                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1853

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                 Calvin James Jennings,
                                       Appellant.

                                Filed November 16, 2015
                                        Affirmed
                                     Johnson, Judge

                             Hennepin County District Court
                               File No. 27-CR-13-22830

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant
County Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Bjorkman,

Judge.

                         UNPUBLISHED OPINION

JOHNSON, Judge.

         A Hennepin County jury found Calvin James Jennings guilty of first-degree

burglary based on evidence that he climbed through a window of an apartment and stole a
purse.     On appeal, Jennings argues that the district court erred by dismissing a

prospective juror for cause and by admitting into evidence an audio-recording of a 911

call. We affirm.

                                          FACTS

         On July 13, 2013, at approximately 5:00 a.m., law enforcement received a 911 call

from a person who said that he was watching a man break into an apartment across the

street from his home. The caller described his observations to the dispatcher as he

perceived them. The caller watched and spoke as the intruder opened a ground-floor

window, crawled in, and crawled out with a purse in his hand. Meanwhile, the dispatcher

sent officers to the scene, who found a man holding a purse. As the officers seized and

detained the intruder, the caller confirmed for the dispatcher that the officers had

apprehended the person who had entered and exited the apartment.

         The state charged Jennings with first-degree burglary. See Minn. Stat. § 609.582,

subd. 1(a) (2012). The case went to trial in May 2014. At the beginning of trial, the

prosecutor informed the district court that the 911 caller, whom the state had listed as a

trial witness, was unavailable to testify because he was out of town. The state moved in

limine for a ruling that an audio-recording of the 911 call could be admitted into evidence

in lieu of the caller’s testimony. Jennings objected on the ground that admission of the

audio-recording would violate his rights under the Confrontation Clause. The district

court granted the state’s motion, and the audio-recording was played for the jury. The

state also provided a transcript of the audio-recording to the jury.




                                              2
       During voir dire, the state challenged two members of the venire panel for cause.

One prospective juror, I.R., is an African American; the other prospective juror, J.L., is

white. Jennings objected to both of the state’s challenges. The district court sustained

the state’s challenge to I.R. and overruled the challenge to J.L.

       The jury found Jennings guilty. The district court imposed a sentence of 54

months of imprisonment. Jennings appeals.

                                      DECISION

                            I. Dismissal of Prospective Juror

       Jennings argues that the district court erred by sustaining the state’s for-cause

challenge to prospective juror I.R. Jennings’s argument has two parts.

A.     Basis of Challenge for Cause

       Jennings first argues that the district court erred by sustaining the state’s for-cause

challenge to I.R. because the reason for her dismissal, dishonesty, is not a valid basis of a

for-cause challenge.

       The dismissal of persons from a venire panel for cause is governed by rule 26.02,

subdivision 5, of the Minnesota Rules of Criminal Procedure. The rule provides 11

grounds on which a juror may be challenged for cause. Minn. R. Crim. P. 26.02, subd.

5(1); State v. Roan, 532 N.W.2d 563, 568 (Minn. 1995). Among them is the situation in

which a prospective juror’s “state of mind . . . satisfies the court that the juror cannot try

the case impartially and without prejudice to the substantial rights of the challenging

party.” Minn. R. Crim. P. 26.02, subd. 5(1)1. The party challenging a prospective juror

on this ground has the burden of establishing that the prospective juror has “actual bias”


                                              3
toward the case or either party. State v. Munt, 831 N.W.2d 569, 577 (Minn. 2013). To

satisfy that burden, the challenging party must show more than the “‘mere existence of

any preconceived notion as to the guilt or innocence of the accused’”; the challenging

party must show a “‘strong and deep impression[]’ that would prevent the prospective

juror from “‘lay[ing] aside [an] impression or opinion.’” Id. (quoting Irvin v. Dowd, 366

U.S. 717, 722-23 & n.3, 81 S. Ct. 1639, 1642-43 & n.3 (1961)). The district court is in

the best position to determine whether a prospective juror can be an impartial juror

because the district court can assess the prospective juror’s demeanor and credibility. See

State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995); State v. Drieman, 457 N.W.2d 703,

708-09 (Minn. 1990). This court applies an abuse-of-discretion standard of review to a

district court’s dismissal of a prospective juror for cause. Munt, 831 N.W.2d at 576.

       During voir dire, the district court asked certain questions of the venire panel,

including the following question: “Are there any among you who aside from a minor

non-alcohol related traffic offense, other than that, anybody ever been either arrested,

accused or charged with a crime?” I.R. raised her hand and said that she had been

convicted of a drug crime but was treated fairly and could be an impartial juror. The

prosecutor later asked I.R. if she had had any other interactions with police.          I.R.

responded, “No, sir.” The prosecutor challenged I.R. for cause. The prosecutor stated his

reasons for the challenge as follows:

              I asked [I.R.] if she had any [other] prior contacts with the
              police or arrests and she indicated no. And as I indicated to
              [defense counsel], she has seen as well that that particular
              juror has a number of entries in MNCIS indicating that she
              has had arrests and even a couple of convictions, although


                                            4
              they’re not felony convictions.         She has had more
              involvement with the police.

In overruling Jennings’s objection to the challenge and sustaining the challenge, the

district court stated, “I will grant the State’s motion to dismiss juror number 15 for cause

based on her untruthfulness.”

       Jennings is correct that untruthfulness or dishonesty is not mentioned in the

applicable rule as one of the grounds for dismissal of a prospective juror for cause. See

Minn. R. Crim. P. 26.02, subd. 5(1). But the state does not contend that dishonesty alone

is a ground for a challenge for cause; rather, the state contends that I.R.’s dishonesty

demonstrates bias, which is a recognized ground for a challenge for cause, because her

dishonesty supports an inference that she did not disclose prior interactions with law

enforcement in order to conceal a bias against the state. We are not aware of any

Minnesota caselaw that either endorses or forecloses the state’s argument. Accordingly,

we accept the state’s premise that evidence of dishonesty may allow a district court to

infer, as a factual matter, the existence of bias.

       The district court’s finding of bias may be discerned from the record.          It is

undisputed that the prosecutor determined that I.R. did not disclose occasions on which

she had been arrested and convicted. The record supports the state’s contention that the

prosecutor was focused on I.R’s dishonesty due to a concern that I.R. was harboring a

bias against the state. Neither Jennings’s trial attorney nor the district court questioned

the logic of the prosecutor’s challenge. It appears that the district court adopted the

prosecutor’s suggested inference that I.R.’s untruthfulness showed that she harbored a



                                               5
bias against the state. Such a finding may be implied from the record. See State v.

Alvarez, 820 N.W.2d 601, 620 (Minn. App. 2012) (affirming district court’s ruling on

hearsay exception based on implied findings), aff’d, 836 N.W.2d 527 (Minn. 2013). We

must defer to the district court’s implied finding of bias in these circumstances because of

the district court’s opportunity to assess a prospective juror’s demeanor and credibility.

See Munt, 831 N.W.2d at 576; Logan, 535 N.W.2d at 323; Drieman, 457 N.W.2d at 708-

09.

         Thus, the district court did not abuse its discretion by finding that prospective juror

I.R. was biased against the state and by sustaining the state’s for-cause challenge on that

basis.

B.       Alleged Racial Motive

         Jennings also argues that the district court erred by sustaining the state’s challenge

to I.R. on the ground that the challenge was motivated by her race.

         The Fourteenth Amendment to the United States Constitution prohibits purposeful

discrimination based on race in jury selection. Batson v. Kentucky, 476 U.S. 79, 86-87,

106 S. Ct. 1712, 1717-18 (1986); State v. Diggins, 836 N.W.2d 349, 354 (Minn. 2013).

In Batson, the United States Supreme Court established a three-step process for resolving

a defendant’s objection to a peremptory challenge of a prospective juror based on an

allegation of racial discrimination. Diggins, 836 N.W.2d at 354. “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.” Id. (quoting Hernandez v. New York,

500 U.S. 352, 358, 111 S. Ct. 1859, 1866 (1991)). Second, if the defendant has satisfied


                                                6
his burden at the first step, the burden shifts to the state to “articulate a race-neutral

explanation” for the peremptory challenge. Id. Third, if the state has satisfied its burden

at the second step, “the district court must determine whether the defendant has ‘carried

his burden of proving purposeful discrimination.’” Id. at 355 (quoting Hernandez, 500

U.S. at 359, 111 S. Ct. at 1866); see also Minn. R. Crim. P. 26.02, subd. 7(3)

(incorporating Batson analysis into rules of criminal procedure).

       Jennings relies on Batson even though he is attacking a for-cause challenge, not a

peremptory challenge. Our supreme court twice has considered arguments similar to

Jennings’s argument. In State v. Bowers, 482 N.W.2d 774 (Minn. 1992), the supreme

court declined to extend Batson to an appeal that concerned a challenge for cause. Id. at

776-78.    The supreme court reasoned that peremptory challenges and for-cause

challenges are significantly different in that a prosecutor may exercise a peremptory

challenge for almost any reason, but a challenge for cause may be exercised only in

limited circumstances. Id. at 776. The supreme court also reasoned that “if a prosecutor

has demonstrated that a challenge for cause is necessary, then a fortiori the prosecutor

has met the standard required for Batson.” Id. The supreme court nevertheless noted that

a Batson analysis may be appropriate in “a rare case” in which “the facts undoubtedly

suggest that the prosecutor has challenged for cause a juror for racially discriminatory

reasons, and the trial court has erred in granting the motion.” Id. The supreme court

ultimately concluded in Bowers that the record did not give rise to an inference of a

racially discriminatory motive. Id. at 777. More recently, in State v. Riddley, 776




                                            7
N.W.2d 419 (Minn. 2009), the supreme court again considered a request to extend Batson

to a for-cause challenge and rejected it for similar reasons. See id. at 430-31.

       Jennings also relies on Batson on appeal even though he did not assert a Batson

objection in the district court. Because Jennings did not invoke Batson during voir dire,

the district court did not conduct the three-step, burden-shifting Batson analysis and,

more specifically, did not make any findings related to whether the state’s for-cause

challenge was motivated by I.R.’s race. The state contends that this court should not

consider Jennings’s Batson argument on appeal because the argument was not properly

preserved. It is unclear from Bowers and Riddley whether an allegation of a racial motive

in a for-cause challenge is amenable to appellate review in the absence of a Batson

objection during voir dire. See id. at 430-31; Bowers, 482 N.W.2d at 776-78. For

purposes of this opinion, we will assume without deciding that an appellate court may

apply Bowers and Riddley even though a defendant-appellant did not object on Batson

grounds during voir dire.

       The record of voir dire proceedings in this case does not indicate that the

prosecutor challenged I.R. for cause because of her race. As described above, the state

challenged I.R. for cause because she attempted to conceal information about her

interactions with the criminal justice system, which caused the prosecutor and the district

court to believe that she was biased. We have concluded that the district court did not

abuse its discretion by sustaining the state’s for-cause challenge. See supra part I.A. For

that reason alone, we may conclude that “the prosecutor has met the standard required for

Batson.” See Bowers, 482 N.W.2d at 776.


                                              8
       Jennings nonetheless contends that the prosecutor’s challenge was racially

motivated because the prosecutor’s office has challenged other African American

prospective jurors in other cases in similar ways. Jennings cites two other cases that were

tried in Hennepin County in which, he asserts, prospective jurors were questioned about

their prior contacts with the criminal justice system and then challenged for cause due to

dishonesty. In response, the state contends that Jennings has not established a prima

facie case of discrimination because the prosecutor in this case also researched the

criminal record of a non-African American prospective juror. The state also contends

that it had a non-discriminatory reason for challenging I.R., namely, that she was biased

against the state, as evidenced by her concealment of her prior interactions with the

criminal justice system. The state further contends that Jennings’s argument relies on

information that is outside the record of this case and does not consider all relevant facts.

       Each of the state’s contentions is persuasive. If we consider only the facts in the

record of this case, we do not have a basis for concluding that the prosecutor challenged

I.R. because of her race. If we were to consider the information presented by Jennings’s

appellate counsel concerning other cases tried in Hennepin County, we would reach the

same conclusion because we would recognize that a more fulsome record would need to

be made, in an adversarial proceeding in which each party has an opportunity to present

evidence and test the opposing party’s evidence, before a finding of discrimination could

be made pursuant to Bowers and Riddley. All things considered, the facts of this case do

not “undoubtedly suggest that the prosecutor has challenged for cause a juror for racially




                                              9
discriminatory reasons.” See Bowers, 482 N.W.2d at 776; see also Riddley, 776 N.W.2d

at 430-31.

       Thus, the district court did not err by not conducting a Batson analysis and by not

finding sua sponte that the prosecutor challenged I.R. for cause because of her race.

                                  II. Audio-Recording

       Jennings also argues that the district court erred by admitting into evidence the

audio-recording of the 911 call. Specifically, Jennings argues that the admission of the

audio-recording violated his rights under the Confrontation Clause.

       The Sixth Amendment to the United States Constitution provides, “In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.”    U.S. Const. amend. VI; see also Minn. Const. art. I, § 6.              The

Confrontation Clause bars the admission of testimonial statements of a witness, with

limited exceptions. Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-

66 (2004). If a statement is testimonial, its admission violates the Confrontation Clause,

unless the person who made the statement is unavailable and the defendant has had a

prior opportunity to cross-examine the person. See id. at 53-54, 124 S. Ct. at 1365. If a

statement is nontestimonial, the statement is not inadmissible because of the

Confrontation Clause. See Davis v. Washington, 547 U.S. 813, 840, 126 S. Ct. 2266,

2284 (2006). This court applies a de novo standard of review to a district court’s decision

to admit a statement despite an objection based on the Confrontation Clause. State v.

Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).




                                            10
        To determine whether a statement is admissible, a court first must determine

whether the statement is testimonial in nature. See Davis, 547 U.S. at 821, 126 S. Ct. at

2273.    Whether a statement is testimonial turns on the primary purpose of the

interrogation or reason for the statement. See id. at 822, 126 S. Ct. at 2273-74. If the

primary purpose is to “establish or prove past events” for purposes of later criminal

prosecution, the statement is considered to be testimonial in nature. Id. But if the

primary purpose is to enable police to meet an ongoing emergency, the statement is

considered nontestimonial. Id. at 822, 126 S. Ct. at 2273.

        Both the United States Supreme Court and the Minnesota Supreme Court have

considered the admissibility of audio-recordings of 911 calls. In Davis, a woman called

911 during a domestic assault against her in her home, and the 911 operator asked the

woman a series of questions. Id. at 817-18, 126 S. Ct. at 2270-71. The Supreme Court

concluded that the woman’s statements to the 911 operator were admissible because their

primary purpose was to assist police in responding to an ongoing emergency. Id. at 828,

126 S. Ct. at 2277. The Court reasoned that the woman was describing events as they

were happening, that the woman was facing an emergency, that the 911 operator’s

questions and the woman’s answers were necessary to resolve the emergency, and that

the communications between the 911 operator and the woman were informal. Id. at 827,

126 S. Ct. at 2276-77. In State v. Wright, 726 N.W.2d 464 (Minn. 2007), two sisters

called 911 following an assault at their home, and they expressed concern that the

assailant would return. Id. at 467-68. The Minnesota Supreme Court held that the

women’s statements to the 911 operator were admissible because, as in Davis, their


                                            11
primary purpose was to enable police to meet an ongoing emergency. Id. at 474-75. The

911 operator did not attempt to establish or prove past facts; her purpose was to reassure

the callers that the emergency was over. Id. at 475. Likewise, the purpose of the

women’s comments was to ascertain that the emergency was indeed over rather than to

establish or prove past events. Id.

       The district court in this case ruled that the audio-recording of the 911 call is non-

testimonial and, thus, admissible. The district court reasoned that the caller initiated the

conversation for the purpose of obtaining assistance for the victim of a crime, that the 911

operator spoke to the caller to obtain information that would help law enforcement

respond to an ongoing emergency, that the conversation was not formal or structured, and

that the caller made his statements while he was observing the crime. The district court’s

reasons for deeming the 911 call to be nontestimonial are consistent with, if not

compelled by, Davis and Wright. We acknowledge that the Davis and Wright opinions

do not establish a categorical rule concerning 911 calls because a case-by-case analysis is

required. See Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74; Wright, 726 N.W.2d at 471.

Yet the opinions are very instructive because of their similarity to this case.

       Furthermore, the district court’s reasons are supported by the record. The caller

described events as they were actually happening. For example, the audio-recording

reveals that he said to the 911 dispatcher, “You need to come quick . . . . I’m watching

from across the street. I think someone’s breaking in . . . through their window.” The

911 dispatcher asked questions that were intended to resolve the ongoing emergency.

The 911 dispatcher informed the caller when police officers were en route, which helped


                                             12
the caller identify Jennings after he was seized. The conversation was informal and

unstructured in that the caller’s statements were made frantically as he witnessed a tense

situation.

       Thus, the district court did not err by ruling that the caller’s statements to the 911

dispatcher were nontestimonial such that the audio-recording of the call was admissible

despite the Confrontation Clause.

       Affirmed.




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