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State v. McNeil

April 01, 2003


Washington County District Court File No. KX006372

Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.


Multiple instances of serious prosecutorial misconduct committed at trial warrant reversal of a conviction if the misconduct substantially influenced the jury and denied appellant his right to a fair trial. But when the evidence of guilt properly admitted is overwhelming, the misconduct committed by the prosecution does not merit reversal.

The opinion of the court was delivered by: G. Barry Anderson, Judge



Appellant challenges his conviction of three counts of first-degree criminal sexual conduct in violation of Minn. Stat. §á609.342, subds. 1(a), (g), and (h)(iii) (2000). Appellant contends that numerous instances of prosecutorial misconduct caused him prejudice and denied him his right to a fair trial. The prosecution committed misconduct by failing to adequately prepare witnesses to avoid the mention of suppressed evidence, by asking a direct question eliciting suppressed testimony, by vouching for a witness's credibility, and by making statements in closing arguments aimed at jury sympathy and inviting the jury to compensate the victim. But based on the particular facts of this case, we conclude that in light of the untainted evidence presented by the state these actions did not substantially prejudice the jury and deny the appellant a fair trial. Therefore, we affirm.


The facts of this case are not in dispute on appeal. Appellant began a romantic relationship with T.L.M.'s mother (mother) in the summer of 1993. Approximately two months after he and mother met, appellant moved into the house where mother lived with her son and daughter, T.L.M. Appellant allegedly began sexually abusing T.L.M., then eight years old, shortly after he moved into the home. In the time period between September 1993 and July 2000, the incidences of abuse took place, in one manner or another, two to three times a week.

T.L.M. first reported the abuse to her mother in the summer of 2000. The police were not immediately contacted because mother wanted T.L.M. to speak first to Jean Hamm, T.L.M.'s therapist. After hearing T.L.M.'s report of abuse, Hamm notified the Oakdale Police Department.

Officer Rolf Hagland was assigned to investigate the allegations of abuse. Hagland asked Lynn Hansen, a child-protection worker for Washington County Community Services, to assist him with his investigation. Hansen interviewed T.L.M. at the Oakdale police department. In this interview, T.L.M. recounted the incidences of abuse. T.L.M. also stated that appellant had a scar on his back related to a congenital condition (spinabifida) and described appellant's penis as crooked or bent. Evidence at trial confirmed these unique physical features.

Prior to trial, appellant made several motions to suppress various testimonial evidence. The district court ruled that opinion testimony as to T.L.M.'s truthfulness, evidence that appellant had avoided meeting with Hagland, and evidence relating to appellant's drug use would not be admissible at trial. But, eventually, testimony regarding all three of these suppressed subjects was heard by the jury.

The prosecutor admitted that despite the court's ruling he had not instructed mother to avoid vouching for T.L.M.'s credibility. The prosecutor was unsure whether or not he instructed Hamm not to mention appellant's drug use, but he asserted that he had told Hagland not to mention that appellant had missed appointments to meet with him.

T.L.M. had undergone a gynecological exam, the results of which appellant asserts were exculpatory, that appellant did not learn of until the trial had commenced. The results of the exam revealed that, although T.L.M. had alleged that appellant had penetrated her, T.L.M.'s vagina appeared "normal," and although appellant had hepatitis A, B, and C, T.L.M. tested negative for all three diseases.

Appellant asserts that it is unlikely that, although three of the state's witnesses knew of the exam, the prosecutor did not, and nondisclosure—intentional or inadvertent—warrants reversal under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) and Minn. R. Crim. P. 9.01, subd. 1(1)(6). The district court denied appellant's motions for a mistrial and a continuance, and allowed appellant time to obtain an expert witness but ruled that the trial would otherwise go forward ...

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