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STATE OF MINNESOTA IN SUPREME COURT A08-223 Dakota County Meyer, J. Dissenting, Page and Anderson, Paul H., JJ.

Clarence Allen Holt, petitioner, Appellant, vs. State of Minnesota, Respondent. ________________________ Filed: September 3, 2009 Office of Appellate Courts

Theodora Gaitas, Assistant State Public Defender, St. Paul, Minnesota, for appellant. Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Cheri A. Townsend, Assistant Dakota County Attorney, Hastings, Minnesota, for respondent. ________________________ SYLLABUS The presence of standby counsel at a mid-trial Schwartz hearing in chambers does not violate a defendants right of self-representation when the defendant agreed at the time he asserted his right of self-representation that he would not be free to attend inchambers hearings, and the circumstances indicate that standby counsel advised defendant about the substance of the hearing.

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When a judge determines, after questioning a juror about an attempted crime against the juror during trial, that the juror is not biased, the defendant is not prejudiced by being excluded from the in-chambers questioning of the juror. Affirmed. OPINION MEYER, Justice. A Dakota County jury found Clarence Holt guilty of first-degree premeditated murder, second-degree intentional murder, and second-degree murder while committing or attempting to commit the felony offense of assault in the second degree, for the May 13, 1997, shooting death of Frederick Pitts. The district court sentenced Holt to life in prison for first-degree premeditated murder. Nine years later, Holt filed a petition for postconviction relief in Dakota County District Court but did not request an evidentiary hearing. Holt appeals the district courts denial of his petition. The following seven issues are raised: (1) whether Holts appeal is barred b y his delay in seeking postconviction relief; (2) whether the district court erred by not removing a juror who had been the victim of a crime during the trial and who could not say with certainty that the crime was unrelated to Holts case; (3) whether Holts exclusion from an in-chambers Schwartz hearing violated his constitutional right to self-representation; (4) whether Holts exclusion from an in-chambers Schwartz hearing violated his constitutional right to be present at critical stages of the proceeding; (5) whether the district court erred by admitting evidence of Holts witness tampering and failing to instruct the jury on the specific purpose of "consciousness of guilt" evidence; (6) whether the district court erred 2

by admitting an alleged accomplices statements as substantive evidence; and (7) whether the district court erred by refusing to give an accomplice liability instruction. We affirm the conviction.1 Fredrick Pitts was killed at the Red Roof Inn in Burnsville just before 7:45 p.m. on Wednesday, May 13, 1997. He died from a gunshot fired from within an inch of his head. Holt was soon identified as the primary suspect, but evaded arrest until August 6, 1997. Holt was charged by indictment with first-degree premeditated murder, seconddegree intentional murder, and second-degree murder while committing or attempting to commit the felony offense of assault in the second degree. Evidence at trial revealed a drug-selling relationship gone awry. Pitts had lived in Minnesota for two weeks prior to his murder. During that time, James Turner (a/k/a June) fronted money to Pitts to buy crack cocaine, and Pitts gave the crack to Holt to sell. After Holt failed to produce sufficient profits, Turner told Pitts to stop doing business with Holt. The day before the murder, Pitts and Turner visited Holt and asked Holt why he was short on money. Holt gave them an estimated $1,600, which the two men divided; however, they still felt Holt was being dishonest. The day of the shooting, Holt moved into David McCoys apartment. In

exchange, McCoy asked for crack cocaine. Holt called 16-year-old Marqueen Hamer
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On appeal before this court the State alleges, for the first time, that Holts appeal is barred by his nine-year delay in seeking postconviction relief. Because we affirm Holts conviction, we do not address this issue.

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(a/k/a Queen), who sold crack cocaine for him, and asked her, as he had in the past, to have Pitts call him. Queen called the Red Roof Inn where Pitts was staying and left a message with Domino, Pitts girlfriend. Pitts returned the call to Queen between 3:30 and 4:00 p.m. Queen relayed the message from Holt about wanting drugs. Pitts said that Holt would have to wait because he was going out. Meanwhile, Holt left McCoys apartment around 5:00 p.m. and arrived at Queens door with Kimball, a friend. Holt said they were going to see Pitts but he did not say why. Henderson Howard, a friend who arrived at Queens house, was paid $20 to drive Holt, Kimball, and Queen to the Red Roof Inn at Holts direction. Howard parked behind a trailer in a lot adjacent to the hotel and Holt, Kimball, and Queen went into the hotel. Queen approached room 121 by herself with Holt and Kimball standing several doors down. After Pitts answered the door for Queen, Holt came in behind her

brandishing a gun and demanding "[w]here my sh*t at." From behind the bathroom door where she had hidden, Domino heard a male, whom Pitts referred to as "Shorty," order "baby" to search for other people in the room and a female respond "[n]o I dont see her."2 Domino heard the man order Pitts to get on the floor and threaten, "Im going to show you what a cold-blooded killer can do. Get on the floor m***** f*****. Im going to pop you." According to Domino and Queen, Pitts gave Holt crack cocaine and $200. Holt demanded the rest of his "sh*t," but Pitts said that June had it. Holt threatened, "[w]hen

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Holt goes by the name "Shorty." 4

Im through with your ass Im going to get June, too." Holt ordered Queen to gather money and jewelry from the room and go back to the car. She was about five steps from the room when she heard gunshots and turned around. Holt, who was standing in the doorway, yelled at her to go back to the car. When she got to the car, she told Kimball and Howard that she thought Holt had "popped" Pitts. Holt returned to the car and ordered Howard to get on the freeway. They later got off the freeway and stopped at two garbage cans where Holt threw a purse, which Queen had taken from the hotel room, and some pagers into the garbage. Holt did not return to McCoys apartment that night. The following day, Holt returned to the apartment and gave McCoy crack cocaine. Bruce Bratt was a hotel guest staying at the Red Roof Inn on the same day as the murder. He heard nearby shots and went out onto the balcony of his second floor hotel room. He saw a "shorter" black man running away from the hotel with his right hand inside his coat pocket. At the same time, Brian Johnson was loading business supplies into his car in the lot where Howard parked. He noticed a black man, about 510", casually walk to Howards car. A few minutes later, he saw a shorter black man "quickly running" to the same car. After the second man got into the car, the vehicle accelerated so fast out of the lot that if it had gone any faster "theyd probably burn rubber on the tires. They pulled out as fast as they could." The police located Howard and took a tape-recorded statement from him. He confirmed driving Holt, Kimball, and Queen to the Red Roof Inn and that he was paid $20 for the ride. Howard testified that Holt had told him that he needed a ride to the location to pick up some work and money. Holt told him where to park, and Howard 5

stayed in the car. Kimball returned to the car first, then Queen came back, and finally Holt returned. Holt announced that he had shot Pitts in the chest and the head. Howard acknowledged stopping at two garbage cans where Holt threw away various things. Later, Howard recanted most of his statement. He denied having any knowledge about what had happened to Pitts. Kimball was never located. The police never found the murder weapon, but a firearms examiner believed it was either a nine-millimeter Smith and Wesson or a Ruger based on the bullets and casings found at the scene. Turner recalled that Pitts had purchased a nine-millimeter Smith and Wesson and had given the gun to Holt. Queen testified that Howard took the gun from Holt, but Howard denied this. While Holt was in jail awaiting trial, a confidential informant alerted police that Holt had made several phone calls to someone in which he asked for help in killing several of the States witnesses. Police arrested Takisha Holiday after she visited Holt in jail, and found a note with trial witness names and the words "codes, powder, rat poison, fire bombed, needle, syringe, and cigarette poison." The note also contained witness addresses, two of which had been protected by a confidentiality order since inception of the case. An identical note was found in Holts jail cell. Holt had held this note against the glass during Holidays visit so that she could copy it. Holt also tried to solicit two of his cellmates to kill several of the States witnesses. June, a witness for the State, received a threatening call and two letters, one of which read, "The only thing that saved your bitch ass was the police came bitch. Tell that fat m***** f***** its personal now."

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On the third day of trial, Holt requested to proceed pro se, and his two public defenders began acting as standby counsel. The jury found Holt guilty as charged, and the court imposed a mandatory life sentence for the first-degree murder conviction. I. We first consider Holts claim that the district court erred by not removing a juror whom Holt argues was biased. Over a weekend recess from trial, there were two

attempted break-ins at a jurors home. The first burglary attempt occurred around 5:00 p.m. on Friday. The jurors electricity and phone went dead, he heard someone trying to get in the front door, and saw someone run past a window. He pumped an unloaded rifle, yelled for the intruder to leave, and then heard someone run. The Sheriff, who responded to a 911 call from the juror, said that the electrical company was having problems and that there was something wrong with the phone line. Around 12:30 a.m. the juror heard a car park behind one of his sheds and someone trying to get in again. He did not see anyone outside, but the Sheriff came back and noticed footprints. On the following Monday, the juror notified a jury attendant of these events and the district court held an in-chambers Schwartz3 hearing to question the juror. The court asked if the juror believed the burglaries were "an isolated incident" and the juror

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Minnesota Rule of Criminal Procedure 26.03, subd. 9, provides for the examination of a juror, out of the presence of the other jurors, about the jurors exposure to material that raises serious questions of possible prejudice. Such a hearing is commonly referred to as a Schwartz hearing. See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960). 7

responded, "[y]eah . . . Ive lived there as long as I can remember, and nothing ever [happened] before." The juror was not sure if the event was "totally isolated," and it worried him that someone came back a second time at night. He "really couldnt say" and was "not sure" if the incident related to the case. The juror believed he could remain "fair and impartial and objective" and understood that his experience was not evidence in the case. The judge concluded that the attempted burglaries were "a coincidence" and found "no indication that [the juror could not] continue to be fair and impartial." Later that same day, the jury heard testimony from one of Holts cellmates, Andrew Fields, that Holt asked him to murder Queen and Turner, and was given a copy of the note found in Holts jail cell listing codes, names, and methods to kill witnesses. Holt asks this court to conclude that the juror should have been excused when these events came to light in the middle of trial and, further, the court should have made use of an alternate juror. Holt asks us to adopt the doctrine of implied bias and presume as a matter of law that the events at the jurors home rendered the juror incapable of being impartial notwithstanding the jurors belief he could be fair and impartial. Holt concedes that this court has never adopted this doctrine; we discussed the doctrine in a recent case without expressly rejecting or adopting it. State v. Brown, 732 N.W.2d 625, 629 n.2 (Minn. 2007). Other jurisdictions have found implied bias in " ,,extreme situations where the prospective juror is connected to the litigation at issue in such a way that is highly unlikely that he or she could act impartially during deliberations. " Id. (quoting Hunley 8

v. Godinez, 975 F.2d 316, 319 (7th Cir. 1992)). A juror with implied bias cannot be rehabilitated through further questioning. Id. (citing People v. Lefebre, 5 P.3d 295, 300 (Colo. 2000)). They must be excused notwithstanding their claim of impartiality. See 6 Wayne LaFave, et al., Criminal Procedure

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