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In re D. D.-R.

May 16, 2006

IN THE MATTER OF THE WELFARE OF: D. D.-R.


Hennepin County District Court File No. J1-04-62432.

SYLLABUS BY THE COURT

1. The cumulative effect of errors, where the prosecutor misstated the presumption of innocence; the district court failed to give a curative instruction; the district court improperly instructed the jury that the victim's testimony need not be corroborated; and the district court's prejudicial evidentiary rulings, resulted collectively in substantial prejudice that warrants a new trial.

2. Although a jury found appellant guilty, the evidence of guilt was not overwhelming, and that heightens the prejudice of the collective errors.

The opinion of the court was delivered by: Randall, Judge

Reversed and Remanded

Concurring in part, dissenting in part, Lansing, Judge

Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Randall, Judge.

OPINION

D.D.R. was charged with first-and third-degree criminal sexual conduct and designated an extended-jurisdiction juvenile (EJJ). A jury convicted D.D.R. of third-degree criminal sexual conduct. The court imposed a juvenile disposition, and the state appealed the dispositional order. D.D.R. then moved to dismiss the state's appeal under Minn. R. Juv. Delinq. P. 21.04, subd. 1, and filed his own appeal. This court denied the motion for dismissal and consolidated the appeals. D.D.R. argues that (1) the state's multiple discovery violations entitle him to a new trial; (2) the prosecutor committed prejudicial misconduct; (3) the court's evidentiary rulings denied him a fair trial; (4) the jury instructions violated his right to due process and a fair trial; (5) the cumulative effect of the court's errors denied him a fair trial and requires that his conviction be reversed; and (6) the evidence is insufficient to support his conviction. In addition to appellant's arguments, the state also appeals from the district court's findings and rulings, arguing that the district court erred by refusing to impose a stayed adult sentence and failing to rank appellant's offense. Reverse and remanded.

FACTS

D.D.R., appellant, was charged with first-and third-degree criminal sexual conduct and designated an extended-jurisdiction juvenile (EJJ). A jury convicted D.D.R. of third-degree criminal sexual conduct.

J.B. alleged she was raped by appellant, a juvenile. At trial, J.B. testified that prior to playing basketball she walked alone to the local library. On her way home from the library, she saw appellant at the corner bus stop near her home. J.B. testified that she "kind of" knew appellant from previous occasions at the local park while playing basketball. Appellant asked J.B. if she wanted to play basketball. J.B testified that she received permission to go to the park and that she and appellant walked to the park. After briefly staying at the park, J.B. left alone to walk home while appellant remained at the park. As she walked home on the sidewalk, J.B. testified that appellant approached her from the rear of his house and asked her if she wanted to have sex and smoke marijuana. J.B. told appellant "No" and testified that he then grabbed her. After grabbing J.B., appellant picked her up and carried her to the garage of his house. J.B. testified that appellant first entered the garage through a hole in the wall and next, while holding her hand, pulled her through the hole into the garage. Once inside the garage, J.B. and appellant sat next to each other on a couch. While on the couch, appellant did not hold or touch J.B. Appellant then instructed J.B. to stand up and pull down her pants. J.B. complied, appellant stood up, approached J.B. from behind, and J.B. claims she was anally penetrated.

After the assault, in a telephone conversation with a friend, J.B. told her friend that she had been raped by appellant. J.B. explained that she had gone to the local park to play basketball with appellant and after playing basketball, appellant raped her on her way home. J.B. next telephoned her mother. Police eventually responded and J.B. was taken to the hospital for a physical examination.

The day after the assault, Sergeant James Spencer interviewed J.B. Spencer testified at trial that J.B. told him that she and appellant had gone to the library together, left the library together, dropped items off at J.B.'s house, and proceeded to the park to play basketball. Spencer testified that J.B. told him appellant left the park before she did and that the assault happened as she walked home.

J.B.'s mother testified at trial. She testified that it was only during J.B.'s testimony that she learned that J.B. had been at the library on the morning before her assault and walked to the park with appellant. J.B. testified during her examination that she did not tell her mother these facts because she was afraid she would be punished.

Appellant was initially charged with first-degree criminal sexual conduct. The state moved the court to designate appellant under the court's extended juvenile jurisdiction (EJJ). Appellant opposed the motion. After a four day trial, the court designated appellant under the court's EJJ. During the EJJ trial, respondent amended its complaint, adding a count of third-degree criminal sexual conduct.

A jury found appellant not guilty of first-degree criminal sexual conduct but guilty of third-degree criminal sexual conduct, an offense that can be committed only by a juvenile. As a result of his conviction, appellant was placed on juvenile probation and ordered to adhere to specific conditions. This appeal followed.

Appellant alleges that state committed various discovery violations and that the district court made several prejudicial errors during the proceedings. First, appellant objected to the admission of evidence collected from J.B.'s clothing, arguing that the evidence had been sent for analysis only in late January 2005, five months after the assault. Appellant argued that he demanded disclosure of the evidence soon after the assault. The district court found no discovery violations. Second, after J.B. testified, appellant argued that her testimony showed that J.B. admittedly lied to the police regarding the facts of the assault. Appellant moved for a mistrial reasoning that the state knew of the inconsistency of J.B.'s testimony and failed to disclose exculpatory evidence. The district court denied the motion. Third, appellant moved the district court to allow him to use the video recording of J.B.'s interview with police as impeachment evidence but the motion was denied. Fourth, appellant moved in limine to preclude the prosecutor from asking the forensic scientist whether 15-year-olds can ejaculate and what she had found in all her other sexual assault cases. Appellant argued that this was beyond the scope of discovery. The district court denied appellant's motion. Next, appellant elected not to testify and requested that a jury instruction be read informing the jury of his right not to testify. The district court denied his request. Finally, appellant objected to several remarks made during the prosecutor's closing argument. Although the district court found the remarks to be inappropriate, it stated that it would give the jury a curative instruction. The district court then failed to give the promised curative instruction.

On appeal, appellant maintains that the district court's evidentiary rulings and jury instructions, combined with the state's discovery violations and prosecutor's misconduct during her closing argument, denied him a fair trial. He also argues that the evidence was insufficient to justify the jury's verdict. He seeks reversal and dismissal of his conviction, or in the alternative, a new trial.

ISSUES

I. Did individual violations of discovery rules, prosecutorial misconduct, and erroneous jury instructions occur, warranting a new trial?

II. Was there a cumulative effect of errors prejudicing appellant that warrants a new trial?

III. Was the evidence sufficient to support the jury's verdict?

IV. Did the juvenile court err when it refused to impose a stayed adult sentence?

DECISION

I.

Appellant argues that the state committed various discovery violations, prosecutorial misconduct, and that he was prejudiced by erroneous evidentiary rulings by the district court.

a. Discovery Violations

Once a discovery violation has occurred, the district court is particularly suited to determine the appropriate remedy and has wide discretion in deciding whether to impose sanctions. State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979). In exercising its discretion, the district court should consider all relevant factors, including the extent to which the violation prejudiced the opposing party. See State v. Smith, 367 N.W.2d 497, 502 (Minn. 1985). Absent a clear abuse of discretion, a reviewing court will not overturn the district court's decision. Lindsey, 284 N.W.2d at 373.

DNA Test Results

Appellant argues that the district court erred when it denied his motion to suppress the results of the DNA testing because the prosecutor failed to timely provide him with the results. Initial DNA testing was completed just three weeks before appellant's jury trial, which showed no presence of appellant's DNA on J.B.'s clothing. The state planned to ask for a continuance so that additional DNA testing could be performed on the clothes. The district court ruled "absolutely unequivocally" that any evidence as a result of testing conducted on J.B.'s clothing was inadmissible in the state's case in chief. However, the court declined to rule on whether the evidence would be allowed on rebuttal.

We conclude that the district court did not abuse its discretion by finding there was no discovery violation. The state never introduced the challenged evidence during trial; it was appellant who introduced the test results into evidence.

Prosecutor Notes

Appellant argues that under Minn. R. Crim. P. 9.03, subd. 2, the prosecutor was required to promptly disclose notes of her conversation with J.B. He argues that the state, without notice to him, put the notes before the jury during its examination of J.B.

J.B. testified that she never told her mother about going to the park with appellant. Appellant argues that the state was aware of this testimony prior to trial as a result of interviews with J.B. and that the information was available only in notes taken as result of the interview. Therefore, appellant argues the state was obligated to disclose the information as exculpatory evidence. The prosecutor argued at trial that she was also surprised by J.B.'s testimony. The district court denied appellant's motion for a mistrial reasoning that although the evidence may be exculpatory, the prosecution did not have any way of knowing this was exculpatory evidence since there was no specific inquiry by the state regarding the testimony in question. The district court found that the testimony in question was contained in videotapes, which had been provided to appellant prior to trial.

Appellant also argues that the prosecutor violated discovery by not providing him with notes of her conversation with the BCA scientist. The prosecutor did not provide the notes to appellant until just prior to her trial examination of the BCA witness. There was no objection or motion by appellant concerning any discovery violation in regards to the notes of the prosecutor's conversation with the BCA scientist.

Although appellant was given an opportunity to cross-examine J.B. regarding her testimony, his defense was arguably hindered by the failure of the prosecutor to promptly supply appellant with her notes. The state did not intentionally keep testimony from appellant, but the lack of diligence or knowledge by the prosecutor of J.B.'s testimony does not erase the prejudice that may have resulted from surprising appellant. However, we conclude that, on this issue, appellant did not suffer substantial prejudice because he had the opportunity to confront witnesses.

Interview Videotape

Appellant argues that the prosecutor violated discovery rules by not turning over in a timely fashion the videotape of J.B.'s entire interview with police. Not until a week before trial was appellant given the videotape of the interview along with a summary of the interview.

The state argued that if appellant intended to use J.B.'s videotaped statements for purposes of impeachment, it would object unless the portion of the video was transcribed. Appellant advised the court that he received the tape one week before trial. The district court determined that it would receive the tape into evidence if it was necessary, on the condition that a transcript be provided when required, after the presentation of the tape. If a transcript was not provided, the evidence would be withdrawn from the record. Appellant agreed to the arrangement and indicated ...


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