STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Michael Jon Heidemann,
Filed July 28, 1998
Lyon County District Court
File No. T1954347
Hubert H. Humphrey III, Attorney General, Suite 1400, 445 Minnesota St., St. Paul, MN 55101; Richard R. Maes, Lyon County Attorney, BC Thompson, Asst. County Attorney, Courthouse, 607 W. Main St., Marshall, MN 56258 (for respondent)
Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Forsberg, Judge.[*]
Appellant Michael Heidemann challenges his conviction of driving with a blood alcohol level of .10. Because appellant was not prejudiced by his use of a peremptory challenge to remove a juror whom he alleges was biased, we affirm the conviction.
During voir dire, appellant's counsel asked D.W., a potential juror, if he would tend to believe a police officer's testimony over that of other witnesses. D.W. responded, "[M]y first tendency would be to believe a police officer." He further explained:
Well, I think that is what we--that is what we hire them for. I think that is what they are trained to do. I don't think that, for the most part, they are out picking on somebody. * * * So there is a reason behind what they do and for the most part, you know unless there is a personal grudge or something, why - why would they - why would they pick somebody up?Upon further questioning, D.W. stated that he did think the police make mistakes. When asked if his inclination to believe the police meant he could not be a fair juror, D.W. stated:
I think I could be fair. I can listen to the facts and I can make a decision.
* * * *
I know lots of people that have gotten DWIs and I have heard all the stories and I am willing to listen to that and I think I can make a fair decision.
Appellant asked that D.W. be excused for cause. The trial court found D.W. impartial and declined to dismiss him. Appellant then exercised a peremptory challenge and removed D.W. from the jury. Appellant went on to use all of his available peremptory challenges during jury selection.
Appellant argues that his constitutional right to a fair trial was violated because the trial court refused to dismiss a biased juror for cause. The question of whether a juror is impartial is a credibility determination, and appellate courts defer to a trial court's finding of impartiality. State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995). The test for deciding impartiality is:
[D]id [the] juror swear that he could set aside any opinion he might hold and decide the case on the evidence, and should the juror's protestation of impartiality [be] believed.
In spite of his initial statement that he would presume that the police had some reason to arrest appellant, the juror stated he could be fair and the trial court believed him. The trial court interpreted the juror's statement as merely presuming that police officers, like other people, do the right thing and found this was not bias warranting dismissal for cause. Because we defer to the trial court's finding of impartiality, our standard of review on that question is narrow. Even if we were to find error on the part of the trial court, however, we could not end our analysis at that point.
A defendant claiming the right to a new trial based on juror bias must establish both that (1) the defendant challenged the juror for cause and (2) actual prejudice resulted from the trial court's error in failing to dismiss. Id. at 324.
[T]he necessity to exercise a peremptory challenge to strike a juror whom the trial court has erroneously refused to remove for cause does not deprive the defendant of a fair trial.
State v. Barlow, 541 N.W.2d 309, 311 (Minn. 1995) (citing Ross v. Oklahoma, 487 U.S. 81, 89, 108 S. Ct. 2273, 2278 (1988)).
Appellant, in attempting to distinguish Ross, argues that he did not receive the peremptory challenges he was entitled to under Minnesota law. See Ross, 487 U.S. at 89-90, 108 S. Ct. at 2279 (holding no due process violation because peremptory challenges are "a creature of statute" and defendant got the peremptories he was entitled to under Oklahoma law). Appellant argues that his exercise of a peremptory challenge to remove a biased juror had the same effect as if the trial court only gave him four peremptory challenges instead of the five he is allowed under state law. See Minn. R. Crim. P. 26.02, subd. 6. He argues that the deprivation of a peremptory challenge that he was entitled to under state law requires a new trial. We disagree.
The defendant in Barlow made the same argument that appellant makes: "[T]he trial judge prejudicially impaired the exercise of his peremptory challenges by erroneously denying * * * challenges for cause[,]" and "the court's error caused exhaustion of his peremptory challenges." Id. at 311. The supreme court rejected Barlow's argument and held that although a defendant may be compelled to remove a biased juror peremptorily,
[that] does not mean that [defendant] was deprived of a fair and impartial jury. * * * [Any] error was cured by exercise of the peremptory challenge.
Id. at 312.
Appellant attempts to distinguish Barlow by arguing that in Barlow the defendant had peremptory challenges remaining after jury selection was completed while appellant exercised all his peremptories, in effect receiving only four rather than the five to which he was entitled. The Barlow court made it clear, however, that the number of peremptory challenges remaining after jury selection was not the determinative issue. Further, the defendant in Barlow requested and received additional peremptory challenges, had peremptory challenges remaining after the twelfth juror was empanelled, and used his two remaining peremptories to strike proposed alternate jurors. When the final alternate was selected, the defendant in Barlow, like appellant here, had no peremptory challenges remaining. The Barlow defendant did not object to the juror chosen after he used up his peremptories. The supreme court, in rejecting the Barlow defendant's claim that he was prejudiced because he was deprived of peremptory challenges, stated:
Defendant did not challenge either of the chosen alternates for cause; neither does he suggest any ground for such a challenge. Moreover, neither alternate juror participated in the jury's deliberations or decision.
Id. at 313.
Finally, even if we were to find some merit in appellant's claim that the denial of peremptory challenges could prejudice a defendant's rights, appellant has failed to meet his burden of establishing prejudice in this case. He did not request any additional peremptory challenges, he failed to challenge any of the chosen jurors for cause, and he failed to identify any juror who, in fact, did participate in deliberations and who would have been subjected to the exercise of a peremptory challenge if appellant had had another peremptory challenge available. See id.; see also State v. Stufflebean, 329 N.W.2d 314, 317-18 (Minn. 1983) (holding no error when defendant argued that he was forced to use peremptory challenge to dismiss biased juror and had no peremptories remaining to dismiss another biased juror but failed to object to any of chosen jurors and showed no actual bias); cf. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984) (failure to object to prosecutor's argument and request specific cautionary instruction waives claim of error on appeal).
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 At oral argument, appellant withdrew his challenge to the trial court's admission of testimony relating to a preliminary breath test.