STATE OF MINNESOTA 

IN COURT OF APPEALS 

A16-0265 

State of Minnesota, 

Respondent, 

vs. 

Jacob Michael McKinley, 

Appellant. 

Filed February 13, 2017 

 Affirmed 

Schellhas, Judge 

Ramsey County District Court 

File No. 62-CR-15-4868 

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St. 

Paul, Minnesota (for respondent) 

Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant 

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

 Considered and decided by Jesson, Presiding Judge; Ross, Judge; and Schellhas, 

Judge. 

S Y L L A B U S 

 A district court does not err when it sustains a for-cause challenge of a juror under 

Minn. R. Crim. P. 26.02, subd. 5(1)(1), because the juror is untruthful, evasive, or lacking 

in candor during voir dire and the court is satisfied that the juror cannot try the case 

impartially and without prejudice to the substantial rights of the challenging party. 
2 

O P I N I O N 

SCHELLHAS, Judge 

Appellant challenges his convictions of first-degree burglary, kidnapping, and firstdegree criminal sexual conduct, arguing that the district court erred by striking a 

prospective juror for cause. 

FACTS 

Very early on a June 2015 morning, appellant Jacob McKinley entered a St. Paul 

apartment through a partially open window. He then dragged a female tenant from her 

bedroom to a living-room couch and sexually assaulted her. The state charged McKinley 

with first-degree burglary, kidnapping, and first-degree criminal sexual conduct. 

McKinley demanded a jury trial, and the district court required prospective jurors 

to complete a juror questionnaire that stated, “YOU ARE UNDER OATH AND ARE 

REQUIRED TO ANSWER THE QUESTIONS TRUTHFULLY. YOU ARE 

EXPECTED TO SIGN THE QUESTIONNAIRE AND YOUR ANSWERS WILL 

HAVE THE EFFECT OF A STATEMENT GIVEN UNDER OATH TO THE 

COURT.” The questionnaire included question number 37, as follows: “Have you or has 

anyone close to you ever been arrested, accused, charged, indicted, or convicted of a 

crime?” Prospective juror K.H. answered yes to the question and stated, “I was convicted 

of CVO in 2006 driving while drinking.” 

Regarding juror K.H., the prosecutor informed the district court that he had found 

public criminal-history records that revealed that K.H. had been arrested in 2002 for felony 
3 

criminal sexual conduct, convicted in 2003 of third-degree possession of a controlled 

substance, and arrested in 2004 for auto theft. The following colloquy occurred: 

THE COURT: Well, I’m concerned here . . . . [Y]ou’ve 

indicated now three additional incidents. Are there multiple 

others? 

THE STATE: Yes, Your Honor. 

THE COURT: How many others? 

THE STATE: There is a CVO, which indicates a sentencing 

date also of 10-15-2008. 

THE COURT: Okay. 

THE STATE: There is an additional 2007 Possession With 

Intent to Sell, which has the same sentencing date, 10-15-2008. 

THE COURT: Okay. 

THE STATE: There — 

THE COURT: I’ve already heard enough to believe that he has 

not been forthcoming on the questionnaire. 

At the request of defense counsel, the court questioned K.H. about his apparent lack 

of candor in completing the jury questionnaire, as follows: 

THE COURT: Are there any other arrests you have had in your 

history, sir? 

PROSPECTIVE JUROR: Yes. 

THE COURT: Okay. Tell me about those. 

PROSPECTIVE JUROR: I got convicted of criminal vehicular 

and possession. 

The court inquired about the specifics of those convictions and asked K.H. whether he had 

any other arrests or convictions, and K.H. said no. The court also asked K.H. why he did 

not list the other conviction in his questionnaire, and K.H. said he did not list it because he 

“thought maybe [the court] just wanted the recent one.” The court then asked K.H. whether 

he ever had been arrested for theft, and K.H. said no. The court also asked whether K.H. 

ever had been arrested for “any kind of criminal sexual conduct behavior,” and K.H. 
4 

responded, “I didn’t get charged with that, though” and stated, “That was just being at the 

wrong place at the wrong time.” 

During follow-up questioning by defense counsel, K.H. admitted that he had a 

conviction for third-degree drug possession with intent to sell. When defense counsel 

inquired about whether K.H. had pending against him a possible case for harassment or 

violation of an order for protection, K.H. responded that he did not know anything about 

that. Then the prosecutor asked K.H. whether he had more than one controlled-substance 

conviction, and K.H. said, “[N]o. . . . I got caught one time. They gave me a third degree, 

because there was narcotics, and then the other one was marijuana. . . . They just gave me 

a fifth degree marijuana because I got caught with two bags of marijuana.” The prosecutor 

then asked whether that involved a separate arrest. K.H. said yes, and the prosecutor 

challenged K.H. for cause, arguing that K.H. had not been truthful. In response, defense 

counsel said, “I would just note that [K.H.] did say he thought the . . . most recent 

conviction was the one that he had to list. Any time questioned he did say whether he 

remembered the incident or not.” The court sustained the state’s for-cause challenge of 

K.H. on the basis that he had not been forthcoming either in the jury questionnaire or in 

court. 

 A jury found McKinley guilty of all charges, and the district court sentenced him to 

prison. This appeal follows. 

ISSUE 

Did the district court err by sustaining the state’s for-cause challenge of prospective 

juror K.H. for not being forthcoming during voir dire? 
5 

ANALYSIS 

“The Sixth Amendment to the United States Constitution and Article I, Section 6 of 

the Minnesota Constitution guarantee the right to a trial by an impartial jury in all criminal 

prosecutions.” State v. Horst, 880 N.W.2d 24, 41 (Minn. 2016) (quotation omitted). Most 

Minnesota caselaw regarding jury selection involves denials of challenges of jurors for 

cause. See, e.g., id. at 42 (concluding that district court did not abuse its discretion by 

denying defendant’s challenge of juror for cause); State v. Fraga, 864 N.W.2d 615, 625−26 

(Minn. 2015) (reaffirming holding of State v. Williams, 593 N.W.2d 227, 238 (Minn. 

1999), and reversing and remanding for new trial because juror with actual bias sat on jury). 

In the case before us, the district court sustained the state’s for-cause challenge of a 

juror. McKinley seeks reversal of his conviction and a new trial, arguing that the district 

court erred when it sustained the state’s for-cause challenge to prospective juror K.H. for 

not being forthcoming because not being forthcoming is not listed as a ground on which to 

challenge a juror for cause under Minn. R. Crim. P. 26.02, subd. 5(1)(1). “[Appellate 

courts] give great deference to a district court’s findings of fact regarding juror bias and 

review a district court’s decision to seat a juror for abuse of discretion.” Fraga, 864 N.W.2d 

at 623 (citation and quotation omitted). “Permitting a biased juror to serve is structural 

error requiring automatic reversal.” Id. “A prospective juror may be rehabilitated if the 

juror states unequivocally that he or she will follow the district court’s instructions and will 

set aside any preconceived notions and fairly evaluate the evidence.” State v. Prtine, 784 

N.W.2d 303, 310 (Minn. 2010). “The [district] court is in the best position to determine 
6 

whether jurors can be impartial because it hears the prospective jurors’ testimony and 

observes their demeanor.” State v. Drieman, 457 N.W.2d 703, 708−09 (Minn. 1990). 

 McKinley did not object at trial to the state’s for-cause challenge. We therefore 

review the court’s removal of K.H. for plain error. “[B]efore an appellate court reviews an 

unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect 

substantial rights.” State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If an appellant 

satisfies these three parts, then the appellate court “assesses whether it should address the 

error to ensure fairness and the integrity of the judicial proceedings.” Id. 

In State v. Kluseman, the defendants claimed that the district court erred by rejecting 

a particular juror. 53 Minn. 541, 545, 55 N.W. 741, 741 (1893). Without determining 

whether the prospective juror was in fact biased, the supreme court concluded that the 

juror’s rejection could not have prejudiced the defendants, stating that “[the defendants] 

had no right to any particular juror being selected, provided they had an impartial jury to 

try their case, and, nothing appearing to the contrary, it is to be presumed that the jury was 

impartial.” Id. 

In State v. Hurst, the state challenged four jurors, and the district court removed all 

four jurors. 153 Minn. 525, 532, 193 N.W. 680, 682 (1922). The supreme court concluded 

that, as to three of the jurors, “the challenge was not well taken.” Id. But the court noted 

that “there is no intimation that the jury that tried the case was not in all respects a fair jury. 

Under these circumstances it is well settled in this state that the error was without 

prejudice.” Id. The court also quoted the syllabus point in Kluseman, as follows: “Where 
7 

the court, on the challenge of the state, improperly rejects a juror, it will not prejudice the 

defendant, if he was tried by an impartial jury,” id. at 532, 193 N.W. at 683, and said: 

[T]he right to reject is not a right to select. No party can acquire 

a vested right to have a particular member of the panel sit upon 

the trial of his cause until he has been accepted and sworn. It is 

enough that it appear that his cause has been tried by an 

impartial jury. It is no ground of exception that, against his 

objection, a juror was rejected by the court upon insufficient 

grounds, unless, through rejecting qualified persons, the 

necessity of accepting others not qualified has been purposely 

created. Thus, in the process of impaneling, no party is entitled, 

as of right, to have the first juror sit who has the statutory 

qualifications, though there are authorities to the contrary, 

chiefly based on exaggerated views of the rights of the accused 

in criminal trials. But this is on principle quite untenable; since, 

if the prisoner has been tried by an impartial jury, it would be 

nonsense to grant a new trial or a venire de novo upon this 

ground, in order that he might be again tried by another 

impartial jury. 

Id. at 533, 193 N.W. at 683 (quotation omitted). 

A juror may be challenged for cause when “[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). McKinley is correct that nothing in the rule explicitly allows the 

district court to excuse a juror for cause because a juror does not give truthful, candid 

answers to the court’s questions on a juror questionnaire or during voir dire. But the rule 

allows a court to dismiss a prospective juror if the juror demonstrates a state of mind that 

satisfies the court that the juror cannot try the case impartially. See id. 

“Voir dire” means “to speak the truth.” Black’s Law Dictionary 1805 (10th ed. 

2014). “The necessity of truthful answers by prospective jurors if [voir dire] is to serve its 
8 

purpose is obvious.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 

104 S. Ct. 845, 849 (1984). Courts in other jurisdictions have acknowledged that juror 

dishonesty during voir dire can create a presumption that a prospective juror is biased. See 

Green v. White, 232 F.3d 671, 678 (9th Cir. 2000) (reversing a denial of a writ of habeas 

corpus because juror’s pattern of lies and misbehavior created “destructive uncertainties” 

about his ability to serve as an impartial juror); Dyer v. Calderon, 151 F.3d 970, 983 (9th 

Cir. 1998) (“If a juror treats with contempt the court’s admonition to answer voir dire 

questions truthfully, she can be expected to treat her responsibilities as a juror—to listen to 

the evidence, not to consider extrinsic facts, to follow the judge’s instructions—with equal 

scorn.”); State v. Harris, 264 Neb. 856, 862, 652 N.W.2d 585, 590 (2002) (noting that 

“[w]hen a juror deliberately conceals information, courts address the issue in terms of juror 

bias,” and “[s]ome courts hold that when a juror deliberately concealed information or 

purposely gave an incorrect answer during voir dire, bias is presumed”). 

We conclude that when a district court is convinced that a juror is untruthful, 

evasive, or lacking in candor during voir dire, Minn. R. Crim. P. 26.02, subd. 5(1)(1), 

allows the court to remove the juror for cause because such a juror cannot try the case 

impartially and without prejudice to the substantial rights of the challenging party, as 

required by the rule. McKinley failed to establish that the district court erred by sustaining 

the state’s for-cause challenge to K.H., and he makes no claim that he was not tried by an 

impartial jury. 

 
9 

D E C I S I O N 

Because the district court did not err by sustaining the state’s for-cause challenge of 

a juror under Minn. R. Crim. P. 26.02, subd. 5(1)(1), when the juror was untruthful, 

evasive, or lacking in candor during voir dire, and because McKinley has not proved that 

the jury that tried him was not impartial, he is not entitled to a new trial. 

Affirmed.