State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0656

State of Minnesota,
Respondent,

vs.

Abdirizak Osman Salad,
Appellant.

Filed March 5, 2018
Affirmed
Kirk, Judge

Hennepin County District Court
File No. 27-CR-16-16480

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

Michael O. Freeman, Hennepin County Attorney, Sean P. Cahill, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Ap pellate Public Defender, Jodi Lynn Proulx, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Johnson, Presiding Judge; Cleary, Chief Judge; and
Kirk, Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges his conviction for aiding and abetting simple robbery, arguing
that the district court erred by declining to remove a sworn juror under Minn. R. Crim. P.

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26.02, subd. 9. Because we conclude that the district court did not abuse its discretion
when it determined that the juror was competent to serve under Min n. R. Crim. P. 26.02,
subd. 5(1), we affirm.
FACTS
On June 21, 2016, appellant Abdirizak Osman Salad was charged with one count of
simple robbery alleged to have occurred on June 18 . At the jury trial, the state proceeded
on the amended charge of aiding and abetting simple robbery.
Before appellant’s trial began, but after the jury was empaneled, a juror expressed
concern that he may recognize a trial witness, or that a witness may recognize him. The
juror told the judge’s clerk that he wanted to be a juror, but that he wanted to make sure
the court and attorneys knew that he spends time in the area where the charged offense
occurred. Initially, neither attorney believed that the juror’s statements sugg ested that he
could not be impartial, nor wished to strike him from the panel.
The district court then questioned the juror on the record . When he was asked to
describe his concerns, the juror explained that he knows the neighborhood well and rides
the bus through the area often. The juror was concerned that someone might recognize
him, which made him uncomfortable. The juror clarified that he was concerned for his
safety, not about his ability to be impartial. The juror reiterated that he could be fa ir and
could give the trial his full attention.
When questioned by d efense counsel, the juror clarified that, although he did not
know what the verdict would be, he was concerned about retaliation and his safety if
someone did not like the outcome . The juror also stated that there have been violent

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incidents in the bars and gang-related shootings in the alleys near where the charged
offense occurred, but that he has never experienced a violent incident in the area. The state
did not question the juror.
After the juror left the courtroom, the defense moved to remove him from the panel
noting that appellant was charged with a crime of violence and arguing that the juror had
already developed concerns regarding his s afety regardless of the verdict . The state
objected to the motion, arguing that the juror’s concerns were general rather than specific
to appellant or to his case and that the juror could be impartial.
After a recess, the district court addressed the defense motion. The court applied
the removal-for-cause standards under Minn. R. Crim. P. 26.02, subd. 5(1), and examined
whether the juror could be impartial. The court found that the juror’s assertion s that he
would be impartial were credible. The court also found that the juror ’s credibility was
bolstered because he followed the court’s instructions to the jury and brought this issue to
the court’s attention. The court found no evidence of bias and found that the juror was
committed to serving. The court denied the defense motion.
Appellant was convicted of aiding and abetti ng simple robbery and was sentenced
on January 31, 2017. This appeal follows.
D E C I S I O N
The U.S. and Minnesota Constitution s guarantee a criminal defendant the right to
an impartial jury. U.S. Const. a mend. VI; Minn. Const. art. I, § 6. “The bias of a single
juror violates the defendant’s right to a fair trial because the impartiality of the adjudicator
goes to the very integrity of the legal system.” State v. Fraga, 864 N.W.2d 615, 623 (Minn.

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2015) (quotation omitted). “Permitting a biased juror to serve is structural error requiring
automatic reversal.” Id. No additional showing of prejudice is necessary. Id. at 625-26.
We give a district court’s decision regarding whether to remove a sworn juro r great
deference on appeal. See State v. Manley, 664 N.W.2d 275, 283-84 (Minn. 2003) (noting
that the deferential standard applied to removal of a prospective juror for cause also applies
to removal of a sworn juror); see also State v. Munt , 831 N.W.2d 5 69, 576 (Minn. 2013)
(noting that appellate “review of the district court’s determination of juror impartiality is
especially deferential”).
“The interpretation of the Minnesota Rules of Criminal Procedure is a question we
review de novo.” Reynolds v. State, 888 N.W.2d 125, 129 (Minn. 2016). “[T]he criminal
procedural rules must be ‘read as a whole and each section . . . interpreted in light of the
surrounding sections to avoid conflicting interpretations.’” State v. Carpenter, 893 N.W.2d
380, 384 (Minn. App. 2017) (quoting State v. Dahlin, 753 N.W.2d 300, 306 (Minn. 2008)
(quotation omitted)). Minn. R. Crim. P. 26.02, subd. 5(1), provides that a juror may be
challenged for cause on several grounds including if “[t]he 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.” Id., subd. 5(1)(1). Under Minn. R. Crim. P.
26.02, subd. 5(2), a challenge for cause “must be made before the juror is sworn to try the
case, but the court for good cause may permit it to be made after the juror is sworn but
before all the jurors constituting the jury are sworn.” But under Minn. R. Crim. P. 26.02,
subd. 9, “[i]f a juror becomes unable to serve, an alte rnate juror must replace that juror.”
Subdivision 9 does not define “unable to serve.”

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Appellant requests that his conviction be reversed and that the case be remanded for
a new trial because the district court improperly considered his motion to remove the juror
under Minn. R. Crim. P. 26.02, subd. 5, rather than under Minn. R. Crim. P. 26.02, subd. 9.
Appellant asserts that, in applying the incorrect standard, the district court erroneously
focused on impartiality rather than on “whether the juror was mentally capable of rendering
satisfactory jury service.” Appellant argues that the juror was unable to serve, but
acknowledges that Minnesota caselaw does not address whether a juror’s fear of retaliation
renders him unable to serve as a juror.
The state argues that Minn. R. Crim. P. 26.02, subd. 9, does not set out a new or
different standard for determining a juror’s competence to serve and only instruct s the
district court on how to remove and replace a sworn juror who is unable to serve. The state
asserts that the requirements set out for juror competence in subdivision 5 apply to Minn.
R. Crim. P. 26.02 as a whole.
Our caselaw holds that “[Minn. R. Crim. P.] 26.02, subd. 5, provides the exclusive
grounds upon which jurors may be challenged for cause.” State v. Roan, 532 N.W.2d 563,
568 (Minn. 1995); see also State v. Curtis, __ N.W.2d __, __, No. A17-0390, slip op. at 7-
8 (Minn. Jan. 10, 2018) (applying Minn. R. Crim. P. 26.02, subd. 5(1), to removal of a
sworn juror). Therefore, the appropriate consideration for the district court in addressing
appellant’s motion to remove the sworn juror under Minn. R. Crim. P. 26.02, subd. 9, was
whether the juror could serve impartially at trial, as provided under Minn. R. Crim. P.
26.02, subd. 5(1)(1). The district court did not misapply the law by following this
procedure.

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Appellant also argues that the district court abused its discretion when it found that
the juror was mentally capable of serving on the jury. Here, there is nothing in the record
to indicate that the district court abused its discretion in finding that the juror’s statements
were credible, that the juror could remain impartial, and that the juror was able to serve .
Thus, we defer to the district court’s determinati on and affirm. See Munt, 831 N.W.2d at
576.
Affirmed.