does not
at
beyond
because the comments were harmless
tempt
present Talley
thoughtful,
to
aas
doubt).
a reasonable
friendly, hard-working
and the
individual
child,
four-year-old
showing
mother of a
or
now
We
turn
the last two claims
Talley’s picture before and after her death
prosecutorial
of
misconduct which we con
goes beyond
pale
giving
the victim “a
First,
clude are of far more
nature:
serious
life,”
spark of
nor was its matter-of-fact na
during
testimony
Lori
defense witness
likely
jury’s passions.
ture
to inflame the
Buggs,
jurors
several
overheard one
object
We also note thаt the defense did not
prosecutors whisper
ly
to co-counsel: “She’s
any portion
closing referencing
of the
day
jurors
ing.” The next
one of the
advised
Talley’s background, suggesting that the de
jurors
the court about
comment. Four
regard
proble
fense did not
the comments as
remark,
actually heard the
and all
two
but
constituting
matic and
event
a waiver
eventually learned about it. The trial court
Ture,
objection.
of the
State v.
353 N.W.2d
extensively questioned
ju
and counsel
each
(Minn.1984).
502, 516
individually,
comprising ap
ror
the voir dire
Appellant
objects
proximately
pages
transcript.
also
Each
references
community
Talley
juror
in which
lived and
stated
the comments would not
Lewis,
ability
fairly
indepen-
worked.
State v.
we did not find
affect his or her
dently
Buggs’ testimony.
your way
trying
Lori
Ac-
that that’s
evaluate
ease and
defense’s
cordingly,
way you
the trial
denied
that’s the
want to come across to a
mistrial, concluding that
motion for a
jury,
your
prej-
that’s
business.” We find no
misconduct was unintentional and
prosecutors’
udice
because of the
properly.
had acted
displays, particularly
light
amateur
jury’s expressed impatience with their con-
know,
every prosecutor should
As
duct,
lightly
but we do not take
conduct that
improper
express
personal opinion
participants
demeans other
in the trial and
credibility
about the
of witness. State
the court.
Ture,
tors’ attention to the
use of
PAGE,
(dissenting).
Justice
language,
only by
jurors
not
observed
the
because,
respectfully
I
I
dissent.
do so
personnel
spectators, in
but
the
agree
I
with
court in
other
while
the
all
expressions
disgust
nature of facial
when
respects, I believe the court’s
conclusion
against
prosecution,
the trial court ruled
the
peremptory
juror
the state’s
strike of
32 did
pros
questions
or the defense asked
that the
prima
not constitute a
facie case of racial
apparently thought
inappropriate.
ecution
Kentucky,1
discrimination under Batson
jurors
of the
One
informed the court that
progeny
and its
is error.
jurors
prosecu
several
were alienated
the
32,
juror
striking
prosecutor
Prior to
tors’ conduct. The trial court ruled that the
intentional,
juror
questions,
not
asked the
a short series of
conduct was
offensive
permitted
point
noted that he
it to the
where
each of which was rooted
issues of race.2
juror
prosecutor
questions
it became a distraction because “I decided The
asked no
only
peo-
1. 476 U.S.
106 S.Ct.
phone
that's when I realized
book and
court,
just
City
we do have a defendant of color?
county
of Minne-
where
it's not
*15
so
well,
these,
pro-
a
of the
reason I wanted to be
apolis.
of
and some
A. I
the
It's all
feel—
suburbs,
outlying
somebody
spective jurors
juror
the
who doesn’t
are from
there would be
so
counly, I am sure.
of the
and so it is reflective
have that fear base.
city.
just
of the
you
Q.
reflective
It
Q.
isn’t
in this
And would
treat
defendant
change
kind of
did that information
differently
And
a
on the fact that he is
case
based
you
you
or not?
maybe
felt when
saw that
how
person?
person of color and not a white
day, yes.
A. That
know when I saw that assem-
A. No. I didn't
you
about
Q.
some concerns
Do
have
going
person
bly
to be a
of
room that it was
treating people
system general
of color fair-
case,
anything
I didn't know
about
color.
ly?
so I—
Yes,
about it.
I have concerns
A.
expec-
your
your
Q.
or
And is it kind of
belief
all, explain
you
Q.
that at
that
Can
verbalize
your
making that the defen-
tation of
decision
thinking?
you
what
are
to me
your
into
decision
dant’s race should not enter
If I
kind of falls back on the media.
A. It all
the facts
the case?
about
of
committed,
news, if there is a crime
watch the
by
that I would be affected
A. No. I don’t feel
just
my opinion now.
I will
be
and this is
race.
it,
person
they have as
about
if the
that
honest
likely
possible
you
Q.
do
feel that it's
or
And
black,
picture
suspect
their
is flashed on
a
is
higher
you
the state to a
that
would hold
Caucasian,
person
screen.
If the
is
entire
proof
the fact that the
burden of
because of
my family
you
picture,
rarely
see a
and so
do
defendant is a black man?
parts
outlying
live in the
and friends that
A. No.
them,
state, get
and I
this sense of fear from
I
moment,
May I have a
Your
MS. HANNON:
promoted by the
[sic]
it ahs
been
think that
Honor?
media.
THE COURT: Yes.
you
played
Q.
see that
out in the
And how do
you, ma'am. Your
MS. HANNON: Thank
Honor,
Hennepin County in terms
here in
courtroom
Deponty.
excuse Ms.
the state would
happens
of what
in these cases?
it,
any experience
I am
have
with
A. I don't
say,
judge
to
"I was
3. The trial court
went on
that,
my feeling
you
sorry,
know,
I—that was
is
but
wondering
they
going
to ask
assembly
jurors reflected
room of
if that
they
questions at all. I could see her as someone
my acquaintances
just
what I have known in
inquiring,
may
even
but
have stricken without
looking
place.
people
when I was
to rent
essentially
questions
only go
race
their
issues,
Q. Were different?
willing
expand
it to
but I am not
Caucasian, I
Because I am
A. It’s different.
living
primarily
in a
mi-
caucasion who
people
they
things
hear
from Caucasian
* *
nority family
people.
around black
wouldn’t talk about
you
being
given
Q.
And
are
talked to in
Haney López, The Social Construction
Ian F.
you
expect
juror
can
to be a
case where
Illusion,
African-American,
Fabrica-
Race: Some Observations
how do
the defendant
Choice,
tion,
L.L.Rev. 5-
29 Harv. C. R.-C.
you
facing
we are
as
[sic] beliefs about what
(1994).
here,
society
how
how do those beliefs affect
diffi-
form the basis for the conclusion that her
race are difficult and'raise
Issues of
impermissibly
Resolution of these issues
exclusion was
questions.
cult
race based and
easily
taking
is,
minimum,
will not come
questions
at a
sufficient to make out a
bring
will not
about resolution.
easy
road
prima
Beyond ju
case under Batson.
facie
resolution, we must first have the
To achieve
color,
people
ror 32’s association
it is
they
ability
recognize issues of race when
played
clear
issues of race
a role in her
so,
us. To do
we must look
come before
that, during
exclusion. The record shows
experi-
of our own
beyond the limited box
dire, juror
expressed
voir
concerns about
case,
being
ence.
In this
that means
able
jury panel
the lack of minorities on the
as
impact
per-
understand the racial
see and
general
people
well as the
treatment of
prosecutors to
from service
mitting
exclude
by
judicial system
color
only
and that the
jurors
nothing more than
prospective
who do
juror
questions
prosecutor
asked
makeup
raсial
express concerns about the
McRae,8
concerned
In
race.
State v.
a Hen
jury panel
justice system’s
our
treat-
nepin County prosecutor peremptorily re
people
recognize
ment of
of color. Once we
prospective
juror
moved
African-American
us, we must
issues of race are before
expressed
who
concern about the treatment
played
race
an
then determine whether
has
people
judicial
of color
system.
so,
doing
impermissible role.
we must be
objection,
Based on defendant’s
the trial
analysis. Finally,
if we con-
critical
our
evidently
prima
found that a
facie ease
played
impermissible
clude that race has
Batson
under
had been established.9 In re
role,
courageous
acting
must be
we
case,
butting
prima
prosecutor
facie
court,
resulting bias. As a
our
eradicate the
juror thought
claimed that because the
to eradicate racial bias from our
commitment
unfair,
system
impart
she could not be
judicial system
ground
must
itself in concrete
ial.10 The trial court concluded that “there
common sense actions whenever and under
was an
basis
the prosecutor’s
articulable
guise that bias manifests itself.
whatever
challenge”11
permitted
to be
If
we are
root out racial bias from the
*16
Presumably,
struck.
what
the trial court
judicial system,
obligation
as
have an
we
by
meant
the term
basis”
“articulable
was
do
both the United
and Minne-
under
States
prosecutor’s response
that the
was race-neu
Constitutions, and,
sota
as we have said we
nonpretextual.
appeal,
tral and
On
we disal
Report
would in the Final
of the Task Force
strike, stating:
lowed the
System,5
Bias in
on Racial
the Judicial
we
[Ojn
have,
juror in ques-
the record we
the
simple
must do more than ask the
surface
appears
simply
tion
to have
answered the
question
juror
of whether
32 was excluded
prosecutor’s questions
prosecu-
the
race;
deeper
because of her
we must look
—which
jurors
potential
tor had not asked of other
go
played
on to ask whether race
point
way
large
at that
the
that a
same
impermissible
City
in
role
her exclusion.
—in
fair-minded,
percentage
of
reasonable
Wilson,6
Minneapolis v. State
we held
of
people
black
and fair-minded reasonable
Act,
Rights
that under the Minnesota Human
people
any
of
have an-
other race would
against
person is
racial discrimination
for-
questions.
swered the
To allow the strik-
person’s
“whether it is
on
bidden
based
ing
juror
of this
on
of
person’s
the basis
those
people
raсe or the
association with
Thus,
although juror
prosecutor
answers
effect would allow a
of color.”7
32 is Cauca-
sian,
fair-minded,
people
her association with
of color
black
to strike
reasonable
Supreme
explicit
5. See Minnesota
Court Task Force on
9. While the
court did not make an
trial
System,
Report,
finding,
finding
implied by
Racial Bias in the Judicial
Final
is
the
such
fact
(hereinafter
May
analyze
challenge
32-38
"Task Force Re-
the trial court went on to
port”).
prongs
under the second and third
of the Batson
See id. at
test.
256.
1981).
(Minn.
6.
person any doubt Moreover, one of [sic] “the reasons the system” is perfect. prose- n n n n [*] [*] theAs refuse norities, cutor cause defendant can is—and her compensate juror basically gave for to find prosecutor put was by basically letting being black she defendant striking the African Ameri- system is defendant’s he also a believed she it, guilty “‘[S]he unfair black being would simply be- this thought person. to mi- might black over guy 2) Jury of the racial 3) People trust of the criminal exclusion from distrust. # n pools of color have composition rarely n jury service fosters that justice system are [*] of a representative general [*] community. n dis- expressly type “Batson this 5) up forbids generally off.’” made of Juries are white into reasoning to enter seleс- of people. middle class Without broad ”12 process. tion range experiences group of that a social McRae, provide, juries that, of diverse individuals can ruling our is clear Given color, often person prima ill-equipped of are evaluate the juror had 32 been a presented peo- facts in cases that facie case under Batson would have been involve ple of and the state would not have been color. made out juror “solely of able to exclude because 6) among understanding Lack of whites color people treated beliefs are opening prej- creates an for unconscious system.” More unfairly would have evaluating udice racial bias when the state have been required; been would concerning people the facts of a ease required grounds to articulate race-neutral color. peremptory for its strike. Juror 32 should 7) differently simply juries petit people she need be treated because Grand and Applying McRae color whole truly Caucasian. to the facts reflect the communi- us, prosecutor’s ty jury’s record before strike is to verdict reflect the juror 32 is invalid.13 community’s judgment.14 irony degree I court’s find some recognized Even the that although trial court рeremptory juror holding that the strike of eaucasion, experi- her diverse permissible 32 was based her belief that ence, living with an African-American man judicial system our treats African-Americans child, having an interracial would have all, people unfairly. color and other After *17 brought experiences a range of social give nothing she more than voice to jury represented.15 generally are raised in concerns this court its Task Force decision, By Report. permits this the court report That contains over find- ings sys- jury in the state to from service detailing judicial racial bias exclude “fair- * * * minded, report Findings respect person tem. from the reasonable from with * * * juries jury panel expressed any state: who doubt added). (emphasis Report, supra, 12. Id. at 257 14. Task at 36. Force case, 13. the trial court In this concluded that responding challenge, 15. In to the defense prima facie case had not been out and made trial court stated: proceed further therefore did not analysis. with the Batson result, As record contains no more, you agree I couldn’t answers otherwise, explanation, race-neutral for the juror try get made her seem like an ideal prosecutor's juror strike of Because trial representative possible jury this to be as as оf a generally instance is court in the first in a better * * pool from the we have to choose from *. position facts and to evaluate the circumstances unfortunate, It's because she does add or strikes, surrounding peremptory the exercise more, minority representation would add if not proceedings usually remand for further will be times, panel, on the who remedy. at least someone lives and appropriate may the however, There be community, when the record is such that the re- works the black and understands viewing properly validity court can decide got impression and I from her. the strike. I believe this is one those cases. system’ perfect.”16 ginning post-Civil is Based on the rec- in the ‘the War reconstruction us, era, prevent conclusion that this court’s African-Americans ord before from serv by juries properly ing, excluded the trial the inadequacies 32 was ju- prospective remedy provided. court is error. Whether Others have also detailed not, person peremptory challenge’s ror is a of color or on the issues use as a tool “to case, by matters. raised race Permit- eliminate the black faces appearing for new ting prospective jurors jury duty” to be excluded from and its effectiveness “an in as personal exрerience credibly their service because efficient final racial filter.”21 out we in .our Task Force bears what said Batson, Sitting years here some 12 after it sense, Report, makes no but does make a cannot be said that its promise to eradicate mockery bring of our efforts to about racial jury racial bias from the process selection this, In I fairness. do not mean to saying accomplished. Sadly, has been it has not. question call into this court’s commitment to While Batson has made racial bias in the judi- racial eradicate bias Minnesota’s detect, process selection harder to must, however, system. cial move be- We not, before,22 as I have said the same as yond rhetoric. minimum, making go away. At a we refer the should issue of the continued use of respects, problem appears In some peremptory challenge to the Criminal struggling stay be more one of this court review, debate, Rules Committee and rec- within what some consider to be the unwork ommendation. analytical able and ineffective structure for challenging prosecutor’s race-based use of
peremptory challenges set forth the Court as v. Elem.18 Batson17 modified Purkett
We should not feel limited Batson and its
progeny. Batson establishes the floor for
challenging peremptory race based strikes. ceiling.
It does not set the We set
higher to ensure that racial standards bias re jurors.19 not infect CHARGES OF UNPROFESSIONAL
does the selectiоn of To 97-29, Attorney decision, day’s CONDUCT AGAINST as well as the Court’s decision Purkett, at Law the State of Minnesota. demonstrates to me that it is time seriously for this court to consider Justice No. C3-97-2379. Marshall’s admonition in his concurrence in goal ending Batson that “the racial Supreme Court Minnesota. peremptories inject discrimination that into * n n July jury-selection process can ac complished only by eliminating peremptory concurrence,
challenges entirely.”20 In that eloquently
Justice Marshall details the his peremptory challenge,
torical use of the
be
*18
McRae,
preme
may apply
stringent
16.
at