STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Donna Jo Spangler,
Filed June 18, 2012
Ramsey County District Court
File No. 62CR107911
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Sara R. Grewing, Saint Paul City Attorney, John H. Stechmann, Assistant City Attorney,
St. Paul, Minnesota (for respondent)
Thomas C. Plunkett, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Chief Judge; Rodenberg, Judge; and
A district court does not err by approving the parties’ agreement in a criminal case
to excuse a prospective juror prior to voir dire when that juror was the prosecuting
attorney’s next-door neighbor.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
OP IN IO N
In this appeal, we consider whether the district court committed any error in
approving an agreement between the parties prior to voir dire to dismiss a prospective
juror who was a next-door neighbor of the attorney prosecuting the case. We hold that,
because the rules do not proscribe such an agreement, the district court committed no
When appellant Donna Jo Spangler appeared for a jury trial on a DWI charge, the
prosecutor’s next-door neighbor appeared on the list of prospective jurors for the case.
Before the jury had been called, the prosecutor brought this fact to the attention of
appellant and the district court. The prosecutor suggested that the clerk call somebody
else instead of the neighbor. Appellant’s counsel agreed, proposing that the clerk “strike
[the neighbor] right away and replace him with somebody else.” The district court
summarized, on the record, that the parties agreed to release the prospective juror and
replace him with the next person on the list.
When discussing who would be the last veniremember seated for purposes of
determining a potential alternate, the clerk stated that the replacement juror would be the
last person seated “because we struck one for cause.” The following colloquy occurred:
THE CLERK: He’ll still sit there, but he’ll be the last person
seated because we struck one for cause, so.
[PROSECUTOR]: Okay. It wasn’t a strike for cause.
[APPELLANT’S COUNSEL]: So, we all agree on that—
[PROSECUTOR]: —a preemptive strike. Okay . . .
The parties did not further discuss the removal of the prospective juror.
Fifteen prospective jurors were sworn, including the one who replaced the
prosecutor’s neighbor. Following voir dire, the attorneys passed the jury for cause. Of
the fifteen prospective jurors, se ven were seated. The replacement juror was not among
them. Excluding the pre-voir-dire removal of the prosecutor’s neighbor, the parties
collectively exercised their eight peremptory strikes as set forth in Minn. R. Crim. P.
26.02, subd. 6, though the record does not reflect who exercised which strikes. Appellant
did not raise any objections regarding the peremptory strikes or the process.
The jury found appellant guilty of fourth-degree DWI, and this appeal follows.
Did the district court err in approving the parties’ agreement to excuse a
prospective juror prior to voir dire because he was the prosecutor’s next-door neighbor?
Appellant argues that the district court permitted structural error when it allowed
the state to exercise an “extra peremptory challenge.” This argument requires
interpreting the rules of criminal procedure, which this court reviews de novo. Ford v.
State, 690 N.W.2d 706, 712 (Minn. 2005). To the extent appellant’s argument implicates
the district court’s removal of a juror for cause, we review such action under the abuseof-discretion standard. State v. Gillespie, 710 N.W.2d 289, 297 (Minn. App. 2006),
review denied (Minn. May 16, 2006).
In cases not involving offenses punishable by life imprisonment, the state receives
three peremptory challenges and the defendant receives five. Minn. R. Crim. P. 26.02,
subd. 6. Peremptory challenges may be used for almost any reason. State v. Reiners, 664
N.W.2d 826, 833 (Minn. 2003). Parties may challenge a juror for cause when, among
other grounds, “[t]he juror’s state of mind—in reference to the case or to either party—
satisfies the court that the juror cannot try the case impartially and without prejudice to
the substantial rights of the challenging party.” Minn. R. Crim. P. 26.02, subd. 5(1)(1)
(emphasis added). A juror’s partiality may therefore be demonstrated by “showing a
personal relationship with . . . [an] attorney in the litigation.” State v. Reiners, 644
N.W.2d 118, 123 (Minn. App. 2002), aff’d, 664 N.W.2d 826 (Minn. 2003). Challenges
must be exercised first to the panel, then to an individual for cause, then to individuals for
peremptory strikes. Minn. R. Crim. P. 26.02, subd. 8.
Appellant’s entire argument hinges on her contention that the state was permitted
to exercise four peremptory challenges instead of three. To reach this conclusion, she
argues that the removal of the prosecutor’s neighbor constituted the state’s first exercise
of a peremptory strike.
The record simply does not support appellant ’s contortion of the facts. The parties
and the court agreed to excuse the prosecutor’s neighbor before the prospective jur ors
had been called in or sworn. Neither party had yet questioned the neighbor regarding any
potential bias; instead, the parties and the court were apparently satisfied that the juror
could not be impartial because of his personal connection to the prosecutor. The court
expressly characterized this removal as an agreement between the parties to release the
neighbor and replace him with somebody else. In context, then, the removal was not a
peremptory strike but rather a stipulation between the parties.
Appellant argues that the prosecutor’s characterization of the neighbor’s removal
as a “preemptive strike” is indicative of the prosecutor having been allowed to exercise a
fourth peremptory challenge. This argument is fatally flawed because the record does not
support that (1) the strike was peremptory within the meaning of Minn. R. Crim. P.
26.02, subd. 6, or (2) if it was, the strike was chargeable against the state.
The defining characteristic of a peremptory strike is that it may be exercised for
virtually any reason. See Reiners, 664 N.W.2d at 833. This comports with the common
meaning of the term “peremptory” as “[n]ot requiring any shown cause; arbitrary.”
Black’s Law Dictionary 1251 (9th ed. 2009). The purpose of a peremptory strike is to
excuse a prospective juror who has not demonstrated any grounds for bias, but who is
“otherwise unsatisfactory to the challenging party.” Reiners, 664 N.W.2d at 833.
In agreeing to excuse the juror in this case, the prosecutor used the term
“preemptive,” not “peremptory.” Appellant maintains that the prosecutor misspoke, and
she must have meant “peremptory.” But the record does not support that argument. To
the contrary, the context suggests that the prosecutor may well have deliberately chosen
the term “preemptive.” This word commonly means something undertaken to “deter or
prevent an anticipated, usually unpleasant situation or occurrence.” The American
Heritage Dictionary 1427 (3d ed. 1992). That is precisely what the parties appear to
have done in agreeing to excuse the prospective juror: they intended to avoid having to
question the prospective juror, strike him for cause, or potentially stumble upon fair -trial
issues if he were seated. Cf. State v. James, 638 N.W.2d 205, 210 (Minn. App. 2002)
(observing that the district court properly exercised its discretio n by releasing a
prospective juror who could not stay awake during voir dire, thereby avoiding potential
fair-trial issues), review denied (Minn. Mar. 27, 2002). This course of action served both
parties’ interests in efficiency. Both parties’ counsel appear to have recognized that the
juror would have been unlikely to be seated had the jury selection process run the
ordinary course. By saving time and avoiding complications, excusing the prosecutor’s
neighbor by agreement was “preemptive” in effect.1
Additionally, the record does not reflect that the strike—whether peremptory or
preemptive—was exercised by the state rather than by appellant. It was defense counsel
who first used the term “strike” in suggesting a solution to the situation. And although
there followed some disjointed discussion about whether the removal was a strike for
cause or not, it appears very clear that appellant’s trial counsel desired the prosecutor’s
neighbor to be excused. The prosecutor had no motivation to unnecessarily exercise a
peremptory strike under the circumstances.
Finally, eight strikes were exercised to narrow the prospective jury down from
fifteen to seven. Presumably, defense counsel exercised five peremptory strikes and the
prosecutor exercised three, in accordance with the rules. See Minn. R. Crim. P. 26.02,
subd. 6. No objection to the process was voiced by appellant or her counsel. This further
suggests that the parties did not treat the release of the prospective juror as a peremptory
strike. Appellant has not directed us to anything in the record hinting otherwise.
We observe in passing that there is no claim and no appearance of any invidious
discrimination nor anything of the sort, such as could indicate a potential violation of the
Jury Management Rules. See Minn. R. Gen. Pract. 801–814.
Appellant argues that excusing the juror in this manner was improper because no
provision in the rules of criminal procedure authorizes such a removal before the parties
have begun questioning the prospective jurors. While it is true that no provision
contemplates the exact scenario that arose in this case, neither do the rules prohibit the
district court’s action. Arguably, the district court conducted something of a short-form
removal for cause. See Minn. R. Crim. P. 26.02, subd. 5(1)(1) (permitting removal for
cause when, inter alia, the juror’s state of mind with regard to either party satisfies the
court that the juror cannot try the case impartially); Reiners, 644 N.W.2d at 123
(recognizing that grounds for removing a juror for cause exist when the juror has a
personal relationship with an attorney in the litigation). The reasons for the removal were
fully discussed on the record. Indeed, almost immediately after the hearing began, the
prosecutor commendably and voluntarily disclosed that a prospective juror was her next door neighbor. The parties agreed to remove that juror, essentially for cause, due to his
personal connection with the prosecutor. The district court acted within its discretion in
approving the parties’ agreement that the prospective juror was unsuitable due to that
Because we conclude that the district court did not commit any error in excusing
the juror pursuant to the parties’ agreement, we do not reach appellant’s argument that
the court’s action constituted structural error.
The district court did not err in excusing a prospective juror prior to voir dire
pursuant to the parties’ agreement because the juror was the prosecutor’s next-door