This opinion will be unpublished and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,
Leslie Lindsey Treadwell,
Filed April 20, 2004
Olmsted County District Court
File No. K0-01-3498
John Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Minnesota Attorney General, John B. Galus, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134; and
Raymond F. Schmitz, Olmsted County Attorney, Olmsted County Courthouse, 151 Fourth Street SE, Rochester, MN 55904-3712 (for respondent)
Considered and decided by Anderson, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.
G. BARRY ANDERSON, Judge
In this appeal from a conviction of second-degree felony murder and second-degree assault, appellant challenges the district court’s evidentiary ruling, the jury instructions, the state’s use of a peremptory strike, the upward durational departure, the district court’s refusal to change venue, and the effectiveness of trial counsel. We affirm.
On the night of October 4, 2001, appellant went to visit the victim, Joseph Bale, at the victim’s house. At the house were appellant, the victim, the victim’s nephew, Jeremy, the victim’s two children and their mother, and two others, J.R. and an individual identified only as “Steve.” The adults sat in a back room drinking beer and all except appellant were smoking marijuana; the children sat in the living room watching television.
Sometime around 8:30 or 9:00 p.m., appellant left. Appellant had trouble starting his truck, and the victim gave appellant a push start. The truck did not run well; appellant returned to the victim’s driveway and noticed that the truck was leaking oil. Appellant spent the next one to two hours working on his truck and periodically knocked on the victim’s door, demanding that someone help him. The victim responded to each demand by yelling that no one was going to help appellant, ordering him to leave, and stating that the victim’s children were trying to sleep. Finally, after appellant again knocked and demanded assistance, the victim went outside, onto the steps of his porch, and ordered appellant to leave.
Appellant again refused, and the victim pushed appellant but not hard enough to move him off the steps. In response, appellant pulled out a knife. Upon seeing the knife, the victim began punching appellant. Appellant then stabbed the victim three times in the chest. Witnessing the stabbings was the victim’s then ten-year-old daughter who saw appellant stab her father and saw her father lying on the ground. One of the knife wounds punctured the victim’s heart and killed him. Appellant suffered a skinned knee, bloody nose, and lacerated lip.
Appellant admitted to the investigating police officer that he was armed and alleged that his actions were in self-defense but provided no additional information. The self-defense statement was excluded by the district court.
Later that night, at the police station, appellant was questioned by the police. Appellant stated that the victim drove him to the ground before he stabbed the victim. Appellant stated that the reason he stabbed the victim was because, unlike instances in the past when others had been confronted by appellant with his knife, this victim refused to submit to appellant. Appellant also stated that he stabbed the victim in self-defense.
In discussing the incident with his mother in a telephone conversation that respondent taped, appellant, when asked why he did not run from the victim, stated that his response was, “Here I got a knife, what . . . am I gonna run for, man? What . . . am I gonna run for, this boy done punched me, pushed me down the steps, punched me in the nose.” Appellant also told his mother that he was justified in killing the victim because the victim, unlike others, would not “bow down” and eat “humble pie.” Other witnesses testified to hearing appellant make similar statements concerning appellant’s reasons for stabbing the victim.
Appellant was charged with second-degree intentional murder, second-degree felony murder, and second-degree assault. During jury selection, the only African American potential juror, P.B., stated that she knew appellant through her boyfriend and that appellant had helped them move (appellant is also African American). The district court asked all of the potential jurors if any of them “have had any business with the County Attorney’s Office, either that’s pending now or in the past. By business it could be a criminal matter, civil matter, traffic ticket, anything at all where both you and the County Attorney’s office were involved at the same time?” P.B. did not disclose anything.
Later, the district court asked if any of the potential jurors had spoken to anyone about the case; P.B. did not disclose having spoken to anyone about the case. The district court then asked, “Have any of you ever been charged with a crime or with what you regard as a serious traffic violation?” P.B. did not disclose anything. The district court continued by asking, “Has anybody close to you, that is a close relative, a family member, a close friend ever been charged with a crime or a serious traffic violation?” P.B., again, was silent.
But P.B. disclosed during appellant’s voir dire that she had used drugs in the past, that her son had been sent to a juvenile detention facility for two years, and that the county attorney’s office had been involved in sending her son to the detention facility.
Respondent, during voir dire, asked the jurors if any of them had ever been arrested for, charged with, or convicted of a crime. P.B. did not respond. Thereafter, in chambers, respondent moved to strike P.B. for cause because (1) P.B. personally knew appellant, (2) she did not disclose the fact, despite repeated questions, that she had been convicted of misdemeanor domestic assault, (3) she had been seen talking to appellant’s mother in court the day before, and (4) respondent did not trust she had been forthcoming in other matters. In response to a challenge from appellant, respondent stated that P.B.’s conviction was known because a check on her last name in the course of investigating her son’s juvenile matter revealed the conviction. The court decided to question P.B. more closely before ruling on respondent’s motion.
In further questioning in chambers, P.B. stated that she had previously met the victim briefly through her boyfriend. P.B. also related that the county had placed her son in foster care because she had assaulted him, resulting in the misdemeanor domestic assault conviction, and that he committed an unspecified act while in foster care that resulted in two years in juvenile detention. She stated that she had not disclosed this when asked because she thought the questions only related to felonies. She stated that she thought her son had, ultimately, benefited because of respondent’s intervention with her son.
When asked about appellant’s mother, P.B. denied knowing her. P.B. testified that she had merely greeted an acquaintance and that a stranger was with the acquaintance. The stranger was presumably appellant’s mother.
In response to respondent’s questions, P.B. stated that her boyfriend had told her, when discussing the case with her, that appellant and the victim had been friends. P.B. also stated that she had not disclosed her previous conviction because she was embarrassed about it. Ultimately, P.B. stated that she thought she could be fair.
The district court denied respondent’s motion to remove her for cause. Respondent then exercised a peremptory strike to remove P.B. Appellant made a Batson challenge to the strike. The district court did not explicitly find that a prima facie case for a Batson challenge had been made but instead immediately put the burden on respondent to provide a race-neutral reason for the strike.
Respondent supported the strike by noting the facts of P.B.’s contact with the county and her lack of candor regarding those contacts. Appellant characterized respondent’s reasons as “criticizing her for . . . [saying] hello to another black person.” Appellant also argued that P.B. needed to be on the jury in order for appellant to feel like he had a fair trial.
The district court ruled that respondent had articulated a race-neutral reason. The court said that respondent “would have a race-neutral concern” about P.B.’s personal contacts with appellant. The district court also stated that it was not convinced that P.B. had not been forthright but that her lack of candor provided “a basis at least arguably for [respondent] to have concerns”; the district court also stated that the actions surrounding her son could be of concern to respondent. The district court concluded that these reasons were not pretextual because the county attorney’s office had no history of striking jurors for racial reasons.
After the jury was selected, appellant moved for a change of venue because no people of color were on the jury. The district court denied the motion on the grounds that it was not timely and did not discuss the merits of the motion.
In closing arguments, respondent argued that there was no evidence that appellant was ever in serious danger and that the only evidence of danger was that the victim pushed appellant. Respondent also stated, “The law says that if you can retreat, that if you started the fight, that if you use too much force, you don’t get to do [self-defense].” After deliberating for some time, the jury asked the district court, “Does the defendant have to meet the criteria for ‘self-defense’ outlined in the non-accidental death statement in order to be found not guilty?”
The district court responded that the court and the lawyers for both sides believed that the answer to that question was contained in the jury instructions and the jury would have to look at the instructions again. The jury convicted appellant of felony murder and assault and acquitted him of intentional murder.
The district court sentenced appellant to 180 months in prison. The presumptive sentence is 159-171 months. At the sentencing hearing, the district court stated that the reason for its “minimal, largely symbolic upward departure” was because the crime happened “at the victim’s home, within his zone of privacy.” The district court continued:
[T]here were several times when the victim and others made it well known to [appellant] that his presence at the victim’s home was not wanted. The [appellant] was the one who persisted in remaining there. And it was his persistence in remaining there that in the Court’s mind resulted in the ultimate death of [the victim].
This appeal followed.
At trial, the investigating officer testified that appellant said he was armed. Appellant argues that this admission must be put into context with appellant’s statement that he only stabbed the victim in self-defense. Respondent argues that appellant’s statement regarding self-defense is inadmissible hearsay and that the district court properly excluded the self-defense reference.
The district court’s evidentiary rulings are only reversed if the district court abused its discretion and this abuse of discretion prejudiced the appellant. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(a). Hearsay is generally not admissible. Minn. R. Evid. 802. A statement made by a party offered against that party is not hearsay. Minn. R. Evid. 801(d)(2)(A). If the district court admits into evidence an admission of one party, that party may introduce into evidence the remainder of the statement if necessary for the trier of fact to understand the statement in context. State v. Mills, 562 N.W.2d 276, 286 (Minn. 1997).
Here, the district court did not abuse its discretion. There is no need to provide context for the simple statement that appellant had one or more knives.
This conclusion is bolstered by the rule that defendants’ self-serving statements are not normally admissible because admitting those statements would allow defendants to give their version of the facts without being subject to cross-examination. State v. Taylor, 258 N.W.2d 615, 622 (Minn. 1977). Even if the district court incorrectly suppressed the statement, any error in doing so is harmless because the statement is of minimal value as a mere conclusion that appellant acted in self-defense. See Amos, 658 N.W.2d at 203 (stating that review of evidentiary rulings requires a harmless error analysis). Further, it gives appellant’s view of the facts without subjecting him to cross-examination. Thus, because there was no need to provide context for the admission and because the remainder of the statement was self-serving hearsay, the district court did not abuse its discretion in refusing to allow the investigating officer to testify that appellant stated the stabbing was in self-defense.
2. Jury Instructions
Appellant argues that the jury’s question indicates that it may have been confused as to the burden of proof on the self-defense issue. Appellant argues this confusion resulted from respondent’s rebuttal argument that included several references to the absence of evidence supporting a claim of self-defense. The jury’s confusion was further compounded, according to appellant, by the district court merely referring the jury to its original instructions. Respondent argues that (1) the jury’s question does not manifest any confusion concerning the burden of proof, (2) appellant agreed with the district court’s instruction to the jury to refer to its original instructions, and (3) its rebuttal argument was a fair rebuttal to appellant’s misstatements of the evidence in his closing argument.
In reviewing the district court’s decisions on jury instructions, this court reviews only for abuse of discretion. State v. Crims, 540 N.W.2d 860, 864 (Minn. App. 1995), review denied (Minn. Jan. 23, 1996). When the jury asks for further instruction, the district court has discretion to expand on the previous instructions, reread the instructions, or not respond. Id. A failure to challenge an instruction at trial constitutes a waiver of the issue unless there was plain error. Id. There is plain error if the prosecutor misinterprets the law. See Id.
Here, appellant waived his challenge to the jury instruction not only because he did not object to the instruction but also because appellant consented to the district court’s instruction to the jury to reread the instructions. Further, there is no plain error because the prosecutor did not misstate the law. The prosecutor merely argued that, contrary to appellant’s argument, there was no evidence that the victim was dangerous and out of control and that appellant, based on appellant’s own statements, acted with intent. There is nothing in the prosecution’s argument suggesting it is appellant’s duty to prove anything, and appellant has not pointed to any specific statement by the prosecution that misinterprets the law to support his argument. Thus, there is no plain error, and appellant waived the issue.
In his pro se brief, appellant argues that he was entitled to an instruction that the jury need not reach a verdict but that it could instead choose to deadlock. This argument was not raised in the district court and was therefore waived. Id. Further, we have previously decided that defendants are not entitled to any such instruction. State v. Fidel, 451 N.W.2d 350, 355 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990). Thus, appellant’s argument is without merit.
3. Batson challenge
Appellant challenges respondent’s use of a peremptory strike to eliminate P.B. from the jury, arguing that the district court improperly relied on its conclusion that the Olmsted County Attorney’s office does not have a habit of striking minority jurors. Respondent argues that the district court did not err and that respondent articulated many race-neutral motives for striking P.B.
No party may eliminate a potential juror because of that juror’s race. Minn. R. Crim. P. 26.02, subd. 6a(1); Batson v. Kentucky, 106 S. Ct. 1712, 1725, 476 U.S. 79, 99 (1986). If a strike is challenged as racially motivated, the district court is to utilize a three-step process to evaluate the claim: (1) the party challenging the strike must make a prima facie case of racial discrimination by establishing that at least one member of a racial group has been excluded and that the circumstances of the case raise an inference of discrimination, (2) the other party then has the burden of articulating a race-neutral reason for the strike, and (3) the challenging party then has the burden to prove that the articulated reasons are actually pretextual. State v. Henderson, 620 N.W.2d 688, 703 (Minn. 2001). “The inference of discrimination can be drawn by proof of disproportionate impact upon the racial group,” but discrimination may also be shown solely by the actions of a party in a particular case. State v. Moore, 438 N.W.2d 101, 107 (Minn. 1989). The district court’s determination on a Batson challenge will not be reversed unless clearly erroneous. State v. McDonough, 631 N.W.2d 373, 385 (Minn. 2001).
Here, the district court did not clearly err, although it did not closely adhere to the three-step process. The district court ignored the first step and immediately placed the burden on respondent to articulate a race-neutral reason for the strike. Respondent stated that it was concerned about P.B.’s lack of candor about her and her son’s background, that P.B. knew the defendant in a favorable light, and that P.B. may actually harbor ill will toward the county attorney’s office because of its involvement in incarcerating her and removing her son from her home. The district court agreed with respondent that some of those concerns had merit. In response, appellant argued the strike was pretextual because respondent had done a background search on P.B., P.B. also knew the victim, and P.B. had said she could be fair. The district court found a lack of pretext because the county attorney’s office had no history of striking jurors based on their race.
The district court did not err in considering the history of the county attorney’s office; that history is considered helpful information. Moore, 438 N.W.2d at 107. Appellant’s argument that the history provided the sole basis for the ruling is incorrect. In examining respondent’s proffered reasons for the strike, the district court did more than just determine if the reasons were race-neutral; the district court examined whether those reasons were adequate. Whether a reason for a strike is acceptable is normally part of the third step in the Batson analysis. Henderson, 620 N.W.2d at 703. That the evaluation of the reasons was done during the second step, though, does not render the district court’s conclusion invalid. Ultimately, the district court concluded that respondent had reason to be concerned about P.B., and its reasons were not pretextual. The fact that the district court was less than precise with its analysis does not require a conclusion of error; the district court ultimately and thoroughly examined a variety of facts in concluding that there was no pretext. The district court did not clearly err in upholding respondent’s peremptory strike.
Appellant argues that the district court clearly erred in upwardly departing because the victim was not in a zone of privacy and because the victim was the aggressor. Respondent argues that the upward departure was justified because children were present.
A district court may depart from the presumptive sentence when it finds there are substantial and compelling reasons to depart. State v. Misquadace, 644 N.W.2d 65, 69 (Minn. 2002). That decision will not be reversed by this court unless it is an abuse of discretion. Id. at 68.
Committing an offense with the knowledge that children are present is an aggravating factor that justifies an upward departure. State v. Profit, 323 N.W.2d 34, 36 (Minn. 1982). Here, appellant knew that the victim’s children were present when he committed the crime. This alone is sufficient to justify the upward departure, and we need not reach the question of whether the district court abused its discretion in the upward departure based on invasion of the zone of privacy.
Appellant argues that the district court’s refusal to change the venue violated his due process rights. The district court denied appellant’s motion to change venue because it was not filed until after the jury had been selected.
Venue may be transferred to another county if it is impossible to have a fair and impartial trial in the original county. Minn. R. Crim. P. 24.03, subd. 1(a). The district court’s decision whether to change venue is reviewed on an abuse of discretion basis. See State v. Everett, 472 N.W.2d 864, 866 (Minn. 1991). Even if there is an abuse of discretion, this court must still determine whether the error was harmless. Id.
There is no right to change venue simply because the defendant is dissatisfied with the racial composition of the jury. Thus, the district court did not abuse its discretion in declining to change the venue. In any event, appellant’s motion was late under Minn. R. Crim. P. 10.04, which requires the motion to have been made prior to the omnibus hearing; thus, the district court did not err in denying the motion on the grounds that it was not timely.
6. Ineffective assistance of counsel
In his pro se brief, appellant argues that he did not receive effective assistance from his trial counsel because his attorney did not question the victim’s nephew, Jeremy Bale, as to whether Jeremy had in fact given the victim a knife with which to attack appellant. Jeremy testified on direct examination, as respondent’s witness, that he did not give the victim anything. Appellant states that his trial counsel refused to ask these questions because he believed the questions would hurt more than help.
Appellant bears the burden of proof on a claim for ineffective assistance of counsel. State v. Miller, 666 N.W.2d 703, 716 (Minn. 2003). Matters of trial strategy are accorded particular deference and are typically not reviewed by appellate courts. Id. at 716, 717. Deciding which questions to ask witnesses is a matter of trial strategy and is not reviewable. Id. at 717.
Appellant’s other arguments are without merit and do not warrant any discussion.
 This error is not challenged and is moot in any event.