State v. JordanState v. Jordan
- Reporters:
- , ,
- Before:
- Wozniak
SPECIAL TERM OPINION
WOZNIAK, Chief Judge.FACTS
Appellant/petitioner Robert Jordan is charged with two counts of first-degree criminal sexual conduct,
Jordan has not submitted a transcript of the omnibus hearing, nor a copy of the recantation statement. The complaint alleges Jordan, who lived with L.C.’s mother, engaged in sexual penetration with L.C.,
According to police reports, L.C. reported the sexual acts to her mother on February 26, 1988, but had previously confided some details to a babysitter and a girlfriend. L.C.’s aunt also talked with the girl after L.C.’s report to her mother.
After his arrest, Jordan talked with the investigating police officer, and made some statements which, as reported and summarized by the officer, admitted the offense. Jordan contests the report of a “confession,” claiming the comments, which were not recorded, were taken out of context. Jordan contends L.C.’s mother testified at the omnibus hearing that he did not admit the abuse to her, contrary to her statement to police. He also claims the sexual assault exam showed no physical evidence of sexual abuse.
DECISION
The trial court’s rulings on the presentation of “recanting” testimony and on probable cause are, as are nearly all pretrial orders, not appealable as of right by the defendant.
The probable cause hearing is designed to determine whether it is “fair and reasonable ... to require the defendant to stand trial.” State v. Florence, 306 Minn. 442, 457, 239 N.W.2d 892, 902 (1976). However, the concern that “innocent persons can be forced to undergo expensive and demeaning trials,” id, 306 Minn. at 458, 239 N.W. 2d at 902, does not imply what if any role there is for appellate review of such decisions. The supreme court has established a procedure for determining whether a “recanting” victim should be called as an exonerating witness at the omnibus hearing without implying a right of appellate review. State v. Rud, 359 N.W.2d 573, 579 (Minn.1984).
Jordan has not shown a compelling reason for this court to grant discretionary review.
See
Minn.R.Civ.App.P. 105.01. As the trial court noted, L.C. made statements to several witnesses the state could call at trial, all of which corroborated her initial report of sexual abuse. Police reports submitted to this court by the state indicate that the state can also present evidence of statements made by Jordan which could be characterized as a confession. Whatever the ultimate strength of this evidence at trial, this record does not indicate such an abuse of discretion in applying
State v. Rud
that this court should extend discretionary review. Neither is there the showing required for a writ of prohibition.
See State v. Hagen,
342 N.W.2d 160,161 (Minn.Ct.App.1984). Jordan does not contend the trial court did not consider L.C.’s recantation statement as the defense offer of proof mandated by
Rud,
353 N.W.2d at
It is the responsibility of the party seeking discretionary review to provide the appellate court with a record adequate for that determination. While the rule requires only a statement of facts in the petition, Minn.R.Civ.App.P. 105.02, some cases may require more.
See
Minn.R.Civ. App.P. 120.01 (petition for writ of prohibition should include relevant trial court documents “[i]f necessary to an understanding of the issues”). Jordan requested a transcript of the omnibus hearing, to which he was entitled by
It is not the practice of this court to obtain the trial court file in order to consider a petition for discretionary review, nor is there a procedure for doing so. We note there is no indication in this record of a stay of further proceedings in the trial court. Jordan’s appeal, which was from a nonappealable order, is not sufficient to cause a timely transmittal of the record for a decision on the petition.
See
Minn.R.Civ. App.P. 111.01;
Appeal dismissed.
Petition for discretionary review denied.
Petition for writ of prohibition denied.