Summary
In Burdunice, the defendant claimed selfdefense and sought to show that the victim was the aggressor through the victim's past violent conduct as the "most convincing evidence supporting his self-defense claim." Id.
Summary of this case from State v. TreuOpinion
A18-1269
07-08-2019
State of Minnesota, Respondent, v. Lannon Lavar Burdunice, Appellant.
Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2018). Affirmed
Bjorkman, Judge Hennepin County District Court
File No. 27-CR-16-19342 Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Mark V. Griffin, Assistant County Attorney, Minneapolis, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and Smith, John, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
BJORKMAN, Judge
Appellant challenges his convictions of second-degree intentional murder and unlawful possession of a firearm, arguing that the district court (1) erred by rejecting his challenge to the state's peremptory strike of a black prospective juror, (2) abused its discretion by excluding evidence of the victim's prior violent acts, (3) abused its discretion by admitting evidence of his prior convictions for impeachment purposes, and (4) erred by convicting him of unlawful firearm possession without asking the jury to confirm the guilty verdict. Appellant asserts additional arguments in a pro se supplemental brief. We affirm.
FACTS
On July 19, 2016, appellant Lannon Burdunice agreed via text message to sell J.H. 1.4 grams of marijuana for $20. J.H. then requested 3 grams for $40. Burdunice refused, and J.H. responded, "Don't ever ask me to buy sh-t from you again f-ck your sh-t n-gga." And then, "Your a b-tch." Burdunice ultimately agreed to the sale.
When J.H. and his girlfriend, K.S., arrived at the agreed-upon location in Brooklyn Center, Burdunice "looked angry." Burdunice approached J.H.'s window and told him, "[G]ive me the motherf-cking money." The two men exchanged words, Burdunice withdrew a pistol, and he shot J.H. twice in the left shoulder. Burdunice fled, and K.S. called 911. J.H. died at the scene.
Police used information from J.H.'s cell phone to identify Burdunice as the likely shooter. Burdunice initially denied any involvement but eventually acknowledged shooting J.H., stating he did so in self-defense. Burdunice asserted that J.H. was angry about the quality of the marijuana, so Burdunice took the drugs back, then J.H. drove his car toward Burdunice and pinned him against a nearby building while moving as though to retrieve the gun that Burdunice knew J.H. carried. Burdunice shot J.H. "to protect [him]self."
Burdunice was indicted for first-degree intentional murder during an attempted aggravated robbery (felony murder) and unlawful possession of a firearm. Burdunice claimed self-defense. After a trial, the jury found Burdunice guilty of firearm possession but deadlocked on the felony-murder charge. The district court accepted the guilty verdict, discharged the jury, and scheduled another trial on the felony-murder charge. The second jury found Burdunice guilty of only the lesser-included offense of second-degree intentional murder. The district court convicted Burdunice of unlawful firearm possession and second-degree intentional murder and sentenced him to 480 months' imprisonment. Burdunice appeals.
DECISION
I. The district court did not clearly err by rejecting Burdunice's challenge to the state's peremptory strike of a black prospective juror.
Under the Equal Protection Clause of the Fourteenth Amendment, the state may not strike a prospective juror based on race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 1719 (1986). Minnesota courts apply the three-step Batson analysis to determine whether racial discrimination motivated the state's peremptory strike. Minn. R. Crim. P. 26.02, subd. 6a(3); State v. Onyelobi, 879 N.W.2d 334, 345 (Minn. 2016). First, the defendant must make a prima facie showing that the state exercised its peremptory challenge against a prospective juror on the basis of race. Onyelobi, 879 N.W.2d at 345. Second, "once the [district] court is satisfied that a prima facie case has been made," the burden shifts to the state to articulate a race-neutral explanation for its peremptory challenge. Id. Third, if the state presents a "facially race-neutral explanation," the defendant has "the ultimate burden" of proving that the reason given was pretextual. Id.
Whether racial discrimination motivated the exercise of a peremptory strike is a factual determination that a district court is uniquely situated to make. State v. Wilson, 900 N.W.2d 373, 378 (Minn. 2017). We therefore give "great deference to a district court's ruling on a Batson challenge and will not reverse the ruling unless it is clearly erroneous." Id. (quotation omitted).
During jury selection at Burdunice's second trial, the state moved to strike prospective juror 22 for cause. In response to the written questions, the juror indicated that she did not know anyone who has been charged with or convicted of a crime. But public records, which the district court confirmed through questioning, revealed that her live-in boyfriend and father of her child had several recent criminal charges and convictions. The district court denied the state's for-cause challenge, finding credible the juror's claimed lack of knowledge about her boyfriend's criminal record. The state then exercised a peremptory strike. Burdunice contended that the strike was motivated by racial discrimination because juror 22 is black, while "[t]he jury pool has been predominantly white." And Burdunice contended juror 22 was subjected to a greater "level of scrutiny" than other jurors. The state argued that Burdunice did not meet his prima facie burden but also emphasized juror 22's boyfriend's criminal history as a race-neutral reason for the strike. The district court denied Burdunice's Batson challenge, finding that Burdunice failed to make a prima facie case and that the state offered a race-neutral explanation for the strike. Burdunice challenges both findings. We address each in turn.
Burdunice also contends the district court erred by deviating from the strictly conditional sequence Batson mandates. We agree that Batson calls for summary denial if the party challenging a peremptory strike fails to establish the requisite prima facie case. See State v. Pendleton, 725 N.W.2d 717, 724-25 (Minn. 2007). But mere "failure to follow the prescribed procedure" does not require reversal. Id. at 726.
To establish a prima-facie case of discrimination, the proponent of a Batson challenge must show: "(1) that one or more members of a racial minority has been peremptorily excluded and (2) that circumstances of the case raise an inference that the exclusion was based on race." Onyelobi, 879 N.W.2d at 345 (quotation omitted). This bar is relatively low, but both elements must be present. Wilson, 900 N.W.2d at 382. Mere use of a peremptory strike to remove a member of a racial minority does not establish a prima facie case. Pendleton, 725 N.W.2d at 726. Rather, the proponent of the challenge must also identify circumstances indicative of discrimination, such as discriminatory patterns in jury selection or the prosecutor's questions during voir dire. Wilson, 900 N.W.2d at 382; see also Flowers v. Mississippi, No. 17-9572, 2019 WL 2552489, at *10 (U.S. June 21, 2019) (listing circumstances that may indicate discrimination).
Burdunice's prima facie case failed on this second element. Despite Burdunice's emphasis on the "predominantly white" jury pool, there is no indication that the state's removal of juror 22 was part of a discriminatory pattern in jury selection. By juror 22, the parties had accepted eight jurors and each had struck several prospective jurors. The record does not reflect the race of any of these individuals or of the rest of the jury pool, but the district court observed that the state had not "attempt[ed] to eliminate all potential jurors of color." Cf. Flowers, 2019 WL 2552489, at *12 (recounting "blatant pattern of striking black prospective jurors" indicative of discrimination). Likewise, the state's scrutiny of juror 22 during voir dire was not unwarranted. Burdunice did not object to the prosecutor's questions or suggest that it is inappropriate to consider either the criminal history of someone intimately connected to a prospective juror or the prospective juror's honesty about that history. See State v. Martin, 773 N.W.2d 89, 104 (Minn. 2009) (stating that "a family member's involvement with the legal system is a legitimate race-neutral reason" for a peremptory strike). And nothing in the record suggests that the prosecutor singled out juror 22 for this line of questioning. Rather, the prosecutor "looked into [the] background" of "every juror in this case," and both sides questioned prospective jurors about personal or familial criminal history. The district court did not clearly err by finding that Burdunice failed to make a prima facie showing that the state exercised its peremptory challenge based on race.
Moreover, we discern no error in the district court's further determination that the state satisfactorily explained the strike. The state identified two reasons: (1) it is implausible that juror 22 could have a child with someone and live with him and not be aware of his recent and current criminal activity and (2) even if she was entirely forthright, her impartiality may now be in doubt due to her participation in a court process that made her aware of her boyfriend's criminal history. In short, juror 22 either misrepresented her boyfriend's criminal history or was apprised of his criminal history because of this case—raising legitimate doubts either way that she could be an attentive and impartial juror in this case. Faced with this explanation, Burdunice did not identify any pretext but merely reiterated his prima facie arguments. On this record, we discern no clear error by the district court in rejecting Burdunice's Batson challenge.
II. The district court did not abuse its discretion by excluding evidence of J.H.'s prior violent acts.
Evidentiary rulings rest within the sound discretion of the district court and will not be reversed absent a clear abuse of discretion. State v. Guzman, 892 N.W.2d 801, 812 (Minn. 2017). A criminal defendant has a constitutional right to a meaningful opportunity to present a complete defense. California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984); Wilson, 900 N.W.2d at 384. But this right does not exempt criminal defendants from the rules of evidence, "which are designed to assure fairness and reliability in ascertaining guilt or innocence." Wilson, 900 N.W.2d at 384 (quotation omitted). "To obtain reversal of an evidentiary ruling on appeal, the appellant must show both that the district court abused its discretion in admitting the evidence and that the appellant was thereby prejudiced." Guzman, 892 N.W.2d at 812 (quotation omitted).
When a defendant claims self-defense, he must present evidence that he was not the aggressor. State v. Penkaty, 708 N.W.2d 185, 201 (Minn. 2006). To show that the victim was the aggressor, he may present evidence of the victim's violent character. Minn. R. Evid. 404(a)(2); Penkaty, 708 N.W.2d at 201. Such evidence must be in the form of reputation or opinion testimony, Minn. R. Evid. 405(a), not in the form of specific prior violent acts, Penkaty, 708 N.W.2d at 202 (citing State v. Bland, 337 N.W.2d 378, 382 (Minn. 1983)). Prior-acts evidence is admissible as substantive evidence only to establish another element of self-defense—that the defendant reasonably feared great bodily harm—and only if the defendant was aware of the victim's prior acts at the time of the alleged offense. State v. Zumberge, 888 N.W.2d 688, 694 (Minn. 2017).
Burdunice argues that the district court abused its discretion by excluding evidence of J.H.'s violent conduct toward K.S. in 2015 and early 2016. Burdunice does not dispute that he was unaware of this conduct at the time of the offense, contending only that it is the most "convincing" evidence supporting his self-defense claim. But "convincing" is not the standard for admissibility, and evidence that has "probative force" is routinely excluded based on other considerations, such as its potential for unfair prejudice. See State v. Mosley, 853 N.W.2d 789, 797 (Minn. 2014) (quotation omitted) (discussing exclusion of unfairly prejudicial evidence under Minn. R. Evid. 403). Burdunice does not articulate any basis for disregarding the plain language of rule 405(a) and binding supreme court caselaw. See State v. Curtis, 921 N.W.2d 342, 346 (Minn. 2018) (noting that court of appeals "is bound by supreme court precedent").
Burdunice argues in the alternative that evidence of J.H.'s prior violent acts was admissible under Minn. R. Evid. 404(b) for the purpose of showing J.H.'s "pattern of operation." We are not persuaded. Burdunice's argument demonstrates he sought to offer evidence of J.H.'s specific prior conduct to show that he acted in conformity with his violent character, which is precisely what rules 404(a)(2) and 405(a) prohibit. The district court did not abuse its discretion by excluding that evidence.
III. The district court did not abuse its discretion by admitting evidence of Burdunice's prior convictions for impeachment purposes.
A district court may admit evidence of a defendant's prior felony convictions for impeachment if "the probative value of admitting this evidence outweighs its prejudicial effect." Minn. R. Evid. 609(a)(1). In determining whether the probative value of a conviction outweighs its prejudicial effect, the district court must consider five factors:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.State v. Jones, 271 N.W.2d 534, 538 (Minn. 1978). We review a district court's admission of a defendant's prior convictions for an abuse of discretion. State v. Swanson, 707 N.W.2d 645, 654 (Minn. 2006).
Burdunice asserts that the district court abused its discretion by admitting evidence of his three prior felony convictions—second-degree assault in 2011, violation of an order for protection in 2011, and terroristic threats in 2014. He does not dispute that the prior offenses had impeachment value, were sufficiently recent, and bore on the paramount issue of his credibility. Rather, he contends the district court abused its discretion by not "sanitiz[ing]" the convictions, limiting the evidence to the fact of two 2011 felonies and a 2014 felony. This argument is unavailing.
"[T]he decision about what details, if any, to disclose about the conviction at the time of impeachment is a decision that remains within the sound discretion of the district court." State v. Hill, 801 N.W.2d 646, 652 (Minn. 2011). The record reflects that the district court considered not only the Jones factors but also how the prior convictions would be presented to the jury. It excluded testimony about "the specifics" of the convictions and required that the assault be referenced "as an unspecified felony" and the terroristic threats be referenced "as threats of violence." And it repeatedly cautioned the jury about the limited use of the evidence. See State v. Vanhouse, 634 N.W.2d 715, 721 (Minn. App. 2001) (noting that cautionary jury instructions regarding the proper use of impeachment evidence weighed against any prejudice in possible erroneous admission), review denied (Minn. Dec. 11, 2001). The district court did not abuse its discretion by admitting brief, partially sanitized evidence of Burdunice's prior convictions to assist the jury in evaluating the credibility of his testimony and his self-defense claim as a whole.
IV. The district court did not err by convicting Burdunice of unlawful possession of a firearm without asking the jury to confirm the verdict.
When the jury returns a verdict, the court must "read it to the jury, and ask the jurors if it is their verdict." Minn. Stat. § 631.17 (2018). "If no disagreement is expressed by the jury, the verdict is complete, and the court shall discharge the jury from the case." Id.; see State v. Crow, 730 N.W.2d 272, 278 (Minn. 2007) ("[A] verdict is not complete unless deliberations are over, the verdict is read in open court, and no dissent is expressed by the jury."). But if a party requests that the jury be polled, the court must do so. Minn. R. Crim. P. 26.03, subd. 20(5)(a). Polling the jury confirms that "each of the jurors approves of the verdict as returned" and none has been "coerced or induced to sign a verdict to which he does not fully assent." Burns v. State, 621 N.W.2d 55, 62 (Minn. App. 2001) (quotation omitted), review denied (Minn. Feb. 21, 2001).
Burdunice argues the district court erred by convicting him of unlawful firearm possession based on the first jury's partial verdict because the district court did not follow the requirements of Minn. Stat. § 631.17 or "provide the defense" an "opportunity" to request polling the jury. We disagree.
The first jury deliberated for several days before informing the district court that it was "hopelessly deadlocked" on the issue of attempted aggravated robbery, the underlying offense for the felony-murder charge. The district court inquired of the foreperson, then of the jury as a group, whether further deliberation would assist in reaching a verdict; the jury unanimously agreed it would not. At Burdunice's request, the district court then asked whether the jury reached a verdict on any counts. When the foreperson answered in the affirmative, the district court collected the verdict forms, read the jury's verdict of guilty on the firearm-possession charge, and confirmed the other verdict forms were blank. The district court then thanked and dismissed the jury. Neither Burdunice nor the state asked the court to poll the jury or objected to this procedure, even after the district court asked if there was "anything that the lawyers want to put on the record."
The record reflects that the jury understood a unanimous decision was required to return a verdict, and that the jury, the district court, and both parties understood the jury was returning only one verdict. When the district court read the jury's guilty verdict aloud, no jurors dissented and Burdunice did not request that the jury be polled. Nothing in Minn. Stat. § 631.17 or applicable caselaw precludes a district court from accepting a partial guilty verdict, discharging the jury, and entering a conviction under these circumstances. Accordingly, the district court did not err by convicting Burdunice of unlawful firearm possession.
V. Burdunice's pro se arguments lack merit.
Burdunice argues that insufficient evidence supports his murder conviction and the prosecutor committed misconduct by vouching for witnesses and misstating the law. We address each argument in turn.
In reviewing a claim that the circumstantial evidence supporting a conviction is insufficient, we apply a two-step analysis. State v. Harris, 895 N.W.2d 592, 598-601 (Minn. 2017). We first identify the circumstances proved "by resolving all questions of fact in favor of the jury's verdict," in deference to the jury's credibility determinations. Id. at 600; see State v. Landa, 642 N.W.2d 720, 725 (Minn. 2002) (stating that the jury is "free to accept part and reject part of a witness's testimony"). We then independently consider the "reasonable inferences that can be drawn from the circumstances proved." Harris, 895 N.W.2d at 601. The circumstances proved must, when viewed as a whole, "be consistent with a reasonable inference that the accused is guilty and inconsistent with any rational hypothesis except that of guilt." Id. "But we will not overturn a guilty verdict on conjecture alone." State v. Stewart, 923 N.W.2d 668, 673 (Minn. App. 2019) (quotation omitted), review denied (Minn. Apr. 16, 2019).
To convict Burdunice of second-degree intentional murder, the state was required to prove that he caused J.H.'s death "with intent to effect [his] death." Minn. Stat. § 609.19, subd. 1(1) (Supp. 2015). A state of mind, such as intent, is "generally proven through circumstantial evidence." State v. Al-Naseer, 788 N.W.2d 469, 474 (Minn. 2010). Intent to kill may be determined from the act of shooting another individual at relatively close range, even once. State v. Fardan, 773 N.W.2d 303, 321-22 (Minn. 2009). Likewise, leaving the victim visibly injured and bleeding evinces intent to kill. Id. at 322.
The state proved the following circumstances relevant to Burdunice's intent. J.H. antagonized and insulted Burdunice during their text-message negotiations regarding quantity and price. Burdunice brought his loaded gun to meet with J.H. and "looked angry" when J.H. arrived. He stood outside J.H.'s open window, pointed the gun at J.H., and demanded "the motherf--king money." Within moments, Burdunice shot J.H. twice. While the shots were aimed toward J.H.'s left shoulder, at least one was fired from a range of one-half inch to two feet away from J.H. Burdunice then fled, leaving J.H. obviously gravely injured. See State v. Darris, 648 N.W.2d 232, 236-37 (Minn. 2002) (inferring intent from "the nature of the killing," which included "multiple blows to the head"). Given all of these circumstances, particularly the multiple shots from relatively close range, only one hypothesis is reasonable—that Burdunice shot J.H. not in self-defense but in anger, intending to kill him. Accordingly, we conclude sufficient evidence supports Burdunice's murder conviction.
Burdunice next contends the prosecutor committed misconduct by misstating the burden of proof and vouching for K.S.'s credibility in various unobjected-to statements during closing argument. We review unobjected-to prosecutorial misconduct under a modified plain-error test, requiring the appellant to show prosecutorial error that was plain, to which the state must then respond by showing the appellant was not prejudiced. State v. Parker, 901 N.W.2d 917, 926 (Minn. 2017). When assessing alleged prosecutorial misconduct during a closing argument, we look to the closing argument as a whole. State v. McDaniel, 777 N.W.2d 739, 751 (Minn. 2010). An argument is improper if it misstates the burden of proof, id. at 750, or endorses a witness's credibility, State v. Swanson, 707 N.W.2d 645, 656 (Minn. 2006).
In his principal brief, Burdunice also asserts as prosecutorial error the introduction of an unobjected-to recording of his conversation with two police officers without redacting portions in which he offered to provide information about "murders" and the officers referred to his invocation of the right to counsel. But the record indicates that the recording was, effectively, redacted; the prosecutor played for the jury only the last several minutes of the recording, to which Burdunice does not object. We therefore discern no prejudicial error.
The prosecutor's closing argument as a whole focused appropriately on discrediting Burdunice's self-defense claim. The prosecutor told the jury its role was to decide between two mutually exclusive versions of events—K.S.'s description of an angry and intentional killing or Burdunice's description of a desperate attempt to protect himself from J.H.'s car and anticipated shooting. He then explained to the jury why it should reject Burdunice's description. He stated that Burdunice, while presumed innocent, is "not presumed to be credible," and highlighted the evidence that corroborated K.S.'s version of events and undermined Burdunice's version. Based on our careful review of the closing argument, we discern no impropriety.
Burdunice also claims judicial bias based on the trial judge's rulings on defense counsel's objections, refusal to admit Burdunice in chambers along with defense counsel, and demeanor on the bench. He waived this claim by failing to support it with citation to legal authority. State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002). But even if it were properly before us, the claim fails on the merits. Review of the record, including those portions Burdunice highlights as indicative of bias and the numerous rulings under review in this appeal, reveals that the trial judge carefully considered numerous motions, objections, and procedural matters over the course of two lengthy and complicated trials.
Affirmed.