A04-2466

State of Minnesota,

Respondent,

vs.

Robert Charles Staples,

Appellant.

Filed November 22, 2005

Affirmed

Hudson, Judge

Cass County District Court

File No. KX-04-314

Mike Hatch, Attorney General, Kristen M. Olsen, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2130; and

Earl E. Maus, Cass County Attorney, Christopher Strandlie, Assistant County Attorney, 300 Minnesota Avenue, P.O. Box 3000, Walker, Minnesota 56484-3000 (for respondent)

Joel Foreman, Blair W. Nelson, Ltd., 1421 Bemidji Avenue North, Bemidji, Minnesota 56601 (for appellant)

Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D O P I N I O N

HUDSON, Judge

On appeal from a conviction of fifth-degree controlled substance crime, appellant argues that the proceedings violated his Sixth Amendment right to a fair trial and his right to equal protection because Native Americans were underrepresented and systematically excluded from his jury pool. Appellant also argues that the district court improperly allowed admission of a controlled substance into evidence without an established chain of custody. Because Cass County did not systematically exclude Native Americans from its jury pools, and because the controlled substance evidence was sufficiently authenticated, we affirm.

FACTS

Cass Lake city police arrested appellant Robert Staples in the early morning of March 21, 2004, when an officer opened appellant’s cigarette case and discovered a small bindle of what the officer believed to be a rock of cocaine. The state charged appellant with, among other crimes, fifth-degree controlled substance crime, possession, in violation of Minn. Stat. § 152.025, subd. 2(1) (2002). The district court held trial, and the jury found appellant guilty. The district court sentenced appellant to probation. This appeal follows.

Appellant’s trial was initially scheduled for May 20, 2004. Appellant, who is Native American, challenged the venire drawn in his case on the grounds that Native Americans were underrepresented in the panel due to systematic exclusion in the juror-selection process. None of the 29 potential jurors summoned on that day identified themselves as Native American.

In the Ninth Judicial district, including Cass County, the names of potential jurors are randomly drawn from a source list compiled from the county’s voter registration, drivers’ license, and registered Minnesota identification card holders lists. The drivers’ license and voter registration lists do not provide demographic information, such as race. Cass County does not use any supplemental lists containing only Native American names to assure a minimum number of Native Americans in each jury pool.

Each year, Cass County receives a master source list from the state containing 2,500 randomly selected names. After compilation of this source list, the jury administrator sends a juror qualification questionnaire and summons to 250 random prospective jurors. The court does not get demographics information until a prospective juror completes the juror qualification questionnaire and returns it to the court. The jury commissioner uses the returned questionnaires to determine whether the juror should be excused, deferred, or assigned to service. Those assigned to service remain on the panel for a period of four months.[1] Minn. R. Gen. Pract. 806(e) provides that the jury commissioner for each district court should review the source list once every four years for its inclusiveness of the county’s adult population and report the results to the district’s chief judge. Cass County has not compiled any reports examining the inclusiveness of jury panels within the last four years.

Following a hearing, the district court granted appellant’s motion to strike the pool of jurors by order dated May 20, 2004, finding that the jury panel was clearly reflective of systematic deficiencies, resulting in an underrepresentation of Native Americans. The district court stayed proceedings against appellant until the jury commissioner could assemble a jury that was more reflective of the composition of the county.

Jury selection for appellant’s trial started on July 20, 2004; there was one Native American in the pool of 31 potential jurors summoned, but that person was not randomly selected for appellant’s panel. Appellant renewed his motion to strike the panel.

The district court denied appellant’s motion at trial and issued its findings of fact, conclusions of law, and order on August 9, 2004. The district court noted that Cass County revised its jury administration plan after appellant’s initial trial date of May 20, 2004, and now requires the gathering and analysis of jury system performance data on an annual basis in compliance with the jury management rules. The district court found that Native Americans comprise 9.9% of the 18- to 70-year olds that are eligible for jury service, but only 7.4% of the jury pool in the first eight months of 2004. The district court determined that Native American representation on jury pools was still 25% lower than what pure probabilities would predict, but it was a marked increase over the disparity known and shown on the trial date of May 20, 2004. Acknowledging the “simple truth” that there are a high number of Native American defendants in Cass County and a low number of Native American jurors, the district court found that the jury venire assembled on July 20th could contribute to a fair trial for appellant.

D E C I S I O N

Appellant first challenges the district court’s decision denying his motion to stay proceedings and strike the venire, arguing that his Sixth Amendment right to a fair trial was denied because Native Americans were underrepresented and systematically excluded from the jury pool in Cass County. Whether appellant demonstrated a prima facie showing that his jury venire violated the Sixth Amendment presents a constitutional issue, which this court reviews de novo. See generally State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995) (indicating that constitutional challenges are questions of law), review denied (Minn. July 20, 1995).

The Sixth Amendment requires that the pool from which a jury is drawn reflect a representative cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 528, 95 S. Ct. 692, 697 (1975). This fair cross-section of the community requirement is limited and does not guarantee a defendant a jury of a particular racial composition or one that mirrors the community’s racial proportions. Id. at 537–38, 95 S. Ct. at 702. To establish a prima facie showing that the jury venire from which a jury was selected did not satisfy the fair cross-section of the community requirement, a defendant must show: (1) that the group allegedly excluded is a “distinctive” group in the community; (2) that the group in question was not fairly represented in the venire;[2] and (3) that the underrepresentation was a result of a “systematic” exclusion of that group in question from the jury selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668 (1979); State v. Williams, 525 N.W.2d 538, 542 (Minn. 1994).

Acknowledging that the jury selection process in Cass County is facially neutral and has not been administered with bias or ill will, appellant argues that the record evidence demonstrates a systematic exclusion of Native Americans from jury venires because the jury administrator failed to comply with the requirement in Minn. R. Gen. Pract. 806 to review the composition of jury pools and attempt to address any underrepresentation discovered upon review.

The Minnesota Supreme Court defines systematic exclusion as “unfair or inadequate selection procedures used by the state rather than, e.g., a higher percentage of ‘no shows’ on the part of people belonging to the group in question.” Williams, 525 N.W.2d at 543. In Duren,the Supreme Court found that a systematic discrepancy occurred at the summons stage, when the county gave women the opportunity to exercise an automatic exemption. 439 U.S. at 367, 99 S. Ct. at 670. Courts have also found systematic exclusion to be shown where a computer error resulted in the exclusion of individuals from two regions where a large proportion of racial and ethnic minorities lived, and where the county selected jurors based on wholly subjective criteria. See United States v. Jackman, 46 F.3d 1240 (2d Cir. 1995); Gibson v. Zant, 705 F.2d 1543 (11th Cir. 1983). In contrast, the Minnesota Supreme Court found that the Hennepin County jury selection system that used registered voters, drivers’ licenses, and registered Minnesota identification card holders to select the jury pool did not systematically exclude minorities. State v. Roan, 532 N.W.2d 563, 569 (Minn. 1995).

Although appellant established that Cass County had not complied with rule 806(e), the failure of the jury administrator to conduct the mandated review did not necessarily contribute to a systematic exclusion of Native Americans. Absent this noncompliance, the Cass County jury selection procedure is indistinguishable from that upheld in Roan. If the jury selection procedure itself does not systematically exclude Native Americans, the failure to review that process does not produce a systematic exclusion. Accordingly, appellant failed to meet his burden of establishing that the underrepresentation of Native Americans resulted from systematic exclusion.

Appellant next challenges the district court’s decision denying his motion to strike the venire on the grounds that the jury selection process violated his right to equal protection under the law as guaranteed by the Fourteenth Amendment to the United States Constitution. To establish a prima facie showing that his jury was selected in violation of his right to equal protection, appellant must show that the jury selection process resulted in a sufficient degree of underrepresentation over a significant period of time. Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280 (1977). A selection process that is susceptible of abuse or is not racially neutral supports the presumption of discrimination. Id. Appellant has not demonstrated either a sufficient degree of underrepresentation or that a random and anonymous jury selection process based on voter registration, drivers’ licenses, and state identification cards is susceptible of abuse or not racially neutral. See Floyd v. Garrison, 996 F.2d 947, 949–50 (8th Cir. 1993) (holding that the sole use of voter registration lists to select jury pools did not violate equal protection because there was no indication that African Americans were prevented from registering to vote).

III

Lastly, appellant challenges the district court’s decision admitting the controlled substance into evidence, arguing that respondent failed to demonstrate a sufficient chain of custody. The standard of review of the adequacy of foundation for the admission of evidence is whether the district court abused its discretion. State v. Williams, 337 N.W.2d 689, 691 (Minn. 1983).

Minnesota Rules of Evidence 901(a) (2004) provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” When evidence is not unique or readily identifiable, the evidence must be authenticated by means of chain of custody. State v. Hager, 325 N.W.2d 43, 44 (Minn. 1982). The supreme court described the necessary showing to establish a sufficient chain of custody in State v. Johnson, 307 Minn. 501, 239 N.W.2d 239 (1976):

There can be no rigid formulation of what showing is necessary in order for a particular item of evidence to be admissible. Rather, admissibility must be left to the sound discretion of the trial judge. He must be satisfied that, in all reasonable probability, the item offered is the same as the item seized and is substantially unchanged in condition.

Admissibility should not depend on the prosecution negativing all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur. Contrary speculation may well affect the weight of the evidence accorded it by the factfinder but does not affect its admissibility.

Id. at 504–05, 239 N.W.2d at 242 (citations omitted); see also Hager, 325 N.W.2d at 44 (reaffirming Johnson after the adoption of Minn. R. Evid. 901(a)). If, upon consideration of the evidence as a whole, the court determines that the evidence is sufficient to support a finding by a reasonable juror that the matter in question is what its proponent claims, the evidence will be admitted. Hager, 325 N.W.2d at 44.

Here, the arresting officer testified at trial that he stored the bindle recovered from appellant’s cigarette case in his evidence locker at the police station. The officer testified that he locked his evidence locker, and that no other person had access. Three weeks after appellant’s arrest, the officer transported the bindle to the Bureau of Criminal Apprehension (BCA) lab in Bemidji for testing. The officer testified that he transported the bindle on the next occasion when he was traveling from Cass Lake to Bemidji in his police vehicle. While at the BCA, the arresting officer turned the evidence over to Dorothy Gnoinsky. The report of the examination of physical evidence indicates that Amy Granlund actually tested the substance. Neither Gnoinsky nor Granlund testified at trial. But, the arresting officer testified that the substance admitted into evidence was in the same condition as when he seized it from appellant and submitted it to the BCA.

The evidence is sufficient for a reasonable juror to find that the substance admitted into evidence was the same substance taken from appellant. Appellant correctly notes that there is no testimony from either BCA employee stating that the evidence was not tampered with while in their possession. But, the arresting officer’s testimony confirms that the substance admitted into evidence was in the same condition as when he delivered it to the BCA. Furthermore, in the absence of any indication of substitution, alteration, or other form of tampering, reasonable protective measures, including the use of notes, identification numbers, and labels, are sufficient. Hager, 325 N.W.2d at 44. Here, the BCA lab report indicates that the BCA assigned the substance a lab number and labeled it as pertaining to appellant’s case. Although the arresting officer did use different terms to describe the substance taken from appellant in his testimony and report, the officer also testified that both terms are slang and synonymous. Accordingly, the record evidence does not support appellant’s argument that there is a reasonable probability that tampering or substitution occurred. The district court did not abuse its discretion by admitting the controlled substance.

Affirmed.

[1]These selection criteria are in accordance with rule 806 of the Jury Management Rules for the District Courts, which are promulgated by the Minnesota Supreme Court.

[2]Appellant acknowledged at oral argument that he has failed to put forth sufficient detailed evidence of the composition of jury pools in Cass County to satisfy his burden of demonstrating significant underrepresentation as required by State v. Williams, 525 N.W.2d 538, 542 (Minn. 1994). The record provides no indication that Cass County compiled or maintained sufficient data on the racial composition of its jury pools prior to appellant’s motion challenging his venire for appellant to satisfy his burden. We do not read Williams to require defendants to put forth data that is unavailable.