Sherburne County Anderson, Paul H., J.
District court did not err by concluding that there was a substantial basis for finding probable cause to support a search warrant based in part on the informant testimony of the defendant's ex-girlfriend about an eight-year-old conversation when additional information in the warrant resulted in a totality of circumstances supporting a finding of probable cause.
District court did not err in allowing DNA evidence to be admitted at trial when the court found that defendant's arguments about the foundational reliability of the evidence went to the weight to be afforded the evidence and not its admissibility.
District court committed plain error when it excluded alleged alternative perpetrator evidence using a clear and convincing evidentiary standard and the error affected the defendant's substantial rights and seriously affected the fairness and integrity of defendant's trial.
District court erred in requiring defendant to wear a leg restraint during his trial when the only reason given for requiring the restraint was the severity of the charged offense.
The "victim[s]" eligible to receive restitution under Minn. Stat. § 611A.01(b) (2002) include either the murder victim's surviving spouse or next of kin who are in the class of her nearest living blood relation.
The opinion of the court was delivered by: Anderson, Paul H., Justice.
Concurring, Hanson, Page and Meyer, JJ.
Concurring/Dissenting, Page, J.
Heard, considered, and decided by the court en banc.
A Sherburne County jury found Kent Richard Jones guilty of killing Linda Jensen. More specifically, the jury found Jones guilty of first-degree murder while committing criminal sexual conduct, second-degree intentional murder, and first-degree criminal sexual conduct. The district court entered a conviction against Jones on the first-degree murder count and sentenced him to life in prison. Jones appealed his conviction, through counsel, on the grounds that the court erred in (1) finding that there was probable cause to support a search warrant; (2) admitting DNA evidence; (3) finding that there was insufficient foundation for the introduction of Jones' alternative perpetrator evidence; and (4) requiring Jones to wear a leg restraint during trial. Jones also claimed there was prosecutorial misconduct during cross-examination and closing argument. Jones made an additional 11 arguments in a pro se brief.
Following Jones' conviction, the victim's sister petitioned for restitution for her lost wages and travel costs for attending the trial. The district court determined that it did not have jurisdiction to award restitution because the sister was not a victim within the meaning of the restitution statute. The state filed a notice of appeal to contest the restitution order and that appeal was consolidated with Jones' direct appeal. We reverse the conviction, but affirm the denial of restitution.
On the morning of Monday, February 24, 1992, Linda Jensen was at home with her infant daughter, Lisa. Charles Jensen, Linda's husband and Lisa's father, had left for work at about 6:45 and Linda's nine-year-old son Joseph left for school around 7:45. Charles called home three times that morning between 9:30 and noon, but his wife never answered or responded to the message he left. Charles returned home from work shortly after 4:00 p.m. and discovered his stepson Joseph sitting at the dining room table and Lisa crying in her playpen. He took Lisa out of the playpen and went to look for his wife in the master bedroom. Upon entering the bedroom, Charles first noticed that the bed had been stripped and eventually found his wife's naked body lying on the floor alongside the bed, covered by a comforter, with a knife protruding from her chest. He then called 911 to report that his wife was dead.
The Sherburne County Sheriff's department responded to the 911 call. The Bureau of Criminal Apprehension (BCA) was then contacted to assist in the investigation of the crime scene. Investigators found no signs of forced entry. Charles Jensen eventually discovered that the queen-size fitted sheet for the bed was missing, as were a condom and his wife's T-shirt and underwear. Investigators gathered forensic evidence from the scene and canvassed the neighborhood. The local postal carrier was among the persons interviewed. The carrier stated that she had arrived at the Jensen home at about 11:30 a.m. that day and had observed a man driving out of the driveway. The carrier said the man was in his 30's or 40's, unkempt, with scraggly long brown hair and a white-flecked beard. She said he had acted strangely and was "crouched down" in his pickup truck. She also noticed that the man had what appeared to be red streaks "like scratch marks" on his hands. She noted her impressions of the man and later worked with investigators to create a composite sketch that was circulated through the media.
Linda Jensen's autopsy revealed that, in addition to the multiple stab wounds, there was evidence of strangulation and other abrasions and contusions. The cause of death was determined to be multiple traumatic injuries as a result of an assault. The time of death was determined to be between 8:00 and 10:00 a.m. The autopsy and BCA investigation also revealed that there were sperm cells present in Jensen's vaginal canal and some minimal amount of semen on her ankle. The BCA tested the DNA sample from the vaginal canal against about 80 other DNA samples, including many from potential suspects, but failed to find a match. Despite an ongoing investigation, investigators were unable to ascertain who committed the homicide.
In mid-June 2000, over eight years after Linda Jensen's death, Angela Hennen called the Sherburne County Sheriff's department and made statements connecting appellant Kent Richard Jones to Jensen. Jones and his family lived approximately one-half mile from the Jensens. Hennen stated that she and Jones had an affair before 1992 and were still in limited contact in 1992. She also stated that in March 1992 she had mentioned Jensen's murder and assault to Jones and he had become angry. Jones later admitted to Hennen that Jensen used to jog past his house and they had chatted on occasion. Based on this information, investigators questioned Jones, who had previously been interrogated during the initial investigation. In this second interview, Jones denied knowing Jensen, though he recalled that she had come to his house to discuss Cub Scout activities for her son. When asked if he had an affair with Jensen, Jones became angry. The investigators asked Jones to give a DNA sample, but he refused. The investigators then obtained a warrant based on their discussion with Hennen and their interviews with Jones. Upon presentation of the warrant, Jones provided swabbings for DNA testing.
After obtaining Jones' DNA sample, a BCA technician used the PCR-STR DNA testing method, amplified a sample taken from Linda Jensen's body, ran tests using the Cofiler and Profiler Plus kits, and concluded that the Jones sample and the smear from Jensen's body had the "same DNA types." Jones was then arrested and charged with Jensen's murder. A grand jury indicted Jones on August 16, 2000 for first-degree murder while committing criminal sexual conduct, Minn. Stat. § 609.185(2) (2000), second-degree intentional murder, Minn. Stat. § 609.19(1) (2000), and first-degree criminal sexual conduct, Minn. Stat. § 609.342, subd. 1(e)(i) (2000). This indictment was dismissed due to prosecutorial misconduct. A second indictment for the same offenses was issued on May 31, 2001. Jones moved to dismiss that indictment, but the motion was denied.
Jones later moved to suppress the DNA evidence seized under the warrant, and this motion was also denied. The district court determined there was sufficient probable cause to support the issuance of the warrant because there was evidence that Hennen was a credible informant and the totality of the circumstances supported a finding of probable cause.
Jones then requested a Frye-Mack hearing to challenge the admissibility of the DNA evidence, arguing the second prong of the Frye-Mack test, foundational reliability, could not be established.*fn1 After a four-day hearing, the district court found that the BCA "conducted the DNA tests * * * in accordance with appropriate laboratory standards and controls so as to ensure reliability." The court then concluded that Jones' arguments ultimately went to the weight and not to the admissibility of the evidence and found the DNA evidence to be sufficiently reliable to be admitted at trial.
Jones filed notice of his intent to present evidence of alternative perpetrators. He intended to introduce evidence that Robert Beard, Linda Jensen's former boyfriend and the biological father of her son Joseph, had a propensity for violence, had motive and opportunity to commit the murder, and resembled the sketch based on the postal carrier's description of the man she saw. Jones also intended to present evidence that Beard had warned a girlfriend that if she did not "behave," he would kill her as he had Linda Jensen and that he had described in detail how Linda Jensen was murdered and what the crime scene looked like.
In addition to the evidence about Beard, Jones intended to introduce evidence about another man, Richard Christy, who met Linda Jensen at an athletic club and was allegedly interested in her. Jones alleged that Christy had an opportunity to commit the crime. Jones claimed that Christy called a friend the day of the murder stating that he needed a ride and that he was "in deep shit" because he had "offed" somebody. Christy had allegedly been seen on the day of the murder with blood on his hands and jacket and had fled to Texas shortly after the murder, leaving behind many of his personal belongings. Most of the testimony offered to corroborate the evidence about Christy was to come from a man named Drahota, who claimed to have seen some of Christy's incriminating acts. Drahota also claimed to have spoken with the person Christy allegedly called on the day of the murder—a man named Chandler, who has since died.
The state opposed the admission of this alternative perpetrator evidence. To support its opposition, the state presented evidence that the investigators had considered both Beard and Christy as suspects, but a DNA sample from each was tested and neither sample matched the sample taken from the crime scene. After hearing from both sides, the district court ruled that the alternative perpetrator evidence would not be admissible at trial. The court found there was no direct evidence connecting either Beard or Christy to the scene and the corroborating evidence of Christy's potential guilt was inadmissible hearsay that lacked credibility.
Jones' trial began in November 2001. Despite his objection, Jones was required to wear a leg restraint throughout the trial because the district court determined "that limited use of one restraint is reasonably necessary to maintain order and security, and * * * that is the least restrictive measure available to the court." The leg restraint was inserted under Jones' pant leg so that it was not visible. Apparently the jury was not made aware of the restraint. When Jones testified, he was not required to wear the leg restraint and, on all other days, he was seated before the jury entered and left the courtroom after the jury departed.
Jones testified in his defense and stated that he and Linda Jensen had been having an affair that began in October 1991. He explained the discovery of his DNA in Jensen's vaginal canal by claiming that on the afternoon before the murder, Jensen had come to his house and they had sex. He stated that during this sexual encounter, he used a condom, but it broke. Jones' theory of the case was that the murderer, probably either Beard or Christy, used the condom that was missing from the Jensens' bedroom and that is why only Jones' semen, deposited the afternoon before, was discovered in the body.
The state's case included the testimony of Charles Jensen, who testified about his relationship with his wife and finding her body. He also testified that he was home with his wife the entire day before she was murdered. On cross-examination, Charles Jensen acknowledged that while he was home with his wife for the entire day, they were not in each other's presence for the entire day. Linda Jensen's son Joseph, who was 19 years old at the time of the trial, testified about coming home on the day of the murder and not being able to locate his mother. He also testified that he knew Jones as the Cub Scout leader in the neighborhood. Investigators for the sheriff's department testified about their initial investigation, the discovery of the body, and the procedure followed for the removal of evidence to the BCA labs.
The medical examiner testified that, in his opinion, Linda Jensen was killed during the course of a sexual assault. He based this opinion on the level of acid phosphatase in her vaginal canal and the presence of sperm with intact tails at the time of the autopsy, which indicated she "had seminal fluid deposited in her body * * * at the time of her death." The examiner also testified that he could not rule out the possibility that the seminal fluid was deposited "possibly 12 hours, going back as far as 24 hours prior to the time that I believe she died."
The examiner stated that his belief that the sperm were deposited more closely to the time of death was supported not just by the acid phosphatase level, but also by the condition of the sperm recovered from the vaginal canal. The examiner said that, while sperm cells break down after being deposited in a live person, once the person dies, the breakdown slows considerably. The combination of those two factors led the examiner to state that the sexual assault and murder were simultaneous. But the examiner then qualified this statement by adding that "I think the earliest time [the sperm] could have been deposited making the assumption that I did to the police I think that she died shortly after 8:00 in the morning on the 24th, would be 8:00 on the 23rd."
A BCA technician testified that before the BCA was able to match the DNA obtained from Linda Jensen's body to the DNA sample taken from Jones, it unsuccessfully compared it with 80-85 other DNA samples. The technician testified that the statistical probability of a random match with Jones' DNA under the "product rule" was one in 541 billion.
The state also called Hennen, who was the informant who provided some of the information that led to the issuance of the search warrant for a DNA sample from Jones. Hennen testified to the facts as stated in the search warrant affidavit. In addition, the state called Tammy Mace, a friend of Jones, who testified that she retrieved a bed from the Jones house on Sunday afternoon, the day before the murder, and was there for about one or two hours.
Lloyd Anderson also testified for the state. Anderson was an inmate at the Sherburne County jail who had been held in the same area as Jones. Anderson testified that he had heard Jones say DNA only lasts 72 hours, and that he could not believe he had been able to get to the Jensens' house and back again without his wife discovering he had left the house. Anderson also testified that when he asked Jones what happened, Jones testified that he had stabbed someone 9 to 11 times. Anderson reported Jones' statements to the police the next day. When the police questioned him about Jones' alleged statements, Anderson stated "if—I'll come back here and get stuck for five months I might have made this up." Anderson also called an acquaintance and told her that he wanted the government to "drop the conspiracy charge and give [him] 18 months" in exchange for his cooperation with the Jones case. Jones testified that he never told Anderson that he had killed Linda Jensen and had, in fact, written a letter to his parents stating that he did not trust Anderson and believed that Anderson was trying to elicit information about his case. Jones' mother also testified about Jones' suspicion of Anderson.
Jones' wife testified that she had been unaware of her husband's infidelities before the trial. She also testified that she may have taken their children to a movie the afternoon before the murder, but she was home all day with her husband on the day of the murder. She testified that on that day, he had no cuts or bruises on his hands or any blood on his body or clothes.
Jones also called the postal carrier who had helped create the sketch of the man she had seen in the Jensens' driveway on the morning of the murder. The postal carrier testified that she knew Jones because she delivered mail in the neighborhood and the man she had seen in the driveway was not Jones. Additionally, Jones elicited testimony on cross-examination of the medical examiner that a short gray hair was found in Linda Jensen's pubic hair and it was determined not to have belonged to her.*fn2 Investigators never established where the hair had come from, but it was established that Jones did not have any gray hair on his head or body. The state introduced rebuttal testimony from Charles Jensen that in 1992 the hair on his head had started going gray, as had the hair in his mustache.
The jury found Jones guilty of all charges. The district court denied Jones' motions for a directed verdict and later for a judgment notwithstanding the verdict. The court convicted Jones on the first-degree murder count and sentenced him to life in prison. The court also ordered Jones to pay restitution "in an amount to be determined by court services." The court did not specify how much or to whom the restitution would be paid, but gave the state 60 days to provide an affidavit of restitution.
Following the trial, Sandra Halverson, Linda Jensen's sister, filed an affidavit of restitution listing $1,903.20 in lost wages and $441.25 in gas for travel to and from the courthouse during the trial, as well as unspecified lost wages due to emotional trauma. Jones filed a motion requesting a restitution hearing. He asserted that Halverson was not a victim within the meaning of the statute and that the claimed expenses were not out-of-pocket expenses resulting from the crime. The district court held a restitution hearing and denied restitution, finding that because Halverson was not a victim within the meaning of Minn. Stat. § 611A.01 (2002), she was not a person eligible to receive restitution, and therefore the court lacked jurisdiction to order restitution.
The state filed a notice of appeal to contest the denial of restitution. Jones, who had already filed a notice of appeal for his first-degree murder conviction, filed a motion to dismiss the state's appeal, or in the alternative, ...