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State v. Fraga

Supreme Court of Minnesota

April 22, 2015

State of Minnesota, Respondent,
Josue Robles Fraga, Appellant

Page 616

Nobles County.


1. Minnesota Rule of Criminal Procedure 26.02 provides the exclusive grounds to challenge a juror for implied bias. A juror's knowledge that a previous trial on the same charges ended in conviction does not constitute implied bias.

2. The presence of an actually biased juror who sits in judgment of the defendant is structural error. Because a juror expressed bias during voir dire, was not adequately rehabilitated, and sat in judgment, a new trial is required.

3. Our court has adopted Minn. Stat. § 634.20 (2014) as a rule of evidence to allow the admission of evidence of domestic conduct by the accused against household and family members other than the victim.

For Respondent: Lori Swanson, Attorney General, John B. Galus, Assistant Attorney General, Saint Paul, Minnesota; and Kathleen Kusz, Nobles County Attorney, Worthington, Minnesota.

For Appellant: Steven P. Russett, Assistant State Public Defender, Saint Paul, Minnesota.


Page 617


Josue Robles Fraga was charged with and convicted of three counts of murder in connection with the death of his 2-year-old niece, S.R. While an appeal was pending in our court, new evidence was identified and the district court granted a new trial. Fraga was then charged with and convicted of five counts of murder.

Fraga appeals to our court, arguing that the district court committed reversible error in the retrial when it: (1) seated two jurors who knew that the first trial had resulted in a conviction; (2) seated a juror actually biased against the defendant; (3) denied Fraga's motion for a change of venue; (4) admitted into evidence a newspaper article that referred to the first trial and included information about an alternative perpetrator; (5) precluded the testimony of a defense expert witness as a sanction for discovery violations; and (6) admitted evidence under Minn. Stat. § 634.20 (2014) of Fraga's alleged sexual abuse of a relative. Fraga also argues that the district court erroneously entered convictions for all five counts of murder.

We hold that the district court did not err when it seated jurors who knew about the first conviction. However, we hold that the district court committed reversible error when it allowed a juror who exhibited actual bias against the defendant and was not adequately rehabilitated to sit in judgment of the defendant. Therefore, we reverse and remand for a new trial. In the interest of judicial economy, we also address three of the other issues raised by Fraga on appeal.


This murder case arises out of the horrific death in March 2008 of a 2-year-old girl, whose initials were S.R.[1] S.R. and her brother lived in Worthington with their uncle, Fraga, his wife, and their four children, who we will call Child A, Child B, Child C, and Child D. The six children shared a bedroom in the mobile home. Fraga's wife worked outside the home while Fraga cared for the children.

Around 2:30 a.m. on March 20, 2008, Fraga picked up his wife from work. They ate, watched television, and went to bed. Some time later Fraga woke up his wife and told her that " something was happening with [S.R.]." He handed S.R. to

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his wife, who noticed that S.R. felt loose and limp. She put a diaper on S.R. and wrapped her in a blanket. Fraga and his wife took S.R. to the hospital, arriving at 5:35 a.m.

Fraga informed the receptionist that " [m]y baby just stopped breathing." An EMT checked S.R. for signs of breathing, but found none. The EMT noted that S.R. felt cold; her temperature was 84 degrees. The EMT brought S.R. to the emergency room, where he and other medical personnel performed CPR. The medical staff noticed bruises on S.R.'s forehead and knees, and that S.R.'s stomach was distended and discolored. Additionally, a nurse who checked S.R.'s temperature rectally noted that it " looked like a firecracker had gone off in her rectum." S.R. had rectal prolapse: a protrusion of internal tissue that came out through the rectum.

While the hospital staff tried to resuscitate S.R., the emergency room doctor questioned Fraga and his wife about the child's injuries. Fraga told the doctor that S.R.'s brother had jumped off of the bunk bed and onto S.R. Given the extent of distension displayed on S.R.'s stomach, the doctor did not believe that a 3-year-old child could cause the injury, " unless he was jumping off of a large cliff." S.R. was declared dead, and the medical staff notified law enforcement of suspected child abuse.

A detective brought Fraga and his wife to the Prairie Justice Center to interview them. Fraga said that S.R. and her brother were always fighting, and that her brother " had this thing about jumping on her." Fraga said that sometimes he would have to wake up in the middle of the night to stop them from fighting. According to Fraga, on the night of the incident, he arrived home with his wife at 2:30 a.m. and checked on the kids, and everything seemed fine. Fraga noticed that S.R. had a bruise on her head, but surmised that she had received it from her brother. After going to bed, Fraga said he later woke up to go to the bathroom, and heard what he thought to be S.R. and her brother fighting. When Fraga looked into the bedroom, he saw S.R. on the floor and her brother jumping on her with his knees. Fraga said he picked up S.R. and she felt " loose," so he woke up his wife and they brought S.R. to the hospital.

While talking with Fraga, the detective noticed a reddish-brown stain on Fraga's pant leg. Fraga told the detective that it was feces, and this was later confirmed by the Bureau of Criminal Apprehension (BCA) lab. Fraga said that the feces were present because he had been cleaning the bathroom in those pants. Upon questioning, Fraga denied ever sexually abusing or penetrating S.R.

Police were sent to the Fraga home. The other five children were still there, and Child A let the police in. The police gathered the children to bring them out of the house. Before they left, Child A went to use the bathroom. He appeared to be very anxious and nervous. According to the officer, it sounded like Child A vomited while in the bathroom. The police then took the children to the police department, where they interviewed both Child A and Child B. When they interviewed Child A, he denied ever sexually touching S.R. or knowing anything about her death. Child A did not mention anything about S.R.'s brother jumping on her. Following the interviews, the five children were taken to a foster home.

That same day, a detective executed a search warrant and seized Child A's clothing and a DNA sample. The detective left his business card with Child A, and told him to call if he had any additional information. That evening, Child A called the detective and told him that he had seen

Page 619

S.R.'s brother jumping on her. The detective was suspicious, and confirmed with the foster parent that Child A had received a phone call. The detective discovered that the call had come from the motel where Fraga was staying pending the investigation. Child A admitted that the call was from his father, who had asked him to tell the police that he had seen S.R.'s brother jumping on her.

When police searched the Fraga house, they discovered considerable amounts of feces and semen. S.R.'s pajama pants and sweatpants were found in the bathtub and contained both feces and Child A's semen.[2] A sock found next to a garbage can in the master bedroom had both feces and Fraga's semen on it. A black t-shirt apparently belonging to Fraga also had feces on it. No feces were found on Child A's clothing.

The police also discovered several children's notebooks that contained violent sexual sketches, including a drawing of a girl being stabbed to death and saying " I Am Dieing." Child B did not remember if she had drawn that picture, but guessed that she had because it looked like her handwriting.

An autopsy was performed on March 21, 2008. In the medical examiner's opinion, S.R. died between 9:30 p.m. and 1:30 a.m., before Fraga's wife came home and 4 to 8 hours before the child was brought to the hospital. There were contusions to S.R.'s head and her extremities. The medical examiner concluded that S.R. died from a traumatic head injury due to physical assault. In addition, S.R.'s stomach was distended and had actually ruptured, spilling stomach contents inside her abdominal cavity. Because S.R.'s abdomen area did not have contusions or abrasions, the medical examiner concluded that the stomach injuries were caused by a compressive force: being pressed against something. S.R. also had lacerations on her face and injuries to her lower frenulum, suggesting to the medical examiner that somebody manipulated her mouth, probably to keep her quiet. S.R. also had swollen sexual organs and a prolapsed rectum. She had a hemorrhage more than 2 inches long inside her rectum, most likely the result of penetration or trauma to the area. Given the evidence of sexual assault, the medical examiner looked for semen deposits, but did not find any in or on S.R.'s body.[3]

All of the children except Child A were brought to a clinic on March 21, 2008, for a medical examination, but the doctor did not find any physical evidence that they had been sexually abused or assaulted. However, the foster parent who cared for the children immediately following S.R.'s death notified a social worker that S.R.'s brother had told her that he had been sexually abused by Fraga.

Investigators also learned that Fraga's brother, S.R.'s father, had contacted social services in Texas before S.R.'s death and told them that Fraga sexually abused him when they were children. The brother informed the social worker in Texas of the sexual abuse because he was trying to regain custody of his children. When interviewed on February 1, 2008, by a social worker in Nobles County, Fraga denied that he had sexually abused his brother.

A grand jury indicted Fraga on three counts of murder. Following a trial, Fraga was convicted on all ...

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