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This opinion is nonprecedential except as provided by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
A22-0094

State of Minnesota,
Respondent,

vs.

Charles Calvin Lockhart,
Appellant.

Filed January 30, 2023
Affirmed
Bratvold, Judge

Hennepin County District Court
File No. 27-CR-20-8335

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Zachary Stephenson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Leah C. Graf, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Gaïtas, Presiding Judge; Bratvold, Judge; and Larson,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant challenges his conviction for first-degree criminal sexual conduct.
Appellant, who identifies as Black, argues that his constitutional rights were violated
because his jury venire did not represent a fair cross-section of the community, and the
2
district court erred by denying his motion to strike the venire. We affirm because even if
we assume unfair representation i n appellant’s jury venire and also assume unfair
representation in the Hennepin County jury pool over time, appellant failed to show this
underrepresentation resulted from systematic exclusion.
FACTS
Before summarizing the record facts, we briefly consider the meaning of relevant
terms. Appellant Charles Calvin Lockhart’s brief to this court points out that jury “venire”
can be a broad term, defined as the group of people “selected for jury duty and from among
whom” the defendant’s jury will be chosen. Black’s Law Dictionary 1869 (11th ed. 2019).
As Lockhart notes, our caselaw sometimes uses the terms “ jury venire,” “jury pool,” and
“jury panel” interchangeably. See, e.g., State v. Griffin, 846 N.W.2d 93, 100 (Minn. App.
2014) (quotation omitted), rev. denied (Minn. Aug. 5, 2014). We agree with Lockhart’s
suggestion that “jury pool” describes the larger group of jurors summoned for jury service
in a week, “jury venire” describes the group of prospective jurors drawn from the jury pool
for voir dire and selection in a defendant’s case, and “jury panel” describes the jurors seated
in a defendant’s case.1
In April 2020, respondent State of Minnesota charged Lockhart with two counts of
first-degree criminal sexual conduct under Minn. Stat. § 609.342, subd. 1 (2018). On

1 We note that Minn. R. Crim. P. 26.02, subds. 1-2, refers to “jury panel” as a group of
prospective jurors drawn from the jury pool for voir dire and selection and refers to “jury
list” as the larger group of jurors summoned for jury service.
3
August 9, 2021, Lockhart’s jury trial began in Hennepin County and the jury venire was
called to the courtroom.
Outside the presence of the jury venire, Lockhart moved to strike the venire for
failing to reflect a fair cross-section of the community because there was only one
prospective juror who identified as Black. Lockhart relied on the prospective-juror list,
which showed that, of the 30 prospective jurors in the venire, one individual identified as
Black or African American, one individual identified as Asian, one individual identified as
two or more races, and the rest of the prospective jurors identified as white.
Lockhart’s attorney submitted five exhibits in support of his motion. Three exhibits
provided Hennepin County jury-pool statistics and demographic data from 2018, 2019, and
2020 and showed that the year-end percentage of jurors identifying as Black and reporting
for the Hennepin County jury pool was 7.7% in 2018, 8.2% in 2019, and 6.2% in 2020.
Lockhart also submitted a 2009 report from the Minnesota Demographic Center projecting
that 14.4% of Hennepin County’s population would identify as Black by 2020. Finally,
Lockhart submitted transcribed testimony from the Hennepin County jury- office
supervisor.
The district court denied Lockhart’s motion, determining that his showing did not
address the “pool as a whole, ” and “there’s nothing to indicate that there was any
intentional or systematic exclusion of persons of color in the pool itself.” The district court
added that it would review the evidence Lockhart provided and “revisit the issue” if there
was any need.
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Jury selection proceeded, and 13 jurors were seated. The trial commenced. The jury
found Lockhart guilty on both counts, and the district court sentenced him to 172 months
in prison on the first count. Lockhart appeals.
DECISION
The United States and Minnesota Constitutions require that the jury venire “reflect
a fair cross-section of the community.” Griffin, 846 N.W.2d at 99-100; see U.S. Const.
amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to . . . an
impartial jury of the . . . district wherein the crime shall have been committed . . . .”); Minn.
Const., art. I, § 6 (same); see also Minn. R. Crim. P. 26.02, subd. 1(1)(a) (“The jury list
must be composed of persons randomly selected from a fair cross- section of qualified
county residents.”). But the “Sixth Amendment does not guarantee a criminal defendant a
jury of a particular composition or one that mirrors the com munity.” State v. Williams,
525 N.W.2d 538, 542 (Minn. 1994).
To make a prima facie showing that a jury venire failed to reflect a fair cross-section
of the community, a defendant must show that (1) “the group allegedly excluded is a
distinctive group in the community,” (2) “the group in question was not fairly represented
in the venire,” and (3) “the underrepresentation was the result of a systematic exclusion of
the group in question from the jury selection process.” Id. (quotation omitted). If the
defendant makes a prima facie showing of a violation, the government may rebut it. Id.
This court reviews a fair-cross-section claim de novo. State v. Brown, 937 N.W.2d 146,
158 (Minn. App. 2019).

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Before turning to the parties’ arguments, we examine relevant caselaw on
fair-cross-section claims, much of which considers the same process Hennepin County
used to summon the jury pool and draw the jury venire for Lockhart’s case. In Williams,
the supreme court considered a challenge to a Ramsey County jury venire that was drawn
from a jury pool summoned using a source list of registered voters, licensed drivers, and
state-identification-card holders. 525 N.W.2d at 541. Williams, who identified as African
American, alleged that the most recent census showed Ramsey County to have an African
American population totaling 3.7% of its total population in 1990. Id. at 54 1-42. Two
prospective jurors of the 102-member jury pool called the week of Williams’s trial
self-identified as African American. Id. at 542.
The supreme court rejected Williams’s fair-cross-section claim on the third element
after first concluding that the evidence demonstrated “African- Americans had been
underrepresented” in Ramsey County jury venires for “3 years in a row.” Id. at 543. The
supreme court determined that “the evidence fail[ed] to establish systematic exclusion.” Id.
at 544. The supreme court noted, however, that it would “ not be satisfied until both the
reality and the perception of underrepresentation of African-Americans and other distinct
minority groups are eliminated” and that “underrepresentation [that] is not the result of
systematic exclusion does not justify complacency or satisfaction with the inclusiveness of
the system.” Id.
In State v. Roan , the supreme court concluded that Roan failed in his
fair-cross-section challenge to a 75-person Hennepin County jury venire containing 5.3%
ethnically or racially diverse jurors. 532 N.W.2d 563, 569 (Minn. 1995). As it did in
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Williams, the supreme court’s analysis focused on the third element and determined that
Roan “may have shown that over a period of time the group of eligible jurors of color has
been underrepresented, [but Roan] failed to demonstrate the underrepresentation result[ed]
from systematic exclusion.” Id. (quotation omitted). In part, the supreme court relied on
the “Hennepin County Grand Jury Task Force Report estimat[ing] that Hennepin County
reaches over 98 percent of its citizens” by using a source list derived from registered voters,
licensed drivers, and state-identification-card holders. Id.
In State v. Willis, the supreme court relied on Williams and Roan in denying Willis’s
fair-cross-section challenge to a Hennepin County grand jury and jury venire. 559 N.W.2d
693, 700 (Minn. 1997). Once again focusing on the third element, the supreme court
reasoned that “[e]ven if [Willis] were to show the necessary underrepresentation, as a
matter of law, he could not demonstrate that the underrepresentation resulted from the
state’s procedures because . . . this court upheld the same Hennepin County selection
process.” Id.
In State v. Gail, the supreme court again rejected a challenge to a Hennepin County
jury venire while observing that “only one person self-identified as African-American on
the 50-person venire.” 713 N.W.2d 851, 861 (Minn. 2006). The court determined that Gail
“provided no evidence to satisfy the Williams standard” and reasoned that even if the court
assumed underrepresentation, the court previously upheld the selection process, and Gail
“did not show that [Hennepin County’s] procedures [had] changed in any material respect
since Willis and Roan.” Id. at 862.
7
In Griffin, this court concluded that Griffin “failed to establish a prima facie case
that his jury violated the fair-cross-section requirement.” 846 N.W.2d at 103. On the third
element, we held that “[s]ystemat ic exclusion means that the underrepresentation is
attributable to the juror-selection process and not alternative reasons such as individuals
failing to show up for jury service.” Id. at 101. First, we determined that Olmsted County
used the same process as Hennepin County for the source list used to summon the jury
pool. Id. (citing Minn. R. Gen. Prac. 806). Second, we pointed out that Griffin’s reliance
on 2010 census data to show Olmsted County’s population was problematic because the
data did not include information on eligible jurors. Id. at 102-03. Because Griffin “failed
to present evidence correlating the census figures to the percentage of self-identified
[B]lack persons in Olmsted County who are qualified for jury service,” we concluded that
the district court did not err in denying Griffin’s motion for a new trial. Id. at 103.
Most recently, in Andersen v. State, the supreme court rejected a fair -cross-section
claim by a member of the White Earth Band, a federally recognized tribe. 940 N.W.2d 172,
182 (Minn. 2020). The supreme court relied in part on precedent and concluded that the
jury-pool-selection procedures in Becker County were the same as the selection procedures
used in Hennepin County and upheld in Roan. Id. Noting that Andersen “adduced no
historical or contemporaneous evidence or statistical analysis to factually support his
argument that the jury selection as conducted in Becker County in 2008 systematically
excluded White Earth Band members—or Native Americans more generally,” the court
held the challenge failed on the third element. Id.
8
With this caselaw in mind, we consider the sole issue in this appeal. Lockhart, who
identifies as Black, argues that we should reverse his conviction and remand for a new trial
because “[t]he statistics demonstrate a pattern of Black juror underrepresentation and that
the county’s method of drawing its jury pools ha[s] led to this systematic exclusion.” We
turn to each of the three elements required for a prima facie showing on a fair-cross-section
claim.
Distinctive Group
Lockhart argues that though “[t]he district court did not explicitly address th[e] first
element,” it is still “well established that people who identify as Black or African American
represent a distinctive group in the community.” Lockhart cites to supreme court caselaw
supporting this position. See Williams, 525 N.W.2d at 542. We conclude that Lockhart has
satisfied the first element.
Distinctive Group Not Fairly Represented
To support his claim on the second element, Lockhart must show that persons
identifying as Black were “not fairly represented in the venire.” See id. (identifying the
second element of the fair-cross-section test). Lockhart relies on a projection from a 2009
report that estimated 14.4% of the Hennepin County population would identify as Black
by 2020. Lockhart points out that only one of the 30 prospective jurors in his venire, or
3.3%, identified as Black or African American.
Lockhart’s reliance on the projection data reported in 2009, however, is not
convincing. The 2009 report may not accurately reflect Hennepin County’s population as
of Lockhart’s 2021 trial. The report data is over ten years old and provides only population
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projections. Lockhart does not submit any actual data on Hennepin County’s population
after 2009. And, even if we accept the projections as accurate, the projections do not
provide any information on jury eligibility. 2 As we stated in Griffin, “we have no way of
knowing what percentage of persons self-identifying as [B]lack are over the age of 18, and
eligible for jury service.” 846 N.W.2d at 102. 3 Because Lockhart failed to provide the
record necessary to establish the population of eligible jurors in Hennepin County who
identify as Black , we question whether the second element is satisfied. St ill, the district
court and respondent appear to accept Lockhart’s claim that persons identifying as Black
were not fairly represented in his venire because only one prospective juror of 30 identified
as Black. Thus, we proceed to the third element.
Underrepresentation Resulted from Systematic Exclusion
To satisfy the third element, Lockhart must show that “over a significant period of
time . . . the group of eligible jurors in question has been significantly underrepresented ”
in the jury pool as a result of systematic exclusion. Williams, 525 N.W.2d at 543.

2 A resident is ineligible for jury service if the resident is not a citizen of the United States;
is under 18 years old; cannot communicate in the English language; is not physically or
mentally capable of rendering satisfactory jury service; has been convicted of a felony and
has not had their civil rights restored; has served as a state or federal juror in the past four
years; or is a judge serving in the judicial branch of the government. Minn. R. Gen. Prac.
808(b)-(c).

3 In the nonprecedential opinion in State v. Johnson, this court recently concluded, based
on the assumption that the Hennepin County projection data was correct, that Johnson
satisfied the second element of his fair-cross-section claim. No. A21-1494, 2022 WL
17086760, at *3 (Minn. App. Nov. 21, 2022). We rejected Johnson’s challenge, however,
based on his failure to show that the underrepresentation resulted from systematic
exclusion. Id. Here, we acknowledge that Lockhart used the same 2009 report as Johnson,
but we take a different approach.
10
Systematic exclusion is defined as “unfair or inadequate selection procedures used by the
state rather than, e.g., a higher percentage of ‘no shows’ on the part of people belonging to
the group i n question.” Id. In other words, Lockhart must show “that the
underrepresentation was not the result of reasonable and plausible alternative possibilities
shown by the statistical data.” Griffin, 846 N.W.2d at 102.
Lockhart presented weekly jury-pool data showing that, in total, prospective jurors
identifying as Black comprised 7.7% of the jury pool in 2018, 8.2% in 2019, and 6.2% in
2020. As discussed above, Lockhart relied on a 2009 population projection that estimated
14.4% of Hennepin County would identify as Black by 2020.
Even if we assume that Lockhart’s data shows that over a significant period of time,
prospective jurors identifying as Black are significantly underrepresented in Hennepin
County jury pools, we conclude that Lockhart failed to provide evidence that this
underrepresentation resulted from systematic exclusion. Hennepin County’s procedure for
creating a source list of prospective jurors has been upheld repeatedly. See Andersen,
940 N.W.2d at 182; Gail, 713 N.W.2d at 862; Willis, 559 N.W.2d at 700; Roan
532 N.W.2d at 569. Indeed, the county’s procedure follows rules adopted by the supreme
court. See Minn. R. Gen. Prac. 806 (listing sources from which the jury pool is compiled).
Lockhart argues that, as the supreme court noted in Williams 30 years ago,
“underrepresentation [that] is not the result of systematic exclusion does not justify
complacency or satisfaction with the inclusiveness of the system.” 525 N.W.2d at 542. We
agree that complacency on this important issue is unacceptable. But Lockhart lacks any
legal support for his contention that the long -term nature of the underrepresentation of
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prospective jurors identifying as Black amounts to systematic exclusion in Hennepin
County’s juror-selection procedure . Lockhart cites to Justice Page’s concurrence in
Hennepin County v. Perry:
At some point, a purportedly race-neutral process that
perpetuates and reinforces inequality of opportunity (in this
case, the opportunity to in fact serve on a grand jury) is no
different than a race-based process intended to produce the
same result. In the end, no practical difference exists between
a process that produces single-race grand juries by chance and
one that produces single-race grand juries by design.

561 N.W.2d 889, 897- 98 (Minn. 1997) (Page, J., concurring). Justice Page’s point is
compelling. The third element, however, requires evidence tying underrepresentation of a
distinct group in the jury pool to the procedure used to identify and summon individuals
for jury service. See Williams, 525 N.W.2d at 542.
4

4 For the first time on appeal, Lockhart argues that Hennepin County failed to implement
some recommendations in a 1993 report from the Minnesota Supreme Court Race Bias
Task Force, relying on a 2019 progress report. Richelle M. Wahi, Minnesota Judicial
Branch Action Following the 1993 Minnesota Supreme Court Task Force on Racial Bias
in the Judicial System and Recommendations for Minnesota Judicial Branch Action in
FY20-21 (2019). According to Lockhart, the 2019 report notes that the state’s collection of
race information for people responding to a jury summons and for those who are excused
and deferred was “still deemed ‘in progress’ twenty-six years ” after the 1993 report’s
recommendation. Lockhart also argue s that testimony from the Hennepin County
jury-office supervisor showed that “her office does not keep data regarding jurors who are
summoned or who fail to appear.” Lockhart also contends the 1993 report recommended
expanding the source list to include “tribal eligible voter lists and lists of recently
naturalized citizens.” While the 2019 progress report includes “unofficial findings”
suggesting “most” tribal eligible voters are on drivers-license or state-identification lists,
Lockhart claims Hennepin County failed to supplement the source list as allowed under
Minnesota General Rule of Practice 806(b). Because Lockhart raises this issue for the first
time on appeal, we decline to address it. See Roby v. State, 547 N.W.2d 354, 357 (Minn.
1996).
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As we explained in Griffin, Lockhart must offer prima facie evidence “that the
underrepresentation was not the result of reasonable and plausible alternative possibilities
shown by the statistical data,” such as a higher percentage of “no shows” in response to
juror summonses. 846 N.W.2d at 102. For example, Lockhart has provided no information
about the Hennepin County population identifying as Black and either the percentage
eligible to vote or the percentage who do not respond to a jury summons. While Lockhart
faults Hennepin County for failing to collect more data, he cannot make a prima facie
showing on the third element without providing evidence tied to the procedure used to
identify and summon individuals for jury service.
Thus, we conclude that Lockhart has failed to satisfy the third element. Lockhart
has not shown whether any underrepresentation of prospective jurors identifying as Black
in the jury pool results from systemic exclusion because no evidence points to the Hennepin
County procedure used to identify and summon individuals for jury service.
Affirmed.