State v. FriendState v. Friend
- Reporters:
- ,
- Before:
- Foley
OPINION
FOLEY, Judge.
Aрpellant Terrance James Friend, Sr., was convicted of: (1) intrafamilial sexual
FACTS
In March 1984, Colin Isaacson, a social worker with the St. Louis County Social Services Department received a phone call from Beverly Rudstrom, appellant’s sister. Rudstrom stated that she had information regarding the sexual abuse of her niece, B.S., age 11, who had been living with her for a number of years. Rudstrom told Isaacson that she confronted appellant after she learned he had been fondling B.S., that he admitted the fondling and stated that it had gone on about six months. At trial Rudstrom denied making these statements to Isaacson.
After talking with Rudstrom, Isaacson arranged an interview with B.S. at a medical center in Hibbing. Captain William Bussey of the Hibbing Police Department and Rudstrom witnessed the interview behind a one-way mirror. B.S. told Isaacson that appellant touched her crotch and chest and described it as touching in a “bad way.” B.S. described and demonstrated the incidents of abuse on anatomically-correct dolls, which included numerous sex acts, including oral sex and attempts at intercourse. She said appellant touched her on more than 20 occasions and told her not to tell anybody else. B.S. also said that she saw appellant do the same things to C.F., T.B., and M.D.
At trial, M.D., an 11 year old, testified that: (1) she stayed overnight at a trailer in Rudstrom’s backyard; (2) the trailer belonged to appellant; and (3) appellant gave her beer and molested her. M.D. then described incidents of sexual abuse by appellant.
Twelve-year-old T.B. was called to the witness stand by the state on three separate occasions. On the first two occasions, she was crying and unable to testify. On a third occasion she described incidents of abuse by appellant in February of 1984. T.B. also testified that appellant would give her money, pot and beer and that she observed appellant performing sex acts on C.F., B.S. and L.N.
Fifteen-year-old L.N. testified that appellant sexually abused her and said he had touched her between 10 and 20 times during the last three years. L.N. also testified that she observed appellant doing the same things to her cousin, T.B., and that appellant would give her beer and pot.
Prior to appellant’s arrest, Captain Bus-sey and Sergeant John Maras of the Hib-bing Police Department went to the Y.A. hospital in Minneapolis to speak with appellant. Aрpellant had voluntarily committed himself to the hospital. Bussey told appellant that they were investigating possible sexual abuse of appellant’s niece and began setting up a tape player. While Bussey was setting up the tape player, appellant said he did not want to talk about certain things because he knew what he did was “morally and legally wrong,” but he had not had “warm feelings like that for a long time” and that he really did not want to say too much because the state would use it to hang him. After the officers finished setting up the tape recorder, they gave appel
At trial, Dr. Nancy K. Dessert, a physician and psychiatric resident at the V.A. hospital, testified that while taking a history and physical examination of appellant she askеd appellant why he came to the hospital. He said, “I have some trouble with little girls. Myself, I didn’t think it was trouble. I just played with them.” Appellant told Dr. Dessert that he had been playing with little girls during the past two years.
Dr. Dessert testified that appellant described an instance of touching with a girl named M., which occurred approximately one and one-half years prior to his hospital admission. Appellant also admitted to incidents of touching with his nephew, B. Appellant said he felt a lot of love between him and B. and that B. was special. Aсcording to appellant, the incidents with B. occurred 50 times over the past year and a half and in one such instance he had engaged in oral sex.
Appellant also told Dr. Dessert that he had similar incidents of touching with a girl named T. The incidents occurred 10 times during the past year. Dr. Dessert testified that she never told appellant his statements would be confidential. Dr. Dessert also stated that the V.A. hospital does not have a sexual abuse treatment program and that she was not treating appellant for sexual abuse рroblems.
At trial, appellant testified that he had voluntarily admitted himself to the V.A. hospital because he was depressed, had problems with alcohol abuse and was preoccupied with suicidal thoughts. He also stated he “had a problem about abusing children.” However, he denied telling anyone that he was sexually abusing children. He also denied making certain statements which Dr. Dessert testified to, explaining that Dr. Dessert had misunderstood a number of things. Appellant further denied the incidents with B.S., M.D., T.B., or L.N. and claimed the girls were mistaken in their testimоny. Appellant also claimed that personnel at the V.A. hospital told him that what he said would be confidential.
Appellant was convicted and sentenced to: (1) 43 months for the conviction of intrafamilial sexual abuse in the first degree of B.S.; (2) 54 months for the conviction of criminal sexual conduct in the first degree of T.B., with 43 months to run consecutive to the other sentence; (3) 65 months for the conviction of criminal sexual conduct in the first degree of M.D., with 43 months to run consecutive to the other sentences; and (4) 36 months for the convictiоn of criminal sexual conduct in the fourth degree of L.N., pursuant to
ISSUES
1. Did the trial court err in admitting appellant’s physician’s testimony that contained incriminating statements made by appellant?
2. Did the trial court err in admitting appellant’s oral statement, given prior to a Miranda warning and allegedly while in custody and in response to interrogation?
3. Do the prosecutor’s comments during closing argument and questioning during voir dire examination entitle appellant to a new trial?
4. Did the trial court err in sentencing appellant to a consecutive mandatory minimum term of 36 months, pursuant to
ANALYSIS
1. Appellant first claims that the trial court erred in admitting his treating physi-
Subdivision 1. Competency of witnesses. Every person of sufficient understanding, including a party, may testify in any action or proceeding, civil or criminal, in court or before any person who has authority to receive evidence, except as provided in this subdivision: * * # # * ⅜
(d) A licensed physician or surgeon, dentist, or chiropractor shall not, without the consent of his patient, be allowed to disclоse any information or any opinion based thereon which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity;
# * * # * *
(g) A registered nurse, psychologist or consulting psychologist shall not, without the consent of his client, be allowed to disclose any information or opinion based thereon which he acquired in attending the client in a professional capacity, and which was necessary to enable him to act in that capacity.
* * # ⅛ * *
Subd. 2. Exceptions. * * *
(b) The exception provided by paragraphs (d) and (g) of subdivision 1 shall not apply to criminal proceedings arising out of the neglect or physical or sexual abuse of a minor, as defined in section 626.556, subdivision 2, if the court finds that:
(1)there is a reasonable likelihood that the records in question \vill disclose material information or evidence of substantial value in connection with the investigation or prosecution; and
(2) there is no other practicable way of obtaining the information or evidence. This clause shall not be construed to prohibit disclosure of the patient record when it supports the otherwise uncorroborated statements of any material fact by a minor alleged to have been abused or neglected by the patient; and
(3) the actual or potential injury to the patient-health professional relationship in the treatment program affected, and the actual or potential harm to the ability of the program to attract and retain patients, is outweighed by the public interest in authorizing the disclosure sought.
No reсord‘s may be disclosed under this paragraph other than the records of the specific patient suspected of the neglect or abuse of a minor. Disclosure and dissemination of any information from a patient record shall be limited under the terms of the order to assure that no information will be disclosed unnecessarily and that dissemination will be no wider than necessary for purposes of the investigation or prosecution. (Emphasis added.)
Appellant contends: (1) the legislature did not intend
1984 Minn.Laws ch. 588, § 13 provides:
Sec. 13. EFFECTIVE DATE
Sections 3, 7, and 8 are effective August 1, 1984, and apply to crimes committed on or after that date. Sеctions 2, 4, and 12 are effective the day following final enactment.
Approved April 26, 1984 The exception to the physician-patient and psychologist-patient privilege specified in
Applying
Even if the application of
Appellant also contends that
The Minnesota Maltreatment of Minors Reporting Act requires that health care personnel who have reasonable cause to believe a child is being neglected or physically or sexually abused immediately report orally and file а written report thereafter with the appropriate police department, the county sheriff, or the local welfare agency.
See
In
Andring
the supreme court acknowledged that Congress has recognized that the states are at the best level to deal with child abuse prevention and that it is more difficult to find broad pre-emption whenever Congress acts in areas which are traditionally reserved to the states.
Appellant further contends that the three-prong test for allowing admission of his physician’s testimony under
The state contends Dr. Dessert’s testimony was admissible regardless of the applicability of MinmStat.
Subd. 8. EVIDENCE NOT PRIVILEGED. No evidence regarding the child’s injuries relating to the neglect or abuse of a child or to any prior incidents of neglect or abuse involving any of the same persons accused of neglect or abuse shall be excluded in any proceeding arising out of the alleged neglect or physical or .sexual abuse on the grounds of either* a-physician patient or husband-wife privilege set forth insection 595.02 , subdivision 1, paragraphs (a), (d), or (g). [Changes indicated by italics.]
Both became effective the day following final enactment. See 1984 Minn.Laws ch. 588, § 13.
The rules of statutory construction require thаt the two provisions should be read together and if possible construed “so that effect may be given to both.”
2. Appellant claims that his oral statement — “I knew what I had done was morally and legally wrong, but I haven’t had warm feelings like that for a long time”— made to police officers while they were setting up a tape recorder for an interview at the V.A. hospital was improperly admitted into evidence.
Appellant claims that the oral statement was obtained pursuant to an in-custody interrogation in violation of Miranda. The Miranda procedural safeguards are required where a suspect is in custody and is subjected to interrogation. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). The term “interrogation” is not only express questioning, but also is considered any words or actions by police, which the police should know are reasonably likely to elicit an incriminating response. Innis, 446 U.S. at 302, 100 S.Ct. at 1690. We must determine whether appellant’s oral statement was voluntarily given, оr in response to interrogation or its “functional equivalent.”
Voluntary statements are admissible into evidence and are not barred by the Fifth Amendment. Innis, 446 U.S. at 300-01, 100 S.Ct. at 1689 (quoting Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966)). To determine whether appellant’s statement was voluntary, we apply the totality-of-the-circumstances test to the facts found by the trial court. See State v. Jackson, 351 N.W.2d 352, 355 (Minn.1984) appeal after remand 370 N.W.2d 72 (Minn.Ct.App.1985), pet. for rev. denied, (Minn. August 20, 1985). In State v. Gabler, 294 Minn. 457, 458, 199 N.W.2d 439, 440 (1972), the supreme court recognized that a statement admitting guilt, given when a defendant interrupted a detective in the process of giving the Miranda warning, was voluntary and not barred by Miranda. The supreme court has also rejected the argument that a confession is inadmissible “if it is followed in the same breath with the desire to remain silent.” State v. O’Neill, 299 Minn. 60, 71, 216 N.W.2d 822, 829 (1974).
Our review of the “totality-of-the-circumstances” in this matter indicates that appellant’s oral statement was voluntarily given and not in response to interrogation and was thus properly admitted into evidence.
See generally Jackson,
351 N.W.2d at 355. Simply informing appellant about the subject of the police inquiry before questioning was not an action that police should have known was reasonably likely to elicit an incriminating response. Officers should inform suspects of the crimes about which they will be questioned at the time they are asked to waive their
Miranda
rights.
State v. Beckman,
354 N.W.2d 432, 437 (Minn.1984). Appellant’s oral statement was voluntarily given when
3. Appellant claims that the prosecutor’s closing argument referring to the jurors as the protectors of young girls, and the voir dire questioning of potential jurors on whether they were familiar with cases in which an accused was charged, acquitted and then subsequently committed additional sexual offenses, injected broader issues than his guilt or innocence into the trial and entitle him to a new trial.
The standards for review of proseсutor misconduct were explained in State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974):
The test of determining whether prosecu-torial misconduct was harmless depends partly upon the type of misconduct with which we are dealing. * * * Thus, in cases involving unusually serious prose-cutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious pros-ecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.
Id. at 127, 218 N.W.2d at 200 (citation omitted; footnote omitted).
The prosecution’s reference in his closing argument to the jurors as protectors of young girls is improper. See generally State v. Gaulke, 281 Minn. 327, 330, 161 N.W.2d 662, 664 (1968). This type of misconduct requires us to determine whether the misconduct likely played a substantial part in influencing the jury to convict. The record reflects that the evidence of appellant’s guilt is strong. In view of the entire record, the prosecutor’s statement that jurors are the protectors of young girls did not play a substantial part in influencing the jury to convict.
We also find that the prosecutor’s voir dire questioning of jurors on whether they were familiar with cases in which an accused person had been charged with a sex crime, acquitted and subsequently committed additional offenses, was not misconduct which played a substantial role in influencing the jurors to convict. It appears the prosecution adopted this line of questioning because appellant’s counsel was asking jurors whether they were familiar with cases in which children had lied in an attempt to draw an analogy between the case at hand and the Scott County cases.
The granting of a new trial based upon prosecutorial misconduct is justified “only where the misconduct, viewed in light of the whole record, appears to be inexcusable and so serious and prejudicial that defendant’s right to a fair trial was denied.” State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980). None of the prosecution’s comments or voir dire questioning were so serious and prejudicial that they denied appellant’s right to a fair trial.
4. Appellant received four consecutive sentences totaling 165 months. Appellant claims the trial court erred in sentencing him to a consecutive mandatory minimum sentence of 36 months for the crime of criminal sexual conduct in the fourth degree, pursuant to
Subd. 3. Prior convictions under similar statutes. For the purposes of this section, an offense is considered a second or subsequent offense if, prior to conviction of the second or subsequent offense, the actor has been at any time convicted under sections 609.342 to 609.345 or sections 609.364 to 609.3644 or under any similar statute of the United States, or this or any other state. (Emphasis added.)
The language in
The state contends that appellant’s conviction for criminal sexual conduct in the fourth degree should still be considered a “second or subsequent offense” even though he was convicted of all the offenses at one time. The state claims it was only at appellant’s request that the charges were consolidated for trial and the convictions occurred simultaneously, rather than separately, and that, therefore, the criminal sexual conduct in the fourth degree offense actually occurred at a date later than some of the other offenses. However, under the plain language of the statute, the conviction for criminal sexual conduct in the fourth degree cannot be considered a “second or subsequent offense” for purposes of
The presumptive sentence for criminal sexual conduct in the fourth degree, a severity level IY offense, using appellant’s criminal history score of 0, is 12 months. Appellant’s sentence should be reducеd from 165 to 141 months.
DECISION
The trial court did not err in admitting appellant’s physician’s testimony pursuant to
Affirmed in part and modified in part.