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Dolo v. State

Court of Appeals of Minnesota

August 19, 2019

Abraham Tony Dolo, petitioner, Appellant,
State of Minnesota, Respondent.

          Hennepin County District Court File No. 27-CR-16-4863

          Cathryn Middlebrook, Chief Appellate Public Defender, Anders J. Erickson, Assistant Public Defender, St. Paul, Minnesota (for appellant)

          Keith Ellison, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Nicole Cornale, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

          Considered and decided by Jesson, Presiding Judge; Schellhas, Judge; and Smith, Tracy M., Judge.


         When the state seeks to play part of a recorded interview and a defendant seeks to have the entire recording admitted under rule 106 of the Minnesota Rules of Evidence, a district court must conduct a fairness analysis to determine whether a party may require introduction of the evidence in its entirety.


          JESSON, JUDGE

         During his trial for second-degree criminal sexual conduct stemming from his children's mother's allegation that he sexually abused his children, appellant Abraham Tony Dolo objected to the state's request to play a limited portion of his interview with police. Dolo requested that the entire recording of the interview be played for the jury. After the district court overruled his objection, a jury found him guilty and the postconviction court subsequently denied his petition for relief. Because we conclude that it was an abuse of discretion for the district court to overrule Dolo's objection and deny his request for the state to play the entire recording of his interview with police without conducting a fairness analysis, we reverse Dolo's conviction and remand for a new trial.


         In December 2015, a family court judge granted appellant Abraham Tony Dolo sole legal custody and joint physical custody of his five-year-old daughter, C.D., and his seven-year-old son, K.D.[1] In late January 2016, the children's mother alleged that the children told her that Dolo had touched them inappropriately. She took the children to the hospital the next day, and hospital staff alerted police.[2]

         Police referred the children to Cornerhouse, an organization that conducts forensic interviews with children who may have been abused. During her interview, C.D. disclosed that Dolo slept naked with her and her brother, put her feet on his "private part," "scoot[ed] up" against her and "hump[ed]" her, and put his hands down her pants. And when asked if Dolo ever told her to not talk about what happened, C.D. told the interviewer, "He said, don't tell my mom" or "[h]e's gonna tell my teacher."

         Based on the Cornerhouse interview, police requested to speak with Dolo. Dolo agreed. During the voluntary interview-which was recorded-Dolo repeatedly denied that he had sexually abused or inappropriately touched his children. He told police that, as a result of the custody dispute, the children's mother was trying to create problems by planting the allegations in the children's heads. Throughout the interview, Dolo remained adamant that the allegations were a "retaliation thing."

         A few weeks later, the state charged Dolo with one count of second-degree criminal sexual conduct based on his daughter's allegations. The case proceeded to a jury trial. At trial, C.D. testified[3] that she slept in the same bed with Dolo while he was not wearing any clothes. C.D. also explained that Dolo touched her in a way she did not like and that he put her feet on his "private" which made her feel "nasty" and "sad." Additionally, C.D. described Dolo "scooting up" against her with his "private" and that it felt hard. According to C.D., no one-including her mother-told her what to say.

         Dolo's son K.D. also testified and largely corroborated his sister's statements. He explained that he also slept in a bed with Dolo and his sister while Dolo was not wearing any clothes. And K.D. testified that on more than one occasion, his butt touched Dolo's "private." When asked how he felt about talking about these things, K.D. answered that he felt "happy" because he had been told not to talk about what happened.[4]

         During the direct examination of the detective who interviewed Dolo, the state sought to play part of the recorded interview during which Dolo described the layout and living arrangements in the home. According to the state, Dolo lied about the living arrangements in the house, which demonstrated a consciousness of guilt. Dolo's counsel objected, arguing that under the rule of completeness and Minnesota Rule of Evidence 106, the state should be required to play the entire recording. After taking a recess to review the transcript of the entire recording, the district court overruled Dolo's objection and allowed the state to play a short portion of the recording. During cross-examination of the officer, defense counsel asked the detective if Dolo maintained his innocence throughout the interview and if he ever admitted to anything. But the district court sustained objections to those questions on hearsay grounds and did not permit the detective to answer.

         Dolo presented several witnesses on his behalf, including the custody evaluator from the family-court matter who testified that there were no allegations of sexual abuse during the family-court proceedings and that she found Dolo to be credible when working with him. Dolo's mother, who owns the house where the sexual abuse allegedly occurred, testified that the children never slept downstairs in Dolo's room and that she never saw him touch the children inappropriately.

         Finally, Dolo testified on his own behalf. He adamantly denied abusing his children, touching them inappropriately, or placing his hands down C.D.'s pants. Dolo explained that when he learned of the allegations against him, his first thought was that the children's mother was fabricating false allegations against him, so he told his side of the story to police. Dolo testified that although the jury only heard about eight minutes of his interview with police, during that interview he maintained his innocence and told police that he believed the children's mother was making up allegations because a family court judge awarded him custody of their children. During the state's cross-examination, the prosecutor asked Dolo questions about what he said to police during portions of the interview that were not played for the jury. Several of those questions involved whether Dolo told police that the children's mother was trying to retaliate against him, whether Dolo asked how his children were doing, and statements the prosecutor alleged Dolo made regarding the children's truthfulness. And although Dolo attempted to answer the questions, he repeatedly told prosecutors that he did not remember exactly what was said during the interview because it took place several months before the trial.

         The jury found Dolo guilty of second-degree criminal sexual conduct. After denying Dolo's motions for judgment of acquittal and a new trial, the district court sentenced him to a stayed 36-month prison term and five years of probation. Dolo did not file a direct appeal but filed a petition for postconviction relief, which the postconviction court denied without an evidentiary hearing.[5] Dolo appeals the denial of his postconviction petition.


Did the district court abuse its discretion by refusing to require the state to play the entire recording of Dolo's interview with police without conducting a fairness analysis?


         Dolo argues that the postconviction court abused its discretion by denying his petition for relief. Specifically, Dolo contends it was an abuse of discretion for the district court to allow the state to play about eight minutes of his hour-long interview with police for the jury without requiring the state to play the recording in its entirety. According to Dolo, this decision violated the rule of completeness, codified in rule 106 of the Minnesota Rules of Evidence, which allows a party to require the introduction of an entire recording if the opposing party seeks to introduce only a portion of it. See Minn. R. Evid. 106. The decision to permit the state to play only a portion of the interview denied Dolo his right to present a complete and meaningful defense, he contends.

         We review the denial of a postconviction petition for relief for an abuse of discretion. Andersen v. State, 913 N.W.2d 417, 422 (Minn. 2018). In doing so, we evaluate legal issues de novo, but our review of factual issues is limited to whether sufficient evidence in the record supports the postconviction court's findings. Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015). And we will not reverse the denial of a postconviction petition "unless the postconviction court exercised its discretion in an arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual findings." Id. (quotation omitted). Dolo's asserted basis for postconviction relief is an allegedly erroneous evidentiary decision, which is within the "sound discretion" of the district court and is not reversed without a clear abuse of discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). And on appeal, Dolo bears the burden of demonstrating such an abuse of discretion and the resulting prejudice. Id.

         In order to discern whether the postconviction court abused its discretion by denying Dolo's petition for relief, we begin by considering the background and purpose of the common law rule of completeness and rule 106 of the Minnesota Rules of Evidence. With rule 106 in mind, we then analyze whether the district court abused its discretion by permitting the state to play only a portion of Dolo's interview with police when Dolo requested that the entire recording be played for the jury. Because we conclude that the district court did not adequately consider whether fairness required the introduction of the entire recording for the jury, we then evaluate whether the erroneous exclusion of the recording prejudiced Dolo. And because our review of the record demonstrates that the failure to play the entire recording resulted in prejudice, we conclude that it was an abuse of discretion for the postconviction court to deny Dolo's petition for relief.

         Background and Purpose

         Rule 106 evolved from the common law doctrine of completeness.[6] 21A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5072, at 383 (2d ed. 2005). This doctrine "presume[s] two tenets of the adversary system." Id. Those two tenets are (1) that parties, rather than the court, are responsible for offering evidence to support their claims and (2) that a trial follows a sequential procedure in which parties alternate in presenting their evidence. Id. at 383-84.

         But in some cases, the phrasing of questions or presentation of incomplete statements can mislead the jury. The common law doctrine of completeness sought to remedy that problem by creating "a limited restriction" to a party's ability to control their case. Id. at 386. That restriction allowed one party to require an adverse party seeking to introduce part of a writing or statement to introduce it in its entirety. Id. at 387-88; see also State v. Brodt, 185 N.W. 645, 647 (Minn. 1921) (stating that "[w]hen the significance of a former statement of a witness has been distorted by a fragmentary or inaccurate repetition of it, the entire conversation or writing may be received to explain its true significance"). And when the inculpatory portion of a statement or transaction was admitted into ...

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