State v. Kueng

State of Minnesota, Respondent, v. J. Alexander Kueng, Appellant.

A20-1225

STATE OF MINNESOTA IN COURT OF APPEALS

January 11, 2021

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

Affirmed

Cochran, Judge

Hennepin County District Court

File No. 27-CR-20-12953

Christopher W. Bowman, Madigan, Dahl & Harlan, Minneapolis, Minnesota (for respondent)

Deborah Ellis, Thomas C. Plunkett, St. Paul, Minnesota (for appellant)

Considered and decided by Cochran, Presiding Judge; Jesson, Judge; and Slieter Judge.

NONPRECEDENTIAL OPINION

COCHRAN, Judge

This is an appeal from an ex parte order granting in part and denying in part appellant's application for expert services under Minn. Stat. § 611.21 (2018). Appellant requested $6,300 to retain an expert to perform a preliminary analysis of the extent and character of publicity concerning his pending criminal case for the purpose of evaluating whether to bring a change of venue motion. Appellant argues that the district court abused its discretion by denying his request. Relatedly, he also argues that the district court violated his constitutional rights to due process, fundamental fairness, and an impartial jury by denying him the means to show that a change of venue is necessary. Because we conclude that the district court did not abuse its discretion by denying the requested funding, we affirm.

FACTS

The State of Minnesota charged appellant J. Alexander Kueng in Hennepin County District Court with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter for the death of George Floyd. Kueng's case is presently joined for trial with his codefendants, and trial is scheduled. In August 2020, Kueng filed an ex parte application under Minn. Stat. § 611.21 (2018), requesting $6,300 for the services of an expert to conduct phase I of a venue research study. In support of the request, Kueng appended his sworn affidavit, stating that his liabilities exceed his assets, and a copy of his expert witness's "venue research proposal." The proposal has two phases. Phase I involves a "preliminary analysis of the extent and character of the newspaper publicity and other possible sources of community bias" to determine what "prophylactic measures" are necessary to ensure that Kueng receives a fair trial. If it is deemed necessary following completion of phase I, phase II would involve a public opinion survey in Hennepin County and a likely comparison survey in another county "to measure the impact that pretrial publicity . . . and other relevant factors . . . may have had on the jury pool." Depending on the results of the public-opinion survey and phase I analysis, the expert may recommendprotective measures, including "an extensive jury questionnaire and individual sequestered voir dire," or a change of venue.¹ The total estimated cost of phase II is $41,875.

The district court determined that Kueng met financial eligibility requirements to apply for expert services, although he is represented by private counsel, but denied his application for $6,300 for phase I of the venue research study, reasoning that "expending more than $48,000 in public funds to fund a two-phase venue research study to lay the foundation for a motion for change of venue in the manner proposed by Kueng is not necessary to the preparation of an adequate defense." Nevertheless, the district court authorized "up to $1,200 for expert witness services to Kueng's jury consultant to consult with and advise Kueng and his defense counsel regarding proposed questions to be included on a jury questionnaire and with respect to questioning of the jury panel during voir dire." The district court reasoned that these expert services are necessary because of the "magnitude of media publicity and community protests," and because the court intends to rely on "extensive jury questionnaires" and "extensive voir dire to ferret out prospective jurors who may have been unduly influenced by prejudicial publicity."

Kueng filed an appeal from the order denying his application for expert services and requested expedited consideration. See Minn. Stat. § 611.21(c) (providing defendant may appeal immediately and request an expedited hearing). We granted expedited consideration and assigned responsive briefing to counsel not involved in the prosecution.

DECISION

Kueng argues that the district court abused its discretion by denying his request for $6,300 for an expert to conduct a preliminary analysis of the character and extent of pretrial publicity surrounding his case. Kueng further contends that the district court's decision to grant funding for an expert to assist in preparing a jury questionnaire and to assist with voir dire is inconsistent with this determination. And he argues that, without the assistance of an expert to conduct an independent venue study, he will not be able to meet his burden to prove that a change of venue is necessary, depriving him of his constitutional rights to an impartial jury, due process, and fundamental fairness.

This court reviews an order denying funds for expert services under Minn. Stat. § 611.21 for an abuse of discretion. In re Application of Wilson, 509 N.W.2d 568, 570 (Minn. App. 1993). "A district court abuses its discretion when its decision is based on an erroneous view of the law or is against logic and the facts in the record." State v. Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted).

The Due Process Clause ensures that "every criminal defendant has the right to be treated with fundamental fairness and '[is] afforded a meaningful opportunity to present a complete defense.'" State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1994)); see generallyU.S. Const. amend. XIV, § 1 (ensuring criminal defendant's right to due process and fair trial); Minn. Const. art. I, § 7 (same). Consistent with this constitutional requirement, the Supreme Court "has long recognized that" states must ensure that indigent criminal defendants have the ability to "participate meaningfully" in judicial proceedings where their liberty is at stake. Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 1092 (1985). But access to the courthouse is not enough; the state must also provide indigent defendants with "access to the raw materials integral to the building of an effective defense." Id. at 77, 105 S. Ct. at 1093.

To further these constitutional requirements, Minn. Stat. § 611.21 allows indigent defendants to request funding from the district court for expert or investigative services necessary for their defense. State v. Volker, 477 N.W.2d 909, 910 (Minn. App. 1991). The statute provides: "Counsel appointed by the court for an indigent defendant, or representing a defendant who, at the outset of the prosecution, has an annual income not greater than 125 percent of the poverty line . . . may file an ex parte application requesting investigative, expert, or other services necessary to an adequate defense in the case." Minn. Stat. § 611.21(a).² Upon a finding "that the services are necessary and that the defendant is financially unable to obtain them, the court shall authorize counsel to obtain the services on behalf of the defendant." Id. The compensation may not exceed $1,000, unless thepayment in excess is certified as necessary, and the chief judge approves.³ Id. (b). But, in order to obtain funds for expert services, the defendant must present some specific evidence showing that the expert's services are necessary to the defense. Volker, 477 N.W.2d at 911 (holding appellant's statement that an expert was necessary without any specific reasons did not meet the Ake threshold showing of need for expert assistance); see also Richards, 495 N.W.2d at 198 (citing Volker with approval). For example, the submissions should answer the following questions: "Why is the expert necessary? How would the expert's testimony aid in appellant's defense?" Volker, 477 N.W.2d at 911. The district court also has discretion to limit the fees that may be expended for expert services. In re Application of Jobe, 477 N.W.2d 723, 727 (Minn. 1991) (stating district court is in best position to determine what is reasonable compensation).

Kueng contends that without the requested expert services he will not be able to meet his burden to show that a change of venue is necessary, thus depriving him of his Sixth Amendment right to an impartial jury. For this reason, we consider the standard for granting a change of venue before addressing whether the district court abused its discretion. Criminal trials must be held in the county where the offense was committed, "unless the[ ] rules direct otherwise." Minn. R. Crim. P. 24.01. A trial may be continued or venue may be changed because of prejudicial pretrial publicity. Minn. R. Crim. P. 25.02. A district court "must" grant a motion for continuance or to change venue "whenever potentially prejudicial material creates a reasonable likelihood that a fair trial cannot behad." Id., subd. 3. "Actual prejudice need not be shown." Id. A party may support a motion for change of venue due to pretrial publicity by testimony, affidavits, written statements from individuals in the community, a qualified public opinion survey,⁴ or other probative material. Id., subd. 2. The district court has broad discretion over the decision of whether to grant a change of venue due to pretrial publicity, and this court will not reverse the decision unless a clear abuse of discretion is shown. State v. Salas, 306 N.W.2d 832, 835 (Minn. 1981). But the fact that there is widespread publicity does not require a change of venue; the question is "whether the publicity is of a type that is prejudicial to the defendant" and "affects the minds of the specific jurors involved in the case." State v. Fratzke, 354 N.W.2d 402, 406 (Minn. 1984). The type of publicity that is prejudicial may...