This opinion will be unpublished and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

A04-2090

 

 

State of Minnesota,
Respondent,

vs.

George Raphael Boswell,
Appellant.

 

Filed December 6, 2005

Affirmed

Peterson, Judge

 

Cass County District Court

File No. KX03237

 

 

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

 

Earl E. Maus, Cass County Attorney, Cass County Courthouse, Box 3000, 300 Minnesota Avenue, Walker, MN  56484-3000 (for respondent)

 

John M. Stuart, State Public Defender, Melissa V. Sheridan, Assistant Public Defender, 1380 Corporate Centre Curve, Suite 320, Eagan, MN  55121 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from convictions of aiding and abetting second-degree intentional murder and aiding and abetting second-degree felony murder,[1] appellant George Raphael Boswell argues that (1) he was denied his right to a fair trial because Native Americans are underrepresented on jury panels in Cass County; (2) he is entitled to a new trial because the district court did not adequately analyze whether the prosecutor’s stated reasons for using a peremptory challenge to strike a Native American prospective juror were a pretext for discrimination; and (3) the evidence was insufficient to prove that he intended to assist in killing the victim, assaulting the victim, or doing something that would foreseeably result in the victim’s death.  We affirm.

D E C I S I O N

1.         Composition of Jury Pool

            Appellant argues that he was denied his right to a fair trial because Native Americans are underrepresented on jury panels in Cass County.  “[T]he selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial,” which is made binding on the states by the Fourteenth Amendment.  Taylor v. Louisiana, 419 U.S. 522, 526, 528, 95 S. Ct. 692, 696-97 (1975). 

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

 

Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668 (1979).

            Appellant contends that he established the first factor of a prima facie violation of the fair-cross-section requirement by showing that Native Americans are a distinctive group in Cass County and the second factor by showing that the Native American population was not adequately represented in his jury panel.  The record demonstrates that according to the 2000 census, Native Americans comprise 11.5% of the total population of Cass County and 9.9% of the Cass County population that is from 18 to 70 years old, but only four of the 77 people summoned for appellant’s jury panel (which is 5.19%) identified themselves as Native American.  But demonstrating that Native Americans are a group that was underrepresented on appellant’s jury panel is not sufficient to establish a prima facie violation.  To establish a prima facie violation, appellant must also show that the underrepresentation is due to systematic exclusion of Native Americans in the jury-selection process.

            With respect to the third factor, the Minnesota Supreme Court has stated that

the key part of the showing required of a defendant challenging a venire on Sixth Amendment grounds should be that over a significant period of time—panel after panel, month after month—the group of eligible jurors in question has been significantly underrepresented on the panels and that this results from “systematic exclusion,” that is, 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. 

 

State v. Williams, 525 N.W.2d 538, 543 (Minn. 1994). 

            Appellant argues that he met this standard by demonstrating that Cass County knew that its jury-selection procedures resulted in a consistently low number of Native American jurors and did nothing to improve its system.  To demonstrate that Cass County knew that its jury-selection procedures resulted in a consistently low number of Native American jurors, appellant presented a copy of a May 20, 2004 district court order filed in another recent case in Cass County[2] in which the district court found that Native American jurors were underrepresented on the jury panel in that case and that the underrepresentation was the result of a systematic exclusion from the jury-selection process.  But the district court’s order does not contain any findings of fact that support the conclusion that the underrepresentation of Native Americans on the jury panel was the result of a systematic exclusion from the jury-selection process.  The order does not identify any other Cass County jury panel on which Native Americans were underrepresented.  Consequently, the record in this case contains information about the representation of Native Americans on only two Cass County jury panels, which is not enough panels to meet the requirement “that over a significant period of time—panel after panel, month after month—the group of eligible jurors in question has been significantly underrepresented on the panels.”  Id.  Because the record contains evidence about only two jury panels, appellant failed to establish the third factor of a prima facie violation of the fair-cross-section requirement and, therefore, did not establish a prima facie violation.

2.         Peremptory strike

            Appellant argues that the district court failed to conduct a complete and proper analysis of the prosecutor’s peremptory strike of one of two Native American prospective jurors on appellant’s jury panel.  Appellant contends that the district court did not determine whether the prosecutor’s proffered reasons for striking the juror were a pretext for discrimination. 

The use of peremptory challenges to exclude persons from a jury solely on the basis of race is prohibited by the Equal Protection Clause.  Whether there is racial discrimination in the exercise of a peremptory challenge is a factual determination to be made by the district court and is entitled to great deference on review.  The district court’s determination will not be reversed unless it is clearly erroneous. 

 

State v. Taylor, 650 N.W.2d 190, 200-01 (Minn. 2002) (citations and footnote omitted).  

“[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two).  If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.”

 

State v. Reiners, 664 N.W.2d 826, 831 (Minn. 2003) (alteration in original) (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 1170-71 (1995)).

            The prosecutor used a peremptory challenge to strike a Native American prospective juror.  Appellant challenged the peremptory strike, and the district court denied the challenge.  Appellant contends, and respondent agrees, that because the district court did not first determine whether appellant made out a prima facie case of racial discrimination and instead moved directly to step two of the analysis, the issue whether appellant established a prima facie case of racial discrimination is moot.  See State v. Gaitan, 536 N.W.2d 11, 15 (Minn. 1995) (stating, “Where . . . the trial court proceeded to the second step in the process, the issue whether the defendant established a prima facie case of the discriminatory use of a peremptory strike is moot.”).   

The prosecutor proffered the following explanation for its peremptory strike:

I could give the Court a number of reasons why we excused her.  The main one being she just knows too many witnesses.  She said that she was friends with and has been at the house of Tim Budreau where some of this stuff is going to be talked about as evidence.  Knows Joe White, Leslie White, Tim Budreau, Johnsons.  In fact, was friends of the brother of a co-defendant in this matter Darryl Johnson.

 

            She also indicated that she said she quit smoking as she called it weed, marijuana, but continues to drink while underage.  She is 19 years of age.  Would closely identify with – the State feels with the Defendant and the witnesses here and also spoke of being angry over a – in response to questions by the defense over some articles that were written about the Lost Youths of Cass Lake, which dealt with this along with a number of her family members who has their – not only spoke about it but had their pictures in the paper.

 

            We feel that she’s just too closely related to this case and in addition to that, she indicated that she has a number of close relatives, including her brother, who has recently been convicted of murder in the State of North Dakota, who she’s really close with and talks with on a regular basis.  That particular crime, I will state to the Court that there was several co-defendants who were found to have murdered a person . . . – at least one – in an unprovoked attack, a random act.  That closely resembles the State’s allegations in this particular case.  So for all those reasons, we feel that we are justified in striking her.

 

“At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation.  Unless a discriminatory intent was inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”  Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 1867 (1991); see also State v. McRae, 494 N.W.2d 252, 254 (Minn. 1992) (stating that the explanation provided by the prosecutor does not have to be ‘valid’ in the sense of establishing a reasonable basis for challenge, but must instead be race-neutral”).  The district court stated that it denied appellant’s challenge of the peremptory strike “on the basis of [the prospective juror’s] relationship to a bunch of the witnesses.”

Appellant contends that the district court did not explicitly find that the prosecutor’s reasons for striking the prospective juror were race neutral, but appellant acknowledges that the district court’s statement that the prospective juror knew several of the state’s witnesses implied that the district court determined that the prosecutor stated a race-neutral reason for striking the prospective juror.  Appellant argues that the district court did not complete the third step of the required analysis by determining whether appellant proved purposeful racial discrimination.  Appellant contends that the district court appeared to believe that its analytical duty was completed when the court found that the prosecutor stated a race-neutral reason for the peremptory strike and, consequently, the court did not determine whether the race-neutral reason was a pretext for discrimination. 

Appellant contends that under a complete analysis, the peremptory strike should have been denied because he proved that the state’s purported race-neutral reasons were a pretext for discrimination.  Appellant argues that the district court should have considered whether the prosecutor uniformly applied his race-neutral reasons for the strike and contends that if the court had done so, it would have discovered that other prospective jurors who knew some of the state’s witnesses were not subject to peremptory strikes.  Appellant specifically cites one prospective juror who knew 16 people on the state’s witness list and who was not subject to a peremptory strike.  But appellant fails to acknowledge that his attorney’s motion to strike that juror for cause was granted.  Appellant also cites two other prospective jurors who knew people on the state’s witness list and were not subject to peremptory strikes.  But one of those prospective jurors knew just one person on the witness list, who was her uncle’s friend in high school; and the other prospective juror knew just two people on the witness list, one who was a police investigator whom the juror had met when he responded to a police call made by the juror’s neighbor and another who worked for community health and human services whom the juror had met twice.  The fact that the prosecutor did not subject these jurors to peremptory strikes because they knew some of the state’s witnesses does not demonstrate that striking a Native American prospective juror who knew several witnesses and was friends with some of the witnesses was purposeful racial discrimination.

Appellant also cites other prospective jurors who were not subjected to peremptory strikes but who, like the Native American juror who was the subject of a peremptory strike, used marijuana and drank alcohol while underage and had family members who had been involved in the criminal-justice system.  But none of these prospective jurors knew several witnesses or were friends with some of the witnesses.  This is a significant difference between these prospective jurors and the juror who was struck, and the fact that the prosecutor did not use peremptory strikes for the prospective jurors that appellant cites does not demonstrate that striking the Native American juror because of her familiarity with witnesses was a pretext for purposeful racial discrimination.

3.         Insufficient Evidence

            In considering a claim of insufficient evidence, this court’s review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they reached.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  The reviewing court must assume that the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude that the defendant was guilty of the charged offense.  State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988). 

            “To impose liability under the aiding and abetting statute, the state must show some knowing role in the commission of the crime by a defendant who takes no steps to thwart its completion.”  State v. Ostrem, 535 N.W.2d 916, 924 (Minn. 1995) (quotation omitted).

Mere presence at the scene of a crime does not alone prove that a [defendant] aided or abetted, because inaction, knowledge, or passive acquiescence does not rise to the level of criminal culpability.  Nevertheless, active participation in the overt act which constitutes the substantive offense is not required, and a person’s presence, companionship, and conduct before and after an offense are relevant circumstances from which a person’s criminal intent may be inferred.

 

Id. (citation omitted). 

            At trial:  (1) four witnesses testified that they saw a man in a yellow coat at the scene, hitting or kicking the victim, and they did not see anyone trying to help the victim or stop the fight;  (2)  appellant testified that he was wearing a yellow coat that night and that he hid the coat at a friend’s house upon hearing that the police were looking for him;  and (3) appellant admitted that he was at the scene, but stated that he was trying to pull Jesse Tapio off the victim and that he did not hit the victim.  There was also testimony that appellant was seen helping another person bring the victim down to the ground. 

Appellant argues that the evidence was insufficient to allow the jury to conclude beyond a reasonable doubt that he intended to assist Tapio in assaulting the victim or that he actively participated in causing the victim’s death.  Intent is a state of mind that is “generally proved circumstantially — by drawing inferences from the defendant’s words and actions in light of the totality of the circumstances.”  State v. Copper, 561 N.W.2d 175, 179 (Minn. 1997).  In reaching its verdict, “the jury may infer that a person intends the natural and probable consequences of his actions and a defendant’s statements as to his intentions are not binding on the jury if his acts demonstrated a contrary intent.”  Id.

            Based on the evidence, the jury could reasonably conclude that appellant was more than simply present during the criminal activity and failed to take steps to prevent the victim from being beaten.  The jury could reasonably conclude that appellant participated with the other men in beating the victim and that the probable consequence of three people punching, kicking, and beating someone is death.  See Ostrem, 535 N.W.2d at 925 (finding that a jury could reasonably conclude that appellant “assented to the commission of the crime, lent to it his approval, and was thereby aiding and abetting its commission”). 

            One witness testified that she drove by the fight and saw appellant trying to pull Tapio off the victim.  But weighing the credibility of witnesses is the province of the jury; the jury is free to accept or reject any part of a witness’s testimony.  State v. Johnson, 568 N.W.2d 426, 436 (Minn. 1997).  When resolution of the matter depends mainly on conflicting testimony, this court must assume the jury believed the state’s witnesses and disbelieved any contrary evidence.  State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). 

4.         Pro Se Arguments

A.         Ineffective assistance of counsel

In a supplemental pro se brief, appellant argues that he received ineffective assistance of counsel during his trial.  To prevail on an ineffective-assistance-of-counsel claim, “[t]he defendant must affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  “‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”  Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).  A strong presumption exists that counsel’s performance fell within the wide range of reasonable assistance.  State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).  This court need not address both of these elements “if the defendant makes an insufficient showing on one.”  Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.

Appellant argues that his trial counsel was ineffective because counsel failed to (1) object when Nicholas Navarro’s trial testimony was inconsistent with his statements to the police; (2) represent appellant “with valid evidence”; (3) object to comments made by witnesses; and (4) call certain witnesses. 

“[M]atters of trial strategy . . . will not be reviewed later for competence.”  Voorhees v. State, 627 N.W.2d 642, 651 (Minn. 2001).  All four issues raised by appellant are matters of trial strategy and are not subject to review.  State v. Voorhees, 596 N.W.2d 241, 255 (Minn. 1999); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).     Also, appellant makes no argument and cites no authority that supports his claim that he received ineffective assistance.  A claim that is not supported by argument or citation to legal authority is deemed waived.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).

B.         Illegal Search

            Appellant argues that the search that recovered his yellow coat was illegal.  The Fourth Amendment to the United States Constitution and Article I of the Minnesota Constitution protect against unreasonable searches and seizures.  U.S. Const. amend. IV; Minn. Const. art. I, § 10; Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 2041 (2001) (federal constitution); State v. Askerooth, 681 N.W.2d 353, 359 (Minn. 2004) (federal and state constitutions).  Short-term social guests have a reasonable expectation of privacy in their host’s home under both the Fourth Amendment and the Minnesota Constitution, entitling guests to claim the protection of the Fourth Amendment and the Minnesota Constitution.  In re Welfare of B.R.K., 658 N.W.2d 565, 576, 578 (Minn. 2003).  The exclusionary rule prohibits the admission of evidence discovered during an illegal search.  Id. at 578.

            “It is well settled under the Fourth and Fourteenth Amendments to the United States Constitution that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . subject only to a few specifically established and well delineated exceptions.’”  State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)) (other quotation omitted).  “It is equally well-settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”  Id.  The government bears the burden of showing that consent was given freely.  State v. Othoudt, 482 N.W.2d 218, 222 (Minn. 1992).

            Appellant contends that the police search of Karee Ashley’s home was illegal because the deputy did not have a search warrant.  But the deputy who conducted the search testified that he received consent from the home owner. 

“[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.”

 

Hanley, 363 N.W.2d at 738 (alteration in original) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 993 (1974)) (emphasis added in Hanley).  Ashley testified that she allowed the deputy to search the house.  We, therefore conclude that the search was permitted under the consent exception to the warrant requirement.

            Appellant also argues that his shoes were illegally removed from his home.  But our review of the record indicates that although appellant’s shoes were in police custody at some time after he was arrested, they were not used as evidence.

C.        Other pro se arguments

            Appellant argues that the district court should have granted a change of venue due to the heightened media coverage of the incident in this case.[3]  We review the district court’s ruling on a change-of-venue motion for a clear abuse of discretion.  State v. Kinsky, 348 N.W.2d 319, 323 (Minn. 1984).  A district court should grant a motion for change of venue when “the dissemination of potentially prejudicial material creates a reasonable likelihood” of an unfair trial.  Minn. R. Crim. P. 25.02, subd. 3.  A showing of actual prejudice is not required.  Id. 

            During discussions regarding appellant’s motion for a change of venue, the district court acknowledged that pretrial publicity was extensive.  Appellant’s attorney commented that a change in venue would not alleviate the problem because the news of the incident was wide-spread.  The court concluded that they would “have to individually check with [the potential jurors] to see what [e]ffect if any that had on them.”  Counsel for appellant agreed and stated “[t]hat’s how we’re going to have to run at it.” 

            We conclude that the district court sufficiently verified that the seated jurors would be fair and impartial and that pretrial publicity did not create a reasonable likelihood of an unfair trial.  The district court did not abuse its discretion in denying appellant’s motion.  

            Appellant also makes a general statement about the conduct of the county attorney, but the statement does not identify a discernible legal claim.

            Affirmed.