STATE OF MINNESOTA
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`IN SUPREME COURT
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`A03-1075
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`Page, J.
`Dissenting, Anderson, Paul H., Anderson, Russell A., JJ.
`Took no part, Anderson, G. Barry, J.
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`Respondent,
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`Filed: October 13, 2005
`Office of Appellate Courts
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`Hennepin County
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`State of Minnesota,
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`vs.
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`Charden Gomez,
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`Appellant.
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`S Y L L A B U S
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`The trial court did not abuse its discretion when it admitted evidence of
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`1.
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`appellant’s past crimes because the evidence was relevant and material and its probative
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`value outweighed its potential for unfair prejudice.
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`2.
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`The trial court plainly erred in giving the no-adverse-inference instruction
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`without placing appellant’s consent on the record. The error did not, however,
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`significantly affect the jury’s verdict; therefore, appellant is not entitled to a new trial on
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`that basis.
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`3.
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`The trial court erred when it invaded the province of the parties by
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`initiating the strike of a venireperson of color, eliciting the defense counsel’s response,
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`and then giving reasons justifying the strike before the state actually struck the
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`venireperson. These errors are of a type that undermine the “structural integrity of the
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`criminal tribunal itself.” As a result, appellant is entitled to a new trial.
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`Affirmed in part, reversed in part, and remanded for a new trial.
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`Heard, considered, and decided by the court en banc.
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`O P I N I O N
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`PAGE, Justice.
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`On April 24, 2001, appellant Charden Gomez was indicted for the March 17,
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`2001, murders of Abel and Esther Hillman in Minneapolis. After a jury trial in Hennepin
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`County District Court, Gomez was found guilty of two counts of first-degree murder
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`during the commission of a burglary, two counts of second-degree intentional murder,
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`two counts of second-degree murder while committing a burglary of a dwelling, two
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`counts of second-degree murder while committing a burglary with assault, two counts of
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`second-degree murder during the commission of a burglary with a dangerous weapon,
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`two counts of second-degree murder during the commission of an aggravated robbery
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`involving bodily harm, and two counts of second-degree murder during the commission
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`of an aggravated robbery using a dangerous weapon. The jury acquitted Gomez of two
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`counts of first-degree premeditated murder. Gomez was sentenced to two consecutive
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`life sentences for the two counts of first-degree murder during the commission of a
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`burglary.
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`In this direct appeal, Gomez contends that his convictions must be reversed
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`because the trial court: (1) improperly admitted other crimes evidence; (2) gave the jury
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`a no-adverse-inference instruction with respect to his right not to testify without making a
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`record of his consent to give the instruction; and (3) denied him the right to a fair trial
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`when it overruled Batson challenges to the state’s peremptory strikes of two
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`non-Caucasian jurors and failed to sua sponte raise a Batson objection to the strike of
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`another non-Caucasian juror. We affirm in part, reverse in part, and remand for a new
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`trial.
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`At the time of their deaths, the Hillmans were both 89 years old, had been married
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`to each other for 60 years, and had lived for the previous 52 years in the house where
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`they were murdered. The Hillmans had one child, Larry Hillman. Larry had three
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`children, only one of whom, Lori Williamson, lived in Minnesota. Williamson was a
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`crack addict and a prostitute. The Hillmans would, from time to time, give money to
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`Larry’s children. Because of Williamson’s crack addiction, they would occasionally give
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`her small amounts of cash, buy her groceries and bus passes, or pay her rent, but they
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`would not give her large sums of money.
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`Sometime in early 2001, Williamson met Gomez, who had recently been released
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`from prison. At some point, Williamson introduced Gomez to her grandparents as her
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`landlord and, on at least two occasions, Esther Hillman wrote checks collectively totaling
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`$625 payable to Gomez for Williamson’s rent. In fact, Gomez was not Williamson’s
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`landlord. Nonetheless, Gomez cashed the checks and gave the proceeds to Williamson,
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`who used the money to purchase drugs.
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`On March 16, 2001, Williamson drove Esther Hillman to the bank, where she
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`bought two certificates of deposit, one in the amount of $100,000 payable on death to her
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`son Larry and the other in the amount of $25,000 payable on death to Williamson. After
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`their trip to the bank, Williamson dropped Esther Hillman off at home, called several
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`friends, and bragged about money she was going to be receiving from the Hillmans.
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`When Williamson told her sister Lisa that the Hillmans were giving her a large sum of
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`money in the form of a certificate of deposit, Lisa explained that the only way
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`Williamson could collect the proceeds from the certificate of deposit was if the Hillmans
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`died.
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`Lisa Hillman talked with Esther Hillman on the evening of Friday, March 16. The
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`following morning, at approximately 6:34 a.m., a 911 call was placed from the Hillmans’
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`home. When the operator answered the call, no one was on the line. Police officers,
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`following up on the 911 call, went to the Hillmans’ home. They found a newspaper lying
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`on the sidewalk, the front door locked, all the lights off, and the shades pulled down.
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`After ringing the doorbell and getting no answer, they left.
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`When Lisa was unable to reach the Hillmans on Sunday, March 18, she called her
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`father and asked him to check on them. When he arrived at his parents’ home, Larry
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`Hillman found that a light in the bedroom window was on and the front door was
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`unlocked. Upon entering, he discovered his parents’ bodies. Autopsies revealed that
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`Abel Hillman died of blunt force injuries to his head and that Esther Hillman had been
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`stabbed more than 70 times, four of which could have been fatal in and of themselves.
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`After further investigation linked Gomez to the crime, he was arrested, charged,
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`indicted for, and ultimately convicted of the Hillmans’ murders.
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`I.
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`First, we consider whether the trial court improperly admitted evidence of
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`previous crimes committed by Gomez. We review a trial court’s decision to admit
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`evidence of other crimes for an abuse of discretion. State v. Blom, 682 N.W.2d 578, 611
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`(Minn. 2004) (citing State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998)). Evidence of
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`past crimes, frequently referred to as Spreigl evidence, is generally not admissible to
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`prove the defendant’s character for committing crimes, but can be admitted to show
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`motive, intent, absence of mistake, identity, or a common scheme or plan. Minn. R.
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`Evid. 404(b); State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). Spreigl evidence
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`can be admitted only if:
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`(1) notice is given that the state intends to use the evidence; (2) the state
`clearly indicates what the evidence is being offered to prove; (3) the
`evidence is clear and convincing that the defendant participated in the other
`offense; (4) the Spreigl evidence is relevant and material to the state’s case;
`and (5) the probative value of the Spreigl evidence is not outweighed by its
`potential for unfair prejudice.
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`Kennedy, 585 N.W.2d at 389. If it is unclear whether Spreigl evidence is admissible, the
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`benefit of the doubt should be given to the defendant and the evidence should be
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`excluded. Id.
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`To prove identity, the state successfully sought to admit evidence related to the
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`following four crimes committed by Gomez:
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`(1) On August 12, 1989, at 4:55 p.m., Gomez forcibly entered into an elderly
`couple’s home. He struck both, knocked one to the ground, demanded
`money, and fled with their purse and wallet.
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`(2) On August 12, 1989, at 9:30 p.m., Gomez forcibly entered into another
`elderly couple’s home. He took the man’s wallet and struck him in the face,
`causing him a minor cut.
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`(3) On August 13, 1989, at 1:05 a.m., Gomez broke into the home of a 74-year-
`old woman, shoved her off the bed, demanded money, and rummaged
`through her closet and cabinet.
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`(4) On August 13, 1989, at 2:30 a.m., Gomez broke into an elderly couple’s
`home. When the elderly woman attempted to reach for the phone, he
`grabbed her and pushed her onto a bed. He fled with a wallet.
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`Gomez concedes that the first three factors to be considered when determining the
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`admissibility of Spreigl evidence were met, but argues nonetheless that the evidence
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`should not have been admitted. He argues that the Spreigl evidence is inadmissible
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`because the state’s case was not “weak.” We have previously held that “[e]vidence of
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`other crimes is admissible only if the trial court finds that the direct or circumstantial
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`evidence of the defendant’s identity is otherwise weak or inadequate, and that the
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`evidence is necessary to support the state’s burden of proof.” State v. Billstrom, 276
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`Minn. 174, 178-79, 149 N.W.2d 281, 284 (1967) (emphasis added). Here, the trial court
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`found that the state’s identity evidence was weak. Specifically, the trial court stated:
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`The State has a weak case here in terms of Spriegl [sic] as they’ve
`acknowledged in their memo. It’s purely circumstantial. They’ve got a
`fingerprint with a little DNA from the defendant’s car, they got a couple of
`well-impeached witnesses, and so forth. * * * The case is weak in that
`sense and the State has a need for this type of evidence * * * [It is] a
`circumstantial case where the handwriting is a positive identification I think
`essentially, but can be accounted for in a number of ways, like the DNA,
`like the fingerprint – all of those things are subject to alternate theories,
`obviously. What I meant is simply that.
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`Having reviewed the record, we are satisfied that the trial court’s finding is not clearly
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`erroneous.
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`Gomez also argues that the Spreigl evidence was not relevant because the charged
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`offenses and the Spreigl offenses are dissimilar. Specifically, he asserts that the Hillman
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`murders were not part of a crime spree, that stabbing the victims multiple times is not the
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`same as hitting or shoving the victims, that he knew the Hillmans but not the previous
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`victims, and that the time of the crimes varied. The state contends that the Spreigl
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`evidence was relevant and material because of the similarities of the offenses.
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`Spreigl evidence is relevant and material when there is a sufficiently close
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`relationship between the charged offense and the Spreigl offense in terms of time, place,
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`or modus operandi. Kennedy, 585 N.W.2d at 390. “[T]he closer the relationship, the
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`greater is the relevance * * *.” State v. Frisinger, 484 N.W.2d 27, 31 (Minn. 1992).
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`Spreigl evidence need not be identical in every way to the charged crime. Kennedy, 585
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`N.W.2d at 391. Here, while the charged offenses and the Spreigl offenses are not
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`identical, their relationship is sufficiently close in terms of time and modus operandi.
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`Although there is an 11-year gap between the charged offenses and Spreigl offenses,
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`Gomez was incarcerated for the Spreigl offenses until approximately six months before
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`the charged offenses. As we noted in State v. Wermerskirchen, 497 N.W.2d 235, 242 n.3
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`(Minn. 1993), the passage of time may be insignificant when the defendant has spent a
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`substantial part of the time between the offenses in prison. Obviously, that is the case
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`here. Thus, the gap in time between the offenses does not weigh against the Spreigl
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`offenses’ relevance and materiality. We also conclude that there is sufficient similarity
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`between the charged offenses and the Spreigl offenses. In three of the Spreigl offenses,
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`elderly couples were burglarized or robbed in their homes. In the fourth case, a
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`74-year-old woman was burglarized in her home. The similarities between the Spreigl
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`offenses and the charged offenses are striking. In each case, the victims were elderly, the
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`victims were physically assaulted in their homes, and the victims’ wallets or purses were
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`taken or money was demanded. Therefore, we conclude that the Spreigl evidence was
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`sufficiently relevant and material.
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`Gomez further argues that the evidence related to his 1989 offenses should have
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`been excluded because its probative value is substantially outweighed by the danger of
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`unfair prejudice. In State v. Bolte, we stated:
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`In determining admissibility, the trial court should engage in a balancing of
`factors such as the relevance or probative value of the evidence, the need
`for the evidence, and the danger that the evidence will be used by the jury
`for an improper purpose, or that the evidence will create unfair prejudice
`pursuant to Minn. R. Evid. 403.
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`530 N.W.2d 191, 197 (Minn. 1995) (emphasis added). We further explained:
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`“[P]rejudice” does not mean the damage to the opponent’s case that results
`from the legitimate probative force of the evidence, rather it refers to the
`unfair advantage that results from the capacity of the evidence to persuade
`by illegitimate means.
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`Id. at 197 n.3 (citation omitted).
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`Gomez claims that the trial court concluded that the Spreigl evidence was unfairly
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`prejudicial but admitted the evidence anyway. However, the transcript reflects that the
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`court recognized the prejudicial nature of the Spreigl evidence and carefully weighed it
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`against the probative value of the evidence. The court decided that the correct
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`application of the law was to admit the evidence of Gomez’s other crimes. In doing so,
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`the trial court stated:
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`I’ll state for the record that * * * there is very little doubt in my mind that
`this evidence is going to be highly prejudicial and it ought not be received,
`but the state of the law in Minnesota I think is such that it would be
`received in most trials, and I’ve looked at the cases carefully and
`commentaries on the cases, so what I say is, I say it should not be received
`is a broader statement in policy, but I say it for the record, were I working
`on a clean slate here, I would not use it as evidence. It is virtually
`inconceivable to me that the jury won’t, to some extent, conclude that Mr.
`Gomez has a propensity to rob old people and beat them up, which of
`course is exactly the reason this evidence is excluded under Rule 404, and it
`doesn’t fit any of the standard exceptions to Rule 404, but it does hit these
`cases that talk about modus operandi and signature crimes, and so forth.
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` *
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` * * The courts have repeatedly held, and the State cited in its memo a
`couple of cases that are relatively similar to the present case, homicide
`cases where earlier incidents were received, and I don’t believe that I can
`exclude them without simply ignoring these cases, and I don’t think it’s
`within my authority to do that, as much as I do disapprove of it. * * *
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` *
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` *
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` * * I’ve looked at [the Spreigl evidence] with some care, trying to control
`the prejudice as best I can. What I propose to do without dictating the
`precise terms of it, counsel, is to allow you to elicit the fact * * *.
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` * * *
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` * * *
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` *
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` I
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` don’t want * * * those crimes to overwhelm this case, as they have a
`chance of doing. I’ve gone through the usual Spriegl [sic] analysis. Most
`of the factors are not even clear and convincing, of course, as established by
`the guilty plea. The similarity is sufficient, of course, and that’s why I’m
`letting them in * * * they’re close enough to satisfy any Spriegl [sic]
`analysis.
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`The remoteness is satisfied by the fact he was incarcerated.
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` * * *
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` *
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` *
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` * * I’ve given a great deal of thought, and that is where I stand on these
`issues now. I’ll instruct the jury as to the use of this evidence as best I can.
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`In admitting the evidence, the trial court, after consulting with the state and
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`Gomez’s counsel, gave a proper limiting instruction to the jury as to the use of the other
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`crimes evidence both at the time the evidence was admitted and as part of the final
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`instructions before jury deliberations.
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`Although the trial court expressed its personal view that as a matter of policy
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`Spreigl evidence of the type admitted here should not be admissible, the trial court
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`correctly ruled that the probative value of the evidence at issue outweighed the potential
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`prejudice. The trial court appropriately instructed the jury to limit the use of such
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`evidence.
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`In that we have concluded that the evidence of Gomez’s past crimes was relevant
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`and material and that the probative value of the evidence outweighed its potential for
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`unfair prejudice, we therefore conclude that the trial court did not abuse its discretion
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`when it admitted the other crimes evidence.
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`II.
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`We now turn to Gomez’s contention that the trial court committed reversible error
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`when it instructed the jury on Gomez’s right not to testify without obtaining his consent
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`to give the instruction on the record. Gomez contends that the questionable credibility of
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`two key witnesses made his case a “close factual case” and that the instruction, coupled
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`with the Spreigl evidence, “had to have some impact on the verdicts rendered by the
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`jury.” We disagree.
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`A defendant in a criminal trial has the right to testify, but failure to testify shall not
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`create any presumption against the defendant. Minn. Stat. § 611.11 (2004). If the
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`defendant chooses not to testify, the trial court may instruct the jury not to draw any
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`adverse inference from the fact that the defendant has not testified only if the defendant
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`requests the court to do so. 10 Minn. Dist. Judges Ass’n, Minnesota Practice – Jury
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`Instruction Guides, Criminal, CRIMJIG 3.17 (4th ed. 1999 & Supp. 2003-04); McCollum
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`v. State, 640 N.W.2d 610, 616 (Minn. 2002). If the defendant requests the instruction,
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`the court or the defendant’s counsel must make a record of “the defendant’s clear consent
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`and insistence that the instruction be given.” McCollum, 640 N.W.2d at 617. No party
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`may assign as error any portion of the change or omission from the instructions given
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`unless the party objects to the instructions before the jury retires to consider its verdict.
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`Minn. R. Crim. P. 26.03, subd. 18(c). If no objection is made to the trial court giving the
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`no-adverse-inference instruction, review is for plain error. State v. Darris, 648 N.W.2d
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`232, 240 (Minn. 2002). For there to be plain error: (1) there must have been error;
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`(2) the error was plain; and (3) the error must have affected the party’s substantial rights.
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`Id.
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`We have stated that the third prong is satisfied if the error was prejudicial and
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`affected the outcome of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).
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`An error in instructing the jury is prejudicial if there is a reasonable likelihood that giving
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`the instruction in question had a significant effect on the jury verdict. Id. We have held
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`that a defendant who fails to object to the no-adverse-inference instruction bears a heavy
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`burden of showing that substantial rights have been affected. Darris, 648 N.W.2d at 240
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`(citation omitted). Giving the no-adverse-inference instruction without consent, absent a
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`showing of prejudice, is harmless. See id. If these three prongs are met, the reviewing
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`court then assesses whether it should address the error to ensure the fairness and integrity
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`of the judicial proceedings. Griller, 583 N.W.2d at 740 (citing Johnson v. United States,
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`520 U.S. 461, 467 (1997)).
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`Gomez did not testify at his trial. Because he did not testify, a question arose as to
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`whether the jury was to be instructed that no adverse inference was to be made based on
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`Gomez’s failure to testify. In resolving that question, the following discussion took
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`Yes.
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`Yes. * * * Also you tell me whether you want
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`[DEFENSE COUNSEL]: Judge, do we need to put on the record – my
`client didn’t testify. That’s his choice –
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`THE COURT:
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`[DEFENSE COUNSEL]: Do we do that at this time or –
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`THE COURT:
`an instruction on that.
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`[DEFENSE COUNSEL]: Judge, if I can think about that overnight I know
`we’ll be able to give you an answer tomorrow.
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`THE COURT:
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`[DEFENSE COUNSEL]: Right.
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`THE COURT:
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`[DEFENSE COUNSEL]: My inclination is not to have you give it, but I
`would like to just sort of ponder it over the evening.
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`THE COURT:
`defense request.
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`place:
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`I can’t give the instruction – or at least I won’t –
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`– without your specific request.
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`Yes. It won’t be given unless it comes from the
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`In the end, a no-adverse-inference instruction was given to the jury without
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`objection, but the record does not indicate that Gomez consented to the instruction. The
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`record does indicate that Gomez’s counsel had the opportunity to review the preliminary
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`instructions and seek changes before the instructions were finalized. No changes to the
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`no-adverse-inference instruction were sought nor was any objection made to that
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`instruction. In addition, after the instructions were given to the jury, Gomez’s counsel
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`answered “No” when asked by the trial court whether there were “any objections,
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`additions or anything on the instructions.” Finally, before the jury returned its verdict,
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`the court asked whether either of the parties would like to put anything on the record.
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`Gomez’s counsel also answered “No” to that question.
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`Here, the trial court gave the no-adverse-inference instruction without placing
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`Gomez’s consent to the instruction on the record and Gomez did not make any objection.
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`Thus, our review is for plain error. Because the record does not contain Gomez’s consent
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`to the giving of the no-adverse-inference instruction, we conclude that giving the
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`instruction was error and that the error was plain. See Darris, 648 N.W.2d at 240. The
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`first and second prongs of the plain error test are satisfied.
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`In this case, the primary issue at trial was the identity of the killer. While there
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`was no direct evidence, the state presented circumstantial evidence, including a partial
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`DNA profile, fingerprint identification, handwriting analysis, wiretapped conversation,
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`similar crimes committed by Gomez, and testimony of other witnesses. We have
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`concluded above that evidence of Gomez’s prior crimes was relevant to prove identity
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`and the probative value of the evidence is not outweighed by its potential for unfair
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`prejudice. Moreover, the record shows that the state’s key witnesses, including Lori
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`Williamson, were subject to extensive cross-examination. The credibility of these
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`witnesses is for the jury to decide. Given the totality of the evidence, it seems unlikely
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`that the jury would have reached a different verdict. We conclude both that Gomez has
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`failed to show that the error was prejudicial and that he has failed to meet his heavy
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`burden of showing that there “is a reasonable likelihood that the giving of the instruction
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`would have had a significant effect on the jury’s verdict.” Darris, 648 N.W.2d at 240.
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`Because the third prong of the plain-error test is not satisfied, we need not
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`consider the effect of the error on the fairness and integrity of the trial. We note,
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`however, that the trial court stated, on the record, its intent not to give the instruction
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`without Gomez’s consent and that the defense counsel had the opportunity to review the
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`instruction and seek changes to it but did not. Thus, although we need not decide this
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`issue, the record suggests that Gomez acquiesced in the instruction being given.
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`In summary, because the error in giving the instruction did not significantly affect
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`the jury’s verdict, we conclude that Gomez is not entitled to a new trial based on that
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`error.
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`III.
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`Finally, we address Gomez’s contention that the state’s peremptory strikes of three
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`non-Caucasian venirepersons deprived him of a fair trial. Specifically, Gomez challenges
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`the state’s peremptory strikes of venirepersons 9, 12, and 21. Purposeful racial
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`discrimination in jury selection is prohibited by the Equal Protection Clause of the
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`Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S.
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`79, 89 (1986). That prohibition is intended to protect the rights of individual citizens not
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`to be excluded from jury service as well as the rights of the criminally accused. See
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`Powers v. Ohio, 499 U.S. 400, 406 (1991). Courts have an affirmative duty to enforce
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`the strong statutory and constitutional policies embodied in the prohibition on
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`discrimination in the selection of jurors. Id. at 416. That duty includes the obligation to
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`act and to act sua sponte when necessary to prevent discrimination. Thus, when it comes
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`to protecting the rights of the venireperson, the court is a direct and indispensable
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`participant in the process.
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`Trial courts are required to follow a three-step analysis in evaluating a Batson
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`objection to a peremptory challenge: (1) a defendant must make a prima facie showing
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`that the prosecutor has exercised peremptory challenges on the basis of race, (2) the
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`burden then shifts to the prosecutor to articulate a race-neutral explanation for striking the
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`jurors in question, and (3) the trial court must determine whether the defendant has
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`carried his burden of proving purposeful discrimination. Hernandez v. New York, 500
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`U.S. 352, 358-59 (1991); see also Minn. R. Crim. P. 26.02, subd. 6a(3). Because the
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`existence of racial discrimination in the exercise of a peremptory challenge is a factual
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`determination, we generally give deference to the trial court’s rulings on Batson
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`objections unless they are clearly erroneous. State v. Reiners, 664 N.W.2d 826, 830-31
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`(Minn. 2003).
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`Gomez contends that the trial court erred when it denied his Batson objection to
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`the state’s strike of venireperson 21. Based on the parties’ discussion of the Batson issue
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`during voir dire, we assume that venireperson 21 is a person of color, although her race is
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`not on the record. During voir dire, it was revealed that venireperson 21’s father had
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`been tried and convicted of sexually abusing venireperson 21’s half-sister about 15 years
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`earlier when venireperson 21 was a young child. Venireperson 21 testified at her father’s
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`trial and felt “a little intimidated.” Upon his release from prison, venireperson 21’s father
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`returned home to live with his family. Venireperson 21 thought her father was
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`wrongfully convicted, but she did not recall any bias against her father at the trial. After
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`the defense accepted venireperson 21 and before the state had the opportunity to examine
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`her, the trial court excused venireperson 21 from the room indicating that she should take
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`her belongings with her because she might not be coming back. After venireperson 21
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`left the room, the court, on its own initiative, asked defense counsel, “If the State
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`exercises or offers to challenge, are you going to contend it’s racially motivated?” The
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`following discussion then ensued:
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`[DEFENSE COUNSEL]: Yes, for the record, judge.
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`THE COURT:
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`On what basis?
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`[DEFENSE COUNSEL]: On the basis that as I understand the concern
`that the State has is that she, this woman believes that her father was
`unjustly convicted. That goes to the same issue of, does the court system
`always work and we’ve had several other jurors who have said that is it not
`perfect but it works okay sometimes. She has said she can be a fair juror,
`she has said that there will not be a connection to this case and her father’s
`case.
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`Except she, it’s not quite the same, it doesn’t
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`THE COURT:
`always work when it’s your father and you were a witness.
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`[DEFENSE COUNSEL]: I understand that, but this is a position that I
`have judged, that I believe that her answers were not any due cause and
`were not different from other jurors and as such I believe that the basis to
`work [sic] has described her because she is a black woman.
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`THE COURT:
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`All right, [Prosecutor’s Name] the challenge is?
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`The challenge, Your Honor, is well, the obvious
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`[PROSECUTOR]:
`reason that this young woman had a tragic circumstance occur in her life at
`a very young age, and as she has described for us, came into court and
`testified for the defense on behalf of her father. Her father was nevertheless
`convicted and she also described for us how her father, or her family, went
`to some length it sounds like to me to look at the evidence and still
`convinced that the evidence certainly didn’t justify having her father in
`prison, and then once he came out of prison, the father came back to live in
`the household with she, [sic] and a younger sister.
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`THE COURT:
`that case was her sister?
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`I wasn’t sure the victim or the complainant in
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`[DEFENSE COUNSEL]: Her half-sister.
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`And I’m not sure of half how either, I don’t
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`[PROSECUTOR]:
`think it matters, but obviously our concern is the obvious one. I don’t know
`that I need to state anymore for the record. It’s just a situation that is
`untenable.
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`Well, it’s a complex situation and I read it
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`THE COURT:
`similar to the situation we had yesterday. I probably would deny a
`challenge for cause if she continued to say she could be fair. She’s a
`credible person. She’s not, I don’t think she’s trying to get out of this jury,
`but I agree with the State that if the grace of the jury is left out of it, it
`would be bordering on ineffective representation not to challenge her
`because of that. So I’ll excuse her, it’s not a – it’s clear to me there is a
`valid and mutual reason. Bring her back in Pat.
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`You don’t even have to come way back up here, I’ll just tell you I’ve
`discussed it with the lawyers and I’ve decided I’ll excuse you from this
`jury. Doesn’t mean you’re not qualified to be a juror here, you are or you
`wouldn’t have got to this room, but as you probably know we have to turn
`fifty jurors into about fourteen and so we do it one at a time like this and
`we’ve just decided to excuse you from this jury. So check back in –
`probably tomorrow morning down at the jury office.
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`While the parties have framed their arguments with respect to venireperson 21
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`around the trial court’s application of Batson, we are most troubled by the court’s
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`handling of venireperson 21 before the state exercised a peremptory strike of
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`venireperson 21.1 A trial court’s obligation to act to prevent discrimination, that is, to
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`question a party’s exclusion of a venireperson who is a person of color does not include a
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`trial court on its own, initiating a peremptory strike of a venireperson. Nor is it
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`permissible for a trial court to elicit a party’s reaction to a possible strike before the strike
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`has been made. Our rules of criminal procedure clearly put the exercise of a peremptory
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`strike in the hands of the party seeking to exclude the venireperson. See Minn. R. Crim.
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`P. 26.02, subd. 4(3)(b)4, 5 (allowing the defendant or the state to exercise a peremptory
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`challenge after completing examination of a venireperson); see id. at subd. 6 (stating that
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`“if the offense is punishable by life imprisonment the defendant shall be entitled to 15
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`and the state to 9 peremptory challenges”). By exercising a peremptory strike, the party
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`“invokes the formal authority of the court” and invites the “direct and indispensable
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`participation of the judge,” who has the obligation to oversee the enforcement of the
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`peremptory strike, including raising a Batson objection sua sponte when necessary. See
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`Edmonson v. Leesville Concrete Co., 500 U.S. 614, 624 (1991); Minn. R. Crim. P. 26.02,
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`subd. 6a(2).
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`Given the trial court’s actions here, there was no opportunity for either party to
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`invoke the formal authority of the court. While a trial court may anticipate a peremptory
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`strike by a party, anticipating one is quite different from initiating one. Here, the trial
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`1
`We should note that our concern is not whether the trial court could have sua
`sponte stepped in to strike venireperson 21 for cause. That issue simply is not before us.
`As the trial court noted, “I probably would deny a challenge for cause if she continued to
`say she could be fair.”
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`court sua sponte initiated the peremptory strike, rather than a Batson objection to a
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`party’s peremptory strike. This o