This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Tony Fernando Hunter,
Filed June 17, 2003
Ramsey County District Court
File No. K4013512
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Philip C. Carruthers, Assistant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
John Stuart, Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue South East, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Willis, Judge.
G. BARRY ANDERSON, Judge
Appellant, convicted of third-degree assault, challenges the district court’s denial of his motion to remove the entire jury after the lone African American member, who had a professional relationship with the complaining witness, was removed. Appellant also argues the district court erred in refusing to grant a self-defense instruction. In his pro se brief appellant suggests the judge was biased against him. We affirm.
H.B. and appellant Tony Hunter met in November 2000, while working together. The two began a romantic relationship in January 2001 that ended the night of the incident. Before the October 2001 incident, both appellant and H.B. were prone to angry, and even violent, behavior. H.B. once threw a head of lettuce in appellant’s direction and on another occasion she threw a paper cup of lemonade at appellant’s truck. H.B has also pushed and hit appellant.
H.B. testified that appellant has pushed her on more than one occasion. H.B. also testified that appellant told her he violently assaulted the mother of his son. But appellant denied these allegations. And several defense witnesses also testified that appellant was a peacemaker who they had never seen act in a violent manner.
The night of the incident, appellant asked H.B. to meet him at the Roseville apartment of his friend Leroy Ross. H.B. initially hesitated, because she and appellant had argued earlier in the day about work issues. But H.B. and her three-year old son eventually did meet appellant at the apartment. Also present were Ross, his six-year old daughter, 18-year-old son, and another mutual acquaintance. During the evening, H.B. had two 12-ounce bottles of malt liquor and appellant had two beers and a shot of brandy.
At approximately 9:30, appellant received a telephone call from his wife. After speaking to his wife for 15 minutes, appellant rejoined the group in the living room. Appellant was in a noticeably agitated state, because his wife knew H.B. was at the apartment. H.B. then became irritated and announced that she was leaving so appellant would not worry about what his wife said when he got home.
As H.B. prepared to leave appellant got very close to her and leaned over her as he began yelling and swearing. H.B. told appellant to get out of her face and pushed appellant in the chest. Appellant pushed H.B. and sent her stumbling into a chair. H.B. tried to push appellant again, but appellant stopped her by grabbing her arms. H.B. was, however, able to swing her purse at appellant’s head. Appellant acted reflexively and struck H.B. in the face with a closed fist.
The force of the blow sent H.B. crashing to the ground. H.B. began screaming. H.B.’s son, who had seen everything, began screaming as well. Although she tried to call 911, someone took the phone away from H.B. Appellant wanted to talk to H.B. and confined her to a bedroom while he apologized profusely, stating he could not believe he had done such a thing.
Appellant told H.B. that he had to take Ross to work but asked H.B. not to leave or call the police until he returned. After appellant returned, the two talked again. H.B., fearing her nose was broken, wanted to go to the hospital but appellant recommended against it. He told H.B. she was overreacting and that her nose was not broken. H.B. testified appellant began suggesting she brought the assault on herself and that he did not want to be arrested. H.B. collected her things, gathered up her son, and left.
H.B. notified the police of the assault and then went to the hospital where a doctor determined she had a broken bone in her nose and a fracture of the orbital bone around her left eye. Appellant was subsequently arrested and charged with third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (2000).
At trial, after the jury had been selected, sworn in, and opening statements delivered, the state called H.B. as its first witness. But, before H.B. began her testimony, the only African American on the jury notified the court that he knew her. The juror said he knew her only by her first name, and had not recognized her name when asked if he knew her during voir dire. He told the court he had a professional relationship with H.B. and felt he knew her quite well. After the juror candidly admitted he was not sure he could be impartial and was uncomfortable sitting on the jury the district court excused him.
Following the juror’s removal, appellant requested the district court strike the entire panel and that jury selection begin anew. Appellant argued that the excused juror was someone the other jurors would have liked, and the fact that he was excused would unfairly prejudice appellant’s ability to get a fair trial. The district court refused to strike the rest of the jury. The district court did however instruct the jury not to consider the decision of the district court to excuse the panel member while trying to reach a verdict.
Appellant first claims that the district court erred in not discharging the entire jury after excusing the only African American from the panel. Appellant suggests that compounding the prejudicial effect of excusing this juror, described by appellant as likeable, is that the juror was the only person of color on the panel. Finally, appellant contends that the district court should have at least questioned the remaining members of the jury to determine the impact of the juror’s removal.
Due process requires that a person accused of a crime have the right to be tried in front of a fair and impartial jury. U.S. Const. amends VI, XIV; Minn. Const art. I §§ 6, State v. Bowles, 530 N.W.2d 521, 536 (Minn. 1995). A problem of constitutional magnitude exists when the jury is exposed to prejudicial material because “it deprives the defendant of the right to an impartial jury and the right to confront and cross-examine the source of the material.” State v. Cox, 322 N.W.2d 555, 558 (Minn. 1982). But the district court is afforded special deference in determining whether a juror can be impartial because it hears the juror’s testimony and observes the juror’s demeanor. State v. Richards, 552 N.W.2d 197, 210 (Minn. 1996). When determining the impact of prejudicial material upon the jury, we consider the nature of the information, the number of jurors exposed to it, the weight of the evidence, and the likelihood that corrective measures were effective. State v. Erickson, 597 N.W.2d 897, 902 (Minn. 1999).
Appellant must show some type of prejudice, whether racial or otherwise, in order to get relief. State v. Jones, 647 N.W.2d 540, 544 (Minn. App. 2002). Appellant has not shown any prejudice resulting from excusing the juror and is engaging in rank speculation when suggesting the jury would have “liked” the excused juror. While the jury did know that the excused juror worked with H.B., the jury learned very little about their professional relationship. Appellant has shown no tangible evidence, or even a hint of evidence, that the excusing of the lone African American juror affected the disposition of this case in any way. We further note the district court took adequate corrective measures by instructing the jury to disregard any connection between the excused juror and H.B.
Likewise appellant claims that the district court erred by not polling the jury to determine the prejudicial impact of the excused juror’s disclosure. Once it is determined that the jury has been exposed to material outside the trial proceeding there is the possibility of prejudice and either party can seek to have each juror questioned about the impact of the allegedly prejudicial material. Minn. R. Crim. P. 26.03, subd. 9. But this jury was not exposed to prejudicial material. The jury simply learned that the excused juror knew the alleged victim. The district court did not err in refusing to poll the jury.
Appellant also argues that the district court abused its discretion when it refused to give a self-defense instruction. The district court concluded that because appellant testified that he hit H.B. reflexively and without thinking, a self-defense instruction was not appropriate.
District courts are allowed “considerable latitude” in the selection of language for the jury instructions. State v. Gray, 456 N.W.2d 251, 258 (Minn. 1990) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)). The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). The focus of the analysis is on whether the refusal resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988).
A defendant is entitled to have the jury instructed on its theory of the case provided the defendant can provide enough evidence to support the theory. State v. Schluter, 281 N.W.2d 174, 176-77 (Minn. 1979). Although a defendant may assert a theory at trial, the district court has the discretion not to instruct the jury on that theory. State v. Vazques, 644 N.W.2d 97, 99 (Minn. App. 2002).
The defendant bears the burden of going forward with evidence to support the claim of self defense. Id. Self defense requires a showing of (1) the absence of aggression or provocation on the part of the defendant; (2) the defendant’s actual and honest belief that he or she was in imminent danger of death or great bodily harm; (3) the existence of reasonable grounds for that belief; and 4) the absence of a reasonable possibility of retreat to avoid the danger. State v. Nystrom, 596 N.W.2d 256, 260 (Minn. 1999) (quoting State v. Basting, 572 N.W.2d 281, 285-86 (Minn. 1997)); see also Minn. Stat. § 609.065 (2000) (defining when use of force is authorized to protect one’s self).
To support his claim of self defense, appellant argues that (1) H.B. began the physical confrontation by pushing him, (2) H.B. had engaged in violence against him in the past, (3) he had suffered a serious head injury that still causes him pain to this day and has been advised that a further blow to the head could be a serious health risk, and (4) by reflexively punching H.B. he was using reasonable force to protect his head.
Appellant’s argument is without merit. The defense of self defense requires perception of a threat and the use of reasonable force to avoid the threat. State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997). Appellant’s testimony that he acted on reflex illustrates that he did not intentionally act to protect himself. Appellant did not consider whether punching H.B. in the face was necessary to prevent being hit with her purse. Indeed, appellant testified that he acted without thought.
Appellant also failed to establish that he acted reasonably. Here, there was a duty to retreat before using force and appellant never made an effort to disengage from the conflict. See State v. Glowacki, 630 N.W.2d 392, 400-01 (Minn. 2001) (holding that unless a person is defending themselves in their home they have a duty to retreat whenever reasonable). To the contrary, at almost every step, appellant escalated the level of violence. Because he did not retreat, and testified that he acted reflexively rather than purposely, the district court’s refusal to give a self-defense instruction was not error.
Finally, appellant argues that the district court judge was biased against him. Appellant cites several instances at trial to support his argument including: the judge’s inconsistency in making evidentiary rulings and, most critically, a declaration by the judge at the omnibus hearing, after reviewing pictures of the victim shortly after the assault, “Mr. Hunter, you are going to jail.”
“Due process entitles a criminal defendant ‘to an impartial and disinterested tribunal.’” McKenzie v. State, 583 N.W.2d 744, 747 (Minn. 1998) (quotation omitted). A judge must have no actual bias against the defendant. State v. Azure, 621 N.W.2d 721, 725 (Minn. 2001). But the presumption is that the district court executed its duties properly. McKenzie, 583 N.W.2d at 747.
It is clear from the trial transcript that the relationship between the district court and appellant’s counsel was acrimonious at best. And the district court did criticize an early offer from the state to reduce the charge to a misdemeanor. But these instances do not overcome the presumption that the district court acted appropriately. During jury selection, the district court put considerable pressure on the state not to strike the only African American member of the jury pool. And even though the argument was contentious, the district court’s decision denying appellant’s request for a self-defense instruction was well reasoned and based on the testimony presented. Based on this record, we conclude the district court did not abandon its judicial role during the administration of this trial.
 H.B. and Ross lived in the same apartment complex.
 Appellant suffers from post-concussion syndrome following an accident that caused serious damage to his face and skull. His head is still tender and appellant suffers frequent headaches.
 The state struck this juror from the panel using a peremptory challenge; defense counsel objected because the juror was the only person of color in the pool. At the urging of the district court, the state agreed to let the juror serve.