2008-M-065              In re State of Minnesota, Petitioner, State of Minnesota, Appellant, vs. Myon DeMarlo Burrell, Respondent.

BACKGROUND:  In 2003, Burrell was convicted and sentenced in Hennepin County District Court for the first-degree murder of Tyesha Edwards for the benefit of a gang and the attempted first-degree murder of Timothy Oliver for the benefit of a gang. On appeal in 2005, the Court reversed and remanded for a new trial based on concerns about Miranda violations, vouching testimony, and the adequacy of discovery.  The Court also addressed the propriety of admitting expert testimony from a Minnesota Gang Strike Force officer.   The Court also directed the district court on remand to admit expert gang testimony only if necessary and helpful and to weigh our directives in DeShay and Lopez-Rios carefully as it exercises discretion over what expert gang testimony is admitted.

A judge new to the case was assigned to the retrial.  At a pretrial hearing, the State presented the testimony of a Minneapolis Police Department Gang Strike Force investigator.  Also, at a Frye-Mack hearing, the State presented the testimony of two academic researchers on gangs who essentially challenged the underlying rationale of DeShay and Lopez-Rios.  In an effort to comply with our directives, the judge made a series of rulings adverse to the State, including that “there is to be no [expert gang] testimony based on hearsay.”

The State argued that the judge’s rulings precluded proof of certain elements of the for-benefit-of-a-gang offense.  Acknowledging that under the circumstances it might be difficult to prove that the underlying crime was committed for the benefit of a gang, the judge referred to our mandate and declined to change his ruling.  Nevertheless, he attempted to resolve his and the parties’ confusion about expert gang testimony by certifying four questions to the court of appeals.  The court of appeals dismissed the certifications.

On January 16, 2007, the judge held a pretrial conference in chambers.  At this conference, Assistant County Attorney Michael Furnstahl, who had taken over the prosecution, made his first appearance on the case.  What exactly transpired at the conference is disputed.  There is no transcript.   According to Furnstahl’s affidavit, the judge twice said that the State could not prove “the case” and should dismiss it.  Burrell’s attorney, on the other hand, avers that the judge never commented on the merits of the case.  He explains that the judge “mentioned that if the State was going to make a test case for the issue of [expert gang] testimony that perhaps this wasn’t the case in which to do it.  If [the judge] mentioned dismissal it was only in this context as the discussion centered around the recent refusal by the Supreme Court to hear the certified questions.”  He indicates that the discussion referred to the previous prosecutors’ comments, to which Furnstahl was not privy.

The parties and the judge discussed the January 16 conference on the record at Burrell’s jury trial waiver hearing, which took place on March 26, 2007.  At the hearing, the State objected to the waiver or, alternatively, to the judge’s remaining on the case.  The State argued that the judge should remove himself because he had drawn conclusions about the merits of the State’s case and because his knowledge of disputed facts made it improper for him to preside at a bench trial.  The State referred to the judge’s alleged comments at the January 16 conference that the case should be dismissed.  The judge denied having gone so far but noted that the State should consider the risks associated with pursuing the for-benefit-of-a-gang offense in light of the evidentiary hurdles.   During the hearing, the judge said,   “I represent to you unqualifiedly that I will listen to your case, hold you to your standard of proof, and that I have not prejudged the guilt or innocence of Mr. Burrell.”   He accepted the waiver and denied the request for removal.

The State next filed a motion with the chief district judge to remove the trial judge for cause.  The chief judge denied the motion, finding no evidence that the trial judge said the case should be dismissed.  Instead, she determined the judge “was simply alluding to the same problems that the previous prosecutor complained about.”  She noted that the judge “has stated absolutely and unequivocally that he has not prejudged the guilt or innocence of Mr. Burrell” and that he “will try this case fairly and impartially.”

Three days later, the State filed with the court of appeals a petition for writ of mandamus directing removal.  The court of appeals denied the writ, deferring to the chief judge.  The court noted that “the assigned judge has stated unequivocally that he [has] not prejudged the guilt or innocence of [Burrell].” The State petitioned this court for review, which we granted as to the issue of removal.

MAJORITY:  The State did not meet its burden to show cause to remove the trial judge, because the record does not show that the judge’s comments regarding dismissal created a reasonable question as to his impartiality in the context of the case’s history of disputes over the admissibility of expert gang testimony.  The trial judge’s familiarity with disputed facts acquired during pretrial proceedings did not, without more, create a reasonable question as to his impartiality.  We hold that the State did not meet its burden to make an affirmative showing of cause for the trial judge’s removal and that the court of appeals properly denied the extraordinary writ

CONCUR:  Justice Paul Anderson opined:  “I concur with the majority that an objective examination of the facts and circumstances of this case mandates a holding that the Chief Judge of the Hennepin County District Court did not err when she denied the state’s motion to remove the trial judge because he lacked impartiality.  Nevertheless, I write separately for two reasons.  First, I disagree with comments the majority makes with respect to judge ‘shopping.”  The majority implies that the state might be trying to use its motion to have the trial judge removed for cause as a way to find another judge who would rule more favorably on the issue of what expert gang testimony should be admitted.  Second, I disagree with the majority’s conclusions as to the status of the judge’s pretrial rulings.”

Russell Anderson (Page, Hanson, Meyer, and Barry Anderson)

Concur:  Paul Anderson

Took no part:  Gildea

[MURDER}