In rе State of Minnesota, Petitioner, STATE of Minnesota, Appellant, v. Myon DeMarlo BURRELL, Respondent.
No. A07-727.
Supreme Court of Minnesota.
Jan. 3, 2008.
743 N.W.2d 596
Moreover, the policy of the statute—protecting the community from death or injury by firearms—is best served by holding actors responsible for consciously disregarding risks of harm, whether they do so by intentionally pulling the trigger or by another act that increases the likelihood that the gun will discharge accidentally, involuntarily, or reflexively. In light of the absence of any language of intent in subdivision 1a(a)(3), thе corresponding presence of the word “intentionally” in an adjacent and preexisting section, and the legislative policy of protecting the public from the irresponsible use of firearms, we conclude that a person need not intend the discharge. We disavow any dicta in Richardson that says otherwise. We hold that a person has the requisite mental state for
Although the district court correctly concluded that the State need not prove that Engle intentionally discharged his firearm, the court applied the model jury instruction definition of recklessness, requiring only that Engle knew or should have known of the unreasonable risk he created. Because we hold here that a higher standard is proper for purposes of
Remanded.
Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, Minneapоlis MN, Lori Swanson, Attorney General, St. Paul, MN, for Appellant/Petitioner.
Tracy R. Eichhorn-Hicks, Minneapolis MN, for Respondent.
ANDERSON, Russell A., Chief Justice.
Appellant State of Minnesota (the “State“) petitioned the court of appeals for a writ of mandamus ordering the removal of the judge assigned to the retrial of respondent Myon DeMarlo Burrell (“Burrell“). The court of appeals denied the writ, and we granted review as to whether the judge should be removed for cause. We affirm.
In 2003, Burrell was convicted and sentenced in Hennepin County District Court for the first-degree murder of Tyesha Edwards for the benefit of a gang and the attempted first-degree murder of Timothy Oliver for the benefit of a gang.1 On appeal, we reversed and remanded for a new trial based on concerns about Miranda violations, vouching testimony, and the adequacy of discovery. State v. Burrell, 697 N.W.2d 579, 605 (Minn.2005). We also addressed the propriety of admitting expert testimony from a Minnesota Gang Strike Force officer. Id. at 601-02. We directed the district court on remand to admit expert gang testimony only if necessary and helpful and to “weigh our directives in DeShay and Lopez-Rios carefully as it exercises discretion over what expert gang testimony is admitted.”2 Id.
A judge new to the case was assigned to the retrial. At a pretrial hearing, the State presented the testimony of a Minneapolis Police Department Gang Strike Force investigator. Also, at a Frye-Mack hearing, thе State presented the testimony of two academic researchers on gangs who essentially challenged the underlying rationale of DeShay and Lopez-Rios. In an effort to comply with our directives, the judge made a series of rulings adverse to the State, including that “there is to be no [expert gang] testimony based on hearsay.” See State v. Roman Nose, 667 N.W.2d 386, 394 (Minn.2003) (“On remand, it is the duty of the district court to execute the mandate of this court strictly according to its terms.“).
On January 16, 2007, the judge held a pretrial conference in chambers. At this conference, Assistant County Attorney Michael Furnstahl, who had taken over the prosecution, made his first appearance on the case. What exactly transpired at the conference is disputed. There is no transcript.4 According to Furnstahl‘s affidavit, the judge twice said that the State could not prove “the case” and should dismiss it. Burrell‘s attorney, on the other hand, avers that the judge never commented on the merits of the case. He explains that the judge mentioned that if the State was going to make a test case for the issue of [expert gang] testimony that perhaps this wasn‘t the case in which to do it. If [the judge] mentioned * * * dismissal it was only in this context as the discussion centered around the recent refusal by the Supreme Court to hear the certified questions. He indicates that the discussion referred to the previous prosecutors’ comments, to which Furnstahl was not privy.
The parties and the judge discussed the January 16 conference on the record at Burrell‘s jury trial wаiver hearing, which took place on March 26, 2007. At the hearing, the State objected to the waiver or, alternatively, to the judge‘s remaining on the case. The State argued that the judge should remove himself because he had drawn conclusions about the merits of the State‘s case and because his knowledge of disputed facts made it improper for him to preside at a bench trial. The State referred to the judge‘s alleged comments at the January 16 conference that the case should be dismissed. The judge denied
The State next filed a motion with the chief district judge to remove the trial judge for cause.6 The chief judge denied the motion, finding no evidence that the trial judge said the case should be dismissed. Instead, she determined the judge “was simply alluding to the same problems that the previous prosecutor complained about.” She noted that the judge “has stated absolutely and unequivocally thаt he has not prejudged the guilt or innocence of Mr. Burrell” and that he “will try this case fairly and impartially.”
Three days later, the State filed with the court of appeals a petition for writ of Mandamus directing removal.7 The court of
I.
The State seeks a writ of mandamus ordering removal of the trial judge for cause. See
“A motion to remove a judge for cause is procedural and is therefore governed by the rules of criminal procedure.” Hooper v. State, 680 N.W.2d 89, 93 (Minn. 2004). Under the rules, “[n]o judge shall preside over a trial or other proceeding if that judge is disqualified under the Code of Judicial Conduct.”
The Code requires a judge to “Perform the Duties of the Office Impartially and Diligently.”
A judge shall disqualify himself * * * in a proceeding in which [his] impartiality might reasonably be questioned, inсluding but not limited to instances where: (a) [he] has a personal bias or prejudice concerning a party or a party‘s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding * * *.
In determining whether a judge should be disqualified under Canon 3D(1), the question is whether an objective examination of the facts and circumstances would cause a reasonable examiner to question the judge‘s impartiality. See Dorsey, 701 N.W.2d at 248; Powell v. Anderson, 660 N.W.2d 107, 116 (Minn. 2003). The mere fact that a party declares a judge partial does not in itself generate a
Judges, of course, should be sensitive to the “appearance of impropriety” and should tаke measures to assure that litigants have no cause to think their case is not being fairly judged. * * * Nevertheless, a judge who feels able to preside fairly over the proceedings should not be required to step down upon allegations of a party which themselves may be unfair or which simply indicate dissatisfaction with the possible outcome of the litigation.
McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn.1984). Likewise, the fact that a judge avows he is impartial does not in itself put his impartiality beyond reasonable question.
In this case, the State argues that the trial judge‘s statements at the January 16 conference create a reasonable question as to his impartiality. Relying on Furnstahl‘s affidavit, the Stаte asserts that the judge twice said the State had insufficient evidence for “the case” to “go to the jury.”
The State‘s characterization of the judge‘s comments improperly conflates the for-benefit-of-a-gang claims with the underlying murder charges. The for-benefit-of-a-gang statute operates to enhance the penalty for the underlying crime. See
II.
The State also appears to argue that the judge‘s knowledge of disputed facts acquired during pretrial proceedings should disqualify him from presiding at a bench triаl. The United States Supreme Court has held that
opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994). We have noted that “it is presumed that judges will set aside collateral knowledge and approach cases with ‘a neutral and objective disposition.‘” Dorsey, 701 N.W.2d at 248-49 (citing Liteky, 510 U.S. at 562). To defeat this presumption, the State would have to adduce evidence of favoritism or antagonism. The State has failed to do so. Therefore, we conclude that the judge‘s knowledge of disputed facts does not merit disqualification.
We hold that the State did not meet its burden to make an affirmative showing of cause for the trial judge‘s removal and that the court of appeals properly denied the extraordinary writ.
Affirmed.
GILDEA, J., took no part in the consideration or decision of this case.
ANDERSON, PAUL H., Justice (concurring).
I concur with the majority that an objective examination of the facts and circumstances of this case mandates a holding that the Chief Judge of the Hennepin County District Court did not err when she denied the state‘s motion to remove the trial judge because he lacked impartiаlity. Nevertheless, I write separately for two reasons. First, I disagree with comments the majority makes with respect to judge “shopping.” The majority implies that the state might be trying to use its motion to have the trial judge removed for cause as a way to find another judge who would rule more favorably on the issue of what expert gang testimony should be admitted. Second, I disagree with the majority‘s conclusions as to the status of the judge‘s pretrial rulings.
In response to the state‘s motion to remove the trial judge, Burrell asserted that the state‘s real reason for trying to remove the judge is not a genuine concern about the judge‘s impartiality, but is instead a desire to get a new judge assigned to the case who would issue more favorable rulings on what expert gang testimony should be allowed. In commenting on this argument, the majority concludes that “[i]n the context of the larger battle over expert gang testimony, it is conceivable that the State is seeking a judge who will rule more favorably as it seeks to challenge DeShay and Lopez-Rios.” DeShay and Lopez-Rios are recent opinions we issued on the admission of expert gang testimony in criminal trials. State v. DeShay, 669 N.W.2d 878 (Minn.2003); State v. Lopez-Rios, 669 N.W.2d 603 (Minn.2003).
I do not conclude that the state is judge “shopping” or that it filed its motion to remove the trial judge for cause for the purpose of getting a new judge who might rule more favorably on what expert gang testimony the state сould offer. The state asked the judge to remove himself for cause immediately after learning that Burrell was considering waiving his right to a jury trial. Here, it is important to maintain a focus on the sequence of events. The state made its motion to remove the judge in March 2007 based upon comments the judge allegedly made in January 2007. The record shows that in January there was no indication that Burrell was considering waiving his right to a jury trial. Therefore, this new fact that the judge was going to be the trier of fact was a significant change in the status of the case. Because of this change, it is understandable that the state would have heightened concerns about commеnts it believed the judge made in January about the strength of the state‘s case. Legitimate concern about whether the judge had already made up his mind about the case provides a proper basis to move to remove the judge because of impartiality. This concern, while not sufficient to warrant removal under the facts and circumstances of this particular case, has merit and the state‘s motion surely was not frivolous.
I am also aware of the particular circumstances of the party making this motion. Unlike a private litigant who may easily think that he will never again appear before a specific trial judge in a matter, оr even in Hennepin County District Court again, the state will have many more cases before this judge and his colleagues. The state appears on a daily basis before several judges in Hennepin County District Court. As a result, I believe that the state would be cautious in bringing a motion that, in essence, asserts that a particular judge will not be impartial, and that it would not bring such a motion lightly at this stage of a criminal proceeding as a means to disqualify a judge with whom it was merely unhappy. Therefore, I disagree with the majority‘s implication that the state‘s motion in this case is about judge shopping. I conclude that the reasons are more substantive and profound; аnd are based on legitimate concerns about obtaining a fair trial. Thus, while I agree that those concerns do not rise to a level that warrants removal of this judge, we should acknowledge that the state‘s reasons for bringing its motion are legitimate and should not be dismissed as merely judge shopping.
I also disagree with the majority‘s position with respect to the trial judge‘s pretrial rulings. In discussing the state‘s motives for bringing the motion to remove the judge, the majority notes that, “[e]ven if the State were successful in replacing him, * * * the current judge‘s pretrial rulings would stand unless the State could demonstrate ‘extraordinary circumstances.‘” Unlike the majority, I do not believe that the judge‘s prior rulings are binding on this judge or a new judge. These rulings regarding what a gang expert can base his or her opinion on and what specific expert gang testimony could be admitted in this case were made in October and November 2005. I conclude that a new judge, as well as the current judge, is free to reconsider the prior rulings relating to expert gang testimony because the law in this area is more fully developed since those rulings were made in late 2005. Further, I conclude that the judge‘s prior rulings were premature and based on an inadequate record.
Not counting our decision reversing Burrell‘s convictions, we addressed the ad-
In these cases, we cautioned against the use of gang-expert testimony in criminal cases. Blanche, 696 N.W.2d at 374; Lopez-Rios, 669 N.W.2d at 612. We said, “gang-expert testimony should be admitted only if it is helpful to the jury in making the specific factual determinations that jurors are required to make.” Blanche, 696 N.W.2d at 373. In Mahkuk, we said, “[t]o be admissible, gang expert testimony must add precision or depth to the jury‘s ability to reach conclusions about matters that are not within its experience.” 736 N.W.2d at 686 (internal quotation marks omitted). While we have not stated that a gang expert could not base his or her opinion оn hearsay, we have stated that “the state should not be permitted to launder inadmissible hearsay evidence, turning it into admissible evidence by the simple expedient of passing it through the conduit of purportedly ‘expert opinion.‘” DeShay, 669 N.W.2d at 886.
Our comments in DeShay about the impropriety of using an expert as a means to have inadmissible hearsay evidence admitted are consistent with the Minnesota Rules of Evidence regarding expert testimony generally. See
In some of our cases, we have concluded that the admission of gang-expert testimony was propеr, while in others we have held it was in error, albeit harmless error. For example, in Mahkuk we held that in a trial for first-degree premeditated murder and first-degree premeditated murder for the benefit of a gang, it was within the “permissible scope of gang expert testimony” for an expert to testify about the defendant‘s membership in a specific gang, the rivalry between the defendant‘s gang and another gang, and the specific reasons why the victims may have been targeted in this case. 736 N.W.2d at 686. On the other hand, in Blanche, a trial for first-degree murder, conspiring to commit first-degree murder, and crime committed for the benefit of a gang, we held that it was error to allow a gang expert to testify about the conduct of gang members in general, including that gang members retaliate against each other by shooting at each other, because we concluded that under the facts in Blanche, “there was a risk that the jury would improperly use this evidence to conclude that Blanche was the shooter simply because he is a member of a gang.” 696 N.W.2d at 374. We also said that it was error to allow a gang expert to testify that gang members in
We have issued several opinions in the area of gang-expert testimony that were not directly referenced in State v. Burrell when we instructed the district court, on remand, to determine what gang-expert testimony should be admitted. See 697 N.W.2d at 601-02. It does not appear that these more recent opinions were considered by the trial judge when he first made his evidentiary rulings on this issue. When our holdings in these newer cases and our earlier cases are properly considered, it becomes evident that whether gang-expert testimony is admissible in a particular case often depends on the trial record and the trial testimony of lay witnesses. For example, in Mahkuk, we noted that “[w]hen feasible,” it is best to prove the “for-the-benefit-of-a-gang element” through the testimony of lay witnesses who have firsthand knowledge of gang related issues. 736 N.W.2d at 686. In Blanche, we said that to be admissible, “the gang expert‘s testimony must have been helpful to the jury in making factual determinations” and that it was error to admit the testimony in that case, in part, because it was “largely duplicative” of testimony given by fact witnesses. 696 N.W.2d at 374; see also Lopez-Rios, 669 N.W.2d at 612. In DeShay, we noted that in order to be admissible, a gang-expert‘s testimony must be helpful to the jury, but that “[g]ang expert testimony in this noncomplex drug conspiracy, to the extent relevant, was largely duplicative, giving little assistance to the jury in evaluating the evidence.” 669 N.W.2d at 886.
In its opinion dismissing the trial judge‘s certified questions regarding the admissibility of gang-expert testimony, the court of appeals aptly noted that it could not answer several of the certified questions because the answers wеre largely “contingent upon testimony that may or may not be presented, or may be ruled inadmissible, at trial.” State v. Burrell, No. A06-149, 2006 WL 2807166, at *4 (Minn.App. Oct.3, 2006), rev. denied (Minn. Dec. 20, 2006). I agree. I conclude that it was premature for the trial judge to issue rulings on what, if any, expert testimony should be allowed in this case until there was a more developed trial record, and it became clear what lay witness testimony the state had actually presented on the homicide charge in general and the for-the-benefit-of-a-gang element in particular. I conclude that this need for a more fully developed record, combined with our additional case law on the issue of gang-expert testimony, case law which has developed since the time of the trial judge‘s initial rulings, unquestionably points to a conclusion that the trial judge not only may but must reevaluate his evidentiary rulings, and if necessary, change those rulings. To conclude otherwise would unduly elevate form over substance.
Notes
MR. FURNSTAHL: But, Judge, you made a statement to me, and here is where I want to be delicate, you made the statement to me that you thought the case should be dismissed.
THE COURT: I thought that there were sufficient concerns about the State‘s ability to pursue this case given where it now lies and given the impact on everybody * * * that you ought to consider whether it‘s appropriate to go forward or not. That‘s all I said. I didn‘t say * * * you should dismiss it. I said you ought to think about whether you ought to go forward or not. I think you still should think that. But that doesn‘t mean that if I hear the facts and they are different or one version is more believable than the other, which at this point I don‘t know because I haven‘t heard all those versions, that it‘s a different deal altogether.
MR. FURNSTAHL: With all due respect, I remember you telling me twice you thought the case should be dismissed. Maybe my memory isn‘t as clear as yours.
THE COURT: Well, I think you maybe—you may have heard something that I didn‘t in fact say.
MR. FURNSTAHL: Okay. But the fact that you have * * * been privy to disputed factual evidence and the fact that you‘ve made that comment, it causes me a great deal of concern as to—
THE COURT: Well, * * * let me tell you what my concern is here about this case that was the basis for that discussion, and that is * * * whether you should consider whether it‘s really in the interest of the State to have this be the test case on the gang issue. I don‘t * * * think that I‘m asking yоu or suggesting to you that you dismiss the case on the merits. I don‘t know whether you can prove the case or not on the merits, but I think you are running a substantial risk that we get one more go-round of appeals and maybe even one more go-round of reversals. Because if your colleagues were correct when we issued the certified questions, we really don‘t know what the rule is on gang testimony. And I don‘t think—and I suggest that you ought to think about at least to that extent whether this is the right case to do that in. And I still think that.
MR. FURNSTAHL: I recall the discussion about the dismissal was in the context of our ability to prove the case because of, for example, Tim Oliver is no longer alive and Dr. Bruggemeyer is no longer alive.
THE COURT: But you know, the Tim Oliver problem is also a gang testimony problem. I mean the problem with the Tim Oliver previous trial transcript testimony is really much more attributable to the for-the benefit-of-a-gang problem * * *.