This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Ronald Nelson Brown,
Hennepin County District Court
File No. 99044200
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy J. Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant contends that the trial court erred in failing to dismiss a juror who disclosed during trial a familiarity with a prosecution witness. Because appellant did not object to the juror and did not show grounds for dismissing her, we affirm.
During the third day of appellant Ronald Nelson Brown’s jury trial on a charge of illegal possession of a firearm, a juror told the court that one of the prosecution witnesses was listed as a guest to be invited to her daughter’s upcoming wedding in two months and was the employer of the juror’s future son-in-law.
The trial court allowed defense counsel and the prosecutor to conduct additional voir dire of the juror. When asked how she felt about serving on the jury in light of her disclosure, the juror replied:
It made me uncomfortable. Not because I don’t think I could be impartial, but because the system only works if the defendant feels that he got a fair shake.
The juror also said that she would decide the case on the evidence presented. Neither attorney objected and the court allowed the juror to remain on the jury. The next day the jury returned a unanimous verdict of guilty.
D E C I S I O N
Brown claims that the trial court erred by failing to dismiss the juror because she was biased. In an appeal based on juror bias, an appellant must show (1) that the challenged juror was subject to challenge for cause, (2) that actual prejudice resulted from the failure to dismiss the juror, and (3) that appellant made an appropriate objection. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983).
The test is whether a prospective juror can set aside his or her impression or opinion and render an impartial verdict. The trial court is in the best position to determine whether jurors can be impartial because it hears the prospective jurors’ testimony and observes their demeanor. Thus, if jurors indicate their intention to set aside any preconceived notions and demonstrate to the satisfaction of the trial court judge that they are able to do so, this court will not lightly substitute its own judgment.
State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990) (citations omitted). Brown’s challenge fails to satisfy any of the three prongs required under Stufflebean.
Under Rule 26.02, subd. 5(1)(6), of the Minnesota Rules of Criminal Procedure, a juror may be dismissed for cause if the juror stands
in relation of guardian and ward, attorney and client, employer and employee, landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense, or on whose complaint the prosecution was instituted.
Minn. R. Crim. P. 26.02, subd. 5, contains the exclusive grounds of juror challenges for cause. See Stufflebean, 329 N.W.2d at 318; State v. Anderson, 603 N.W.2d 354, 356 (Minn. App. 1999) (the supreme court has consistently held that Minn. R. Crim. P. 26.02, subd. 5, contains the exclusive grounds on which jurors may be challenged for bias), review denied (Minn. March 14, 2000), petition for cert. filed, __ U.S.L.W. __ (U.S. June 28, 2000) (No. 00-5032). Here, the juror has none of the relationships listed in the rule. Brown fails to satisfy the first prong of the Stufflebean test.
Brown also fails to satisfy the second prong of the test. He has made no showing that actual prejudice resulted from the court’s failure to dismiss the juror, and there is nothing in the record from which actual prejudice could be inferred. The juror’s familiarity with the witness was tenuous. She recognized his name and said she might have seen him in passing but did not know him. She stated that despite her familiarity she could be an impartial juror. Brown has failed to show otherwise.
Finally, after conducting additional voir dire of the juror on the subject of possible bias caused by her familiarity with the witness, Brown’s attorney did not object to the juror’s continued service. Brown thus fails to satisfy the third prong of the Stufflebean test.
Brown concedes that his juror bias claim does not satisfy Stufflebean. But he urges this court to expand rule 26.02 so as to create a presumption of bias when a juror’s family members have an employment relationship with a witness. This court recently rejected a similar argument in Anderson. 603 N.W.2d at 357. In Anderson, the court refused to expand rule 26.02 to include the concept of implied bias. The court noted that the Minnesota Supreme Court has expressly required proof of actual bias and has rejected the implied bias concept. Id. We decline to read rule 26.02 to include implied bias.
Brown also claims that he was denied the effective assistance of counsel because his attorney did not raise the issue of juror bias at trial. To succeed on an ineffective assistance of counsel claim, Brown must affirmatively show that his attorney’s representation “fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).
Brown argues in his brief and his pro se reply brief that his attorney’s representation fell below an objective standard of reasonableness because he failed to preclude a biased juror from deciding his case. His attorney and the prosecutor examined the juror on the issue of possible bias. Neither attorney uncovered any basis for a challenge for cause or for concluding that the juror was actually biased. And even if our courts recognized the concept of implied bias, there is nothing in this juror’s relationship to the witness that would reasonably support an implication of bias.