On December 19, 2007, Kristine Larson died under
extreme conditions.  Her body was found
in a car that was set on fire in Minneapolis.  However, Miss. Larson was already dead when
the car was started on fire.  Her story,
and that of Zachery Matthews, is the subject of today’s Case Blog.

Upon examination, it appears that Miss. Larson was
strangled before being placed in the car.  As the investigation progressed, it eventually
led to Zachery Otis Matthews.  Matthews
was Miss. Larson’s ex-boyfriend.  Matthews
made some mistakes (not the least of
which being the murder of Miss.
).  Initially the officers
suspected that Matthews was involved, they asked him what he was doing on the
day of the murder.  Matthews said that Miss.
Larson failed to pick up their son, so he got on the bus and took their son to
Toys for Tots. 

Pop Quiz:
What did he do wrong? (A) He should have taken a cab; (B) He should have asked
for an attorney;
(C) He should have shut-up;
(D) Both B and C.

So the police reviewed the cameras on the
(yep, there are cameras on
the busses
).  They found that there
was no Matthews and son on the bus.  They
sat him down again and asked him what happened. 
This time he said that he got home and found her dead in his apartment,
got scared, put her in the car and drove it to Minneapolis. 
(Do I really need to point out the
flaws in this statement?  Review the Pop

Well, Matthews story didn’t seem to add up right,
he was taken into custody.  While in custody it appears that he talked to
his fellow inmates (Note: I don’t advise
).  Because he talked to his
fellow inmates, the inmates were invited to testify at Matthews trial (they got a reduced sentence for flipping on
an inmate

Finally, there was evidence of several “incidents” between
Matthews and Miss. Larson.  The State
attempted to introduce 18 separate prior incidents between the two.  Of these incidents: 6 were denied, the remaining
12 could be used as relationship evidence, and 6 of which could be used for
alleged past acts of domestic abuse as well. 
The jury convicted Matthews of felony
premeditated murder
, first-degree
domestic-abuse murder
, second-degree
intentional murder
, and interference with a dead body.

Matthews was sentenced to life without the
possibility of parole.  While in prison,
Matthews appealed the decision on the grounds that the jury was not instructed
as to the difference between the relationship evidence and alleged past acts of
domestic abuse.  (Note: If a jury can’t independently determine the difference between
evidence that you are in a relationship with someone, and evidence that you abuse
someone, it’s not going to help your case.  I strongly encourage you to seek help.  Better to do it now before your emotions get
the best of you and land you in a cell with Matthews.

The Minnesota Supreme Court held that the district
court didn’t commit plain error in the jury instructions.

Matthews argued that the prosecution committed
misconduct during closing arguments.  Many
of this alleged misconduct was not objected to (which is why you want an attorney who’s on their toes with objections)
and in addition did not cross the line into misconduct.

also presented pro se arguments as to problems with the trial, none of which
were upheld by the Minnesota Supreme Court.  Although I’m sure Matthews will have considerably
more time to re-evaluate and appeal
the trial.

Please remember that the interpretation
and analysis presented here is not intended to be legal advice.  If you
are seeking legal advice please contact us for a free consultation and actual
examination the issues that your case may present.

Thank you,

Landon J. Ascheman, Esq.

612.217.0077 (C) 651.280.9533 (F) 651.344.0700

Contact Me LinkedinFacebookBlog RSSTwitterGoogleGoogleGoogle

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612-217-0077 – While we hope you never need us, we’re here if you do.








Hennepin County

Dietzen, J.





State of Minnesota,









Filed:  March 18, 2010


Office of Appellate Courts

Zachery Otis Matthews,









Swanson, Attorney General, St. Paul,
; and


O. Freeman, Hennepin County Attorney, David C. Brown, Assistant Hennepin County
Attorney, Minneapolis, Minnesota, for respondent.


Villalva Lijó, Assistant Public Defender, St.
, Minnesota
, for





1.         The district court did not commit plain
error in its jury instructions regarding relationship evidence and
past-pattern-of-domestic-abuse evidence.

2.         Alleged prosecutorial misconduct during
the closing argument did not affect appellant’s substantial rights, and
therefore did not deprive appellant of a fair trial.

3.         Appellant’s pro se arguments lack



DIETZEN, Justice.

Appellant Zachery
Otis Matthews was found guilty by a Hennepin
jury of
first-degree premeditated murder, first-degree domestic-abuse murder,
second-degree intentional murder, and interference with a dead body, arising
out of the strangulation death of Kristine Larson on December 19, 2007.  Matthews was sentenced to life without the
possibility of release.  On appeal,
Matthews argues (1) that the district court erred in failing to properly
instruct the jury regarding the past-pattern-of-domestic-abuse element of
first-degree domestic-abuse murder; (2) that prosecutorial misconduct in the
closing argument deprived him of a fair trial; and (3) various other pro se
arguments.  Because the jury instructions
correctly stated the law, the alleged prosecutorial misconduct during closing
argument did not affect Matthews’ substantial rights, and Matthews’ pro se
arguments lack merit, we affirm.

and Larson began dating in 2004 and together had a son, D.L., in 2006.  Larson ended her relationship with Matthews
in May 2007.  At the time of the murder,
Larson and D.L. lived in St. Paul Park with Larson’s mother, D.T., and Matthews lived
in an apartment in St. Paul.   

the night of December 19, 2007, witnesses saw smoke coming from a car parked in
a garage area in Minneapolis.  After the fire was extinguished, a woman’s
body was discovered upside down in the back seat of the car.  Police identified the victim as Kristine
Larson.  Larson’s autopsy revealed
ligature marks around her neck, blood around her nose, a cut on her forehead,
and burn injuries on her face, back, and feet. 
The cause of death was ligature strangulation with a shoelace that had
“a small loop on one end of the lace that was tied in a ring, and secured with
a knot.”  The death was ruled a
homicide.  An arson investigator
confirmed that the fire was intentionally started using yellow pages from a
phone directory and concluded that the fire was an effort to cover up Larson’s

            Minneapolis police
detectives interviewed several witnesses, and the investigation quickly turned
to Matthews.  During Matthews’ first
interview with police, he stated that Larson planned to arrive at his apartment
around 2:00 p.m. to pick up D.L. and then go to Toys for Tots.  According to Matthews, Larson did not show
up, but he and D.L. took the bus to Toys for Tots, and returned home at about
6:00 p.m.  Matthews stated that he had
broken up with Larson a month earlier, but he admitted he was not happy that
Larson was dating another man.  He told
police that he used his cell phone to call D.T. that afternoon to locate

Police reviewed
bus video recordings and determined that Matthews and D.L. were not on the bus
that afternoon.  Further, a man matching
Matthews’ description was seen at about 7:30 that evening walking eastbound on
the shoulder portion of Highway 94 crossing over the Mississippi
Bridge toward St. Paul. 
Also, Matthews’ cell-phone records revealed that his cell phone accessed
a tower near his apartment in St. Paul in the
late afternoon and then the cell phone accessed a Minneapolis tower between about 8:00 p.m. and
9:30 p.m. 

At a second
interview, Matthews was given a Miranda
warning and confronted with the discrepancies between his story and the police
investigation.  Eventually, Matthews
admitted that when he arrived at his apartment that evening he found Larson
dead in his kitchen closet and he panicked. 
He stated that he carried Larson’s body to her car, drove the car to Minneapolis, abandoned the car, and then walked alongside
Highway 94 across the Mississippi bridge to
his apartment in St. Paul.  He denied killing Larson or starting the car
on fire.   

Police obtained a
search warrant for Matthews’ apartment. 
New yellow pages phone directories were in a package in the lobby of
Matthews’ apartment building; some of the directories were missing from the
package.  Blood found on a pillar near
the kitchen and on the kitchen floor of Matthews’ apartment was tested for DNA,
and Matthews and Larson could not be excluded as contributors.  A mixture of DNA was also found on the
shoelace ligature.  The predominant DNA
was Larson’s, but Matthews could not be excluded as a contributor. 

Matthews was charged with second-degree intentional murder, in violation of
Minn. Stat. § 609.19, subd. 1(1) (2008), and indicted for first-degree
premeditated murder, in violation of Minn. Stat. § 609.185(a)(1) (2008), and
first-degree domestic-abuse murder, in violation of Minn. Stat. § 609.185(a)(6)
(2008).  Before trial, the State moved to
introduce various incidents of alleged domestic abuse to establish relationship
evidence under Minn. Stat. § 634.20 (2008) and a past pattern of domestic
abuse.  The district court allowed the
State to introduce 12 incidents between Matthews and Larson, concluding that
all 12 were admissible under Minn. Stat. § 634.20 and that 6 were also
admissible as alleged past acts of domestic abuse. 

trial, the State introduced the autopsy and fire investigation results,
Matthews’ cell-phone records, and the substance of Matthews’ interviews with
the police.  R.M. and M.B., two witnesses
who were incarcerated with Matthews, also testified that Matthews made various
admissions to them regarding Larson’s murder. 
Both were awaiting sentencing on various charges and testified in
exchange for reduced sentences. 
According to R.M., Matthews told him that he put a stringy object around
Larson’s neck, that she “passed out,” and that he tried to “wake her up.”  When Matthews realized Larson was dead, he
panicked and put her body in the car, drove to Minneapolis, parked the car in an alley and
set it on fire, and then walked away. 
M.B. testified in a similar fashion. 

The jury found
Matthews guilty of first-degree premeditated murder, first-degree
domestic-abuse murder, second-degree intentional murder, and interference with
a dead body.  Judgment of conviction was
entered, and Matthews was sentenced to life without the possibility of
release.  This direct appeal followed.



argues that the district court erred in failing to properly instruct the jury
regarding the past-pattern-of-domestic-abuse element of first-degree
domestic-abuse murder, and therefore the unadjudicated jury verdict finding him
guilty of first-degree domestic-abuse murder should be vacated.  It is undisputed that the jury found Matthews
guilty of first-degree premeditated murder and first-degree domestic-abuse
murder.  Judgment of conviction was
entered only for the offense of first-degree premeditated murder, and Matthews
was sentenced to life without the possibility of release.[1] 

the court has declined to address arguments related to an unadjudicated jury
verdict on the ground of mootness.  State v. Jackson, 773 N.W.2d
111, 125–26 (Minn. 2009); State v. Martinson, 312 N.W.2d 249, 251 (Minn. 1981). 
But we may exercise discretionary review “to decide issues that are
technically moot when the issue is ‘functionally justiciable’ and one of public
importance and statewide significance.”  Jasper v. Comm’r of Pub. Safety, 642
N.W.2d 435, 439 (Minn. 2002) (quoting State v. Brooks, 604 N.W.2d 345, 347-48
We exercise our discretion to address these issues.  See Minn. R. Civ. App. P.

            A.         Failure to Instruct 

argues that the district court failed to distinguish between
past-pattern-of-domestic-abuse evidence and relationship evidence in the jury
instructions, and therefore the jury could not distinguish between the
different incidents of abuse.  According
to Matthews, it is likely that the jury improperly relied on relationship
evidence to find a past pattern of domestic abuse.   

Matthews did not object to the jury instructions at issue, we review for plain
error.  See State v. Earl, 702 N.W.2d
711, 720 (Minn. 2005); State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001). 
Under the plain-error test, an appellant must show that there was (1) an
error, (2) that is plain, and (3) the error must affect substantial
rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 
An error is plain if it is clear and obvious; usually this means an
error that violates or contradicts case law, a rule, or an applicable standard
of conduct.  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006).  The third prong is satisfied if the error was
prejudicial and affected the outcome of the case.  Griller,
583 N.W.2d at 741.  If all three prongs
of the test are met, we then determine whether we “should address the error to
ensure fairness and the integrity of the judicial proceedings.”  Id. at 740.

courts possess significant discretion in the selection of jury-instruction
language, and those jury “instructions must be read as a whole to determine
whether they accurately describe the law.” 
Earl, 702 N.W.2d at 720.  “If the instructions, when read as a whole,
correctly state[] the law in language that can be understood by the jury, there
is no reversible error.”  State v. Laine, 715 N.W.2d 425, 432 (Minn. 2006) (citation
omitted) (internal quotation marks omitted).

a conviction of first-degree domestic-abuse murder, the State must prove, among
other things, that the defendant engaged in a past pattern of domestic abuse
against the victim or another family or household member.  Minn.
Stat. § 609.185(a)(6).  Domestic abuse is
defined in this context as an act amounting to assault, criminal sexual
conduct, or terroristic threats.  Minn. Stat. §
609.185(c)(1) (2008).  An act constitutes
an assault if a defendant either “(1) commits an act with intent to cause
fear in another of immediate bodily harm or death; or (2) intentionally
inflicts or attempts to inflict bodily harm upon another.”  Minn. Stat. §§ 609.02, subd. 10,
609.224, subd. 1, and 609.2242, subd. 1 (2008).

Statutes § 634.20 provides for the admission of evidence of “similar conduct”
by the accused against the victim of domestic abuse, which is commonly referred
to as relationship evidence. 
Relationship evidence is relevant because it “illuminate[s] the history
of the relationship” between the victim and defendant and may also help prove
motive or assist the jury in assessing witness credibility.  State
v. McCoy
, 682 N.W.2d 153, 159, 161 (Minn.
2004).  “Similar conduct” under Minn.
Stat. § 634.20 is broader than the enumerated offenses that constitute domestic
abuse under Minn. Stat. § 609.185(c). 
While “similar conduct” includes assault, criminal sexual conduct, and
terroristic threats, it also includes stalking and harassing phone calls, which
is conduct that is not included in the definition of domestic abuse in Minn.
Stat. § 609.185(c).  See Minn. Stat. §§ 634.20 and 518B.01,
subd. 2 (2008). 

Before trial, the
State sought to introduce 18 incidents between Matthews and Larson as both
past-pattern-of-domestic-abuse evidence under Minn. Stat. § 609.185(a)(6)
and relationship evidence under Minn. Stat. § 634.20.[2]  The district court ruled that 12 incidents
could be admitted as relationship evidence, including one that involved
Matthews’ repeated phone calls to Larson. 
It also ruled that 6 of these 12 incidents, all of which involved acts
when Matthews hit, physically restrained, or threatened Larson with violence,
were also admissible as alleged past acts of domestic abuse. 

the testimony was given, the jury was instructed that: 

The purpose of this evidence, members of the jury, is to
assist you in evaluating whether there is a past pattern of domestic abuse,
which is one of the elements of one of the charges, Domestic Violence
Murder.  Some of the evidence is also being
introduced to illuminate the history of the relationship between Mr. Matthews
and the deceased, Kristine Larson.[3]


At the close of the case, the jury was
instructed, among other things, that:

Minnesota statutes define domestic abuse to
include assault, which consists of either (1) committing an act with intent to
cause fear in another of immediate bodily harm, or death, or
(2) intentionally inflicting, or attempting to inflict bodily harm upon
another . . . .  Third . .
. the defendant engaged in a past pattern of domestic abuse against Kristine
Larson.  A past pattern consists of prior
acts of domestic abuse, which form a reliable sample of observable traits or
acts, which characterize an individual’s behavior.


correctly points out that the instructions did not indicate that stalking and
harassing phone calls do not qualify as past-pattern-of-domestic-abuse evidence
under Minn. Stat. § 609.185(c).  But
the jury instructions given limited the definition of domestic abuse to
assault, and did not include stalking and harassing phone calls.  We presume that juries follow instructions
given by the court.  State v. Taylor, 650 N.W.2d 190, 207
2002).  Further, we have been cautious in
assigning error for failing to give an instruction regarding the specific
purpose for certain types of evidence.  Ture v. State, 681 N.W.2d 9, 18 (Minn. 2004) (noting that, in State v. Broulik, 606 N.W.2d 64, 69 (Minn. 2000), failure to instruct on specific
purpose of Rule 404(b) evidence is not error unless request to so instruct was
made).  The jury instructions are
consistent with the definition of domestic abuse in Minn. Stat.
§ 609.185(c) and correctly state the law. 
Consequently, the jury instructions given did not constitute plain

            B.         Improper

            Matthews argues that the district
court erred by failing to give the complete pattern jury instruction for the
definition of a past pattern of domestic abuse. 
He concedes that he failed to raise this objection before the district
court, and therefore our review is limited to a plain-error analysis.  We review the instructions as a whole to
determine if the instructions correctly state the law.  State
v. Smith
, 674 N.W.2d 398, 401 (Minn.
The district court is not required to use pattern jury
instructions.  Id.
at 400.

pattern jury instruction provides:

A “past pattern” consists of prior acts of domestic abuse
which form a reliable sample of observable traits or acts which characterize an
individual’s behavior.  More than one
prior act of domestic abuse is required for there to be a past pattern.


10 Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 11.15 (2006).  The district court omitted the last sentence
of that instruction.

conclude that the jury instruction given did not constitute plain error.  The instruction given indicated that a “past
pattern” consists of “prior acts of domestic abuse.”  Both the term “past pattern” and the
explanation that it consists of “prior acts
(emphasis added) make clear that more than one act of domestic abuse must be
proven.  As a result, the instruction
correctly stated the law and did not confuse the jury.  Further, the prosecutor told the jury in
closing argument that “a past pattern has to include at least three prior
instances of domestic abuse.”  See State v. Vang, 774 N.W.2d 566, 582
(Minn. 2009) (concluding that even if the district court instructions were
incomplete, the State’s closing argument correctly stated the law so that the
defendant’s substantial rights were not affected).  


argues that the prosecutor engaged in misconduct during the closing argument
that deprived him of a fair trial. 
Because no objection was made, we apply the modified plain-error test
outlined in Ramey, 721 N.W.2d 294.[4]  Under that test, the defendant has the burden
to demonstrate that the misconduct constitutes (1) error, (2) that was
plain.  State v. Wren, 738 N.W.2d 378, 393 (Minn. 2007); Ramey, 721 N.W.2d at 300.  If
the defendant is successful, the burden then shifts to the State to demonstrate
that the error did not affect the defendant’s substantial rights.  Ramey,
721 N.W.2d at 300.  To meet the third
prong, the State must show that there is no “reasonable likelihood that the
absence of the misconduct in question would have had a significant effect on
the verdict of the jury.”  Id. at 302.  If these three prongs are satisfied, the
court then assesses whether the error should be addressed to ensure fairness
and the integrity of the judicial proceedings. 
Id. at 298.

asserts three instances of prosecutorial misconduct.  First, he argues that the prosecutor’s
statements that Matthews was in a “fit of insatiable rage,” that he “hatched a
plan” to “ambush” Larson, and that he landed a “powerful blow” to Larson’s
face, were not supported by the record. 
The prosecutor’s argument need not be “colorless,” and it may include
conclusions and inferences that are reasonably drawn from the facts in evidence.  State
v. Porter
, 526 N.W.2d 359, 363 (Minn. 1995); State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993); State v. Wahlberg, 296 N.W.2d 408, 419
(Minn. 1980).  Further, we have allowed “dramatic
characterizations” of the murder when the evidence at trial supported those
characterizations.  State v. MacLennan, 702 N.W.2d 219, 236 (Minn. 2005).

              But D.T.’s testimony that Matthews was “a
little upset, anxious,” when she spoke to him on the day of the murder, and the
manner in which Larson was killed, support the reasonable inference that
Matthews was angry when he killed Larson. 
Further, evidence that the shoelace had a larger loop “threaded through
the smaller loop,” indicates that it was prepared in advance, supporting the
reasonable inference that Matthews made a plan to attack Larson.  Also, the nature of the injuries to Larson’s
head and the DNA test results of the blood on the pillar support the
prosecutor’s statement that Larson was struck with a “powerful blow.” 

Matthews next
challenges the prosecutor’s statement that the fire originated “directly under
the head and neck” of Larson.  The arson
investigator testified that the fire was intentionally set, and originated near
the back seat on the passenger side.  Because the evidence showed the fire was
started in the vicinity of Larson’s upside down body, it was a reasonable
inference from this evidence that the fire was started under Larson’s head. 

Matthews argues that the prosecutor’s statement that D.L. witnessed the murder
was not supported by the record.  According
to M.B. and R.M., Matthews admitted that he put D.L. in his bedroom before
murdering Larson in the kitchen.  If D.L.
was in his bedroom, it is possible that he heard the struggle that resulted in
Larson’s murder.  See State v. Vance, 765 N.W.2d 390, 394 (Minn. 2009) (discussing
that a child witnesses a murder by either seeing or hearing the murder).  Assuming without deciding that the
prosecutor’s argument was not supported by the evidence, we conclude that the
misconduct did not affect Matthews’ substantial rights.  The alleged misconduct is limited to a few
lines in a 48-page closing argument, and therefore it did not permeate the
entire argument.  See Wren, 738 N.W.2d at 393 (Minn. 2007) (misconduct that spanned
3 pages in a 70-page closing argument did not affect defendant’s
substantial rights); State v. Griese,
565 N.W.2d 419, 428 (Minn. 1997) (misconduct that spanned 2 pages in a 50‑page
closing argument did not affect defendant’s substantial rights).  Additionally,
the evidence of Matthews’ guilt is overwhelming.  See
, 702 N.W.2d at 236; State
v. Bradford
, 618 N.W.2d 782, 800 (Minn. 2000); Griese, 565 N.W.2d at 428. 
And the jury was instructed that the statements of attorneys were not
evidence.  State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (concluding that
argument based on facts not in evidence did not prejudice the defendant, in
part, because the jury was instructed that the arguments of counsel were not

Matthews argues that the prosecutor degraded his defense by describing
Matthews’ explanation of events as “concocted,” “ridiculous,” and
“unbelievable.”  The State argues that
the prosecutor fashioned a colorful argument that pointed out why Matthews’
version of events was “ridiculous” and “100 percent unbelievable.”  Prosecutors are allowed to argue that there
is no merit to the specific defense raised by the defendant, although they may
not belittle either the defendant or a particular defense in the abstract.  State
v. Simion
, 745 N.W.2d 830, 844 (Minn. 2008); Salitros, 499 N.W.2d at 818. 
Essentially, the prosecutor argued that Matthews’ story—someone had
dumped Larson’s dead body at his apartment, Matthews transported her body to
Minneapolis, and another person set the car on fire—is unbelievable.  While the argument is dramatic, it is
directed at the credibility of Matthews’ description of events, and not the
validity of a particular defense in the abstract.

Matthews argues that the prosecutor materially misstated the law by including
an incident admitted as relationship evidence to establish a past pattern of
domestic abuse.  Matthews is correct that
the prosecutor referenced one incident of relationship evidence along with
three incidents of domestic abuse to argue that the State had proven a past
pattern of domestic abuse.  We have
carefully reviewed the record and conclude that the prosecutor did not
materially misstate the law regarding the past-pattern-of-domestic-abuse
element.  See State v. Walsh, 495 N.W.2d 602, 607 (Minn. 1993) (concluding
that we review “the closing argument as a whole, rather than just selective
phrases or remarks that may be taken out of context or given undue
prominence”).  Moreover, the jury was
properly instructed on the past-pattern-of-domestic-abuse element, including
that domestic abuse was defined to involve an assault.  And there were numerous acts of domestic
abuse by Matthews against Larson, in addition to the three the prosecutor
referenced.  The prosecutor did not
commit plain error that affected Matthews’ substantial rights.


            In his pro se supplemental brief,
Matthews raises three arguments.  First,
he argues that the district court erred in admitting evidence of domestic abuse
because the incidents were not corroborated and did not fall within the conduct
defined by Minn. Stat. § 634.20.  We
review a district court evidentiary ruling for an abuse of discretion.  State
v. Goelz
, 743 N.W.2d 249, 254 (Minn. 2007).

evidence is admissible under Minn. Stat. § 634.20 “without requiring the
heightened standard that the evidence be clear and convincing.”  McCoy,
682 N.W.2d at 159.  The crime of domestic
abuse is “unique in that it typically occurs in the privacy of the home, it
frequently involves a pattern of activity that may escalate over time, and it
is often underreported.”  Id. at 161.  Therefore, the “interests of justice are best
served” by admitting relationship evidence when it provides context for the
crime charged.  Id. at 159, 161. 

            We conclude that the district
court did not abuse its discretion in admitting relationship evidence under
Minn. Stat. § 634.20.  All 12 incidents
admitted as relationship evidence fall within the conduct defined by Minn.
Stat. § 634.20, and the probative value of those incidents was not
substantially outweighed by the danger of unfair prejudice.

Matthews argues that the indictment was insufficient because it failed to
charge domestic abuse, an essential element of first-degree domestic-abuse
murder.  The State counters that
Matthews’ argument is untimely and without merit.  The sufficiency of an indictment is a
constitutional question we review de novo. 
State v. Kendall, 723 N.W.2d
597, 611 (Minn. 2006). 

to an indictment must be made by motion no later than three days before the
omnibus hearing.  Minn. R. Crim. P.
10.04, subd. 1, and 17.06, subds. 2–3; see
also State v. Whittaker
, 568 N.W.2d 440, 448 (Minn. 1997).  Failure to include “all defenses, objections,
issues, and requests” in a motion constitutes a waiver.  Minn. R. Crim. P. 10.03; see also Whittaker, 568 N.W.2d at 448.  The court may grant relief from the waiver
for good cause.  Id. at 448. 

            Matthews timely moved to dismiss
the first-degree domestic-abuse murder count based on the objection that the
State had insufficient evidence to prove a past pattern of domestic abuse.  But Matthews did not include the objection
that the indictment was insufficient. 
Therefore, Matthews has waived his right to argue that the indictment
failed to charge domestic abuse.  See State
v. Drieman
, 457 N.W.2d 703, 709 (Minn. 1990) (declining to consider
defendant’s new objection to the indictment because it was not included in his
original motion objecting to the indictment). 
Further, “[a] presumption of regularity attaches to a grand jury
indictment, and courts will rarely invalidate the indictment.”  Whittaker,
568 N.W.2d at 448.  This is “especially
true” where the defendant has been found guilty at a fair trial.  State
v. Scruggs
, 421 N.W.2d 707, 717 (Minn. 1988).  Therefore, we conclude that Matthews has not
shown good cause to review his indictment. 

Third, Matthews
argues that his Batson challenge for
juror 31 was improperly denied.  The
State responds that the district court properly denied Matthews’ Batson challenge.  The Fourteenth Amendment “prohibits
purposeful racial discrimination in jury selection.”  State
v. Martin
, 773 N.W.2d 89, 100–01 (Minn. 2009).  Accord
Batson v. Kentucky
, 476 U.S. 79, 84 (1986)).  We utilize the Batson three-step framework for
determining whether a peremptory challenge is motivated by racial
discrimination.  Martin, 773 N.W.2d at 100–01.  
challenges are not reversed unless the district court’s denial was clearly
erroneous.  Id. at 101. We “afford great deference [to the district court]
because ‘the record may not reflect all of the relevant circumstances that the
court may consider.’ ”  Id. (quoting State v. Pendleton, 725 N.W.2d 717, 724 (Minn. 2007)).  See
also State v. Bailey
, 732 N.W.2d 612, 619 (Minn. 2007) (concluding that in
review of Batson challenge,
considerable deference is given to the district court’s finding regarding the
State’s intent because that finding is based on credibility).    

The first step of
a Batson challenge is for the
defendant to make a prima facie showing that the State’s peremptory challenge
was racially motivated.  Martin, 773 N.W.2d at 101.  If the defendant does so, the State must then
provide a race-neutral explanation, which “need not be persuasive or even
plausible,” for the peremptory challenge. 
Id.  The third step of a Batson challenge is for the district court to determine whether the
defendant has proven purposeful racial discrimination.  Id. 

Matthews is
African American.  It was unclear whether
juror 31 was African American; he marked “other” on his jury
questionnaire.  For purposes of the Batson analysis, the district court
considered juror 31 African American. 
When the district court engaged in its analysis, it first noted that out
of nine jurors selected at that point, only one was a person of color.  The court also discussed that out of the five
peremptory challenges the State had exercised at that point, four were against
people of color.  As a result, the
district court found that the defendant satisfied the first step of his Batson challenge. 

Second, the
district court considered whether the State had provided a race-neutral reason
for excluding juror 31.  The State
explained that juror 31 “made a number of statements which . . . in effect, blam[ed]
the victim of domestic abuse.”  The State
indicated that it did not want a juror who believed that domestic abuse victims
were “sort of at fault.”  The district
court determined that juror 31’s view on domestic assault was a race-neutral
reason for excluding juror 31. 

Finally, the
district court considered the State’s other peremptory challenges to jurors of
color but found that the record did not indicate that any of them had been
challenged because of their race.  For
example, juror 6 was a woman from Somalia who had difficulty with English,
particularly “the concepts of reasonable doubt [and] burden of proof.”  Juror 11 was an African-American woman who
was married to a man incarcerated for murder and had a brother who worked for
the Public Defender’s Office.  Juror 30
was an Asian woman whose father was arrested for domestic abuse.  Therefore, the district court concluded that
Matthews had not shown the State engaged in purposeful discrimination when it
struck juror 31.  Based on its analysis, the
district court overruled Matthews’ Batson

Matthews argues
that the district court improperly concluded that he had not proven the State
challenged juror 31 because of his race. 
He contends that there is evidence of purposeful discrimination because
the State did not challenge other jurors who had experienced murder or domestic
abuse in their families. 

is true that other jurors had personal experience with domestic abuse.  None of those jurors, however, expressed that
the victim was partially at fault.[5]  See
State v. Gomez
, 721 N.W.2d 871, 884–85 (Minn. 2006) (explaining that
although other jurors had family or friends who were convicted of a crime, none
of those jurors expressed that it was a wrongful conviction, thereby validating
the State’s race-neutral explanation).  

the district court’s conclusion that there was no evidence demonstrating that
the State engaged in a pattern of challenging jurors of color because of their
race is supported by the record.  The
State’s reasons for excluding other jurors of color—because of family
involvement in the legal system or language problems—were all credible,
race-neutral reasons for challenging those jurors.  See
Martin, 773 N.W.2d at 104 (“We have
consistently held that a family member’s involvement with the legal system is a
legitimate race-neutral reason . . . to exercise a peremptory challenge.”); Wren, 738 N.W.2d at 388–89 (recognizing that language difficulties
are a race-neutral reason for exercising a peremptory challenge).  As a result, the district court’s conclusion
that Matthews failed to establish purposeful discrimination in the State’s
challenge to juror 31 is not clearly erroneous.



          A life sentence without the
possibility of release is not available for a conviction of first-degree
domestic-abuse murder without additional findings that did not occur here.  See Minn. Stat. § 609.106, subd.
2(3) (2008).

          The State withdrew one incident
at the motion hearing.


          The wording varied slightly each
time the instruction was given, but the substance remained unchanged.

          The State urges us to abandon
the Ramey modified plain-error test
on the ground that the defendant should bear the burden of proving that the
misconduct affected substantial rights.  The
State argues that the Ramey modified
test encourages defendants not to object at closing argument, and later assert
prosecutorial misconduct to receive the benefit of the Ramey modified test.  We do
not overturn precedent unless there is a “compelling reason” to do so.  Oganov
v. Am. Family Ins. Group
, 767 N.W.2d 21, 26 (Minn. 2009). 
The State has provided no support for its claim regarding the effects of
the Ramey modified plain-error
test.  In addition, application of the Griller plain-error test, rather than
the Ramey modified plain-error test,
would not affect the result in this case. Cf.
State v. Wren, 738 N.W.2d 378, 394 n.13 (Minn. 2007) (concluding that the
court did not need to decide whether the two-tiered standard announced in Caron for determining whether
objected-to prosecutorial misconduct was harmless was still viable because the misconduct was harmless under both
tiers).  Therefore, we decline to reach
this issue. 


          Juror 13’s coworker was killed
by her husband.  Juror 17’s brother was
murdered, and her niece was a victim of domestic abuse.