State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by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

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1225

State of Minnesota,
Respondent,

vs.

J. Alexander Kueng,
Appellant.

Filed January 11, 2021
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CR-20-12953

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

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

Considered and decided by Cochran, Presiding Judge; Jesson, Judge; and
Slieter Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
This is an appeal from an ex parte or der granting in part and denying in part
appellant’s application for expert services under Minn. Stat. § 61 1.21 (2018). Appellant
requested $6,300 to reta in an expert to perform a preliminary analysis of the extent and
character of publicity concerning his pending criminal case for the purpose of evaluating

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whether to bring a change of venue motion. Appellant argues that the district court abused
its discretion by denying his request. Relatedl y, he also argues that the district court
violated his constitutional rights to due process, fundamental fairness, and an impartial jury
by denying him the means to sh ow that a change of venue is necessary. Because we
conclude that the district court did not abuse its discretion by denying the requested
funding, we affirm.
FACTS
The State of Minnesota charged appellant J. Alexander Kueng in Hennepin County
District Court with aiding and abetting second-degree murder and aiding and abetting
second-degree manslaughter for the death of George Floyd. Kueng’s case is presently
joined for trial with his codefendants, and trial is scheduled. In August 2020, Kueng filed
an ex parte application under Minn. Stat . § 611.21 (2018), requesting $6,300 for the
services of an expert to conduct phase I of a venue research study. In support of the request,
Kueng appended his sworn affidavit, stating that his liabilities exceed his assets, and a copy
of his expert witness’s “venue research proposal.” The proposal has two phases. Phase I
involves a “preliminary analysis of the extent and character of the newspaper publicity and
other possible sources of community bias” to determine what “prophylactic measures” are
necessary to ensure that Kueng receives a fair trial. If it is de emed necessary following
completion of phase I, phase II would involve a public opinion survey in Hennepin County
and a likely comparison survey in another county “to measure the impact that pretrial
publicity . . . and other relevant factors . . . may ha ve had on the jury pool.” Depending
on the results of the public-opinion survey and phase I analysis, the expert may recommend

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protective measures, including “an extensive jury questionnaire and individual sequestered
voir dire,” or a change of venue.1 The total estimated cost of phase II is $41,875.
The district court determined that Kue ng met financial eligibility requirements to
apply for expert services, alt hough he is represente d by private counsel, but denied his
application for $6,300 for phase I of the ve nue research study, reasoning that “expending
more than $48,000 in public funds to fund a two-phase venu e research study to lay the
foundation for a motion for change of venue in the ma nner proposed by Kueng is not
necessary to the preparation of an adequate defense.” Nevertheless, the district court
authorized “up to $1,200 for expert witness services to Kueng’s jury consultant to consult
with and advise Kueng and his defense coun sel regarding proposed questions to be
included on a jury questionnaire and with resp ect to questioning of the jury panel during
voir dire.” The district court reasoned that these expert services are necessary because of
the “magnitude of media publicity and community protests,” and because the court intends
to rely on “extensive jury questionnaires” and “extensive voir dire to ferret out prospective
jurors who may have been unduly influenced by prejudicial publicity.”

1 On August 27, 2020, before the district court ruled on his ex parte application for expert
services to support a potential motion for change of venue, Kueng filed a motion seeking
to change venue “outside the seven-county metro area.” Kueng based his motion, in part,
on “the fact that ‘potentially’ prejudicial ma terial has been disseminated publicly by the
prosecution, creating a reasonable likelihood that a fair trial in the metro ar ea cannot be
had.” The motion identifies “1700 local article s focusing on this prosecution,” some of
which include comments from “Sta te actors.” On November 4, 2020, the district court
issued a preliminary order denying Kueng’s change-of-venue motion and denying similar
motions filed by Kueng’s codefendants. Also on that date, the district court ordered that
the jury would be anonymous, jurors would be examined “out side the presence of other
chosen and prospective jurors,” and the jury would be partially sequestered during trial and
fully sequestered during deliberation.

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Kueng filed an appeal from the order deny ing his application for expert services and
requested expedited consideration. See Minn. Stat. § 611.21(c) (providing defendant may
appeal immediately and request an expe dited hearing). We granted expedited
consideration and assigned responsive briefing to counsel not involved in the prosecution.
DECISION
Kueng argues that the district court abused its discretion by denying his request for
$6,300 for an expert to conduct a preliminary analysis of the character and extent of pretrial
publicity surrounding his case. Kueng further contends that the district court’s decision to
grant funding for an expert to assist in preparing a jury questionnaire and to assist with voir
dire is inconsistent with this determination. And he argues that, without the assistance of
an expert to conduct an independent venue study, he will not be able to meet his burden to
prove that a change of venue is necessary, depriving him of his constitutional rights to an
impartial jury, due process, and fundamental fairness.
This court reviews an order denying fu nds for expert services under Minn.
Stat. § 611.21 for an abuse of discretion. In re Application of Wilson , 509 N.W.2d 568,
570 (Minn. App. 1993). “A district court ab uses its discretion when its decision is based
on an erroneous view of the law or is agai nst logic and the facts in the record.” State v.
Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (quotation omitted).
The Due Process Clause ensures that “every criminal defendant has the right to be
treated with fundamental fairness and ‘[is] afforded a meaningful opportunity to present a
complete defense.’” State v. Richards , 495 N.W.2d 187, 191 (Minn. 1992) (quoting
California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1994)); see generally

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U.S. Const. amend. XIV, § 1 (ensuring crimin al defendant’s right to due process and fair
trial); Minn. Const. art. I, § 7 (same). Consistent with this constitutional requirement, the
Supreme Court “has long recogn ized that” states must ensure that indigent criminal
defendants have the ability to “participate meaningfully” in judicial proceedings where
their liberty is at stake. Ake v. Oklahoma, 470 U.S. 68, 76, 105 S. Ct. 1087, 1092 (1985).
But access to the courthouse is not enough; the state must also provide indigent defendants
with “access to the raw materials integral to the building of an effective defense.” Id. at 77,
105 S. Ct. at 1093.
To further these constitutional requirements, Minn. Stat. § 611.21 allows indigent
defendants to request funding from the district court for expert or investigative services
necessary for their defense. State v. Volker, 477 N.W.2d 909, 910 (Minn. App. 1991). The
statute provides: “Counsel appointed by the court for an indigent defendant, or representing
a defendant who, at the outset of the prosecu tion, has an annual income not greater than
125 percent of the poverty line . . . may file an ex parte application requesting
investigative, expert, or other services necessary to an adequate defense in the case.” Minn.
Stat. § 611.21(a).2 Upon a finding “that the services are necessary and that the defendant
is financially unable to obtain them, the court shall authorize counsel to obtain the services
on behalf of the defendant.” Id. The compensation may not exceed $1,000, unless the

2 Although Kueng is represented by private counsel and the affidavit filed in district court
did not include any information about his in come or resources “at the outset of the
prosecution,” as required by Minn. Stat. § 611.21(a), respondent does not contest the
district court’s determination that Kueng is financially eligible.

6
payment in excess is certified as necessary, and the chief judge approves.3 Id. (b). But, in
order to obtain funds for expert services, the defendant must present some specific evidence
showing that the expert’s services are necessary to the defense. Volker, 477 N.W.2d at 911
(holding appellant’s statement that an expe rt was necessary without any specific reasons
did not meet the Ake threshold showing of need for expert assistance); see also Richards,
495 N.W.2d at 198 (citing Volker with approval). For example, the submissions should
answer the following questions : “Why is the expert necessa ry? How would the expert’s
testimony aid in appellant’s defense?” Volker, 477 N.W.2d at 911. The district court also
has discretion to limit the fees that may be expended for expert services. In re Application
of Jobe, 477 N.W.2d 723, 727 (Minn. 1991) (stating district c ourt is in best position to
determine what is reasonable compensation).
Kueng contends that without the requested expert services he will not be able to
meet his burden to show that a change of ve nue is necessary, thus depriving him of his
Sixth Amendment right to an impartial jury. For this reason, we consider the standard for
granting a change of venue before addressi ng whether the district court abused its
discretion. Criminal trials must be held in the county where the offense was committed,
“unless the[ ] rules direct otherwise.” Minn. R. Crim. P. 24.01. A trial may be continued
or venue may be changed because of prejudicial pretrial publicity. Minn. R. Crim. P. 25.02.
A district court “must” grant a motion for continuance or to change venue “whenever
potentially prejudicial material creates a reas onable likelihood that a fair trial cannot be

3 The chief judge authorized the expenditure of up to $1,200 in this case.

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had.” Id., subd. 3. “Actual prejudice need not be shown.” Id. A party may support a
motion for change of venue due to pretrial publicity by testimony, affidavits, written
statements from individuals in the community, a qualified public opinion survey,4 or other
probative material. Id., subd. 2. The district court ha s broad discretion over the decision
of whether to grant a change of venue due to pretrial pub licity, and this court will not
reverse the decision unless a clear abuse of discretion is shown. State v. Salas, 306 N.W.2d
832, 835 (Minn. 1981). But the fact that there is widesp read publicity does not require a
change of venue; the question is “whether the publicity is of a type that is prejudicial to the
defendant” and “affects the minds of the specific jurors involv ed in the case.”
State v. Fratzke, 354 N.W.2d 402, 406 (Minn. 1984). The type of publicity that is
prejudicial may include quotes of public o fficials’ opinions concerning the defendant’s
guilt. See Salas, 306 N.W.2d at 835.
It is undisputed that the death of George Floyd has generated substantial publicity.
Kueng’s ex parte application for expert services indicates that “[a] cursory review of media
coverage has established that there are over 1,700 articles” regarding George Floyd’s
restraint and death. 5 The district court’s order ac knowledges the extensive publicity
surrounding this case. Nevertheless, the dist rict court was not persuaded that Kueng met

4 Phase II of the venue research study would have included a public opinion survey, if, after
conducting phase I, the expert deemed it nece ssary. Although rule 25.02, subdivision 2,
permits qualified public opinion surveys, the Eighth Circuit has “expressed doubts about
the relevance of such polls when review ing rejected change-of-venue motions.” United
States v. Rodriguez, 581 F.3d 775, 785-86 (8th Cir. 2009).
5 Kueng’s initial brief, reply br ief, and addendum also include links to some of the news
articles about the case.

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his burden of demonstrating that a two-phase venue research study “to lay the foundation
for a motion to change venue” was necessary to an adequate defense, in light of the
protective measures that the district court id entified to reduce the risk of unfair prejudice
and ensure that Kueng receives a fair trial by an impartial jury. The district court’s order
describes the following protective measur es: (1) sending a comprehensive jury
questionnaire to 150 prospective jurors, wh ich is larger than the usual pool of
30 prospective jurors; (2) asking questions regarding exposure to pretrial publicity and its
effect on potential jurors; (3) permitting Kueng to renew a motion to change venue after
questionnaires are completed and returned ; (4) permitting extensive voir dire and
conducting voir dire one prospective juror at a time rather than by the panel as a group; and
(5) remaining open to changing venue if jury questionnaires and voir dire demonstrate that
it is not possible to impanel a fair and impartial jury in Hennepin County. The district court
also observed that Kueng is represented by an experienced “leading member of the private
criminal defense bar” who “can be expected to vindicate Kueng’s right to a trial before a
fair and impartial jury through his participation in the design of the jury questionnaire and
in voir dire.”
We are not persuaded that the district court abused its discretion by concluding that
Kueng did not meet his burden to show that authorizing public funds for expert services to
conduct phase I of a venue-research study is n ecessary for an adequate defense. Kueng’s
ex parte application did not ex plain why it is necessary to have an expert complete a
preliminary analysis of pretrial publicity, or how an expert’s preliminary analysis would
specifically support a motion for a change of venue, particularly when Kueng’s own

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submissions established his awareness of the extent and character of pretrial publicity. See
Volker, 477 N.W.2d at 911 (discussing threshold showing of “need” for expert assistance).
The district court “remains willing to order a change of venue if the jury
questionnaires and voir dire process demonstrate that it is not possible to impanel a fair and
impartial jury in Hennepin C ounty.” The Sixth Amendment right to an impartial jury
“includes the ability to conduct ‘an adequate voir dire to identify u nqualified jurors.’”
State v. Greer, 635 N.W.2d 82, 87 (Minn. 2001) (quoting Morgan v. Illinois, 504 U.S. 719,
729, 112 S. Ct. 2222, 2230 (1992 )). The district court’s plan to rely on an extensive jury
questionnaire and individual voir dire to “ferret out prospective jurors who may have been
unduly influenced by prejudic ial publicity” appears designed to ensure that unqualified
jurors are identified. Given the protective measures that the district court adopted and its
willingness to reconsider the motion to change venue, we cannot say that the district court
abused its discretion by concluding that $6,300 for expert services to conduct a preliminary
analysis of publicity is not necessary for an adequate defense. Cf. Rodriguez, 581 F.3d at
785, 789 (assuming without deciding that deni al of funding for venue study could violate
Ake, appellant did not show ho w additional funding would ha ve aided his defense when
district court’s 21-day voir dire process, which included assembling a larger-than-usual
jury pool, a comprehensive jury questionnaire, and extra peremptory strikes, “screened out
prejudiced jurors”).6

6 Although not precedential, the analysis in State v. Hull is also persuasive. No. A08-1280,
2008 WL 4301902 (Minn. App. Sept. 23, 2008). There, we affirmed the district court’s
order denying Hull’s request for expert services for a public-opinion survey to support a
motion to change venue because he failed to show that those services were necessary, and

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We also do not agree that the district cour t’s decision to grant Kueng up to $1,200
for expert assistance regarding proposed questions for a jury questionnaire and with respect
to voir dire contradicts its decision that a preliminary analysis of publicity is not necessary.
Phase II of Kueng’s venue-research proposal includes “an extensive juror questionnaire
and individual sequestered voir dire” as possible recommendations the expert might make
to protect Kueng’s right to a fair trial. Be cause the district cour t had already concluded
that a jury questionnaire and extensive, individual voir dire are appropriate and necessary,
it was within the court’s discretion to grant Kueng $1,200 for expert services to assist with
preparing jury questions and voir dire. See Minn. Stat. § 611.21(a) (stating district court
determines reasonable compensati on). We are, therefore, not persuaded that the district
court’s decision to grant expert services that were not requested in phase I of the venue
research study is contradictory.
Nor are we persuaded that the district court’s order deprives Kueng of his
constitutional rights to due process and fundament al fairness or his right to an impartial
jury. Kueng’s brief treats this as a separate issue. But section 611.21 is intended to
guarantee indigent defendants the rights to services necessary for their defense at
government expense, so whether Kueng’s due process rights are violated is an integral part
of appellate review and our consideration of whether the district court abused its discretion
by denying a request for expert services. See Wilson, 509 N.W.2d at 570 (discussing Ake

because the district court concluded that jury voir dire would be su fficient to ensure an
impartial jury, and if enough impartial jurors could not be found, “a change of venue would
be mandatory.” Id. at *1-2.

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constitutional requirement that government must provide indigent de fendants with “raw
materials” necessary for an e ffective defense). The district court has already instituted
protective measures to screen out prejudiced jurors, which includes some of the very same
protective measures his expert might reco mmend in phase II of the venue research
proposal. Moreover, the district court will permit Kueng to renew his motion to change
venue if it becomes apparent that an impartial jury cannot be convened. Accordingly, we
are not persuaded at this point in the proceedi ngs that the district court’s order violates
Kueng’s right to an impartial jury or his rights to due process and fundamental fairness.
Finally, Kueng appears to argu e that this court should, in the interests of justice,
direct the district court to order a change of venue because “massive pretrial publicity” has
created a presumption of prejudice. Although pretrial publicity can create a presumption
of prejudice, Irvin v. Dowd, 366 U.S. 717, 725-27, 81 S. Ct. 1639, 1644-45 (1961), Kueng
does not identify any authority th at would permit this court to direct a change of venue.
This appeal involves the funding of expert services; this is not an interlocutory appeal from
an order denying a change of venue. The court of appeals is an error-correcting court and
does not exercise supervisory powers reserved to the supreme court. State v. Ramey ,
721 N.W.2d 294, 302 n.6 (Minn. 2006). Re spondent also correctly observes that
State v. Thompson, the case Kueng relies on, is inapposite because the criminal defendant
in that case challenged the district court’s order denying his motion to change venue by
filing a petition for a writ of mandamus. 123 N.W.2d 378, 381-82 (Minn. 1963). By
contrast, there is no petition for mandamus before this court.

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In sum, because the district court did not abuse its discre tion by denying Kueng’s
application for $6,300 for expert services unde r section 611.21 to conduct phase I of a
venue-research study, we affirm.
Affirmed.