Hennepin County v. Perry

OPINION PAGE, Justice. Leon Perry (Perry) was indicted by a Hen-nepin County grand jury for, and was convicted by a Hennepin County jury of, first-degree murder under Minn.Stat. § 609.185, subd. 1 (1996), as a result of the shooting death of Brian Thomas (Thomas) in the parking lot of the Riverview Supper Club in Minneapolis, Minnesota, on July 8, 1995. Perry was sentenced to a term of life in prison. In a pretrial motion, Perry sought to have the indictment dismissed because of the racial composition of the grand jury which indicted him. Although 13.8.% of the people in the initial pool of grand jurors were people of color, there were no people of color selected to serve on the grand jury which ultimately indicted Perry. The trial court denied the motion because Perry failed to show that people of color were systematically excluded during the grand jury selection process. On appeal, Perry raises two issues: (1) whether the trial court committed reversible error by allowing in evidence the out-of-court statement “Leon said he did the dude”; and (2) whether his conviction must be reversed because there were no minorities on the grand jury that indicted him. We affirm. On July 8,1995, Thomas, Andre Amos, and two women went to the Riverview Supper Club around 1 a.m. after a concert at the Cabooze bar. Amos testified that Thomas had a handgun under the seat of his car which he left in the ear because the River-view had a metal detector at the front door. According to Amos, Thomas had started carrying the gun two to three weeks earlier because he had been badly beaten up by some men at the Riverview. Amos testified that after they entered the club, Thomas, appearing upset, grabbed Amos and said that the same men who had beaten him up before were there. Amos told Thomas that they should leave and that he would try to find some of his friends so it would be safer. When he returned about ten minutes later to the place Thomas had been waiting, Thomas was gone. At trial, Perry admitted shooting Thomas, but claimed that he shot him in self-defense. Perry claimed that Thomas was a dangerous person 1 who always carried a gun. According to Perry, he was dancing at the River-view during the early hours of July 8th when MeFadden told him that the guy who had beaten him up, Thomas, was there. MeFad-den told Perry that he was going to leave because he did not want any trouble. Perry and MeFadden departed with a group of friends, including Chris Atkins, Preston Poole, LaVelle Oats, and two young women. Perry testified that when he got outside, Thomas was standing outside by the door of the club, glaring at everybody, and that Thomas made a motion like he was going to pull out a gun. According to Atkins, he saw Thomas standing by the door, making the same motion. Upon seeing Thomas make that motion, Perry said, “He got a gun” and everybody scattered. Perry then started walking the two young women to their cars. While doing so, Oats called him back and handed him a gun, which Perry put in the small of his back. After leaving the women at their cars, Perry walked back toward the club through a dark area, lit only by street lights surrounding the parking lot. As Perry walked back to the club, he noticed a black two-door Acura, parked with its interior light *892 on, with Thomas inside pointing his hand out the driver’s side front window at Perry. Perry could not tell whether the driver’s side window was up or down, but he testified that Thomas’ body, except for his hand, was inside the car. Perry also could not tell if anything was in Thomas’ hand; but he assumed that Thomas had a gun, was aiming it at him, and was going to shoot him. Perry kept walking, and as he got closer to the Acura, Thomas’ hand started following him. When Perry testified that when he was parallel to the driver’s door, Thomas’ hand was still trained on him and, from a distance of 12 to 15 feet, Perry took out his gun, shot at Thomas’ car, and started to run away. As it turned out, an off-duty Minneapolis police officer, Eric Lukes, 2 witnessed the shooting. Officer Lukes was standing in the entryway to the club at about 1:45 a.m. when he saw Perry, about 50 yards away, shooting into the driver’s side window of a car. According to Officer Lukes, Perry was standing about 1 foot away from the driver’s side window. Officer Lukes did not see the gun in Perry’s hand, but saw flashes from the gunshots. Officer Lukes immediately began chasing Perry and, during the chase, fired shots at Perry, saw Perry discard his gun under a car, and saw him dive into the back seat of a blue Chrysler LeBaron convertible occupied by McFadden, Poole, and Perry’s brother, Kelvin Coppage. Officer Lukes never lost sight of Perry during the chase. With his gun still drawn, Officer Lukes ordered all of the ear’s occupants to get out and lie on the ground. When assistance arrived, Perry was placed in the back of one police car and McFadden, Poole, and Cop-page were placed in the back of another. Officers Rud and Olson received a call at approximately 1:55 a.m., informing them that there had been a shooting at the Riverview. When they arrived a few minutes later, they were directed to Thomas’ car, where they found the car’s driver’s side window shattered and Thomas lying dead across the front seat with his head resting against the passenger door. None of the car’s lights were on. Four spent .45 caliber shell casings were found at the scene, including two that came to rest at the base of the car’s windshield. During a search of the parking lot, a .45 caliber handgun was found underneath a car in the general area where Officer Lukes had seen Perry discard his gun. The hollow point .45 caliber bullets that killed Thomas were consistent with the bullets found in the gun Perry discarded in the parking lot. A folding buck knife was found on the floor of Thomas’ car near the center console, and a loaded .25 caliber automatic pistol with the safety on was found in the waistband of Thomas’ pants. According to Dr. Peterson, the Hennepin County Medical Examiner, Thomas was struck by two bullets. One entered his left earlobe and struck his spinal cord and brain stem. Thomas would have died almost immediately from the wounds caused by this bullet. The other bullet struck the back of Thomas’ left shoulder blade and lodged in soft muscle tissue. Dr. Peterson testified that he could not state for certain which wound occurred first, nor could he determine how far away the gun was when the bullets were fired. Perry was interviewed at the police station at about 5:15 a.m. on July 8 by Sergeant Rorviek. Unknown to Perry, the interview was being audio- and video-taped. During the interview, Perry initially denied any involvement in the shooting, but Sergeant Ror-vick told Perry he was confident Perry was the shooter. Sergeant Rorviek then left the room. While Sergeant Rorviek was out of the room, the videotape shows Perry examining and smelling his right hand. Sergeant Rorviek testified that he thought Perry was examining and smelling his hand for gunpowder residue and odor. Sergeant Rorviek, along with Sergeant Gerlicher, reentered the interview room, and Gerlicher confronted Perry, telling him that they knew he had shot Thomas and that they had eyewitnesses. They played an audiotape for Perry that had recorded the conversation between McFadden, Poole, and Coppage while they were *893 sitting in the police car after Perry’s capture. On the tape, one of the three said, “Leon said he did the dude.” At trial, Perry denied that he told McFadden, Poole, and Coppage that he killed Thomas. He claims that while all four of them were lying on the ground after being apprehended by Officer Lukes, he told McFadden, Poole, and Coppage that something had just happened and he was going to jail. The first issue we address is whether Perry is entitled to a new trial because the trial court committed reversible error by allowing into evidence the statement that “Leon said he did the dude.” Rulings on evidentiary matters rest within the sound discretion of the trial court. Minn.R.Evid. 104(a). Accordingly, we will not reverse a trial court’s evidentiary ruling absent a clear abuse of discretion. State v. Ture, 353 N.W.2d 502, 515 (Minn.1984). On appeal, the defendant has the burden of proving that the trial court abused its discretion in admitting evidence and that he or she was thereby prejudiced. State v. Steinbuch, 514 N.W.2d 793, 799 (Minn.1994). Reversal is warranted only when the error substantially influences the jury’s decision. Id. The testimony leading up to the admission of the statement began with defense counsel’s cross-examination of Sergeant Ger-lieher. Defense counsel established that Sergeant Gerlieher was wrong when he confronted Perry during Perry’s interview with the fact that there was more than one eyewitness to the shooting. On redirect, the prosecution clarified that Sergeant Gerlieher meant that the police had more than one witness implicating Perry in the shooting, rather than actually seeing him do the shooting. On recross, Sergeant Gerlieher explained the basis for his belief that more than one witness implicated Perry in the shooting: Q. Sir, when you say witnesses implicated him in the shooting as of 5:15 a.m. that day, what witness other than Officer Lukes implicated him in the shooting? A. I guess you would have to look at— define the word implicate. There was witnesses that gave statements to the effect as that he hadn’t necessarily been standing in a parking lot as originally said. There was not witnesses as maybe you are suggesting that stood there and pointed and said that’s the man that shot this person, so in that, you are correct, yes. On further redirect, Sergeant Gerlieher testified that there was a hidden taperecorder in the police ear holding McFadden, Poole, and Coppage that recorded their conversation while in the ear. The trial court sustained all of defense counsel’s hearsay objections to Sergeant Gerlicher’s attempts to testify about the contents of that conversation. Ultimately, the prosecution was permitted to ask Gerlieher: “Sergeant, based on what you heard on that tape was it your opinion that the witnesses who were recorded on the tape implicated the defendant in the shooting?” and Sergeant Gerlieher answered “yes.” During Sergeant Rorvick’s testimony, the state offered the videotape of Perry’s interview into evidence. Defense counsel objected to admission of the videotape, arguing that it was cumulative and irrelevant. That objection was overruled. No hearsay or confrontation clause objection was made. Sergeant Rorvick was then questioned about Perry’s interview. During this questioning, Sergeant Rorvick testified that, on the transcript from the videotape, Sergeant Gerlieher made a statement to Perry that someone on the audiotape said, “Leon said he did the dude.” 3 There was no objection to this testimony or to the admission of the transcript of the videotape into evidence. *894 Perry concedes that confronting him -with the audiotape during the police interview was “perhaps a legitimate investigative technique” because, at the time of the interview, he had denied any connection with the shooting. However, Perry argues that the statement “Leon said he did the dude” was hearsay, highly prejudicial to his self-defense claim because it implies premeditation and planning, and that its admission was reversible error. Perry further contends that the error was not harmless because of “the closeness of the premeditation issue” and because the trial court did not provide a limiting instruction. Perry also asserts that the statement on the audiotape may not have been accurate. Minnesota Rule of Evidence 801(c) defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Here, the statement was elicited to rebut defense counsel’s suggestion that Sergeants Rorviek and Gerlicher had lied to Perry during his interview. Defense counsel, by suggesting that police lied to Perry about the evidence implicating him in the shooting, opened the door for the prosecution to inquire about the basis for Sergeants Rorviek and Gerlicher’s belief that more than one witness implicated Perry in the shooting. Thus, the state was entitled to show that the police had a reasonable basis to believe that they were not lying to Perry when they told him that they had more than one witness implicating him in the shooting. The statement was also properly admitted to show that the police believed that Perry was lying when he denied being the shooter. See, e.g., State v. Hanley, 363 N.W.2d 735, 740 (Minn.1985) (finding declarant’s statement not hearsay because it was not offered to prove the truth of the matter stated but rather to show that he lied to the police). We conclude that the statement as admitted into evidence at trial was not hearsay. Relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Minn. R.Evid. 403. The statement “Leon said he did the dude,” while implicating Perry in Thomas’ shooting, is otherwise neutral and is not unduly prejudicial. Therefore, we conclude that the statement’s probative value was not outweighed by the danger of unfair prejudice. Perry also argues that he is entitled to a new trial because his right to confront witnesses against him under the Sixth Amendment to the United States Constitution was violated by admission of the statement “Leon said he did the dude.” The Sixth Amendment provides that, “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.” U.S. Const, amend. VI. Perry’s Sixth Amendment argument fails because before the Confrontation Clause is implicated, the statement in question must constitute hearsay. See United States v. Norquay, 987 F.2d 475, 481 (8th Cir.1993) (rejecting defendant’s Confrontation Clause argument because the disputed testimony was not hearsay). As admitted into evidence in this case, the statement “Leon said he did the dude” did not constitute hearsay, thus, its admission was not error. We conclude that the trial court did not abuse its discretion in admitting the statement “Leon said he did the dude” because: (1) the statement was not hearsay, was not unduly prejudicial, and was relevant; and (2) admission of the statement did not violate Perry’s right to confrontation under the Sixth Amendment. Finally, Perry argues that if his trial counsel did open the door for admission of the statement “Leon said he did the dude,” then, to the extent that the inevitable outcome of that choice was admission of harmful evidence, doing so constituted ineffective assistance of counsel. The trial court denied Perry’s motion for a mistrial on that ground. A defendant making a claim of ineffective assistance of counsel bears the heavy burden of showing that: (1) counsel’s performance was deficient and fell below an objective standard of reasonableness; and (2) petitioner was prejudiced by counsel’s representation; that is, there was a reasonable probability that but for counsel’s error, the *895 outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 , 104 S.Ct. 2052, 2064-65 , 80 L.Ed.2d 674 (1984); State v. Ecker, 524 N.W.2d 712, 718 (Minn.1994). In order to obtain relief, a defendant must satisfy both prongs of the Strickland test. Gates v. State, 398 N.W.2d 558 , 562 n. 1 (Minn.1987) (citing Strickland, 466 U.S. at 697 , 104 S.Ct. at 2069-70 ). Failure to satisfy either prong will result in a denial of relief. Id. Perry clearly fails to meet either prong of the Strickland test. The record does not suggest that Perry’s trial counsel’s performance fell below an objective standard of reasonableness. In fact, Perry admits that his trial counsel’s intended strategy was valid, but that it produced an undesirable outcome. The fact that Perry’s trial counsel asserted that he was ineffective if he “opened the door” is not enough to establish that his trial strategy was invalid or that his performance fell below an objective standard of reasonableness. Moreover, even if we were to assume that Perry’s trial counsel’s performance was legally deficient, Perry has not shown that the outcome of his trial would have been different but for his trial counsel’s mistake. Indeed, Perry concedes that the jury had “a great deal of reliable evidence to sift through” such as Officer Lukes’ testimony, the forensic reports, and testimony about the relationship between Thomas and members of Perry’s family. Perry has failed to provide any basis, other than his bald assertion, for concluding that the outcome of his trial would have been different had the statement not been admitted. Perry’s bald assertion is not enough to meet the second prong of the Strickland standard. We next address the issue of whether Perry’s conviction must be reversed because there were no minorities on the grand jury that indicted him. A grand jury is comprised of not more than 23, nor less than 16, persons. Minn.R.Crim.P. 18.03; Minn.Stat. § 628.41, subd. 1 (1996). Grand jurors are to be “selected at random from a fair cross-section of the residents of the county who are qualified by law to serve as jurors and shall otherwise be selected as provided by law.” Minn.R.Crim.P. 18.01, subd. 2. See also Minn.Stat. § 628.41, subd. 1; Jury Management Rules 801 and 805. Minnesota Jury Management Rule 809 prohibits a citizen from being excluded from jury service on account of, among other things, race or color. Under Minnesota Jury Management Rule 804, the jury commissioner develops and implements a written plan for the administration of the jury system. In Hennepin County, grand jury members are summoned from a source list compiled from the county voter registration list, drivers’ license list, motor vehicle registration list, and state identification card list. The grand jury that indicted Perry was selected as follows: 125 prospective grand jurors randomly selected from the source list were mailed a summons. The names of these individuals are placed on a list in the order selected. From that list of prospective grand jurors, 12 summonses were undeliverable and 30 individuals were disqualified. 4 From the remaining individuals on the list, the first 23 were sworn in as grand jurors and the next 6 were selected as alternates, and 54 were excused. The race of 98 of the 125 prospective grand jurors was known and, of that 98, 13, 5 or approximately 13.3%, were people of color. However, no people of color were among the 23 individuals sworn in as grand jurors, and only 1 person of color was among the 6 individuals selected as alternates. The Sixth Amendment requires that the pool from which a jury is drawn reflect a representative cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 527-28 , 95 S.Ct. 692, 696-97 , 42 L.Ed.2d 690 (1975). This fair cross-section of the community requirement is limited and does not guarantee a defendant a jury of a particular racial composition or one that mirrors the racial makeup of the community. Id. at *896 538 , 95 S.Ct. at 701-02 ; see also Holland v. Illinois, 493 U.S. 474, 480, 483 , 110 S.Ct. 803, 807, 808-09 , 107 L.Ed.2d 905 (1990); Cassell v. Texas, 339 U.S. 282, 286-87 , 70 S.Ct. 629, 631-32 , 94 L.Ed. 839 (1950) (“Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation.”). To establish a pri-ma facie showing that the jury venire from which a jury was selected did not satisfy the fair cross-section of the community requirement, a defendant must show: (1) that the group allegedly excluded is a “distinctive” group in the community; (2) that the group in question was not fairly represented in the venire; and (3) that the underrepresentation was a result of a systematic exclusion of the group in question from the jury selection process. Duren v. Missouri, 439 U.S. 357, 364 , 99 S.Ct. 664, 668-69 , 58 L.Ed.2d 579 (1979); State v. Williams, 525 N.W.2d 538, 542 (Minn.1994). The state may rebut a prima facie case by showing that aspects of the jury selection that produced the under-representation nonetheless advanced a significant state interest. Id. at 367-68, 99 S.Ct. at 670-71 ; Williams, 525 N.W.2d at 542 . Perry concedes that he cannot establish a prima facie case under Duren because he cannot identify a systematic exclusion of people of color in the selection of his grand jury. Further, Perry does not contend that the 125-person pool from which his grand jury was selected was not made up of a fair cross-section of the community. He does, however, argue that this court should invoke its supervisory powers to adopt a grand jury selection plan that would ensure that every Hennepin County grand jury has people of color represented in proportion to the percentage of people of color in Hennepin County’s adult population. Specifically, Perry invites the court to mandate use of the grand jury selection plan proposed by the 1992 Report of the Hennepin County Attorney’s Task Force that reviewed the racial composition of Hennepin County grand juries. 6 The proposal recommended by the Hennepin County Attorney’s Task Force raises serious constitutional questions, not the least of which is what is the compelling state interest that would justify the institution of a race-based selection process for *897 grand jurors in Hennepin County? 7 The facts of this case do not provide this court the opportunity to answer that question. Perry does not claim that people of color are systematically excluded from Hennepin County grand juries generally or that they were systematically excluded from the grand jury which indicted him. Further, our review of the record, does not suggest or imply that race played an impermissible role in Perry’s indictment, nor are there any facts in the record from which one might infer that race played an impermissible role in his indictment. Therefore, on the facts of this case, we decline Perry’s invitation to mandate that the Hennepin County district courts implement the Task Force’s proposal. 8 Our decision today should not be read as an indication that this court is backing away from the commitment set out in State v. Williams “to insure that the systems used [in jury selection] are increasingly inclusive in the hope that the faces of the people in the jury room will soon mirror the faces of the people in the community at large.” 525 N.W.2d at 544 . We have lost neither our commitment nor our resolve. We affirm Leon Perry’s conviction in all respects. Affirmed. BLATZ, J., took no part in the consideration or decision of this case. . This claim was, at least in part, based on Perry’s understanding of Thomas’ relationship with his second cousin, Theresa Anderson. Thomas was the father of one of Anderson’s children. On May 14, 1995, at the home of Anderson’s niece, Thomas got into an argument and retrieved a gun from the trunk of his car, but did not use it. On May 23, 1995, Thomas allegedly choked Anderson during an argument and later vandalized her car. Subsequently, Thomas began harassing Anderson by calling her daily and threatening her and her children. Perry was aware of these incidents involving Thomas and Anderson and had also heard that Thomas always carried a gun. Perry's claim was also based on an incident in which his uncle, Michael MeFadden, alleged that Thomas had beaten him up and fired gunshots at his car. . Officer Lukes worked part-time at the River-view as a security officer, but was not working that night. . Perry had denied being the shooter during his interview and Sergeant Gerlieher confronted him with the audiotape recorded in the squad car containing McFadden, Poole, and Coppage. The transcript of the videotape reads, in relevant part: Sergeant Rorvick: Leon, we know that isn’t the truth because we did tape record them talking in the car about what you told them, okay? Perry: What I told them? Sergeant Gerlieher: Listen to this, listen to this. (Inaudible.) [Tape is being played.] Sergeant Gerlieher: "Leon said he did the dude.” . The record does not tell us why the 12 summonses were undeliverable or why the 30 prospective jurors were disqualified. . The record does not tell us how many of these people remained in the pool of prospective grand jurors after the undeliverable summonses and disqualified individuals were eliminated. . The Task Force was created, at least in part, because of "intense public interest in the grand jury's review of the death of Tycel Nelson," an African-American teenager shot and killed by a Minneapolis police officer. The Task Force was given the following charge: Review of the racial composition of past grand juries; Review of legal issues relating to the composition of grand juries in Minnesota, other states, and the federal courts; and Based on consideration of the factual background, legal issues and public policy concerns, recommend ways in which grand juries can be more representative of the racial diversity in Hennepin County. The Task Force found that while racial minorities were overrepresented as victims, witnesses, and suspects appearing before grand juries in Hennepin County, they were underrepresented on Hennepin County grand juries. For example, in homicide cases presented to Hennepin County grand juries between the end of 1989 and March 1991, 66% of all victims and 71% of all suspects were members of racial or ethnic minorities, while at the same time, of the five grand juries selected between November 1989 and March 1991, Hennepin County's grand jury selection process produced three that were all white. Between March 1968 and March 1991, 26 of 66 grand juries were all white. The Task Force made a number of recommendations to increase minority presence on the grand juiy; however, the recommendation advocated by Perry is the proposal for modifying the grand jury selection process to guarantee at least two minorities on every grand jury in Hennepin County. Under this proposal, 21 of the grand jury’s 23 members would be selected at random from a list of 55 people qualified to serve. If at least two of these 21 jurors are "minority persons," the last two grand jurors would also be selected randomly. If no minority persons or only one minority person was included in the initial group of 21, the last one or two grand jurors would be selected as follows: all nonmi-nority persons remaining on the list would be bypassed and the first one or two minority persons would fill the remaining grand jmy positions. If necessary, a second list of 55 people or a third or fourth list could be created to ensure the inclusion of at least two minority persons on the grand jury. The proposal does not attempt to match the races of the jurors and defendants, and it does not assure every minority defendant a jury containing members of his or her own race. According to the Task Force's report, requiring two persons of color on a 23-person grand jury would constitute representation proportional to the adult minority population in Hennepin County- . Under strict scrutiny, a race-based selection process violates the Equal Protection Clause unless the measure is narrowly tailored and reasonably necessary to further a compelling governmental interest. Adarand Constructors, Inc. v. Pena, — U.S. —,—, 115 S.Ct. 2097, 2113 , 132 L.Ed.2d 158 (1995). . We note that in October 1993, by court order, we granted permission to the Fourth Judicial District (Hennepin County) to implement the Task Force proposal on a trial basis; however, the county has not implemented the proposal to date.