Opinion
No. A03-1075.
October 13, 2005. OPINION WITHDRAWN
Appeal from the District Court, Hennepin County, Jack Nordby, J.
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, Minneapolis, MN, for Appellant.
Mike Hatch, Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
Heard, considered, and decided by the court en banc.
[EDITORS' NOTE: The opinion of the Supreme Court of Minnesota, in State v. Gomez, published in the advance sheet at this citation, 704 N.W.2d 499, was withdrawn from the bound volume because the time period within which a petition for rehearing may be filed was extended.]
OPINION
On April 24, 2001, appellant Charden Gomez was indicted for the March 17, 2001, murders of Abel and Esther Hillman in Minneapolis. After a jury trial in Hennepin County District Court, Gomez was found guilty of two counts of first-degree murder during the commission of a burglary, two counts of second-degree intentional murder, two counts of second-degree murder while committing a burglary of a dwelling, two counts of second-degree murder while committing a burglary with assault, two counts of second-degree murder during the commission of a burglary with a dangerous weapon, two counts of second-degree murder during the commission of an aggravated robbery involving bodily harm, and two counts of second-degree murder during the commission of an aggravated robbery using a dangerous weapon. The jury acquitted Gomez of two counts of first-degree premeditated murder. Gomez was sentenced to two consecutive life sentences for the two counts of first-degree murder during the commission of a burglary.
In this direct appeal, Gomez contends that his convictions must be reversed because the trial court: (1) improperly admitted other crimes evidence; (2) gave the jury a no-adverse-inference instruction with respect to his right not to testify without making a record of his consent to give the instruction; and (3) denied him the right to a fair trial when it overruled Batson challenges to the state's peremptory strikes of two non-Caucasian jurors and failed to sua sponte raise a Batson objection to the strike of another non-Caucasian juror. We affirm in part, reverse in part, and remand for a new trial.
At the time of their deaths, the Hillmans were both 89 years old, had been married to each other for 60 years, and had lived for the previous 52 years in the house where they were murdered. The Hillmans had one child, Larry Hillman. Larry had three children, only one of whom, Lori Williamson, lived in Minnesota. Williamson was a crack addict and a prostitute. The Hillmans would, from time to time, give money to Larry's children. Because of Williamson's crack addiction, they would occasionally give her small amounts of cash, buy her groceries and bus passes, or pay her rent, but they would not give her large sums of money.
Sometime in early 2001, Williamson met Gomez, who had recently been released from prison. At some point, Williamson introduced Gomez to her grandparents as her landlord and, on at least two occasions, Esther Hillman wrote checks collectively totaling $625 payable to Gomez for Williamson's rent. In fact, Gomez was not Williamson's landlord. Nonetheless, Gomez cashed the checks and gave the proceeds to Williamson, who used the money to purchase drugs.
On March 16, 2001, Williamson drove Esther Hillman to the bank, where she bought two certificates of deposit, one in the amount of $100,000 payable on death to her son Larry and the other in the amount of $25,000 payable on death to Williamson. After their trip to the bank, Williamson dropped Esther Hillman off at home, called several friends, and bragged about money she was going to be receiving from the Hillmans. When Williamson told her sister Lisa that the Hillmans were giving her a large sum of money in the form of a certificate of deposit, Lisa explained that the only way Williamson could collect the proceeds from the certificate of deposit was if the Hillmans died.
Lisa Hillman talked with Esther Hillman on the evening of Friday, March 16. The following morning, at approximately 6:34 a.m., a 911 call was placed from the Hillmans' home. When the operator answered the call, no one was on the line. Police officers, following up on the 911 call, went to the Hillmans' home. They found a newspaper lying on the sidewalk, the front door locked, all the lights off, and the shades pulled down. After ringing the doorbell and getting no answer, they left.
When Lisa was unable to reach the Hillmans on Sunday, March 18, she called her father and asked him to check on them. When he arrived at his parents' home, Larry Hillman found that a light in the bedroom window was on and the front door was unlocked. Upon entering, he discovered his parents' bodies. Autopsies revealed that Abel Hillman died of blunt force injuries to his head and that Esther Hillman had been stabbed more than 70 times, four of which could have been fatal in and of themselves.
After further investigation linked Gomez to the crime, he was arrested, charged, indicted for, and ultimately convicted of the Hillmans' murders.
I.
First, we consider whether the trial court improperly admitted evidence of previous crimes committed by Gomez. We review a trial court's decision to admit evidence of other crimes for an abuse of discretion. State v. Blom, 682 N.W.2d 578, 611 (Minn. 2004) (citing State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998)). Evidence of past crimes, frequently referred to as Spreigl evidence, is generally not admissible to prove the defendant's character for committing crimes, but can be admitted to show motive, intent, absence of mistake, identity, or a common scheme or plan. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). Spreigl evidence can be admitted only if:
(1) notice is given that the state intends to use the evidence; (2) the state clearly indicates what the evidence is being offered to prove; (3) the evidence is clear and convincing that the defendant participated in the other offense; (4) the Spreigl evidence is relevant and material to the state's case; and (5) the probative value of the Spreigl evidence is not outweighed by its potential for unfair prejudice.
Kennedy, 585 N.W.2d at 389. If it is unclear whether Spreigl evidence is admissible, the benefit of the doubt should be given to the defendant and the evidence should be excluded. Id.
To prove identity, the state successfully sought to admit evidence related to the following four crimes committed by Gomez:
(1) On August 12, 1989, at 4:55 p.m., Gomez forcibly entered into an elderly couple's home. He struck both, knocked one to the ground, demanded money, and fled with their purse and wallet.
(2) On August 12, 1989, at 9:30 p.m., Gomez forcibly entered into another elderly couple's home. He took the man's wallet and struck him in the face, causing him a minor cut.
(3) On August 13, 1989, at 1:05 a.m., Gomez broke into the home of a 74-year-old woman, shoved her off the bed, demanded money, and rummaged through her closet and cabinet.
(4) On August 13, 1989, at 2:30 a.m., Gomez broke into an elderly couple's home. When the elderly woman attempted to reach for the phone, he grabbed her and pushed her onto a bed. He fled with a wallet.
Gomez concedes that the first three factors to be considered when determining the admissibility of Spreigl evidence were met, but argues nonetheless that the evidence should not have been admitted. He argues that the Spreigl evidence is inadmissible because the state's case was not "weak." We have previously held that "[e]vidence of other crimes is admissible only if the trial court finds that the direct or circumstantial evidence of the defendant's identity is otherwise weak or inadequate, and that the evidence is necessary to support the state's burden of proof." State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967) (emphasis added). Here, the trial court found that the state's identity evidence was weak. Specifically, the trial court stated:
The State has a weak case here in terms of Spriegl [sic] as they've acknowledged in their memo. It's purely circumstantial. They've got a fingerprint with a little DNA from the defendant's car, they got a couple of well-impeached witnesses, and so forth. * * * The case is weak in that sense and the State has a need for this type of evidence * * * [It is] a circumstantial case where the handwriting is a positive identification I think essentially, but can be accounted for in a number of ways, like the DNA, like the fingerprint — all of those things are subject to alternate theories, obviously. What I meant is simply that.
Having reviewed the record, we are satisfied that the trial court's finding is not clearly erroneous.
Gomez also argues that the Spreigl evidence was not relevant because the charged offenses and the Spreigl offenses are dissimilar. Specifically, he asserts that the Hillman murders were not part of a crime spree, that stabbing the victims multiple times is not the same as hitting or shoving the victims, that he knew the Hillmans but not the previous victims, and that the time of the crimes varied. The state contends that the Spreigl evidence was relevant and material because of the similarities of the offenses.
Spreigl evidence is relevant and material when there is a sufficiently close relationship between the charged offense and the Spreigl offense in terms of time, place, or modus operandi. Kennedy, 585 N.W.2d at 390. "[T]he closer the relationship, the greater is the relevance * * *." State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992). Spreigl evidence need not be identical in every way to the charged crime. Kennedy, 585 N.W.2d at 391. Here, while the charged offenses and the Spreigl offenses are not identical, their relationship is sufficiently close in terms of time and modus operandi. Although there is an 11-year gap between the charged offenses and Spreigl offenses, Gomez was incarcerated for the Spreigl offenses until approximately six months before the charged offenses. As we noted in State v. Wermerskirchen, 497 N.W.2d 235, 242 n. 3 (Minn. 1993), the passage of time may be insignificant when the defendant has spent a substantial part of the time between the offenses in prison. Obviously, that is the case here. Thus, the gap in time between the offenses does not weigh against the Spreigl offenses' relevance and materiality. We also conclude that there is sufficient similarity between the charged offenses and the Spreigl offenses. In three of the Spreigl offenses, elderly couples were burglarized or robbed in their homes. In the fourth case, a 74-year-old woman was burglarized in her home. The similarities between the Spreigl offenses and the charged offenses are striking. In each case, the victims were elderly, the victims were physically assaulted in their homes, and the victims' wallets or purses were taken or money was demanded. Therefore, we conclude that the Spreigl evidence was sufficiently relevant and material.
Gomez further argues that the evidence related to his 1989 offenses should have been excluded because its probative value is substantially outweighed by the danger of unfair prejudice. In State v. Bolte, we stated:
In determining admissibility, the trial court should engage in a balancing of factors such as the relevance or probative value of the evidence, the need for the evidence, and the danger that the evidence will be used by the jury for an improper purpose, or that the evidence will create unfair prejudice pursuant to Minn. R. Evid. 403.
530 N.W.2d 191, 197 (Minn. 1995) (emphasis added). We further explained:
"[P]rejudice" does not mean the damage to the opponent's case that results from the legitimate probative force of the evidence, rather it refers to the unfair advantage that results from the capacity of the evidence to persuade by illegitimate means.
Id. at 197 n. 3 (citation omitted).
Gomez claims that the trial court concluded that the Spreigl evidence was unfairly prejudicial but admitted the evidence anyway. However, the transcript reflects that the court recognized the prejudicial nature of the Spreigl evidence and carefully weighed it against the probative value of the evidence. The court decided that the correct application of the law was to admit the evidence of Gomez's other crimes. In doing so, the trial court stated:
I'll state for the record that * * * there is very little doubt in my mind that this evidence is going to be highly prejudicial and it ought not be received, but the state of the law in Minnesota I think is such that it would be received in most trials, and I've looked at the cases carefully and commentaries on the cases, so what I say is, I say it should not be received is a broader statement in policy, but I say it for the record, were I working on a clean slate here, I would not use it as evidence. It is virtually inconceivable to me that the jury won't, to some extent, conclude that Mr. Gomez has a propensity to rob old people and beat them up, which of course is exactly the reason this evidence is excluded under Rule 404, and it doesn't fit any of the standard exceptions to Rule 404, but it does hit these cases that talk about modus operandi and signature crimes, and so forth.
* * * The courts have repeatedly held, and the State cited in its memo a couple of cases that are relatively similar to the present case, homicide cases where earlier incidents were received, and I don't believe that I can exclude them without simply ignoring these cases, and I don't think it's within my authority to do that, as much as I do disapprove of it. * * *
* * * *
* * * I've looked at [the Spreigl evidence] with some care, trying to control the prejudice as best I can. What I propose to do without dictating the precise terms of it, counsel, is to allow you to elicit the fact * * *.
* * * *
I don't want * * * those crimes to overwhelm this case, as they have a chance of doing. I've gone through the usual Spriegl [sic] analysis. Most of the factors are not even clear and convincing, of course, as established by the guilty plea. The similarity is sufficient, of course, and that's why I'm letting them in * * * they're close enough to satisfy any Spriegl [sic] analysis.
The remoteness is satisfied by the fact he was incarcerated.
* * * *
* * * I've given a great deal of thought, and that is where I stand on these issues now. I'll instruct the jury as to the use of this evidence as best I can.
In admitting the evidence, the trial court, after consulting with the state and Gomez's counsel, gave a proper limiting instruction to the jury as to the use of the other crimes evidence both at the time the evidence was admitted and as part of the final instructions before jury deliberations.
Although the trial court expressed its personal view that as a matter of policy Spreigl evidence of the type admitted here should not be admissible, the trial court correctly ruled that the probative value of the evidence at issue outweighed the potential prejudice. The trial court appropriately instructed the jury to limit the use of such evidence.
In that we have concluded that the evidence of Gomez's past crimes was relevant and material and that the probative value of the evidence outweighed its potential for unfair prejudice, we therefore conclude that the trial court did not abuse its discretion when it admitted the other crimes evidence.
II.
We now turn to Gomez's contention that the trial court committed reversible error when it instructed the jury on Gomez's right not to testify without obtaining his consent to give the instruction on the record. Gomez contends that the questionable credibility of two key witnesses made his case a "close factual case" and that the instruction, coupled with the Spreigl evidence, "had to have some impact on the verdicts rendered by the jury." We disagree.
A defendant in a criminal trial has the right to testify, but failure to testify shall not create any presumption against the defendant. Minn.Stat. § 611.11 (2004). If the defendant chooses not to testify, the trial court may instruct the jury not to draw any adverse inference from the fact that the defendant has not testified only if the defendant requests the court to do so. 10 Minn. Dist. Judges Ass'n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.17 (4th ed. 1999 Supp. 2003-04); McCollum v. State, 640 N.W.2d 610, 616 (Minn. 2002). If the defendant requests the instruction, the court or the defendant's counsel must make a record of "the defendant's clear consent and insistence that the instruction be given." McCollum, 640 N.W.2d at 617. No party may assign as error any portion of the change or omission from the instructions given unless the party objects to the instructions before the jury retires to consider its verdict. Minn. R.Crim. P. 26.03, subd. 18(3). If no objection is made to the trial court giving the no-adverse-inference instruction, review is for plain error. State v. Darris, 648 N.W.2d 232, 240 (Minn. 2002). For there to be plain error: (1) there must have been error; (2) the error was plain; and (3) the error must have affected the party's substantial rights. Id.
We have stated that the third prong is satisfied if the error was prejudicial and affected the outcome of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). An error in instructing the jury is prejudicial if there is a reasonable likelihood that giving the instruction in question had a significant effect on the jury verdict. Id. We have held that a defendant who fails to object to the no-adverse-inference instruction bears a heavy burden of showing that substantial rights have been affected. Darris, 648 N.W.2d at 240 (citation omitted). Giving the no-adverse-inference instruction without consent, absent a showing of prejudice, is harmless. See id. If these three prongs are met, the reviewing court then assesses whether it should address the error to ensure the fairness and integrity of the judicial proceedings. Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)).
Gomez did not testify at his trial. Because he did not testify, a question arose as to whether the jury was to be instructed that no adverse inference was to be made based on Gomez's failure to testify. In resolving that question, the following discussion took place:
[DEFENSE COUNSEL]: Judge, do we need to put on the record — my client didn't testify. That's his choice —
THE COURT: Yes.
[DEFENSE COUNSEL]: Do we do that at this time or —
THE COURT: Yes. * * * Also you tell me whether you want an instruction on that.
[DEFENSE COUNSEL]: Judge, if I can think about that overnight I know we'll be able to give you an answer tomorrow.
THE COURT: I can't give the instruction — or at least I won't —
[DEFENSE COUNSEL]: Right.
THE COURT: — without your specific request.
[DEFENSE COUNSEL]: My inclination is not to have you give it, but I would like to just sort of ponder it over the evening.
THE COURT: Yes. It won't be given unless it comes from the defense request.
In the end, a no-adverse-inference instruction was given to the jury without objection, but the record does not indicate that Gomez consented to the instruction. The record does indicate that Gomez's counsel had the opportunity to review the preliminary instructions and seek changes before the instructions were finalized. No changes to the no-adverse-inference instruction were sought nor was any objection made to that instruction. In addition, after the instructions were given to the jury, Gomez's counsel answered "No" when asked by the trial court whether there were "any objections, additions or anything on the instructions." Finally, before the jury returned its verdict, the court asked whether either of the parties would like to put anything on the record. Gomez's counsel also answered "No" to that question.
Here, the trial court gave the no-adverse-inference instruction without placing Gomez's consent to the instruction on the record and Gomez did not make any objection. Thus, our review is for plain error. Because the record does not contain Gomez's consent to the giving of the no-adverse-inference instruction, we conclude that giving the instruction was error and that the error was plain. See Darris, 648 N.W.2d at 240. The first and second prongs of the plain error test are satisfied.
In this case, the primary issue at trial was the identity of the killer. While there was no direct evidence, the state presented circumstantial evidence, including a partial DNA profile, fingerprint identification, handwriting analysis, wiretapped conversation, similar crimes committed by Gomez, and testimony of other witnesses. We have concluded above that evidence of Gomez's prior crimes was relevant to prove identity and the probative value of the evidence is not outweighed by its potential for unfair prejudice. Moreover, the record shows that the state's key witnesses, including Lori Williamson, were subject to extensive cross-examination. The credibility of these witnesses is for the jury to decide. Given the totality of the evidence, it seems unlikely that the jury would have reached a different verdict. We conclude both that Gomez has failed to show that the error was prejudicial and that he has failed to meet his heavy burden of showing that there "is a reasonable likelihood that the giving of the instruction would have had a significant effect on the jury's verdict." Darris, 648 N.W.2d at 240.
Because the third prong of the plain-error test is not satisfied, we need not consider the effect of the error on the fairness and integrity of the trial. We note, however, that the trial court stated, on the record, its intent not to give the instruction without Gomez's consent and that the defense counsel had the opportunity to review the instruction and seek changes to it but did not. Thus, although we need not decide this issue, the record suggests that Gomez acquiesced in the instruction being given.
In summary, because the error in giving the instruction did not significantly affect the jury's verdict, we conclude that Gomez is not entitled to a new trial based on that error.
III.
Finally, we address Gomez's contention that the state's peremptory strikes of three non-Caucasian venirepersons deprived him of a fair trial. Specifically, Gomez challenges the state's peremptory strikes of venirepersons 9, 12, and 21. Purposeful racial discrimination in jury selection is prohibited by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). That prohibition is intended to protect the rights of individual citizens not to be excluded from jury service as well as the rights of the criminally accused. See Powers v. Ohio, 499 U.S. 400, 406, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). Courts have an affirmative duty to enforce the strong statutory and constitutional policies embodied in the prohibition on discrimination in the selection of jurors. Id. at 416, 111 S.Ct. 1364. That duty includes the obligation to act and to act sua sponte when necessary to prevent discrimination. Thus, when it comes to protecting the rights of the venireperson, the court is a direct and indispensable participant in the process.
Trial courts are required to follow a three-step analysis in evaluating a Batson objection to a peremptory challenge: (1) a defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race, (2) the burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question, and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); see also Minn. R.Crim. P. 26.02, subd. 6a(3). Because the existence of racial discrimination in the exercise of a peremptory challenge is a factual determination, we generally give deference to the trial court's rulings on Batson objections unless they are clearly erroneous. State v. Reiners, 664 N.W.2d 826, 830-31 (Minn. 2003).
Gomez contends that the trial court erred when it denied his Batson objection to the state's strike of venireperson 21. Based on the parties' discussion of the Batson issue during voir dire, we assume that venireperson 21 is a person of color, although her race is not on the record. During voir dire, it was revealed that venireperson 21's father had been tried and convicted of sexually abusing venireperson 21's half-sister about 15 years earlier when venireperson 21 was a young child. Venireperson 21 testified at her father's trial and felt "a little intimidated." Upon his release from prison, venireperson 21's father returned home to live with his family. Venireperson 21 thought her father was wrongfully convicted, but she did not recall any bias against her father at the trial. After the defense accepted venireperson 21 and before the state had the opportunity to examine her, the trial court excused venireperson 21 from the room indicating that she should take her belongings with her because she might not be coming back. After venireperson 21 left the room, the court, on its own initiative, asked defense counsel, "If the State exercises or offers to challenge, are you going to contend it's racially motivated?" The following discussion then ensued:
[DEFENSE COUNSEL]: Yes, for the record, judge.
THE COURT: On what basis?
[DEFENSE COUNSEL]: On the basis that as I understand the concern that the State has is that she, this woman believes that her father was unjustly convicted. That goes to the same issue of, does the court system always work and we've had several other jurors who have said that is it not perfect but it works okay sometimes. She has said she can be a fair juror, she has said that there will not be a connection to this case and her father's case.
THE COURT: Except she, it's not quite the same, it doesn't always work when it's your father and you were a witness.
[DEFENSE COUNSEL]: I understand that, but this is a position that I have judged, that I believe that her answers were not any due cause and were not different from other jurors and as such I believe that the basis to work [sic] has described her because she is a black woman.
THE COURT: All right, [Prosecutor's Name] the challenge is?
[PROSECUTOR]: The challenge, Your Honor, is well, the obvious reason that this young woman had a tragic circumstance occur in her life at a very young age, and as she has described for us, came into court and testified for the defense on behalf of her father. Her father was nevertheless convicted and she also described for us how her father, or her family, went to some length it sounds like to me to look at the evidence and still convinced that the evidence certainly didn't justify having her father in prison, and then once he came out of prison, the father came back to live in the household with she, [sic] and a younger sister.
THE COURT: I wasn't sure the victim or the complainant in that case was her sister?
[DEFENSE COUNSEL]: Her half-sister.
[PROSECUTOR]: And I'm not sure of half how either, I don't think it matters, but obviously our concern is the obvious one. I don't know that I need to state anymore for the record. It's just a situation that is untenable.
THE COURT: Well, it's a complex situation and I read it similar to the situation we had yesterday. I probably would deny a challenge for cause if she continued to say she could be fair. She's a credible person. She's not, I don't think she's trying to get out of this jury, but I agree with the State that if the grace of the jury is left out of it, it would be bordering on ineffective representation not to challenge her because of that. So I'll excuse her, it's not a — it's clear to me there is a valid and mutual reason. Bring her back in Pat.
You don't even have to come way back up here, I'll just tell you I've discussed it with the lawyers and I've decided I'll excuse you from this jury. Doesn't mean you're not qualified to be a juror here, you are or you wouldn't have got to this room, but as you probably know we have to turn fifty jurors into about fourteen and so we do it one at a time like this and we've just decided to excuse you from this jury. So check back in — probably tomorrow morning down at the jury office.
While the parties have framed their arguments with respect to venireperson 21 around the trial court's application of Batson, we are most troubled by the court's handling of venireperson 21 before the state exercised a peremptory strike of venireperson 21. A trial court's obligation to act to prevent discrimination, that is, to question a party's exclusion of a venireperson who is a person of color does not include a trial court on its own, initiating a peremptory strike of a venireperson. Nor is it permissible for a trial court to elicit a party's reaction to a possible strike before the strike has been made. Our rules of criminal procedure clearly put the exercise of a peremptory strike in the hands of the party seeking to exclude the venireperson. See Minn. R.Crim. P. 26.02, subd. 4(3)(b)4, 5 (allowing the defendant or the state to exercise a peremptory challenge after completing examination of a venireperson); see id. at subd. 6 (stating that "if the offense is punishable by life imprisonment the defendant shall be entitled to 15 and the state to 9 peremptory challenges"). By exercising a peremptory strike, the party "invokes the formal authority of the court" and invites the "direct and indispensable participation of the judge," who has the obligation to oversee the enforcement of the peremptory strike, including raising a Batson objection sua sponte when necessary. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 624, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); Minn. R.Crim. P. 26.02, subd. 6a(2).
We should note that our concern is not whether the trial court could have sua sponte stepped in to strike venireperson 21 for cause. That issue simply is not before us. As the trial court noted, "I probably would deny a challenge for cause if she continued to say she could be fair."
Given the trial court's actions here, there was no opportunity for either party to invoke the formal authority of the court. While a trial court may anticipate a peremptory strike by a party, anticipating one is quite different from initiating one. Here, the trial court sua sponte initiated the peremptory strike, rather than a Batson objection to a party's peremptory strike. This occurred even before the state had an opportunity to examine the venireperson and before any discrimination could possibly have occurred with respect to venireperson 21. Thus, the trial court could not have been intervening to prevent discrimination from occurring. It is important to note that there is no suggestion in this record that counsel for Gomez and the state were unwilling, unable, or unprepared to litigate any Batson issues related to venireperson 21 or that judicial intervention was necessary to protect venireperson 21 or the community from discrimination. In that neither our rules nor case law authorize a trial court to initiate a peremptory strike to exclude a venireperson on behalf of a party, we conclude that the trial court committed serious error. We have said, "Since the judge's duties are of a judicial nature, he should not act as counsel for a party by raising objections which the party should make." Hansen v. St. Paul City Ry. Co., 231 Minn. 354, 360, 43 N.W.2d 260, 264 (1950). "To assume a partisan position `is to desert the high position to which the judge is elevated, and assume the role of the advocate.'" Id. at 360, 43 N.W.2d at 264 (citation omitted). Therefore, by initiating a peremptory strike and by eliciting the defense's reaction to a possible strike before the state actually exercised the peremptory strike, the court improperly invaded the province of the parties.
These facts make this case distinguishable from the cases relied on by the dissent. See, e.g., Powers v. Ohio, 499 U.S. 400, 403, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (explaining that the state used ten peremptory strikes, seven of which removed black venirepersons from the jury and the defendant objected to each one); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (stating that defendant used two of three peremptory challenges to remove black venirepersons from the jury); Georgia v. McCollum, 505 U.S. 42, 44-45, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (stating that the prosecutor moved the court to prohibit defendants from exercising peremptory challenges in a racially discriminatory manner); J.E.B. v. Alabama, 511 U.S. 127, 129, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (explaining that the state used nine of ten peremptory strikes to remove male venirepersons in a case involving paternity and child support); Lemley v. State, 599 So.2d 64, 67 (Ala.Crim.App. 1992) (holding that the trial judge was authorized to conduct a Batson hearing in the absence of an objection by the state after the defense used seven of ten peremptory challenges to remove black persons from the venire in a case involving a white defendant and a black victim).
While the facts of this case involve the exclusion of a person of color, our conclusion is equally applicable to a trial court stepping in to peremptorily exclude any venireperson.
It was also improper for the trial court to offer its own reasons justifying the strike before the state articulated its reasons. Doing so is particularly problematic when it occurs before a party has examined or exercised a strike of the venireperson because it interferes with the party's ability to develop, by way of examination, a basis for accepting or striking the venireperson. It also makes it impossible to determine whether the reasons articulated by the party in support of the strike are a mere adoption of the trial court's reasons. Thus, the trial court is deprived of the opportunity to determine the party's real reasons for the strike. See Johnson v. California, ___ U.S. ___, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005).
In Johnson, the Supreme Court stated that "[t]he Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process." Id. at 2418 (emphasis added). In that case, the prosecutor used peremptory strikes to remove all three prospective black jurors. Id. at 2414. When the defense objected to the second and third strikes, the trial court did not seek explanation from the prosecutor, but instead gave his own explanation that the strikes could be justified by race-neutral reasons. Id. at 2419. The Court concluded that the disagreement among state-court judges on review of the record of the case "illustrate[ed] the imprecision of relying on judicial speculation to resolve plausible claims of discrimination." Id. In this case, because the trial court initiated the peremptory strike and gave its reasons before the state had an opportunity to do so, we are left with judicial speculation, rather than the actions of the parties, to resolve Gomez's claim of discrimination. This does not serve the purpose of eliminating racial bias from our jury system. Therefore, based on the record before us, we conclude that the trial court erred when it invaded the province of the parties by initiating the strike of venireperson 21, eliciting defense counsel's response, and then giving reasons justifying the strike before the state had the opportunity to examine venireperson 21 and before the state actually struck venireperson 21.
The Court held that in establishing a prima facie case under Batson the objector was not required to show that the proponent of the peremptory strike was "more likely than not" driven by racial discriminatory intent, and that the inferences of discrimination in the case were sufficient to establish a prima facie case of racial discrimination in jury selection. Johnson, 125 S.Ct. at 2417.
We are not unmindful of the irony in the dissent's use of the trial court's obligation to prevent discrimination to support the trial court's sua sponte exclusion of the venireperson of color.
A review of the record before us strongly suggests that, if properly made, a peremptory strike by the state would have withstood a Batson challenge not only at trial but on appeal. But we neither can undo the procedural errors below nor excise them from the whole of the trial. We have said that "if the members of a petit jury are selected on improper criteria * * *, the error has undermined the basic `structural integrity of the criminal tribunal itself, and is not amenable to harmless error review.'" Reiners, 664 N.W.2d at 835 (citing State v. Logan, 535 N.W.2d 320, 324 (Minn. 1995) (quoting Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986))). Although this case only indirectly involves the selection of jurors based on improper criteria, it does involve the exclusion of a prospective juror based on serious procedural errors by the trial court. These procedural errors also undermine the basic "structural integrity of the criminal tribunal itself and [are] not amenable to harmless error review." Moreover, they erode the public's trust and confidence in our judicial system. Therefore, we reverse Gomez's conviction and remand for a new trial.
Having concluded that the trial court erroneously initiated the exclusion of venireperson 21, we need not address in detail Gomez's challenges to the state's peremptory strikes of venirepersons 9 and 12. We do, however, feel compelled to make two observations. With respect to venireperson number 9, we reiterate that under Minn. R.Crim. P. 26.02, subd. 6a(2), a Batson objection must be raised in a timely manner and, absent fraud or collusion, an objection to a jury panel made subsequent to its verdict is untimely. See State v. Arradondo, 260 Minn. 512, 518, 110 N.W.2d 469, 473 (1961). With respect to venireperson 12, in order to reinforce what we said in Reiners, we say again that a trial court has a duty under the third prong of the Batson test to "state fully its factual findings, including any credibility determinations" for its determination of whether there has been purposeful discrimination by the party exercising the peremptory strike. Reiners, 664 N.W.2d at 832.
Reversed and remanded for a new trial.
ANDERSON, G. BARRY, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
DISSENT
I respectfully dissent. The majority reverses and remands for a new trial on the ground that the trial court invaded the province of the parties when venireperson 21 was struck. The majority then concludes that when the court struck the venireperson, it committed a structural error that undermined the integrity of the court. I disagree. When the majority concludes that the court acted as an advocate, it ignores a basic principle that underlies a Batson challenge — when it comes to protecting the rights of the venireperson, the court is a direct and indispensable participant. Moreover, I conclude that the majority's analysis of what the court actually did is flawed. Therefore, I would affirm the conviction.
I begin by noting my agreement with the majority's conclusion that it can be inferred from the trial court's questions following defense counsel's acceptance of venireperson 21 that the venireperson was a member of a protected racial group. Thus, I, like the majority, am satisfied that the circumstances of this case raise an inference of a race-based challenge subject to a Batson analysis. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Having established the first step of a Batson analysis, I will next supplement the majority opinion by reviewing certain relevant facts.
Supplemental Facts
Defense counsel began the voir dire of venireperson 21. After responding to some preliminary questions, the venireperson revealed that during the period of time when she was between seven and ten years old, her father was accused of sexually abusing her half-sister. Her father was charged with sexual abuse, tried, found guilty, and served approximately one and one-half years in Stillwater Prison. The venireperson stated that she testified as a defense witness at her father's trial. She went on to say that she thought the outcome of her father's trial was wrong and she did not believe that there was enough evidence to convict her father. But she stated that she does not have any feelings about the court system and cannot remember any biases or anything that was done wrong at the trial.
Venireperson 21 said that she was considering getting a master's degree in Criminal Justice, wanted to become a lawyer, and wanted to sit as a juror because it would be interesting, saying that "Since I'm older, I can more understand how it works." She said her mother worked in Hennepin County Family Court. Also, her mother's cousin was murdered by her own son who was tried and convicted for the murder. The venireperson said she was not close to the murder victim and had met the victim's son only once five years earlier. After some further questioning, defense counsel accepted venireperson 21 as a juror.
The state did not have an opportunity to question venireperson 21 because the trial court intervened by first asking the venireperson to step outside the courtroom and then engaging in a dialogue with counsel. The content and nature of this dialogue is so important to the resolution of this case that I will repeat it, beginning with defense counsel's acceptance of venireperson 21 as a juror and the court's initial comments about the likelihood of a racially-motivated challenge.
[DEFENSE COUNSEL]: You pass, we accept this juror. Thank you.
THE COURT: Could you ah, I am going to talk to the lawyers about some technical stuff here for a minute. Would you just step in the hallway, just wait outside. You can take your things because we may or may not have you come back to this chair, but don't leave the courthouse just wait outside the door there if you would. [Defense Counsel's Name], if the State exercises or offers the challenge, are you going to contend it's racially motivated?
[DEFENSE COUNSEL]: Yes, for the record, judge.
THE COURT: On what basis?
[DEFENSE COUNSEL]: On the basis that as I understand the concern that the State has is that she, this woman believes that her father was unjustly convicted. That goes to the same issue of, does the court system always work and we've had several other jurors who have said that is it not perfect but it works okay sometimes. She has said she can be a fair juror, she has said that there will not be a connection to this case and her father's case.
THE COURT: Except she, it's not quite the same, it doesn't always work when it's your father and you were a witness.
[DEFENSE COUNSEL]: I understand that, but this is a position that I have judged, that I believe that her answers were not any due cause and were not different from other jurors and as such I believe that the basis to work has described her because she is a black woman.
THE COURT: All right, [Prosecutor's Name] the challenge is?
[PROSECUTOR]: The challenge, Your Honor, is well, the obvious reason that this young woman had a tragic circumstance occur in her life at a very young age, and as she has described for us, came into court and testified for the defense on behalf of her father. Her father was nevertheless convicted and she also described for us how her father, or her family, went to some length it sounds like to me to look at the evidence and still convinced that the evidence certainly didn't justify having her father in prison, and then once he came out of prison, the father came back to live in the household with she [sic] and a younger sister.
THE COURT: I wasn't sure the victim or the complainant in that case was her sister?
[DEFENSE COUNSEL]: Her half-sister.
[PROSECUTOR]: And I'm not sure of half how either, I don't think it matters, but obviously our concern is the obvious one. I don't know that I need to state anymore for the record. It's just a situation that is untenable.
THE COURT: Well, it's a complex situation and I read it similar to the situation we had yesterday. I probably would deny a challenge for cause if she continued to say she could be fair. She's a credible person. She's not, I don't think she's trying to get out of this jury, but I agree with the State that if the grace of the jury is left out of it, it would be bordering on ineffective representation not to challenge her because of that. So I'll excuse her, it's not a — it's clear to me there is a valid and mutual reason. Bring her back in Pat.
You don't even have to come way back up here, I'll just tell you I've discussed it with the lawyers and I've decided I'll excuse you from this jury. Doesn't mean you're not qualified to be a juror here, you are or you wouldn't have got to this room, but as you probably know we have to turn fifty jurors into about fourteen and so we do it one at a time like this and we've just decided to excuse you from this jury. So check back in — probably tomorrow morning down at the jury office.
(Emphasis added.)
The Trial Judge As Advocate
The majority asserts that the actions of the trial court "improperly invaded the province of the parties." The majority then concludes that this action constituted a structural error that is not subject to harmless error analysis. To fully understand my concerns and discomfort with the majority's analysis, certain fundamental precepts and principles that underlie Batson must be revisited.
A. Elimination of Discrimination
Batson and its progeny were decided for a very specific purpose — to eliminate improper discrimination from the jury selection process. In Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), the United States Supreme Court stated that:
Active discrimination * * * during [the jury selection] process condones violations of the United States Constitution within the very institution entrusted with its enforcement, and so invites cynicism respecting the jury's neutrality and its obligation to adhere to the law. The cynicism may be aggravated if race is implicated in the trial * * * as with an alleged racial motivation of the defendant or a victim.
Id. at 412, 111 S.Ct. 1364. The Court went on to observe that "[t]he overt wrong [of excluding a juror based on race] * * * casts doubt over the obligation of the parties, the jury, and indeed the court, to adhere to the law throughout the trial of the cause." Id. (Emphasis added.)
The Supreme Court has applied this fundamental principle of eliminating discrimination not only to the state, but also to criminal defendants, Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); civil litigants, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991); and discrimination based on gender, J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).
B. Whose Rights Are Protected?
The Supreme Court has held that the Equal Protection Clause as implicated by Batson safeguards not only the rights of the criminally accused, but the right of individual jurors not to be excluded from jury service based on race and the right of society as a whole to rely on the integrity of the judicial system. The Court said in Powers that:
In Batson, we spoke of the harm caused when a defendant is tried by a tribunal from which members of his own race have been excluded. But we did not limit our discussion in Batson to that one aspect of the harm caused by the violation. Batson "was designed `to serve multiple ends,'" only one of which was to protect individual defendants from discrimination in the selection of jurors. Allen v. Hardy, 478 U.S. 255, 259, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) ( per curiam) (quoting Brown v. Louisiana, 447 U.S. 323, 329, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980)). Batson recognized that a prosecutor's discriminatory use of peremptory challenges harms the excluded jurors and the community at large. 476 U.S. at 87, 106 S.Ct. 1712.
Powers, 499 U.S. at 406, 111 S.Ct. 1364 (emphasis added). The Court reiterated this point in Edmonson when it said:
While the * * * decisions [culminating in Batson] were for the most part directed at discrimination by a prosecutor or other government officials in the context of criminal proceedings, we have not intimated that race discrimination is permissible in civil proceedings. Indeed, discrimination on the basis of race in selecting a jury in a civil proceeding harms the excluded juror no less than discrimination in a criminal trial. In either case, race is the sole reason for denying the excluded venireperson the honor and privilege of participating in our system of justice.
Edmonson, 500 U.S. at 618-19, 111 S.Ct. 2077 (citations omitted) (emphasis added).
If peremptory challenges based on race were permitted, persons could be required by summons to be put at risk of open and public discrimination as a condition of their participation in the justice system.
Id. at 628, 111 S.Ct. 2077.
The quiet rationality of the courtroom makes it an appropriate place to confront race-based fears or hostility by means other than the use of offensive stereotypes. Whether the race generality employed by litigants to challenge a potential juror derives from open hostility or from some hidden and unarticulated fear, neither motive entitles the litigant to cause injury to the excused juror.
Id. at 631, 111 S.Ct. 2077 (emphasis added). Thus, it is clear that it is not only the criminal defendant who is protected from discrimination during the jury selection process — it is also the venireperson and the community at large.
The Supreme Court recently reaffirmed its position on whose rights are being protected by Batson. In Johnson v. California, the Court said:
The constitutional interests Batson sought to vindicate are not limited to the rights possessed by the defendant on trial, see 476 U.S., at 87, 106 S.Ct. 1712, 90 L.Ed.2d 69, nor to those citizens who desire to participate "in the administration of the law, as jurors," Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880). Undoubtedly, the overriding interest in eradicating discrimination from our civic institutions suffers whenever an individual is excluded from making a significant contribution to governance on account of his race. Yet the "harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice." Batson, 476 U.S., at 87, 106 S.Ct. 1712, 90 L.Ed.2d 69; see also Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84 (1940) ("For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but it is at war with our basic concepts of a democratic society and a representative government" (footnote omitted)).
Johnson v. California, ___ U.S. ___, 125 S.Ct. 2410, 2418, 162 L.Ed.2d 129 (2005).
C. The Role of the Court
Under our advocacy-based system, part of the duty to protect the rights of the venireperson and the community at large falls to the prosecutor and defense counsel, both of whom are officers of the court. But there is another actor on the scene who has an obligation to see that discrimination does not occur. This is the trial court. The Supreme Court explained the underlying basis for the trial court's obligation in Powers when the Court said:
The Fourteenth Amendment's mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. We have held, for example, that prosecutorial discretion cannot be exercised on the basis of race, and that, where racial bias is likely to influence a jury, an inquiry must be made into such bias. The statutory prohibition on discrimination in the selection of jurors, 18 U.S.C. § 243, enacted pursuant to the Fourteenth Amendment's Enabling Clause, makes race neutrality in jury selection a visible, and inevitable, measure of the judicial system's own commitment to the commands of the Constitution. The courts are under an affirmative duty to enforce the strong statutory and constitutional policies embodied in that prohibition.
499 U.S. at 415-16, 111 S.Ct. 1364 (citations omitted) (emphasis added). Later that same term, the Court in Edmonson again highlighted this obligation when it specifically said that the trial court is a direct and indispensable participant in preventing discrimination during jury selection. The Court said:
Without the direct and indispensable participation of the judge, who beyond all question is a state actor, the peremptory challenge system would serve no purpose. By enforcing a discriminatory peremptory challenge, the court "has not only made itself a party to the [biased act], but has elected to place its power, property, and prestige behind the [alleged] discrimination." In so doing, the government has "create[d] the legal framework governing the [challenged] conduct," and in a significant way has involved itself with invidious discrimination.
Edmonson, 500 U.S. at 624, 111 S.Ct. 2077 (brackets in original) (citations omitted).
The next year, in Lemley v. State, the Alabama Court of Criminal Appeals followed Powers and Edmonson when it emphasized the important role of the trial court in preventing discrimination during jury selection. The Alabama court said:
[A] trial judge is authorized to conduct a Batson hearing, even in the absence of an objection by the State to defense counsel's exercise of his peremptory strikes. "[B]ecause racial discrimination in the selection of jurors `casts doubt on the integrity of the judicial process,' Rose v. Mitchell, 443 U.S. 545, 556, 99 S.Ct. 2993, 3000, 61 L.Ed.2d 739 (1979), and places the fairness of a criminal proceeding in doubt," Powers v. Ohio, 499 U.S. at 411, 111 S.Ct. at 1371, the trial judge, as the presiding officer of the court, should take the necessary steps to ensure that discrimination will not mar the proceedings in his courtroom.
Lemley v. State, 599 So.2d 64, 69-70 (Ala.Cr.App. 1992). The Alabama court also said why the trial court can and, in fact, should act sua sponte to prevent discrimination, even if it does so without waiting for counsel to make a Batson objection. A court should not permit itself to become involved in "invidious discrimination." The Alabama court said:
[t]he notion that by allowing racial discrimination to occur, the trial judge actually becomes a part of that discrimination is applicable to the trial judge who, in a case with racial overtones, recognizes a racial pattern to counsel's peremptory strikes, yet takes no steps to inquire into counsel's motivation. By closing his eyes to the possible discrimination, the judge "in a significant way has involved [him]self with invidious discrimination."
Lemley, 599 So.2d at 70 (quoting Edmonson, 500 U.S. at 624, 111 S.Ct. 2077). I agree with the conclusion articulated by the Alabama court. Moreover, based on the decisions of the Supreme Court, there can be no doubt that when racial discrimination is evident during the jury selection process, a court has an obligation to act and to act sua sponte when necessary to prevent discrimination.
In light of the foregoing precepts and principles, I conclude that the majority's analysis leading to its conclusion that the trial court was an advocate is flawed because it fails to fully recognize the role the court plays as a legitimate actor when the concerns articulated in Batson and its progeny are implicated as a result of the racial overtones of a particular case. See Minn. R.Crim. P. 26.02, subd. 6a(2). Without a doubt, there were racial overtones involved in this case. The victims were Caucasian, the defendant is African American, venireperson 21 is a member of a protected racial group, and at least one other venireperson had already been subjected to a Batson challenge. When dealing with venireperson 21, the court must have been aware of these racial overtones and the possibility of a racial pattern to the peremptory strikes. As a "direct and indispensable participant" in the effort to eliminate discrimination from the courtroom, the court had the right, even the obligation, to act in the presence of possible discrimination. This includes the right to act sua sponte to protect venirepersons and the community at large from discrimination. I conclude that under the circumstances here there was no absolute obligation for the court to wait for one of the attorneys to object.
Minn. R.Crim. P. 26.02, subd. 6a(2), reads as follows:
(2) Procedure. Any party, or the court, may object to the exercise of a peremptory challenge on the ground of purposeful racial or gender discrimination at any time before the jury is sworn to try the case. The objection and all arguments thereon shall be heard out of the hearing of the jury panel and the individual jury panel member involved. A record shall be made of all proceedings upon the objection. All issues of law or fact arising upon the objection shall be tried and determined by the court as promptly as possible, but in all events it shall be done before the jury is sworn to try the case.
The acts of the trial court were without a doubt spontaneous and maybe awkward, but they were not the type of acts that undermine the structural integrity of the court. Rather, they appear to have been intended to maintain both the integrity of the jury selection process and the court's integrity. The record demonstrates that at the time the court acted, the state had not articulated on the record its intent to strike venireperson 21, but the court either knew or correctly anticipated the strike. Further, the state's reasons for the strike appear to have been known by the parties. This fact is shown by defense counsel's response to the court's inquiry. Defense counsel gave the following response when questioned by the court about whether counsel thought that the strike is "racially motivated": "[A] s I understand the concern that the State has is that she, this woman believes that her father was unjustly convicted." This statement shows defense counsel's awareness that the state would strike the witness and why. I conclude that the court's assumption of an active role in this context did not impugn the court's integrity. While I caution courts to proceed carefully when intervening sua sponte after recognizing racial overtones and racial patterns that implicate Batson, I also do not believe that we should unduly chill or discourage courts from acting when they deem it appropriate. I fear that the latter will be the result of the majority's decision.
The Specific Actions of the Court
As indicated above, after defense counsel questioned and then accepted venireperson 21, the trial court, based on the answers solicited by defense counsel, correctly anticipated a peremptory strike by the state that implicated Batson concerns. See State v. Herron, No. 19894, 2004 WL 315232 at *3 (Ohio Ct.App. Feb.20, 2004) (affirming the trial court's Batson ruling when the court anticipated the state might exercise a peremptory challenge to exclude a venireperson from the jury). The court then solicited a response from defense counsel that amounted to step one of a Batson challenge — a prima facie showing that the state was exercising its peremptory strike on the basis of race. In response, the state proceeded to step two of Batson and stated its reasons for striking venireperson 21 — articulation of a race-neutral explanation for the strike. The state referred to the "tragic circumstance" that occurred in the venireperson's life at a very young age and her having testified for the defense on behalf of her father. The state then said: "[She is] still convinced that the evidence certainly didn't justify having her father in prison, and then once he came out of prison, the father, came back to live in the household with she [sic] and a younger sister. * * * It's just a situation that's untenable." (Emphasis added.)
I share the majority's concern over a trial court articulating race-neutral reasons before counsel has addressed the issue, thus risking the adoption of the court's reasons by the party exercising the peremptory strike. However, as the transcript shows, this did not occur here.
After hearing the state's explanation, the trial court, without waiting for a response from defense counsel under step three of Batson, apparently shifted gears in its analysis — now focusing on removal for cause by saying it would probably deny a challenge for cause if the juror continued to say she could be fair. But immediately after saying that it would deny a challenge for cause, the court apparently shifted gears once again, returned to step three of Batson, and excused venireperson 21, saying "it would be bordering on ineffective representation not to challenge her because of that. So I'll excuse her. * * * It's clear there is a valid and mutual reason." While the antecedent for "that" and "valid and mutual reason" is not clear, the terms appear to reference the specific reasons given by the state for why it concluded venireperson 21 should not sit as a juror. Thus, it appears the court ultimately excused venireperson 21 after concluding that the state's strike was not racially motivated and therefore legitimate.
The transcript indicates that the trial court said "mutual," but there is a very high probability that, in the context of a Batson analysis, the court actually said "neutral." Nevertheless, for purposes of review, I accept the court's use of the word mutual as reflected in the transcript.
At this point, it is important to note that the majority's citation to Johnson v. California is largely inapposite to the issue before us. Johnson focuses on the first prong of Batson and holds that, to establish a prima facie case, the objector to a peremptory strike need not prove that it is "more likely than not that the other party's peremptory challenges * * * were based on impermissible group bias." Johnson, 125 S.Ct. at 2412. Here, the majority and I agree that the first prong of Batson has been satisfied. The majority opinion misapplies the quote from Johnson, which states "[t]he Batson framework is designed to produce actual answers to suspicions and inferences that discrimination may have infected the jury selection process." See id. at 2418. The majority inappropriately emphasizes the word "actual" from the quote to imply that the Supreme Court is establishing a requirement for an actual peremptory strike before the trial court can act to prevent discrimination. The Court does indicate that the trial court should not speculate about race neutral reasons on a party's behalf, but the Court does so only because the trial court is then deprived of the opportunity to determine the real reason behind the party's strike of venirepersons from a protected racial group. See id. As noted earlier, this is not the case here. The significance of the quoted language from Johnson appears to be that the Batson framework is a mechanism to show actual bias on the part of the party who struck a venireperson from a protected racial group. Notably, the Court in Johnson did not criticize the trial court for taking a proactive role, as is the majority's concern here.
Undoubtedly, the trial court here is open to some criticism that it acted too quickly and did not dot all the i's and cross all the t's when it conducted the Batson analysis. Nevertheless, despite my agreement with the majority that the court did not handle this situation as well as it could have, I conclude that it is far too great a reach to conclude that the court erred, much less that the errors were structural. The court ultimately found that the state's reasons for striking venireperson 21 were unrelated to any discriminatory act against her and the record supports this finding. Such a finding is within the discretion of the court and we should defer to that discretion. State v. White, 684 N.W.2d 500, 506 (Minn. 2004). To do otherwise results in the imposition of an overly technical interpretation of Batson that will render the proper implementation of Batson by the trial court nearly impossible.
At this point, I must add that I am concerned that what we did in Angus v. State, 695 N.W.2d 109 (Minn. 2005), and what we are doing here may affect legitimate efforts to root out impermissible discrimination in the jury selection process. It appears to me that the parties, especially the state, are now ill-advised to exercise a peremptory challenge of a member of a protected class out of concern that if the trial court does not precisely follow the three-step Batson inquiry — or the now five-step Angus-Batson inquiry — a resulting conviction will be reversed. Moreover, even if all procedures are followed, a Batson objection will be very difficult to sustain under the criteria we established in Angus. In my view, our most recent Batson jurisprudence is long on form, short on substance, and largely ineffectual in providing a remedy for discrimination during the jury selection process. See Johnson, 125 S.Ct. at 2410-12.
Finally, I also wish to address the majority's analysis with respect to the Spreigl evidence. I agree with the majority's conclusion that this evidence was properly admitted. But, unlike the majority, I would not focus my analysis on the weakness of the state's case. Rather, I would focus only on the highly relevant nature of the evidence, balance its probative value against its prejudicial effect, and conclude that under our Spreigl jurisprudence, the evidence was properly admitted because its probative value outweighed its prejudicial effect. See Angus, 695 N.W.2d at 119-20, and State v. Bolte, 530 N.W.2d 191, 197 (Minn. 1995).
I would affirm.
I join in the dissent of Justice Paul H. Anderson.