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State v. Plantin

July 13, 2004

STATE OF MINNESOTA, RESPONDENT,
v.
KEVIN PATRICK PLANTIN, APPELLANT.



Hennepin County District Court. File No. 02030925.

Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Anderson, Judge.

SYLLABUS BY THE COURT

Evidentiary rulings at trial are within the sound discretion of the district court and will not be disturbed absent a clear abuse of discretion.

Polling the jury following the return of a verdict satisfies a criminal defendant's right to a unanimous verdict, even if the district court failed to give a unanimous verdict instruction, or if the court gave an arguably inadequate unanimity instruction.

Absent a showing of actual bias during the proceedings, we will not reverse an appellant's conviction because of an alleged conflict of interest on the part of the district court judge if appellant did not object to the alleged conflict before or at trial.

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

Affirmed

OPINION

Appellant was charged with and tried for attempted murder, first-degree burglary, kidnapping, and second-degree assault, but the district court declared a mistrial. Appellant was retried in December 2002. The jury convicted appellant on all counts, and the district court sentenced appellant. This appeal follows.

FACTS

The undisputed facts of the April 17, 2002, incident Bernadette Patin (victim) and appellant Kevin Plantin began dating in 1998. On April 17, 2002, a witness saw the front door to the victim's house swing open and heard someone inside the house yell. The front door then slammed shut. Later that day, Jennifer Cross, the victim's daughter, and David Soderstrom, the victim's brother, went to the victim's house. At the house, Cross looked through a window and saw the victim's purse on the floor with the contents strewn about. After calling the police, Cross entered the victim's home through a window. Soderstrom, who also entered the house, saw blood splatters in the house.

Cross and Soderstrom went to look in the garage but could not get in because it was locked. While they were outside the garage, they could hear the victim saying, "Help me" from inside the garage. The victim eventually unlocked the door to the garage and came out. She was bleeding and had duct tape around her wrists and ankles, and collapsed after she came out of the garage. She told Cross, "Help me, I can't breathe." The victim told Soderstrom that Plantin had "tried to kill" her.

Emergency personnel arrived at the victim's house and found the unconscious victim lying on the ground near the garage. The victim had marks on her wrists consistent with being bound, bruises, and a cut on her head.

When police arrived, an officer entered the garage, where there was a strong smell of exhaust, and saw Plantin lying unconscious on the ground. A vacuum hose was connected to the exhaust pipe of the running car, and a knife was on the floor near the driver's side door. Inside the car, the officer found a woman's shoe and a picture of the victim and Plantin duct-taped to the dashboard of the car. The officer saw that the overhead garage door had been clamped so that it would not open. Inside the victim's house, the police found empty rolls of duct or masking tape.

The Victim's Statements in the Hospital

Emergency personnel took the victim to the hospital, and she lapsed into a coma. When she awoke from the coma a few days later, the victim spoke with Janet Polley, a social worker. The victim told Polley that she could not believe that Plantin had tried to kill her. The victim also told Laura Harris, a nurse at the hospital, that appellant had tried to kill her.

While still at the hospital, the victim also spoke with her brother about the incident. She told her brother that when she came home the day of the incident, Plantin was waiting for her, and he had a knife. Plantin then emptied out the victim's purse, looking for her gun, and then he hit the victim, causing her to lose consciousness. The victim awoke on the couch, and tried to flee through the front door. Plantin grabbed her, and she yelled as Plantin pushed her back into the house. Plantin dragged the victim through the house and took her to the garage. Plantin kept the victim in the garage while the car in the garage was running and forced her to inhale the exhaust fumes. The victim was able to escape from the garage after Plantin lost consciousness from inhaling the fumes.

The Victim's Taped Interview with Sergeant Michael Green

Approximately one week after the incident, Sergeant Michael Green interviewed the victim at the Cross home. In the taped interview, the victim recounted the incident, telling Green that Plantin grabbed her by the back of the neck when she walked into her house and then put a knife to her throat. Plantin threw the victim on the floor; she hit her head against the floor and started bleeding. Plantin then duct-taped the victim's wrists and ankles. The victim tried to escape out the front door and screamed for help, but Plantin restrained her and then dragged her to the garage. Plantin told the victim that they would die together and forced the victim to stay in the car. Plantin hit the victim every time she attempted to escape, but the victim was able to grab the keys and turn the car off. After retrieving the keys and restarting the car, Plantin continued his attempt to asphyxiate the victim by forcing her to inhale the exhaust fumes.

The Victim's Testimony at Trial

At trial, the victim's testimony about the incident differed substantially from the statements she had made at the hospital and in her taped interview. The victim testified that she did not remember many of the statements she allegedly made to Cross, Soderstrom, Polley, or Harris. She testified that on the day of the incident she arrived home around 4:45 p.m. and found Plantin was inside the house. Plantin put a knife to her throat and then the victim may have tripped on the carpet. The victim fell to the floor and cut her eye. The victim testified that the next thing she remembered was sitting on the couch with bound hands and feet. The victim tried to make it to the front ...


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