*1 (reversing conviction (Minn.App.2008) on errone- for new trial based
remanding the evi- though even instruction jury
ous sustain convic- sufficient
dence was
tion).
DECISION jury instructions did
Because find,
inform beyond must jury that it doubt, emergency that an exist-
reasonable call, of the 911 at time
ed that af- plain error constitute
instructions rights. substantial
fected conviction
therefore reverse a new trial. remand remanded.
Reversed and Minnesota, Respondent,
STATE of HAKALA, Appellant.
Paul Richard
No. A08-0215. Appeals Minnesota.
Court
March *2 Swanson,
Lori General, Attorney St. Paul, MN; Backstrom, and James C. Da- County Attorney, kota Clark, Lawrence F. County Assistant Attorney, Hastings, MN, for respondent. Jr.,
Joseph Dudley, Lillie, III, John C. Thompson, Mark K. Dudley Smith, & St. Paul, MN, appellant. HUDSON,
Considered decided CONNOLLY, Presiding Judge; Judge; PORITSKY, Judge.* OPINION HUDSON, Judge. appeal
On from his convictions of one count of criminal sexual conduct in the first degree and two counts criminal degree, sexual conduct ap- second (1) pellant argues MinmStat. 609.342, 3, .343, (2006), §§ subd. subd. 3 as him, applied to violate his constitutional right self-incrimination, to be free from district abused its discre- * Const, court, judge serving VI, Retired appointment pursuant as to Minn. art. judge Appeals by of the Minnesota Court of § R. Evid. testimony of nent caselaw Minn. his excluded
tion when motion to granted district court the state’s and remand. We reverse expert witness. expert testimony. exclude *3 reasoned district court FACTS testimony by Phipps-Yonas the Dr. that 11, 2007, complaint January On reporter, of the to attack County that Paul alleging filed in Dakota interviewer, by is such that attack- sexually (appellant) Hakala Richard interviewing techniques by used ing the granddaughters. Appel- his three abused interviewer, with one count of crimi- charged lant was would, effect, implicitly in have asserted in degree in the first nal sexual conduct telling that the children were 609.342, § subd. violation Minn.Stat. truth. And determinations (2006), counts of criminal 1(g) and two ordinarily province of the are within degree in the second conduct sexual jury or finder of fact.... defen- [T]he 609.343, § subd. of MinmStat. violation explore dant was allowed to the inter- (2006). on juryA trial commenced 1(g) viewing techniques that were used trial, Prior to the victims July may argue still to those by so- protection a child were interviewed techniques may have influ- interview (an inter- at CornerHouse cial worker gave. girls enced the answers and training evaluation agency child-abuse center). trial, also took into (respondent) The district court consid- At the state balancing required eration the under testify. worker to The called the social Minn. R. Evid. and ruled training about her 403 social worker testified alleged- who have interviewing for children relevant, although is evidence abused, ly sexually as well as the been excluded its value is probative because interviewing such chil- proper for protocol I substantially underline “substan- —and by discussing her dren. concluded She by un- tially” outweighed danger — alleged victims here. interviews with The at- prejudice. questioning fair vic- In live addition to tacking techniques used interviewing tims, taped between the interviews interviewer, by the the defendant’s ex- social worker and the victims were also pert implicitly would have and will have played jury. for telling that the children are not asserted the truth. trial, appellant attempt- Near the end of Appellant guilty ed to call an Dr. was found of all three Susan Phipps-Yonas, testify to about the inter- counts of criminal sexual conduct. The (PSI) in- techniques employed by presentence investigation report view the social or, findings psychosexual worker. The state moved to exclude cluded from evalu- appellant’s expert The alternatively, appellant. appel- to limit ation of evaluator of testimony. response appellant witness’s lant found that was not amenable motion, appellant’s he state’s counsel stated sex-offender treatment because con- offenses, offering deny to tinued to he no he credibility, rather, impeach empathy, the victims’ but remorse or and he was light “[ijnterviewing techniques, process appeal. probation to shed offi- you cer safeguards, things put place normal who drafted the PSI echoed these find- children, ings interviewing proce- appellant when normal and stated that “is cur- specific processes, training rently dures and based on her amenable to sex offender perti- adamantly He experience.” reviewing After treatment. continues
349 him, deny the instant offense accuses criminate at least without at time making up allegations.” being assured victims that neither it nor fruits sentencing may with the used guidelines, against accordance him.” Minnesota v. 420, 429, appellant Murphy, the district court sentenced 465 U.S. 104 S.Ct. one, (quotation for count L.Ed.2d 409 months months (to omitted). concurrent), count run Under challenged two Minneso- (to statutes, count run ta permitted months for three consecu- tive). stay the stay The district court declined execution if sentence “(a) stay stay execution of the finds that: is in sentence because a the best inter- *4 (a) complainant unit; was in the est of the or family not best interests of the (b) (b) complainants professional or family appellant assessment indicates accepted not been to and offender has been accepted could respond respond can program. treatment This to a treatment program.” 609.342, appeal .343, §§ 3, follows. MinmStat. subd. subd. ISSUES Appellant argues that he effectively was the opportunity denied to be considered 609.342, 3, §§ I. Are Minn.Stat. subd. stayed for a sentence proba- because the .343, 3, ap- subd. unconstitutional as tion officer appellant determined that was appellant? plied to unamenable ato treatment program; and II. Did the district court abuse its discre- reason was he unamenable to appellant’s tion when it ex- excluded treatment was because he denied the alle- testimony? pert witness him, gations against remorse, showed no ANALYSIS process and was of pursuing an appeal. differently, Stated appellant ar- 609.342, 3, I. §§ Are Minn.Stat. subd. gues that the statute right violates his .343, 3, ap- subd. unconstitutional as against because, in self-incrimination order plied appellant? accepted by to be a treatment program, he Appellant argues both Minn. first must be considered “amenable to 609.342, 3, .343, §§ Stat. subd. subd. treatment,” requires which him to admit right violate his constitutional to be free himself, guilt, his incriminate and show from they self-incrimination because com remorse his crimes. pel testify against him to himself and pres stay But order to the execution of ent a risk of future incrimination. “We sentence, the district court was questions statutory review construction (1) required to find factors: that ap- two de novo.” Houston v. Int’l Data Transfer pellant is amenable treatment and (Minn.2002). Corp., 645 N.W.2d stay that a of imposition is in the best The federal and Minnesota consti of the complainant family interests or the provide person Here, tutions ... explicitly “[n]o shall unit. the district court compelled be in any criminal case stay imposition to be found that a not in Const, against witness himself.” U.S. complainants best interests of the or Const, V; I, unit, § amend. Minn. art. family part 7. The because right against compelled self-incrimination parents doubtful that the would reconcile an any allows accused to appellant. finding refuse answer with This does de- official question, long so as “there pend is some failure to admit the offenses. believing reason, rational basis for in- that it will For that do not reach the issue scientific, technical, special- or other If challenged statutes violate of whether self-incrimination the trier of against knowledge ized will assist right appellants and Minnesota constitu- or federal fact understand evidence under issue, qual- tions. a fact in a witness determine skill, knowledge, expert by as ified an its dis- court abuse II. Did the district education, may or experience, training, it excluded cretion when testify opinion in the form of thereto testimony? expert witness or otherwise. the district Appellant argues to determine The basic consideration used it exclud its discretion when court abused admit whether Dr. his ed the help the is whether will be ted and conclude agree Phipps-Yonas. Helterbridle, jury. ful to State to a new trial. appellant is entitled (Minn.1980). helpful testi “The admission the sub requirement “[i]f ness met ac mony is within broad discretion *5 ject testimony is within the knowl of the court, rulings ... a [district] corded jury the experience lay of edge if the may [district] be reversed testimony preci of the will not add v. clearly its discretion.” State abused ability depth jury’s or to the to reach sion (Minn.1999) (ci 802, Ritt, 599 N.W.2d 810 added). Even (emphasis Id. conclusions.” omitted); v. also tations see State Gre met, helpfulness requirement the is when (Minn.1997) 189, 569 194 cinger, N.W.2d may the the district court exclude testimo “apparent (stating requires reversal If R. 403. Id. ny based on Minn. Evid. error”). excluding any error such And of is probative the value the subject the harmless-error is of substantially outweighed by danger the Quick, 701, analysis. v. 659 N.W.2d State confusion, prejudice, misleading or unfair (Minn.2003). applying harm 718 jury, testimony may be excluded. test, look to the we “must basis less-error (Minn. Hall, v. 505 State N.W.2d jury on rested verdict and which the 1987). determine what effect error had actually actual If the verdict verdict. to most crimes credi- respect With surely rendered unattributable to bility peculiarly is within of witness error, beyond the error is harmless a rea jury, com- competence of whose Juarez, v. doubt.” State sonable experience mon affords sufficient basis (Minn.1997) (quotation of credibility. for the assessment omitted). words, In other if evidence cases, though expert’s most even an tes- admitted, must had been be satisfied timony may provide the arguably a jury doubt that beyond reasonable information, the potentially with useful
would have reached same verdict. jury may unduly be that the possibility (Minn. Post, 99, 102 State v. 512 N.W.2d expert’s opinion an miti- influenced 1994). possibility If “there a reasonable Nor gates against admission. have might been different verdict witnesses criminal admitted, if the evidence had been then of a trials turn on the outcome battle is” the erroneous exclusion the evidence among experts. not harmless error. Id. 609-10 Myers, State 359 N.W.2d Admissibility expert testimony is (Minn.1984). governed by Minn. R. Evid. 702: In Myers, analysis the'defendant called the child- our is the Myers fact that specifi- complainant’s credibility question by into cally involving held that cases the alleged the child’s as to cross-examining mother sexual assault of child present “one of truthfulness, thereby the child’s “opening those ‘unusual cases’ in which testi- expert’s opinion testimony the door” to the mony concerning credibility of a witness to the as child’s truthfulness. Id. at 611. should be received.” Id. The facts of this The expert’s opinion testimony al- highlight ease the wisdom of the holding in “[h]aving sought lowed because to dis- ... Myers and why demonstrate the admission credit by showing child’s of expert testimony cannot rise or fall (the that the child’s mother ‘ex- ultimate solely, or even primarily, on whether that pert’ respect complainant) with to the did will impact the witness’s credi- months, not believe [the child] several bility. the defendant must said to have waived Here, appellant’s expert witness viewed objection opinion testimony.” to responsive videotaped interviews conducted supreme Id. at 611-12. The court held the social worker. Appellant offered to offer .opinion could scope limit expert’s testimony to complainant’s allegations about minor validity protocol and interview fabricated, sexual abuse were in addi- techniques used during interview and tion to testifying about the behavior indicated the expert witness would not symptoms typically by sexually exhibited directly address the credibility. victims’ abused children. Id. at 606. supreme Specifically, appellant assured the district court stated that an indirect effect of that *6 expert court that the witness testimony testimony complainant’s was to bolster the would be confined to “how the interview credibility. Id. at 609. The supreme process conducted, was taken and ... court experi- reasoned that the common opinions as to what safeguards of generally ence not an represent would put in adequate place for be when interviewing foundation the assessing credibility children, and dangers of a child who sex- what the complains of are if cer- abuse, ual ruled tain expert safeguards place.” and it that the aren’t put in Nota- testimony bly, was admissible. Id. at 610. appeared the state amenable to this “When the victim alleged of a sexual as- testimony, by limited as evidenced its mo- is a mentally sault child or person retarded expert’s tion to exclude or limit the testi- there presented one of those ‘unusual mony. cases’ which expert testimony concern- assurances, Despite these the district ing credibility of a witness re- should be testimony court excluded the of appellant’s Saldana, ceived.” Id. State (citing expert ruling its probative that (Minn.1982)). N.W.2d substantially outweighed by value was some respects, is fac- case danger prejudice. of unfair The district tually Myers. dissimilar to victim by further reasoned that attacking Myers child; here, a young vic- techniques interview used the social preteens tims were at the time of the worker, appellant’s would im- expert have alleged testimony in abuse. The plicitly asserted the children were not
Myers credibility; bolstered the victim’s telling truth. here, the expert testimony have would likely credibility. But Myers undermined victims’ addressed this concern and not, however, do that, deem expert testimony these distinc- held “[m]uch tends tions dispositive. Of more to importance to show that another either witness is or is fact, itself, Myers situation cautioned perts,” truth. That telling the But Myers at 610. testimony against. 359 N.W.2d inadmissi- render
does re- here, principally as it expressed case for caution And at 609. Id. ble.” given lated determinations outside strong admissibility particularly context, where agreed limit the of child-sexual-abuse parties that both jurors experience lay the common of less- testimony to interview protocols expert’s and the lessening impact ens the need techniques, any thus expert opinion risk that concomitant credibility. on the victims’ jury. Id. More- unduly will influence Moreover, under Helterbridle over, here, any among experts” “battle to de- consideration used the basic Myers, respective have been limited their would expert testimony should whether termine protocol opinions about interview —not will is whether be admitted Accordingly, of the victims. we jury. Myers, helpful that the district court abused conclude expert testimony admissi- court found by refusing discretion allow topic helpfulness met the ble because testify. But that does expert witness i.e., the characteristics requirement, analysis our not conclude as we must still are outside sexually abused children excluding the error in determine whether and, average jury’s knowledge scope of appellant’s expert testimony was harmless. therefore, helpful information is such at Myers, the case. deciding consideration, After careful here, Similarly, not harmless. conclude the error was concerning interviewing techniques legal playing chief concern is Our ais but sexually separate abused children level, primarily field was not because the component evaluating integrally related permitted state was to introduce the testi psychological character- the emotional mony social worker who interviewed sexually topic abused children—a istics the standard the victims and discussed knowledge generally that is within interviewing protocol. The end result was *7 Id.; lay jury. of a State v. experience and clearly implied that that the state the vic Morales-Mulato, 679, 744 N.W.2d obtained an ex tims’ statements were (acknowledging pro- (Minn.App.2008) a pert designed and in manner to elicit interviewing reporters for child of tocol a accurate and truthful information from “may expe- within the sexual abuse not be sum, child. In the social worker’s testimo jurors of or from the rience discernable if ny implicitly, directly, bolstered (Minn. itself’), interview review denied who, note, we of victims 2008). Thus, 29, appellant’s proffered Apr. testified, taped but had their inter testimony helpfulness met re- expert jury, played views as well. quirement in that further would have contrary testimony from appel absence of techniques interview of explained proper expert regarding propri lant’s witness victims, (1) thereby aiding sexual-abuse ety technique, of the interviewer’s in our in jury understanding the evidence view, opportunity denied an appellant was presented potentially at trial and add- and, fully ultimately, his defense present credi- ing depth precision jury’s and to the a trial. right fair And while bility determinations. argues state that the social worker was that, had our re The state counters introduced as admitted, us that the testimony the trial would view of the record convinces been expert wit- a ex- social was a de facto among have devolved into “battle worker ness, court, of the label she wore. regardless Here district after reviewing This is out the state’s exhaustive supreme borne relevant precedent, court con- social review of the worker’s educational that permitting cluded training, and that she including credentials Phipps-Yonas Dr. would have turned the degree had a and was master’s considered determination of of the chil- sum, child-welfare scholar. we are dren into battle the experts. See beyond not satisfied a reasonable doubt Ritt, (Minn. 802, State v. 599 N.W.2d that a would have reached the same 1999) (“[The supreme very has been court] appellant’s verdict if expert testimony experts testify reluctant to allow about been admitted. generally jury’s matters are for the susceptible determination and are to cross- respect given broad discretion examination.”). Moreover, the district admissibility the district courts on the permit court appellant to cross- did. testimony under Minn. Evid. R. examine the child-protection worker who record, but on this and accord with ques- interviewed the children about the Myers, probative val- we conclude procedure during tions and she used ue of expert witness’s testimo- interview. ny outweighed any prejudicial effect under Minn. R. Evid. hold that the if Even the district court abused its court abused its discretion refus- by excluding discretion ing appellant’s expert allow witness witness, any the expert such error was
testify. Accordingly, appellant is entitled beyond harmless a reasonable doubt. See to a new trial. Post, (Minn. State v. 512 N.W.2d 1994) (holding reviewing that “the DECISION beyond must be satisfied reasonable The district court abused discretion if doubt that the evidence had been admit when it excluded expert witness testi- ted the damaging potential evi mony by appellant. offered realized, fully (i.e., dence an average jury Reversed remanded. jury) reasonable would have reached (citation omitted)). same verdict” The evi CONNOLLY, Judge (concurring part dence of guilt based dissenting in part). live of three different victims I part concur in I of the decision. How- ages varying between the of 13 17. All ever, I respectfully part dissent from II. I provided three victims consistent testimo *8 would affirm district court’s decision ny, which the believed. exclude the Because the did not abuse
witness. Our standard of review mandates in excluding its discretion deference to the district court’s decision appellant’s expert if it and even where evidence in the record shows did, harmless, any resulting error carefully the district court considered the convictions should be affirmed. issue and an error did make of law. District courts have broad discretion
deciding qualified whether ex
perts received, this determi
nation will be for a reversed clear
abuse of that discretion. State v. Helter
bridle, (Minn.1980).