This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1270

 

 

State of Minnesota,

Respondent,

 

vs.

 

Kevin J. Brown,

Appellant.

 

 

Filed August 16, 2005

Affirmed
Klaphake, Judge

 

Ramsey County District Court

File No. K7-03-1466

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Patric J. Swift, Certified Student Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 -1657 (for respondent)

 

John M. Stuart, State Public Defender, Theodora K. Gaïtas, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Kevin J. Brown appeals from his conviction for third-degree criminal sexual conduct, asserting that his right to an impartial jury was violated because three jurors had been victims of sexual assault and two others had family members who were victims of sexual assault.  Appellant argues that although his attorney did not challenge the jurors, the doctrine of implied bias required their exclusion from the jury.

            Because Minnesota law does not recognize implied bias as one of the exclusive grounds for a challenge for cause, we affirm.

D E C I S I O N

            A defendant has a right to be tried by an impartial jury.  U.S. Const. amend. VI; Minn. Const. art. I, § 6.  In order to prevail on a claim of jury bias, a defendant must show that (1) the allegedly biased juror was subject to a challenge for cause; (2) actual prejudice resulted from the district court’s failure to excuse the juror for cause; and (3) an objection was made.  State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983); State v. Anderson, 603 N.W.2d 354, 356 (Minn. App. 1999), review denied (Minn. Mar. 14, 2000).

            In order to challenge a juror for cause, a defendant must show one of eleven grounds set forth in Minn. R. Crim. P. 26.02, subd. 5(1):  (1) a biased state of mind that satisfies the court that the proposed juror cannot be impartial; (2) a felony conviction, unless civil rights have been restored; (3) lack of qualifications necessary to be a competent juror; (4) a physical or mental defect; (5) consanguinity or affinity to the ninth degree, with the accused, victim, or attorneys; (6) certain other relationships between the defendant or victim and the proposed juror, such as guardian and ward; (7) being an adverse party to the defendant in some legal action; (8) service on the grand jury that found the indictment or a related offense; (9) service on a jury that tried another person for the same or related offense; (10) service on a previous jury to try the same charges; or (11) service as a juror on any case involving the defendant.  Of these, a district court will presume bias upon proof of the last ten grounds; a prospective juror’s actual state of mind is relevant to only the first ground.

            These are the exclusive grounds for a challenge for cause under Minnesota law.  Stufflebean, 329 N.W.2d at 318.  Given this principle of exclusivity, we have specifically rejected a challenge for cause based on status as a victim of a similar crime.  Anderson, 603 N.W.2d at 356; see also State v. Roan, 532 N.W.2d 563, 568 (Minn. 1995) (concluding that crime victim status was not grounds for challenge for cause under rule, wen there was no evidence that prospective juror could not be fair and impartial).

            Federal courts and some other jurisdictions follow the doctrine of implied bias and infer or presume bias in certain extreme situations when the average juror would have a difficult time remaining impartial, such as when the juror has been the victim of a similar crime.  Anderson, 603 N.W.2d at 356 (citing Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir. 1996); Person v. Miller, 854 F.2d 656, 664 (4th Cir. 1988), and other cases).  When bias is implied, inferred, or presumed, a defendant need not show that the prospective juror was actually biased; thus the juror’s state of mind is irrelevant.  United States v. Torres, 128 F.3d 38, 45 (2nd Cir. 1997).  It is enough to show that the “average person in the position of the juror in controversy would be prejudiced.”  Id. 

            Although this court has acknowledged that the doctrine of implied bias “appears philosophically sound,” to date it has not been adopted in Minnesota.  Anderson, 603 N.W.2d at 357.  Rather, to challenge for cause, the defendant must show either that one of the ten automatic grounds set out in rule 26.02, subd. 5(1) exists, or that the juror has a state of mind such that the court is satisfied that the juror cannot be impartial or unprejudiced, which is the first ground set out in rule 26.02, subd. 5(1).  Here, none of the automatic grounds for removal for cause applies.  With respect to the first ground, each of the jurors was questioned at length about his or her state of mind, was judged to be capable of being fair and impartial, and was not challenged by appellant.

            A reviewing court defers to the district court’s decision as to whether a prospective juror can be fair and impartial because such a decision involves issues of credibility.  State v. Logan, 535 N.W.2d 320, 323-24 (Minn. 1995).  We therefore conclude that, given our standard of review, as well as the thorough questioning of each juror on the record, the district court did not abuse its discretion when it permitted these jurors to remain on the jury.

            Affirmed.