State v. Harvey
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State v. Harvey
Opinion of the Court
Appellant Nigeria Lee Harvey appeals his convictions for first-degree murder and attempted first-degree murder. Harvey argues that the district court admitted evidence in violation of the Fourth Amendment to the United States Constitution, Minn. Stat. § 626A.42 (2018), and Minn. R. Evid. 702. Harvey also argues that the district court erred when it overruled his Batson
FACTS
Harvey was convicted of the premeditated first-degree murder of Omarr Johnson and the attempted premeditated first-degree murder of Harvey's drug supplier, A.A. The crimes occurred just after midnight on July 27, 2015, when Johnson and A.A. were shot in Minneapolis at the intersection of 34th Avenue North and Morgan Avenue North. A ShotSpotter
As part of their investigation, police sought records for Harvey's cell phone, including cell-site location information (CSLI). The police wanted Harvey's cell phone records because A.A. told police that "Najee"
After police obtained Harvey's cell phone records, FBI Agent James Berni analyzed the CSLI to form an opinion regarding Harvey's whereabouts before, during, and after the shootings. In August 2016, before Harvey's trial, Agent Berni also conducted a drive test using a device called a Gladiator Autonomous Receiver (GAR) to determine the outer limits of the cell tower and sector that the cell phone records showed Harvey's phone accessed at the time of the shootings.
Following the police investigation, the State charged Harvey. A Hennepin County grand jury subsequently indicted Harvey for first-degree premeditated murder and attempted premeditated first-degree murder. The grand jury also indicted Harvey for first-degree murder while attempting *798to commit aggravated robbery and attempted first-degree murder while attempting to commit aggravated robbery. Harvey pleaded not guilty to these charges.
Before trial, Harvey moved to suppress the CSLI evidence, arguing that it was collected in violation of the Fourth Amendment and Minnesota Statutes. The district court denied Harvey's motion. The court also held a Frye - Mack hearing to determine whether the CSLI and GAR drive-test evidence involved novel scientific theories and, if so, to provide the State an opportunity to demonstrate that the theory was generally accepted in the relevant scientific community and that the particular scientific evidence had foundational reliability.
During jury selection, the State used a peremptory challenge to remove an African-American venire member, prospective Juror 18. Harvey objected to the peremptory challenge, arguing that it violated Batson v. Kentucky ,
At trial, A.A. testified to the following facts. He and Johnson had known each other since they were 14 years old and were very close friends, like "brothers." In the summer of 2015, A.A. was "selling drugs" and "dealing with the ladies." He had a couple of guys "copping from [him,]" which means they were buying drugs from him, and they, in turn, sold to others. Johnson was "copping" from A.A., and although Johnson was new to drug dealing, he was "like [A.A.'s] right-hand man." At some point, Johnson introduced Harvey to A.A., and Harvey started "copping" from A.A. as well. A.A. "fronted" drugs to Harvey, meaning that A.A. would give Harvey the drugs up front with the expectation that A.A. would be paid back, because Harvey was close to Johnson.
A.A. testified that he had seen Harvey driving a 2003 silver, four-door Chevy Malibu with "Car Hop" plates.
At some point, A.A. learned that Harvey was upset with Johnson because Johnson had taken up with Harvey's girlfriend, Jas (Jazzy). Jas would sometimes sell drugs for Harvey. Some weeks before the shootings, Harvey told A.A. that Johnson "knows better 'cause [Harvey is] good with the hands [meaning his fists] and good with the pistol." A.A. explained that Jazzy being with Johnson "kind of messed [Harvey's] money up" and was hurting him financially because Jazzy started selling drugs for Johnson instead of Harvey.
*799Harvey owed A.A. $175 for an "eightball of hard," which is crack cocaine. On the night of July 26, A.A. wanted to talk to Harvey about the money he owed him, but Harvey was dodging his calls and said his phone was broken, so A.A. had Johnson call Harvey. A.A. told Johnson that if Harvey did not pay, Johnson would have to pay "because [A.A.] only gave [the crack cocaine] to [Harvey] because of [Johnson]."
When Johnson called Harvey, using a speakerphone, Harvey answered, saying he was at 32nd and Clinton, at the home of the mother of his child. A.A. and Johnson went to that home and then called Harvey back, saying, "you ain't over there," and Harvey responded, "I'm over north now, I'm on 34th and Morgan." They told Harvey, "We'll be over there in 15 minutes." A.A. and Johnson drove to 34th and Morgan in a white Buick Lucerne. When they arrived, A.A. and Johnson sat in the car smoking marijuana, drinking lean (a mix of promethazine and codeine), and talking. They were there about 15 minutes and had decided to leave when they finished smoking. Soon after, Harvey pulled up behind them. A.A. saw the headlights of Harvey's Malibu about eight feet behind them through his side mirror. He was sure it was a Malibu. A.A. saw Harvey-or Najee, as A.A. knew him-get out of the driver's side of the Malibu. Harvey jumped in the backseat of the Buick, with A.A. and Johnson sitting in the front.
At first, the three men talked and laughed. Harvey was shuffling money in the backseat and said he was getting the money together. When A.A turned around after Johnson said something funny, Harvey shot him in the head, at his ear. Neither A.A. nor Johnson were armed, and A.A. explained that, after being shot, he just laid there, bleeding. He slumped down and "[e]verything went white." A.A. next remembered feeling someone go into his pocket and take some money. He said that on that night, he was carrying $2,770 in drug money. He then heard somebody say, "where'd he go." After that, A.A. heard "like five more shots[,]" which "startled [him] to the point [that he] sat up and threw it in drive and ... sped north of Morgan" to the hospital.
Sergeant Charles Green of the Minneapolis Police Department came to the hospital to question A.A. Concerned about his own and his family's safety, A.A. told the police what happened because he felt he "ha[d] to do the right thing. My brother was killed." At trial, A.A. described his conversation with Sergeant Green, including identifying Najee as the shooter, relating the events leading up to the shootings, and Sergeant Green telling him that Johnson had died. As part of his testimony, A.A. identified Harvey in court as the person who shot him and Johnson.
In addition to A.A.'s testimony, the State offered testimony from law enforcement. Forensic scientist Tracy MacDougall of the Minneapolis crime lab unit testified that she processed the Buick Lucerne that A.A. drove to the hospital. She testified that she found bullet fragments and conducted a DNA swab of the vehicle's interior. MacDougall also testified about processing a 2003 Chevy Malibu on August 4, 2015. Police saw Harvey in this vehicle approximately four days before the shootings. MacDougall testified that there were two license plate placards for Car Hop located on the rear passenger floor. MacDougall also testified that she found a T-Mobile bill, addressed to Harvey, inside the Malibu.
Sergeant Green testified regarding the timing and location of the gunshots, as provided by the ShotSpotter. The jury heard recordings of the gunshots. Sergeant Green also confirmed that A.A. identified *800Harvey as the shooter when Green spoke to A.A. at the hospital.
Sergeant Green further testified that there were surveillance video cameras on Lowry Avenue North, just south of the scene of the shootings, and that he obtained footage from July 26, 2015 at 11:50 p.m. through July 27 at 12:20 a.m., from just before and after the shootings. Sergeant Green showed the jury still shots from the video footage of a vehicle that the State contended was the Chevy Malibu that A.A. said Harvey was driving. Green's presentation showed the "target vehicle" at various locations along Lowry Avenue North. The still shots showed the vehicle two blocks south of the scene of the shootings traveling towards the scene of the shootings just before the first shots were heard. And the still shots showed the vehicle driving away from the scene just after the last shot was fired. Sergeant Green testified that the vehicle in the video footage appeared to be the same make and model of the vehicle-Chevy Malibu-that he was searching for in connection with the shootings.
Sergeant Green also testified that a forensic examination of Johnson's phone recovered at the scene showed that "Johnson communicated with a phone number [ (XXX)-XXX-2786] two times before he was killed, and in his contacts that number is for a Najee, N-A-G-E." The forensic examination showed that Johnson's phone had a call with that phone number at 11:17:54 p.m. and that the last time the phone communicated with that number was a call at 12:00:12 a.m. He further testified that he learned that Harvey was the Sprint subscriber registered to the phone number in question.
A forensic scientist who performs DNA analysis for the Minnesota Bureau of Criminal Apprehension also testified for the State. She tested various swabs of what was apparently blood from the street where the shootings occurred and determined that each swab matched Johnson, but not A.A. or Harvey.
Finally, FBI Agent James Berni testified for the State. Through Agent Berni, the State sought to establish that Harvey's cell phone was in the area of the shootings at the time the shots were fired. Agent Berni's testimony relied on both CSLI and GAR drive-test evidence. The State also sought to disprove Harvey's contention that, at the time of the shootings, he was at the home of a friend's mother on the 2700 block of Girard Avenue North.
In defense, Harvey chose to testify. He testified that he had known Johnson since 2013 or 2014 and that they "were extremely close." Harvey said that Johnson introduced him to A.A. in late May of 2015. His relationship with A.A. was mostly about "business," meaning selling drugs.
Harvey testified that he had two cell phones and that one phone was for drugs, and one phone was for friends and family. He acknowledged that (XXX)-XXX-2786 was his phone number for drugs. Harvey denied shooting either Johnson or A.A., and he explained that he was at the house of his friend's mother around the time of the shootings.
The jury found Harvey guilty of the first-degree premeditated murder of Johnson (Count I) and first-degree premeditated attempted murder of A.A. (Count III).
ANALYSIS
On appeal, Harvey argues that he is entitled to a new trial and reversal of his convictions. First, he argues that the police obtained the CSLI in violation of the Fourth Amendment and Minn. Stat. § 626A.42, and therefore the district court erred in admitting this evidence. Second, he argues that the CSLI and GAR evidence was inadmissible under Minn. R. Evid. 702. Third, he argues that the district court committed reversible error when the court overruled his Batson challenge to the State's peremptory challenge to Juror 18. Fourth, he raises claims of ineffective assistance of counsel and prosecutorial misconduct in his pro se supplemental brief. We address each issue in turn.
I.
We turn first to the question of whether, as Harvey argues, the police obtained the CSLI evidence in violation of Minn. Stat. § 626A.42 or the Fourth Amendment to the United States Constitution. We consider the statutory question first. See State v. Bourke ,
A.
Harvey argues that the State obtained the CLSI evidence in violation of Minn. Stat. § 626A.42. In essence, the State argues that it complied with the substantive requirements of section 626A.42 when it obtained the CLSI under a different statute, Minn. Stat. § 626A.28 (2018).
Under Minn. Stat. § 626A.28, subd. 2,
[a] governmental entity may require a provider of remote computing service to disclose the contents of electronic communication ... (1) without required notice to the subscriber or customer, if the governmental entity obtains a warrant; or (2) with prior notice if the governmental entity: ... obtains a court order for such disclosure under subdivision 4.
Under Minn. Stat. § 626A.28, subd. 4, "[a] court order for disclosure under subdivision 2 ... must issue only if the governmental entity shows that there is reason to believe the contents of a wire or electronic communication, or the records or other information sought, are relevant to a legitimate law enforcement inquiry."
Although Minn. Stat. § 626A.28 applies to some types of cellular data, Minn. Stat. § 626A.42, governs how governmental entities may obtain "location information." The term "location information" is defined by the statute as "information concerning the *802location of an electronic device that, in whole or in part, is generated or derived from or obtained by the operation of an electronic device." Minn. Stat. § 626A.42, subd. 1(e). Section 626A.42, subdivision 2, provides that, except under circumstances inapplicable to this case, "a government entity may not obtain the location information of an electronic device without a tracking warrant."
Under subdivision 2, "a warrant granting access to location information must be issued only if the government entity shows that there is probable cause the person who possesses an electronic device is committing, has committed, or is about to commit a crime. "
a full and complete statement of the facts and circumstances relied on by the applicant to justify the applicant's belief that a warrant should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, and (ii) the identity of the person, if known, committing the offense whose location information is to be obtained.
Minn. Stat. § 626A.42, subd. 2(a)(2). Subdivision 6 prohibits the use, in any criminal proceeding, of evidence obtained in violation of Minn. Stat. § 626A.42.
With these statutes in mind, we turn to Harvey's argument. Harvey argues that the State violated section 626A.42 because the State collected Harvey's CSLI without a warrant. Because the CSLI evidence was collected in violation of section 626A.42, Harvey argues, it is inadmissible under the plain language of subdivision 6. We agree with Harvey that the State did not follow the procedures set forth in Minn. Stat. § 626A.42 for obtaining "location information." Indeed, the State applied for the release of "location information" under section 626A.28, rather than section 626A.42.
But, notwithstanding the State's failure to cite the correct provision in its application, the State complied with the substantive requirements of section 626A.42, subdivision 2(a)(2). The application contained: (1) "a full and complete statement of the facts and circumstances relied on by the applicant," including details of the offense committed and the identity of the person believed to have committed the offense whose location information would be obtained as a result of the court order, and (2) a showing that there was probable cause "the person who possesses an electronic device is committing, has committed, or is about to commit a crime." See Minn. Stat. § 626A.42, subd. 2(a)(2). And the district court's order concluded that there was probable cause.
Harvey argues that the probable-cause determination should be set aside as nothing more than "boilerplate." We disagree.
When reviewed under the appropriate standard, the supporting affidavit and the district court's order reflect a valid finding of probable cause. In reviewing whether a warrant is supported by probable cause, we "do not review the lower court's decision de novo." State v. Harris ,
The affidavit submitted with the application, from Sergeant Villella, contained numerous details supporting the probable-cause determination. It set forth the circumstances of the shooting of A.A. and the homicide of Johnson. The affidavit stated that the investigating officers "recovered a black LG cellular phone that was on the street near the area where [Johnson] was found on the sidewalk." It stated that A.A. "told investigators that the last person [Johnson] talked to on his cell phone, just prior to the shootings, was a male known to [A.A.] as 'Najee', and that 'Najee' is the person [Johnson] agreed to meet at 34th Avenue North/Morgan Avenue North, Minneapolis." Further, Villella's affidavit stated that A.A. had identified Najee as the person who shot him and that A.A. positively identified Harvey as Najee.
Villella also averred that she had reviewed the call history of Johnson's LG phone recovered at the scene and "learned of multiple cell phone communications with [XXX-XXX-2786] (Contact name 'Nige')" just before the approximate time the gunshots were detected by ShotSpotter equipment on July 27 at 12:07 a.m. The affidavit alleged that Johnson's phone showed an outgoing call to XXX-XXX-2786 at 11:58:16 p.m. on July 26 that lasted 37 seconds and an "unknown" call to the same phone number at 11:59:04 p.m. that lasted for 1 minute and 6 seconds.
On the basis of these facts, the district court issued an order authorizing the release of CSLI records for the phone with the number XXX-XXX-2786, Harvey's phone. The district court found that there was reason to believe that the information sought was relevant to an ongoing homicide investigation. See also Minn. Stat. § 626A.28. But the order also contained a probable-cause determination. The order stated:
The Court further finds there is probable cause to believe that a crime has been committed and that a particular person has committed a crime and that the disclosure of records concerning electronic communication will result in the discovery of evidence which tends to show a crime has been committed or tends to show that a particular person has committed a crime.
And, despite Harvey's assertion to the contrary, the affidavit provided a sufficient nexus to Harvey's CSLI. We have said that, in determining whether there is probable cause to search, the issuing judge's "task ... 'is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " Harris ,
Harvey is correct that A.A. did not identify the telephone number as belonging to Harvey and that Sprint did not tell the police that the phone number belonged to Harvey. But the conclusion that the phone number belonged to Harvey is apparent in the facts set out in the affidavit. Specifically, the affidavit alleged that A.A. positively identified "Nigeria Lee Harvey" as Najee, the person who shot him. The affidavit also contained A.A.'s alleged statement that Johnson and Najee communicated via cell phone just before the shootings, and it provided corroborating evidence from Johnson's cell phone. That phone, recovered from the scene of the murder, showed *804two calls with Nige just prior to the murder. Given the similarity of Najee and Nige and the similarity of these names to Harvey's first name, Nigeria, it was reasonable to infer that Harvey was, in fact, the shooter. And given A.A.'s alleged statement that Najee spoke to Johnson before the shootings and the corroborating information obtained from Johnson's cell phone, it was reasonable to infer that the cell phone number belonged to Harvey.
At bottom, the district court made a practical, common-sense determination that there was a fair probability that evidence of a crime would be found in the cell phone records. See Harris ,
B.
Separate from his statutory argument, Harvey argues that the CSLI evidence was collected in violation of the Fourth Amendment to the United States Constitution. Harvey relies on Carpenter v. United States , --- U.S. ----,
In Carpenter , a suspect apprehended for a series of robberies identified a number of accomplices who had also taken part in the crimes.
Carpenter was charged with robbery and firearm-related crimes and, before trial, he moved to suppress the CSLI evidence, arguing that the Government violated the Fourth Amendment by obtaining his records without a warrant supported by probable cause.
*805On appeal, the Court of Appeals for the Sixth Circuit "held that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had shared that information with his wireless carriers," and he did so voluntarily.
The Supreme Court disagreed and held that "an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI," and "[t]he location information obtained from Carpenter's wireless carriers was the product of a search."
Harvey's case bears many similarities to Carpenter . As in Carpenter , the State obtained the CSLI evidence, data which is subject to the Fourth Amendment's warrant requirement. See Carpenter , --- U.S. ----,
Notwithstanding the many factual similarities with Carpenter , Harvey's case is distinguishable on one dispositive fact. Unlike the order in Carpenter , the order that the district court issued here, although citing Minn. Stat. § 626A.28, nevertheless contained a probable-cause determination. Because the search was authorized by the district court and supported by probable cause, as Carpenter requires, we hold that the police did not violate the Fourth Amendment when they acquired the CSLI evidence.
II.
We turn next to Harvey's argument that the CSLI and GAR drive-test evidence should have not been admitted because the State failed to prove (1) that the technology used or the test performed had been generally accepted in the relevant scientific community, or (2) that the particular scientific evidence has foundational reliability. The State, for its part, argues that the district court neither erred nor abused its discretion.
Minnesota Rule of Evidence 702, provides that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to *806determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The opinion must have foundational reliability. In addition, if the opinion or evidence involves novel scientific theory, the proponent must establish that the underlying scientific evidence is generally accepted in the relevant scientific community.
(Emphasis added.) The language italicized above was added in 2006 and effectively incorporated the Frye - Mack standard into Rule 702.
Under Rule 702, a court must first determine whether the proffered evidence is novel. If the evidence is not novel, the court need not consider whether it has been generally accepted by the scientific community before moving on to the question of whether the evidence has foundational reliability. State v. Roman Nose ,
We review de novo a district court's determination that novel scientific evidence is generally accepted in the relevant scientific community. Goeb v. Tharaldson ,
A.
The State introduced the CSLI evidence through Agent Berni.
We first consider whether the district court erred when it concluded that the CSLI evidence did not involve a novel scientific theory. As the district court correctly recognized, if the proffered evidence is not novel, the court does not need to assess its general acceptance. See Roman Nose ,
Our cases have not always provided clear guidance regarding how courts should determine whether a scientific technique is novel. At times, we have discussed the threshold requirement-whether a technique is novel-at the same time we discussed whether a technique is generally accepted. See Roman Nose ,
It is true that, once we have analyzed a novel scientific technique under Rule 702 and determined that such evidence is admissible, the technique is no longer novel. But it does not follow that scientific evidence is novel simply because Minnesota appellate courts have not yet analyzed a particular form of scientific evidence under the requirements of Rule 702. A scientific technique may exist for decades without being addressed by a Minnesota appellate court. In other words, whether or not a scientific technique is novel is not determined merely by reference to what Minnesota appellate courts have addressed in the past. Rather, whether a scientific technique is novel is determined by reference to whether the technique is "new." Webster's Third New International Dictionary 1546 (1961) (defining "novel" as "new"). For example, in State v. Hodgson , we rejected the defendant's *808argument that bite-mark analysis evidence was not widely accepted in the relevant scientific community and was therefore inadmissible.
Agent Berni testified that he had been using this technology as long ago as 2003 when he was tracking "high value targets" in Iraq. And he explained that the FBI has used it in thousands of investigations and its agents have testified based on the technology in more than 1,000 trials. In addition, CSLI evidence has been admitted in Minnesota courts for more than 10 years. See, e.g. , State v. Mosley ,
Harvey makes essentially no argument regarding the novelty of CSLI; he focuses instead on whether the State proved general acceptance.
We next consider whether the district court abused its discretion when it determined that Agent Berni's opinion based on the CSLI had foundational reliability. The 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." Riley v. State ,
At the Frye - Mack hearing, Agent Berni testified that Sprint's records, including CSLI, are reliable. He explained that cell companies use call detail records and per call measurement data to evaluate their network coverage. Agent Berni testified that cell phone service providers have a vested interest in maintaining accurate records so that they can accurately bill customers for roaming services and that accurate billing requires an accurate record of what towers and sectors are accessed by cellular customers. Agent Berni also testified that the records are both reliable and accurate because under law, cell phone service providers are required to provide a tower and sector for any 911 call placed within their network. The district court considered this testimony in its analysis of whether the Sprint records and Agent Berni's opinion based on those records had foundational reliability. Our review of the record confirms that the district court's foundational-reliability determination was not against logic and the facts in the record. Consequently, we hold that the district court did not abuse its discretion when it determined that Agent *809Berni's opinion had foundational reliability.
B.
Having concluded that the CSLI evidence was properly admitted, we now consider whether the district court committed reversible error when it admitted the expert testimony regarding GAR drive-test evidence. Like the CSLI evidence, the drive-test evidence was offered to prove the location of Harvey's cell phone at the time of the shootings. Harvey challenges the district court's admission of the GAR drive-test evidence, arguing that the State did not prove that it was generally accepted in the relevant scientific community.
The district court relied on a federal district court's unpublished decision: United States v. Frazier , No. 2:15-CR-044-GMN-GWF,
We need not decide whether drive-test evidence is novel or generally accepted in the relevant scientific community because, even if it is novel but not generally accepted, the admission of the GAR drive-test evidence was harmless under the circumstances of this case.
Harvey bears the burden of proving both that the district court erred and that the error was prejudicial. State v. Loebach ,
*810When "there is no reasonable possibility that it 'substantially influence[d] the jury's decision,' " the error is harmless. State v. Taylor ,
The error here, if any, is harmless because there is no reasonable possibility that the jury's decision was substantially influenced by Agent Berni's testimony derived from drive testing with the GAR. The vast majority of the slides presented during Agent Berni's testimony contained information derived only from CSLI evidence from Sprint's call detail records and per call measurement data for the phone (XXX)-XXX-2786. Agent Berni's testimony regarding these slides placed Harvey's cell phone within the area covered by the tower and sector that Sprint's records show the cell phone accessed at the time of the shootings. The location of the shootings-34th and Morgan-is squarely within that area.
Agent Berni's testimony derived from the GAR drive-testing technology consisted of only one slide, and what it added to his testimony regarding the Sprint records was not significant. It, too, placed Harvey's cell phone within the area covered by the tower and sector that Sprint's records show that the cell phone accessed at the time of the shootings. Agent Berni's testimony derived from the GAR drive-testing technology layered in additional, granular detail regarding the outer limits of the tower and sector's dominant and nondominant zones. But the outer limits of this particular tower and sector's coverage were not important because the location of the shootings was squarely within the sector's coverage area, not on the outermost edges. Moreover, Harvey's alibi and testimony placed Harvey in another sector entirely, and not in the sector that Sprint records show the phone accessed when the shootings occurred.
Combined with other admissible evidence, Agent Berni's testimony based on the CSLI evidence-not the GAR-derived drive-test data-as well as other evidence overwhelmingly established Harvey's presence in the vicinity of the shootings at the time of the shootings. Because Agent Berni's testimony based on the GAR drive-test was largely cumulative-and what was not cumulative was of limited relevance-there is no reasonable possibility that it substantially affected the jury's decision, and therefore its admission was harmless.
III.
We turn next to the Batson issue. Harvey argues that the district court erred when the court overruled his Batson objection to the State's peremptory challenge to Juror 18. In Batson v. Kentucky , the United States Supreme Court held that the exclusion of prospective jurors through peremptory challenges is subject to the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
Under step one of the Batson analysis, the opponent of a peremptory challenge must make out a prima facie case of racial discrimination. State v. Blanche ,
If the objecting party establishes a prima facie case of racial discrimination, then under step two of the Batson analysis, "the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation." Blanche ,
A district court's ruling on a Batson challenge receives "great deference" because "the record may not reflect all of the relevant circumstances that the court may consider." Pendleton ,
Harvey argues that, in considering his objection to the State's peremptory challenge to Juror 18, the district court misapplied the Batson analysis and therefore the district court's determinations are subject to de novo review. According to Harvey, the district court misapplied Batson in three ways. First, Harvey contends that the district court impermissibly "allow[ed] the state to respond to, and inject extra *812explanation into, Harvey's argument that he had made a prima facie case." Second, Harvey argues that "the district court erred by including the state's proffered reasons for the strike in its consideration of whether Harvey had made a prima facie case." Third, Harvey contends that "the district court erred by not weighing the supposedly race-neutral reason against other evidence in step three."
A.
Before turning to Harvey's arguments, we begin with the factual record developed about Juror 18, an African-American man. In his jury questionnaire, Juror 18 disclosed the following facts. Juror 18 was a tradesman who had lived in a suburb of Minneapolis for more than three decades. He had been the victim of a crime and knew someone who died a violent death. Juror 18 wrote that he had "negative" feelings about police officers generally and would give police officers "less" credibility than other witnesses. He believed that the criminal justice system works "well for some."
When Juror 18 was called, the district court asked him a number of questions. Defense counsel and the State both questioned Juror 18 regarding his experiences, ability to serve impartially, and perspective on a number of topics. Juror 18 stated that he "know[s] a couple of people that have died a violent death." Juror 18 had a friend who was robbed and murdered in Chicago around 2015. The victim was a family friend, and no person was ever arrested or prosecuted in relation to the robbery and murder. When defense counsel questioned Juror 18 regarding whether he would be able to separate this case and the murder of his friend, Juror 18 replied, "Well, I mean, and he's not the only person I know who was killed. So, I mean, I - you know, it's par for the course."
Juror 18 was robbed at gunpoint in the 1990s in Chicago. Regarding his experience being robbed, he said that he "ha[s] strong feelings about being robbed" and stated that the person who robbed him was never apprehended. When the district court prodded Juror 18 about his feelings and asked whether he could serve on the jury or if he "fe[lt] it would be too close to home[,]" he said, "I would think I could do it, you know ... Right, it is close to home. I mean, it's a sensitive - You know, it's not a subject I like to relive, but, I mean, it is what it is." And when the court asked Juror 18 whether he could separate his own experience and judge the case on its own, he replied, "I think I could judge this case on its own merit."
Regarding his experience of being robbed at gunpoint and the fact that no one was apprehended or prosecuted for the crime, Juror 18 said, "I didn't think [the police] would get anything back ... I just - I felt that I was just on the losing end of a robbery. And, you know, I didn't have any expectation for the police that they could swoop down and save the day and retrieve all our stuff." He further explained that "pretty much, until just a few moments ago, I just assumed everyone had been robbed before .... So I had just threw it as, you know, water off a duck's back ...." He acknowledged that "if it was a case without a robbery or murder, ... I probably would be less, you know, bringing personal feelings into it."
Juror 18 equivocated somewhat when defense counsel asked, "with all the experiences that you've had with the family friend and any other events, is it - is this case just not the right fit for you, in your mind?" He replied, "[a]fter the other day ... I was thinking about it ... and I was just like, hmm, you know. And when I filled out the questionnaire, I was like, oh. But, I mean, if I had to do it, I would think *813I would be able to." Similarly, when asked if he could serve as a juror and apply the law fairly without allowing personal experiences to interfere, Juror 18 said, "Yeah. I would like to hope. I know that's not a good answer, but I would like to hope so, you know, to abandon your life experiences and that." Regarding whether he could be a fair juror, Juror 18 also said, "maybe this particular case brings a lot of things close to home to me that may make my mind run in different directions instead of staying on the path that, you know, that the prosecutor and the defendants are trying to get me to see ...." Juror 18 agreed that it would not be fair if his experiences affected his role as a potential juror, saying, "I definitely agree that wouldn't [be fair] ... I wouldn't want to be judged on something ... because of someone's bad experience [that was] similar...."
When asked about his response on the jury questionnaire indicating that his general feelings about police officers are "negative," Juror 18 recounted a negative experience as an eight-year-old when he was playing football in the alley with his friends. He said, "[t]he police drove past, stopped, came down there, told us all to lay on the ground. You know, [they] threw a bunch of racial slurs at us, took our football." Juror 18 explained that "[f]rom 15 years old, the police pulling us over, pulling their guns on us, dumping our - we went to McDonald's, dumping our food on the floor, calling us racial slurs. So I don't really think of them as super heroes and all of this stuff." Juror 18 also described a recent incident when he was pulled over and the police "asked where I was going, why am I around there" when he was in Minnetonka.
Regarding how he would judge officer credibility, Juror 18 said, "I wouldn't say I would just say all police officers are liars, but I just wouldn't say anything they say is the concrete truth. You know, I think they, you know, in [ ] self-preservation, they protect themselves."
When the State presented Juror 18 with a hypothetical scenario in which a police officer and a painter both testify, he said, "I don't hold the police in that they are above lying or above doing anything illegal." He said that police officers are comparable to other professions, "except they would lie for another person in their profession that they may not know. I don't think that [a] painter would lie for another painter that he didn't even know."
The State asked Juror 18, "How about when you saw the defendant, you saw he's being prosecuted by two white guys, did that stir any emotions or feelings for yourself?" He answered, "[n]ot really." And when asked about his statement on the questionnaire that the system works "well for some[,]" Juror 18 explained, "if you have enough money to hire the best attorneys and everything, it will work a little bit better for you than if you don't." When the State asked Juror 18, "[y]ou think an African-American man can get a fair trial in the United States?" Juror 18 replied, "[s]ure." The State also asked if Juror 18 would "have any axe to grind if [he] were chosen to sit on this jury[.]" And the State asked him, "what would [it] take" for an African-American man to get a fair trial? Juror 18 responded that it would "depend[ ] on the jury, how much money ... I hope it's not that it only happens ... a specific one way that a black guy could get a fair trial. But you [are] starting to scare me with that question." He continued, "I just think it depends on ... the jury, how stuff gets out in the press and stuff, you know. Different thing[s], the judge may let certain things in ... So I think he can [get a fair trial], but I think it can be skewed to get you."
*814When the State asked Juror 18 about his belief that police officers are typically less credible, Juror 18 said, "Yeah. I think they will cover for one another." The State asked whether "that feeling spill[s] over beyond race," and Juror 18 interjected, "Well, yeah, that's - I didn't say anything about white police. I said police."
Juror 18 said that he would have liked to have seen the person responsible for robbing him punished and to recover his property and that he would have cooperated with the police to achieve that. He explained, "I'm not like the anti-law. I mean, I don't like crime just because I feel that the police got some shady stuff in their background. I would like to be able to walk the streets and not get robbed or anything." The State asked Juror 18 whether he would "weigh the testimony of police officers the same way as you would other people." He replied, "I think I could. I would - I think I would really pay close attention to what they say, you know." Then he said, "Yeah, I would. Yeah, I would. Yeah, like trying to double-check the facts and stuff, yes."
The State exercised a peremptory challenge to Juror 18, and defense counsel raised a Batson objection. Defense counsel argued, "I would challenge this Court to find more than, you know, five percent of the black population that doesn't find police to be ... that the police are not necessarily their friend." The district court noted that one African-American person was already seated on the jury and asked, "[W]here's your prima facie showing before you even get to the reason by the State ...?" The court went on to accurately summarize the analytical steps of Batson : "[a] [p]rima facie case is established by showing that, number one, a member of a protected racial group has been peremptorily excluded, which you would have. And, two, the circumstances of the case raise an inference that the exclusion was based on race." The court questioned whether the defense could satisfy the second prong of step one by raising an inference that the exclusion of the potential juror was based on his race. Specifically, the court asked: "How have you met that second prong for a prima facie showing? There's not - I mean, he - there's nothing - Is there anything about race that - Where is the race part?"
After noting that Juror 18 "[i]s a person of color," defense counsel argued that "[h]e's a guy who has a friend who was killed in a [sic] armed robbery just like this case, and it would be someone that the State would generally want to keep on but for race reasons." The district court acknowledged defense counsel's arguments and then turned to the State. After hearing the State's arguments, the district court stated that Harvey had not met his burden of showing a prima facie case at step one. In the alternative, it concluded that the State had satisfied its burden at step two of providing a race-neutral explanation for the strike. The court did not reach step three and denied Harvey's Batson challenge.
B.
Relying on Pendleton , Harvey argues that we should conduct a de novo review of the district court's Batson analysis. In Pendleton , we held that "the district court improperly conducted the Batson analysis" when the court allowed the State to respond to the defendant's argument at the first step before the court determined whether the defendant had established a prima facie case of racial discrimination.
We distinguished Pendleton in Onyelobi ,
This case is more like Onyelobi than Pendleton . Harvey contends that the district court erred when it allowed the State to respond to Harvey's argument that he established a prima facie case of racial discrimination. It is true that, as in Pendleton , the district court turned to the State before clearly stating its determination whether Harvey had established both prongs of step one. But here, as in Onyelobi , the district court substantively applied the correct analysis to step one of Batson although it neglected to explicitly state its step-one determination before turning to the State.
Before hearing argument from the State, the district court and defense counsel had a lengthy exchange regarding whether Harvey could establish a prima facie showing of racial discrimination. Initially, Harvey argued that it would be difficult to find more than "five percent of the black population" that does not have negative feelings towards police officers. But the district court observed that one African-American venire member had already been seated, and that it was still early in the jury selection process. The fact that an African-American was seated on the jury was a proper consideration at step one of the Batson analysis. See, e.g. , State v. Wilson ,
Moreover, the district court expressed strong skepticism that Harvey could meet the second prong of step one. The court asked defense counsel, "[h]ow have you met that second prong for a prima facie showing? There's not ... there's nothing - Is there anything about race that - Where is the race part?" The district court also noted that Juror 18 said police officers would "[l]ie for each other." Because law enforcement officers would be testifying for the State, it was appropriate at step one for the district court to consider the potential bias against the State based on Juror 18's comments about police credibility. Cf. Wilson ,
The other answer provided by Harvey-that Juror 18 was a robbery victim-was wholly insufficient to establish a prima facie showing of discrimination. Harvey provides *816no authority for the proposition that the second prong of step one can be satisfied simply by suggesting a reason the State might have wanted Juror 18 to be seated. And we have never held that a venire member's status as a victim of a crime is sufficient to raise an inference of discrimination on the part of the State.
Based on our careful review of the record, it is clear that the district court rejected Harvey's argument that the circumstances of the case gave rise to an inference of racial discrimination. Although the district court did not expressly state its step-one determination before turning to the State, the record reflects that the court engaged in the appropriate analysis. Because the record strongly suggests that the district court rejected Harvey's argument at step one, the district court did not misapply Batson when it turned to the State before explicitly stating that Harvey had not established a prima facie case of discrimination. The facts that the district court considered, its accurate statement of the analysis at step one of Batson , and its questions to defense counsel regarding what facts could raise an inference of racial discrimination all support the conclusion that the district court conducted the proper step-one analysis.
To be sure, it is preferable for a district court to clearly state its analysis at each step of the Batson analysis. Clarity at each step ensures that the correct party is held to its burden. See Reiners ,
Harvey next argues that the district court incorrectly applied Batson "by including the state's proffered reasons for the strike in its consideration of whether Harvey had made a prima facie case." This alleged error is closely related to the first error that Harvey alleged-that the district court improperly allowed the State to respond, at step one, to Harvey's argument that he established a prima facie case of racial discrimination.
The district court briefly addressed the State's arguments, saying, "I do believe it's an interesting issue," but then it said, "[b ]ut as you know under Batson, still, number one is the defense has to come up with a prima facie showing, which I think they failed to do here. " (Emphasis added.) The court further noted that it observed "nothing in the way that [the State] was questioning [Juror 18] that was any different than ... the way he was questioning any other juror."
In sum, our review shows that the district court properly applied Batson at step one. Accordingly, here, as in Onyelobi , the "usual deferential standard of review" should apply.
If we determine, as we have, that the district court correctly applied Batson , then we "give great deference" to the district court's ruling on Harvey's Batson challenge. Pendleton ,
Harvey made two arguments in an effort to meet his burden at step one of the Batson analysis. First, he argued that an overwhelming number of African-American people have negative feelings towards law enforcement, and therefore the State's exercise of its peremptory strike was discriminatory. Second, Harvey argued that Juror 18's status as a victim of a robbery and the friend of a murder and robbery victim should make him an appealing juror for the State.
In response to the first argument, the district court observed that one of the five jurors already seated was African American. And Juror 18's status as a victim of armed robbery and the friend of a murder and robbery victim did not raise an inference of discrimination. As discussed above, it was appropriate for the district court to consider the potential bias to the State based on Juror 18's statements that police officers would lie for one another. The district court also found that the State did not question Juror 18 differently than any other juror. The district court relied on considerations our cases have determined to be proper considerations at prong one of Batson . See Wilson ,
Because the district court's determination is entitled to "great deference," see Pendleton ,
IV.
We turn finally to issues that Harvey raises in his pro se brief. In his supplemental pro se brief, Harvey reasserts a number of claims that were already raised by counsel. In addition, Harvey asserts claims of ineffective assistance of trial counsel and prosecutorial misconduct. We consider each of his new claims in turn.
Harvey argues, in essence, that he received ineffective assistance of trial counsel because counsel did not effectively argue that the State's failure to obtain a valid warrant precluded the admission of the CSLI evidence. Because we have addressed and rejected the warrant issue on its merits, Harvey is not entitled to any relief on his claim of ineffective assistance of trial counsel. See, e.g. , State v. Davis ,
Harvey also argues that the State committed prosecutorial misconduct when it obtained Harvey's CSLI evidence without a warrant and when it elicited the expert testimony regarding the GAR drive-test evidence. Because the CSLI evidence was properly obtained and the admission of the drive-test evidence was harmless, Harvey is not entitled to any relief on his claim of prosecutorial misconduct.
CONCLUSION
For the foregoing reasons, we affirm the judgment of conviction.
Affirmed.
In Batson v. Kentucky , the United States Supreme Court established a three-step analysis to determine whether the exercise of a peremptory challenge was motivated by racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
A ShotSpotter is gunshot-detection technology employed by police departments, including the Minneapolis Police Department. The technology consists of a series of acoustic sensors placed in different locations. When gunshots are detected by a ShotSpotter, data are sent to a remote server managed by a third party, which then conveys the location and time of the gunshots to the Minneapolis Police Department.
The first two rounds were recorded at 12:06:52 a.m., and the ShotSpotter indicated they were fired at 3554 Morgan Avenue North in Minneapolis. The ShotSpotter recorded three more rounds fired at 3550 Morgan Avenue North at 12:06:58 a.m. The ShotSpotter detected five more rounds fired in front of 3554 Morgan Avenue North at 12:07:19 a.m. The ShotSpotter recorded the final gunshot fired at 3554 Morgan Avenue North at 12:07:34 a.m.
A.A. positively identified a photograph of Harvey as Najee.
Agent Berni testified that GAR survey equipment is essentially an antenna that is attached to a vehicle, has built-in GPS capabilities, and is similar to a cell phone. A GAR can monitor and record data regarding what cellular tower and what sector of a cellular tower it can access from any given location. To obtain data for the drive test, Agent Berni testified that he drove a vehicle with a GAR along "streets and alleys" in the area. That data was mapped to determine the footprint of the cellular tower and sector accessed by Harvey's cell phone at the time of the shootings.
The term "Frye - Mack hearing" embodies the requirements of Frye v. United States ,
M.W., the mother of Harvey's child, testified that she purchased a Chevy Malibu in the summer of 2015 from the automobile dealership Car Hop. Initially, the Chevy Malibu had a 21-day temporary permit, and, instead of state-issued license plates, the vehicle bore placards that said "Car Hop."
The jury found Harvey not guilty of the first-degree murder of Johnson while committing aggravated robbery and the first-degree attempted murder of A.A. while committing aggravated robbery.
Asserting that Harvey failed to raise his statutory argument in the district court, the State argues that he has forfeited appellate review of the statutory issue. A review of the record on appeal shows the following. Harvey's motion to suppress the CSLI evidence requested that the district court issue "an [o]rder suppressing all evidence obtained as the result of the unlawful warrantless search and seizure of cell phone records" under "U.S. Const. Amend. IV ; Minn. Const. Art. I, § 10 ; Minn. Stat. §§ 626A.28, 626A.42." In his supporting memorandum, Harvey also stated, "[t]he state statutes clarify that collection of any electronic communication data involving location information requires a warrant based on a finding of probable cause." Harvey cited Minn. Stat. §§ 626A.28 and 626A.42. Because Harvey's statutory argument fails on its merits, we need not decide whether the references to section 626A.42 were sufficient to preserve the statutory argument Harvey raises on appeal.
The district court captioned the document it signed as an order, not as a warrant. Section 626A.42 requires a "tracking warrant." But for purposes of the Fourth Amendment, the Supreme Court's precedent repeatedly and clearly states that what matters is: (1) the existence and adequacy of the probable-cause determination; and (2) that the determination is made by a neutral and detached magistrate. See Johnson v. United States ,
Under the two-pronged Frye -Mack standard, "[t]he district court must first determine whether the novel scientific evidence offered is generally accepted in the relevant scientific community. Second, the court must determine whether the novel scientific evidence offered is shown to have foundational reliability." State v. MacLennan ,
The district court also determined that Agent Berni was qualified as an expert and that his testimony would be helpful in assisting the jurors in understanding the evidence and determining facts. Harvey does not challenge these determinations on appeal.
In State v. Hull , the defendant argued that the district court improperly limited its examination of fingerprint and handwriting-analysis evidence to the second prong of Frye -Mack -foundational reliability. State v. Hull ,
Harvey argues that the State waived the question of whether CSLI is novel because it did not appeal the district court's pretrial order granting Harvey's motion for a Frye -Mack hearing. We disagree. The district court granted the motion for a Frye - Mack hearing, but the record does not show why the court ordered the hearing on the CSLI; the record simply contains an order summarily granting the motion. As Harvey noted in his memorandum in support of the hearing, even if the scientific technique at issue is not novel, as the State argued below, a Frye -Mack hearing could still be necessary to establish reliability.
Our research found one case in which a trial court considered drive-test evidence in the context of a standard similar to our Frye -Mack standard. Phillips v. State ,
Agent Berni testified that the vast majority of cell phone towers in the United States are three-sector towers. This type of a tower is three-sided, with one sector on each side of the tower. The tower typically services 360 degrees around the tower, with each sector covering about 120 degrees. The CSLI data the State obtained from the service provider, Sprint, for Harvey's cell phone included the cell tower and cell sector ("cell site") that served the cell phone during its activity, including phone calls, text messages, and data events. Sprint also provided the latitude and longitude of the cell sites. With mapping software, the CSLI data and cell site locations were combined to map the approximate location of the cell phone during its activity.
We recognize that "[c]omparing prospective jurors who were struck and not struck can be an important step in determining whether a Batson violation occurred." Flowers v. Mississippi , --- U.S. ----,
Harvey also contends that "the district court erred by not weighing the supposedly race-neutral reason against other evidence in step three." But the district court need not reach step three if it properly determines that the proponent of the peremptory strike did not make a prima facie showing that the party exercising the strike was motivated by discrimination. See State v. White ,
Our conclusion should not be read, however, as approval of certain questions of the prosecutor. At the time of his Batson objection, Harvey did not argue that an inference of discrimination could be drawn from any of the specific questions that the prosecutor asked Juror 18. As a result, he has forfeited appellate review of such an argument. State v. Hill ,
Reference
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- STATE of Minnesota v. Nigeria Lee HARVEY
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