This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A15-1691

State of Minnesota,

Respondent,

vs.

Marco Anthony Gresham,

Appellant.

Filed December 19, 2016

Affirmed

Larkin, Judge

Hennepin County District Court

File No. 27-CR-14-19754

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County 

Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant 

Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Kirk, 

Judge. 
2

U N P U B L I S H E D O P I N I O N

LARKIN, Judge

Appellant challenges his convictions of second-degree murder and attempted firstdegree murder, arguing that the state’s use of a peremptory challenge violated the 

Fourteenth Amendment of the United States Constitution and that the district court erred 

by allowing the state to introduce prior-bad-act evidence at trial. Appellant alleges several 

additional errors in a pro se brief. We affirm. 

FACTS

In October 2014, a grand jury indicted appellant Marco Anthony Gresham for firstdegree murder for the shooting death of F.D. and attempted first-degree murder for the 

shooting of V.G. In June 2015, the district court began voir dire in Gresham’s trial. The 

district court asked Juror M, an African American woman, questions regarding her 

husband’s work with former prison inmates and her opinions regarding the criminal justice 

system. After the district court’s questioning, the prosecutor moved to strike Juror M for 

cause, arguing that Juror M “clearly indicated a bias against the state.” The district court 

denied the motion. 

The prosecutor then questioned Juror M regarding her views on the criminal justice 

system, including: “[H]ave you participated in any of the Black Lives Matters kind of 

marches and stuff like that here?” After the prosecutor questioned Juror M, he renewed 

his challenge for cause. The district court once again denied the challenge. However, the 

district court allowed the state to strike Juror M peremptorily, over Gresham’s objection.
3

The trial evidence indicated that in July 2014, Gresham, V.G., and F.D. were at a 

party in North Minneapolis. Gresham had been wearing a white shirt that evening. At 

some point, Gresham changed into a black shirt. V.G. witnessed the clothing change and 

became nervous. She thought that it signaled “something bad [was] going to happen.” 

While at the party, V.G. told F.D. that “[Gresham] had allegedly did a homicide in 

St. Paul.” The events that followed suggest that Gresham learned of V.G.’s statement to 

F.D. Gresham directed V.G. and F.D. to approach him. He asked them three times if they 

knew him. V.G. responded that she did not know Gresham. Gresham stated, “When the 

streets talk, you got to deal with your consequences.” Gresham then shot V.G. in the 

stomach. V.G. fell to the ground and heard multiple gunshots fired in the direction of F.D. 

F.D. was also shot. V.G. survived her injuries; F.D. did not. 

The jury found Gresham guilty of second-degree murder against F.D. and attempted 

first-degree murder against V.G. Gresham appeals. 

D E C I S I O N

I. 

Gresham argues that the district court erred by allowing the state’s peremptory 

exclusion of Juror M over his objection. His argument is based on the Equal Protection 

Clause of the Fourteenth Amendment of the United States Constitution. The Equal 

Protection Clause “forbids the prosecutor to challenge potential jurors solely on account of 

their race or on the assumption that black jurors as a group will be unable impartially to 

consider the State’s case against a black defendant.” Batson v. Kentucky, 476 U.S. 79, 89,

106 S. Ct. 1712, 1719 (1986). “If . . . the facts establish, prima facie, purposeful 
4

discrimination and the prosecutor does not come forward with a neutral explanation for his 

action, [Supreme Court] precedents require that [the resulting] conviction be reversed.” Id. 

at 100, 106 S. Ct. at 1725. 

In Batson, the Supreme Court established a three-step process to determine whether 

a peremptory challenge was racially motivated. Id. at 96-98, 106 S. Ct. at 1723-24; see 

also Minn. R. Crim. P. 26.02, subd. 7(3) (adopting the Batson three-step process). First, 

the objecting party must establish a prima facie case of purposeful discrimination. Batson, 

476 U.S. at 96, 106 S. Ct. at 1723. Second, if the objecting party establishes a prima facie 

case, then the proponent of the peremptory challenge must provide a race-neutral 

explanation. Id. at 97, 106 S. Ct. at 1723. Third, the district court must determine whether 

the objecting party has established purposeful discrimination. Id. at 98, 106 S. Ct. at 1724. 

Appellate courts “give great deference to the district court’s ruling on a Batson

challenge, recognizing that the record may not reflect all of the relevant circumstances that 

the court may consider.” State v. Pendleton, 725 N.W.2d 717, 724 (Minn. 2007). 

However, if “the district court erred in applying Batson, [appellate courts] will examine the 

record without deferring to the district court’s analysis.” Id. at 726.

The district court denied Gresham’s challenge at the first step of its Batson analysis, 

concluding that he did not “set forth a prima facie case.” The court noted that “the 

questions related to disproportionality and racial profiling came about because of 

information initially introduced by the juror, not by the prosecutor.” Because the district 

court concluded that Gresham failed to establish a prima facie case, the district court did 

not consider the second and third steps of the Batson analysis.
5

A prima facie case of purposeful discrimination is established “by showing: (1) that 

one or more members of a racial minority has been peremptorily excluded and (2) that 

circumstances of the case raise an inference that the exclusion was based on race.” State 

v. Onyelobi, 879 N.W.2d 334, 345 (Minn. 2016) (quotations omitted). “The fact that the 

prospective juror is a member of a racial minority, alone, does not raise an inference that 

the exclusion was based on race.” State v. Wren, 738 N.W.2d 378, 388 (Minn. 2007). The 

prima facie showing is based on “the totality of the relevant facts” of a proponent’s conduct

in the trial. Miller-El v. Dretke, 545 U.S. 231, 239, 125 S. Ct. 2317, 2324 (2005) (quotation 

omitted). A reviewing court will reverse a district court’s determination that a prima facie 

showing of discrimination has not been established “only in the face of clear error.” State 

v. White, 684 N.W.2d 500, 507 (Minn. 2004). 

Gresham contends that the prosecutor’s disparate questioning of Juror M supports 

an inference of racial discrimination. He argues that the prosecutor’s questioning 

“indicates that the prosecutor was concerned that Juror M, because of her race, would be 

biased against the state’s case.” He argues that the following questions by the prosecutor 

were “clearly race-based”: (1) “[H]ave you participated in any of the Black Lives Matters 

kind of marches and stuff like that here?” and (2) “[D]o you believe at least that there are 

[a] disproportionate amount of people of color who are going to prison?” The prosecutor 

also asked Juror M if she believed her son had been racially profiled. Gresham argues that 

the district court erred by ruling that he failed to establish a prima facie case, that “the 

record establishes an unrebutted presumption of racial discrimination in jury selection,”

and that he therefore is entitled to reversal. 
6

The questions above arguably raise an inference that the state’s peremptory 

challenge was based on race. But even if the district court erred by ruling that Gresham 

failed to establish a prima facie case, he is not automatically entitled to reversal. A 

defendant is entitled to reversal under Batson only if “the facts establish, prima facie, 

purposeful discrimination and the prosecutor does not come forward with a neutral 

explanation for his action.” Batson, 476 U.S. at 100, 106 S. Ct. at 1725. If a district court 

errs in applying Batson, an appellate court may examine the record to determine the validity 

of the Batson challenge. See Pendleton, 725 N.W.2d at 726. We therefore consider the 

second and third steps of the Batson analysis to determine whether the record establishes a 

Batson violation. 

As to the second step, the proponent of the peremptory challenge must provide a 

race-neutral explanation for the exercise of the challenge. Batson, 476 U.S. at 97, 106 S.

Ct. at 1723. The proponent’s reason “need not be persuasive, or even plausible; so long as 

discriminatory intent is not inherent in the [proponent’s] explanation, the reason offered is 

deemed race neutral.” Onyelobi, 879 N.W.2d at 345 (quotations omitted). In district court 

and on appeal, the state argued that the prosecutor was concerned regarding “Juror M’s 

expressed bias against the police, her statement that it was difficult to presume innocence, 

and her ability not to consider the consequences of the verdict.” These reasons do not 

reveal inherently discriminatory intent. Instead, they establish a race-neutral reason for the 

peremptory challenge. 
7

The third step in a Batson analysis is to determine “whether the [objecting party]

carried the ultimate burden of proving purposeful discrimination.” Id. (quotation omitted). 

A sampling of the voir dire questions asked of Juror M is helpful at this point. 

In questioning Juror M, the district court confirmed that her husband worked with 

criminal offenders. The court next asked her several questions regarding her views on the 

criminal justice system:

Q: Like other people have relatives who are cops and but you 

see more the effects on the offender side?

A: Um-hum.

Q: Anything about that that you think would make it difficult 

for you to be a juror?

A: Maybe?

Q: Can you explain?

A: Um, just because in my conversations with my husband, 

we tend to talk about the criminal justice system and the 

inequities in the system. 

. . . .

Q: Okay. You also — oh, do you have strong opinions as a 

result of your discussions with your husband or anything else 

about the prison system?

A: I do have strong opinions.

Q: Okay.

A: Um-hum.

Q: What, like tell me a little bit.

A: I just, I just think that the criminal justice system isn’t 

always fair, I don’t see it as always being fair. I see it as onesided. I see it as a system that was built for and by those that 

are in power so that’s who it works for.

. . . .

Q: . . . Is there more beyond what you’ve told me? I mean,

did you have any specific experiences or you are talking about 

like?

A: Um, no, but I have a son.

Q: Um-hum.

A: And he, he has been subject to, you know, being profiled. 

So, not for me personally, like I haven’t had any bad or good 

experiences with police, but I see, you know, my son.
8

Q: How old is he?

A: 20.

Q: Okay. And he gets stopped an inordinate amount?

A: Yes.

Q: Okay. And who was involved in the robbery as a juvenile?

A: . . . [M]y husband.

The prosecutor continued the district court’s line of questioning as follows:

Q: And so you both expressed opinions about how you feel 

about inequities in the system as it relates to the number of 

people that are affected by traffic stops as well as I guess 

people who are going to prison. Would that be fair to say?

A: Yes.

Q: And do you believe at least that there are [a] 

disproportionate amount of people of color who are going to 

prison?

A: Yes.

. . . .

Q: Okay. And I think earlier when the Judge was asking you 

questions, the Judge asked you if it mattered in your analysis 

as to sort of who was part of the system, and she indicated that, 

you know, as you sit here you look out and you see [defense 

counsel] who’s African American and me, and I think your

response was that it didn’t really matter whether there were 

blacks or African Americans who were also part of the system, 

right?

A: Yes.

Q: And so it’s not about race as far as the system goes, I 

mean, like who, the race of the people who are administering 

the system, for you it’s the system itself that you have a 

problem with.

A: Yes.

Q: Are you done? You looked like you were still trying to.

A: It is the system, but I’m — I’m just going to go back to, 

it doesn’t matter if we’re black, purple, we all receive the same 

messages. So, um, yes, it’s definitely the system, but the 

system is ran by people and those people receive, we all receive 

the same messages.

. . . .

Q: You indicated that your son, you believe your son has 

been racially profiled?

A: Yes.
9

These questions do not establish purposeful discrimination based on Juror M’s race. 

Instead, the questions suggest that the prosecutor was concerned regarding Juror M’s 

overall perception that the criminal justice system is unfair, regardless of race. 

In sum, although some of the prosecutor’s questions had racial overtones, the state 

provided a race-neutral explanation for the questions and Gresham did not prove 

purposeful discrimination. We therefore conclude that the district court did not err by 

denying Gresham’s Batson challenge. 

II. 

Gresham also argues that the district court erred by “admitting evidence that [V.G.] 

knew Gresham from a January 2014 Party in St. Paul at which someone was shot and killed, 

and that Gresham ‘had allegedly did’ it.” The district court allowed the testimony over 

Gresham’s objection and provided a cautionary instruction.

Gresham argues that V.G.’s statement “was not admissible as either immediateepisode or Spreigl evidence.” Gresham’s argument presumes that V.G.’s statement was 

inadmissible character evidence or evidence of a prior bad act. Evidence of prior bad acts, 

commonly known as Spreigl evidence, is not admissible to prove that a defendant acted in 

conformity with his character. Minn. R. Evid. 404(b); State v. Spreigl, 272 Minn. 488, 

490, 139 N.W.2d 167, 169 (1965). “The overarching concern behind excluding such 

evidence is that it might be used for an improper purpose, such as suggesting that the 

defendant has a propensity to commit the crime or that the defendant is a proper candidate 
10

for punishment for his or her past acts.” State v. Fardan, 773 N.W.2d 303, 315 (Minn. 

2009) (quotations omitted). 

“Immediate-episode evidence is a narrow exception to the general character 

evidence rule.” State v. Riddley, 776 N.W.2d 419, 425 (Minn. 2009). Such evidence is 

admissible “where two or more offenses are linked together in point of time or 

circumstances so that one cannot be fully shown without proving the other, or where 

evidence of other crimes constitutes part of the res gestae.” State v. Wofford, 262 Minn. 

112, 118, 114 N.W.2d 267, 271 (1962).

The district court held that evidence regarding V.G.’s statement to F.D. regarding 

Gresham’s alleged participation in the St. Paul homicide was not inadmissible Spreigl 

evidence. The district court reasoned that the state offered the evidence regarding the 

St. Paul homicide to explain Gresham’s intent, that “[i]ntent and premeditation are 

essential elements of First Degree Murder,” and that “[i]t would be nearly impossible for 

the State to prove intent and premeditation without explaining why [Gresham] allegedly

targeted the victims.”

It is not clear to us that the challenged evidence—that V.G. told F.D. that Gresham 

was rumored to have shot and killed someone at a party in St. Paul in 2014—is prior-badact evidence. The state did not attempt to prove that Gresham in fact shot someone at the 

2014 party. The state’s evidence merely showed that V.G. told F.D. that Gresham 

“allegedly did a homicide in St. Paul.” V.G. testified that she did not actually see anything 

pertaining to that homicide.
11

In similar circumstances, the Minnesota Supreme Court has held that such evidence 

is not prior-bad-act evidence. For example, in State v. Salas, the defendant challenged the 

admission of “testimony that showed defendant thought the victim was accusing him of 

having committed a prior crime.” 306 N.W.2d 832, 833 (Minn. 1981). A witness testified 

that the defendant told him to convey to the victim that the victim should stop trying to 

implicate the defendant in a murder or the defendant would kill him. Id. at 833. The 

defendant argued that the testimony was inadmissible evidence of another crime. Id. at 

836. 

The Minnesota Supreme Court concluded that admission of the evidence was proper 

“even though the Spreigl procedure was not followed.” Id. at 836-37. The supreme court 

reasoned that “the statement itself was neutral. It did not tend to prove that defendant 

committed a previous crime; it only tended to show defendant’s motive for killing [the 

victim] because defendant thought [the victim] was accusing him of having committed a 

prior crime.” Id. at 836. The court stated that the “testimony was admissible to show 

motive without regard to the Spreigl requirements.” Id. The supreme court explained,

“The evidence relating to other crimes of defendant was necessarily, but incidentally, a part 

of the substantive proof of the offense since defendant’s fear that decedent would disclose 

such crimes to the police was his expressed reason for the murder.” Id. at 837 (quotation 

omitted). 

Like the circumstances in Salas, the evidence regarding V.G.’s statement was 

neutral. It did not tend to prove that Gresham committed the St. Paul homicide. Instead, 

it only tended to show Gresham’s motive for shooting V.G. and F.D. The evidence 
12

explained why Gresham would have shot V.G. and F.D. in the absence of any other motive 

or provocation. Because the evidence did not tend to prove that Gresham committed 

another crime, it was not Spreigl evidence or immediate episode evidence, and the law 

regarding that type of evidence is inapplicable.

Moreover, the district court’s limiting instruction ensured that the jury did not use 

V.G.’s statement regarding the St. Paul homicide as evidence of a prior bad act. The district 

court instructed the jury that:

The State will introduce testimony referring to a homicide that 

occurred in January 2014 in St. Paul. The defendant, 

Mr. Gresham, was not arrested, charged or convicted of that 

offense. This information is not being offered to prove that Mr. 

Gresham committed any crimes in St. Paul. The testimony 

may aid you in understanding or determining whether the 

defendant committed the acts which the defendant is charged 

with here, the murder of [F.D.] and the attempted murder of

[V.G.]. The defendant is not being tried for and may not be 

convicted of any offenses other than the charged offenses here. 

You are not to convict the defendant on the basis of 

occurrences on January 2014 in St. Paul. 

We presume that the jury followed the district court’s cautionary instruction. See State v. 

Budreau, 641 N.W.2d 919, 926 (Minn. 2002).

In sum, the district court did not abuse its discretion by allowing V.G.’s testimony 

regarding her statement to F.D. about Gresham’s rumored involvement in the St. Paul 

homicide. 

III.

Gresham raises several additional arguments in a pro se brief. He argues that V.G.’s 

testimony regarding the St. Paul homicide was inadmissible hearsay, received in violation 
13

of the Confrontation Clause. “‘Hearsay’ is 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.” Minn. R. Evid. 801(c). The Confrontation Clause “does not bar the 

use of testimonial statements for purposes other than establishing the truth of the matter 

asserted.” Crawford v. Washington, 541 U.S. 36, 60 n.9, 124 S. Ct. 1354, 1369 n.9 (2004); 

see State v. Hull, 788 N.W.2d 91, 100 (Minn. 2010) (explaining that Minnesota courts 

apply “an identical analysis under both the state and federal Confrontation Clauses”). 

V.G.’s statement regarding Gresham’s alleged involvement in the St. Paul homicide is not 

hearsay because it was not offered for the truth of the matter asserted. Indeed, the district 

court instructed the jury that, “This information is not being offered to prove that Mr. 

Gresham committed any crimes in St. Paul.” Because V.G.’s testimony was not offered 

for the truth of the matter asserted, it did not implicate the Confrontation Clause. 

Gresham also argues that V.G.’s testimony was inadmissible because she lacked 

direct or personal knowledge. “A witness may not testify to a matter unless evidence is 

introduced sufficient to support a finding that the witness has personal knowledge of the 

matter.” Minn. R. Evid. 602. V.G. testified that she told F.D. about Gresham’s rumored 

involvement in a homicide. V.G. did not testify that the rumor was true or that Gresham 

had actually committed the homicide. Because V.G. had personal knowledge of the rumor 

she repeated, her testimony did not violate rule 602. 

Gresham argues that the state violated his right to due process by not disclosing the 

police reports regarding the St. Paul homicide. “[T]he suppression by the prosecution of 

evidence favorable to an accused upon request violates due process where the evidence is 
14

material either to guilt or to punishment . . . .” Brady v. Maryland, 373 U.S. 83, 87, 83 S. 

Ct. 1194, 1196-97 (1963). “To establish a Brady violation, it must be true that: (1) the 

evidence at issue is favorable to the accused, either because it is exculpatory or it is 

impeaching; (2) the evidence was willfully or inadvertently suppressed by the State; and 

(3) prejudice to the accused resulted.” State v. Brown, 815 N.W.2d 609, 622 (Minn. 2012). 

Because the state did not allege or attempt to prove that Gresham committed the St. Paul 

homicide, police reports regarding the homicide are not exculpatory. Gresham’s Brady

argument is therefore unavailing.

Gresham argues that he was denied a fair trial because his counsel failed to

“subpoena and investigate the St. Paul police reports” and failed to oppose V.G.’s 

testimony for lack of personal knowledge. “To prevail on an ineffective assistance of 

counsel claim, an appellant must demonstrate that representation fell below an objective 

standard of reasonableness and that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” State v. 

Jackson, 726 N.W.2d 454, 463 (Minn. 2007) (quotation omitted).

Claims of ineffective assistance of counsel based on trial strategy are generally not 

reviewable. Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004). What investigation to 

conduct or objections to raise are generally matters of trial strategy and beyond review. 

See State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013) (“We give trial counsel wide latitude 

to determine the best strategy for the client.”). However, failure to execute trial strategy

may constitute ineffective assistance of counsel. See id. at 506-08 (concluding that 

counsel’s conduct was not unreviewable trial strategy when “it appears that the cellphone-
15

record evidence was not obtained because trial counsel did not follow up on information 

received and did not perform the necessary steps to successfully execute on his main theory 

of the case”). 

“Generally, an ineffective assistance of counsel claim should be raised in a 

postconviction petition for relief, rather than on direct appeal.” State v. Gustafson, 610 

N.W.2d 314, 321 (Minn. 2000). However, we will consider an ineffective-assistance-ofcounsel claim for the first time on appeal if the record is adequately developed. Voorhees 

v. State, 627 N.W.2d 642, 649 (Minn. 2001). The record is not adequately developed 

regarding Gresham’s attorney’s failure to subpoena and investigate the St. Paul police 

reports. In fact, Gresham requests remand to develop the record. Although we will not 

consider the merits of Gresham’s ineffective-assistance-of-counsel claim on this record or 

remand for a hearing based on his assertions in this appeal, we preserve his right to pursue

that claim in a postconviction proceeding under the requirements and standards prescribed 

by law. See Jackson, 726 N.W.2d at 463 (“[The defendant’s] claims about his counsel’s 

investigation and witness contacts require consideration of facts not in the trial record. 

Accordingly, we deny those claims without prejudice to Jackson’s right to raise them in a 

postconviction proceeding.”). 

Affirmed.