State v. Burdunice, A18-1269

State of Minnesota, Respondent, v. Lannon Lavar Burdunice, Appellant.

A18-1269

STATE OF MINNESOTA IN COURT OF APPEALS

July 8, 2019

This opinion will be unpublished and may not be cited except as provided by Minn.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.^*

UNPUBLISHED OPINION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, Burdunicewithdrew 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 publicrecords, 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.¹ We address each in turn.

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 aprima 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 Burdunicefailed 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...