*1 Minnesota, Respondent, STATE POOLE,
James Robinson
Petitioner, Appellant.
No. C3-91-1963.
Supreme of Minnesota. Court 23, 1993.
April
32 Kurzman, Minneapolis, ap-
Marc G. pellant. III, Gen., Humphrey, Atty.
Hubert H. Theisen, Gen., Mary Special Asst. Atty. J. Paul, St. for respondent.
Heard, considered, and decided court en banc.
COYNE, Justice. n In its decision the court of affirmed convictions of defen- dant, Poole, M.D., Dr. James Robinson violating l(k) subdivision of Minn.Stat. 609.344 609.3451but reduced defen- aggregate dant’s from sentence (six terms) (three consecutive terms). consecutive (Minn.App.1992). granted N.W.2d 537 We separate petitions for review filed defen- Concluding dant and the state. that defen- dant received a fair trial and was question convicted the offenses the court of did err in reducing aggregate sentence years, we affirm. Dr. Poole practice received his license to medicine Minnesota in 1968. In 1971 Wheaton, Minnesota, defendant moved to opened practice where he a family and gynecological included obstetrical care. January of 1990 one complained to the Minnesota Board of Med- regarding ical Examiners examina- tion defendant. The Board representation 1. The statutes make it [pen- criminal sexual conduct means of false accomplish (section penetration sexual or contact] 609.- etration is for a bona fide medical 344) (section 609.345) "by purpose by professional.” sexual contact care health ed, usually takes to 3 minutes and that the Minnesota Bureau Crimi- contacted began an investi- no bona fide medical reason for Apprehension, which nal filing fingers move of 17 doctor to in and out resulted gation that vagina during such an sexual conduct examination. of criminal counts *3 Similarly, expert testimony degree. A district court there that fourth third or 16 of those there is no bona fide medical reason for a guilty defendant jury found patient’s during de- doctor to a clitoris a The 16 counts were based on rub counts. typical pelvic exam. misconduct toward different fendant’s the 1987 effective female between The three women who saw defendant for l(k) 609.344, subd. Minn.Stat. date of experiences. care had similar obstetrical l(k), 609.345, 1990. and and subd. of them testified that after became One she gave her he pregnant, were adoles- defendant told that complainants, Of the monthly a pelvic to his patients who saw defendant exams basis cent female remaining “stretching” used a The obstetrical and for birth control services. episio- need complainants procedure who saw to obviate the for an were adult women vulva) during tomy (cutting of the child for care. defendant obstetrical procedure plac- birth that involved de- young the women who saw Most of the ing vagina. his entire fist inside This ex- fendant received several during a different doctor the patient saw Typically, from him. defendant aminations pregnancy. her remainder of The other room and locked entered the examination women, testified that defen- two in- him. then the door behind actually technique used the on them. patient to He re- structed the undress. also that These women testified defendant patient in the room alone with mained their clitorises with his thumb dur- rubbed he patient undressed and custom- while the ing the examinations. arily gown a or sheet with did not offer the tech- experts familiar with patient could cover herself. Or- Several which the that were unfamiliar patient during nique naked testified dinarily, the remained inserting for any reason fist examination. medical the entire vagina part as of the so-called into the indi- young The of the women procedure, is massage perineal typically com- cates that defendant procedure stretching some for the name menced his examination with breast use. obstetricians exam, proceeded pelvic to perform then During part exam. the bi-manual Although contended placed gloved pelvic two exam that statute which he trial fingers vagina. patient’s in the Each violating is unconstitu convicted complainants for argument who saw defendant tionally vague, the thrust during purposes that birth control testified (as appeals) as the court of here well part only the bi-manual of the exam defendant apply was meant the statute fingers in repeatedly moved his and out licensed impostors, health care In numer- vagina her for 10 to minutes. he and that since professionals, health care used ous of these instances defendant also must physician, his convictions a licensed patient’s to stimulate the clitoris. is no outright thumb because reversed complainants Three of the testified the stat his conduct violated evidence experience legisla orgasm them to an this caused Defendant contends ute. argument as to supports the examination. At the conclusion history tive re- of the examination defendant often intent. legislative patient while the mained room prompted event that appears that the It dressed. well-publicized legislative action was Attorney’s Williams, Ramsey County Dr. Preston obstetrical and decision of the a man walked prosecute who gynecological practitioner University not to at the Office doctor, posing as a hospital and Hospitals, an into a of Minnesota testified that examinations” examination, “gynecological entire conduct- 318, patients. Hearing Complete patient on H.F. H. Jud. files of all females with Comm., Minn.Leg., 1, dates of birth January 75th March between January tape). 1978 who saw (transcript of audio It does not fol- Dr. Poole January low, however, present 1987 to the legislature services; any family practice kind in- intend to make conduct like defendant’s cluding any type family planning criminal as well. consultation, and/or birth control treat- event, said, as Justice Holmes ment, interviews, requests, services let in intent not to find out what the “[Y]ou provisions; whether family planning speaker meant but he said.”2 If the what and/or part birth control services were a ambiguous, proper it statute were would be appointment or the sole reason *4 history any legislative look to to find out appointment. the legislature the the what said. But statute Acting pursuant warrants, to these BCA ambiguous: clearly deal is it we with not agents seized the patients records of 58 applies any penetration act of sexual from defendant’s office. accomplished by contact means of a false representation that it is for a fide bona argues that these war put purpose. way, medical To it another rants were too sup broad and were not nothing is there in the statute itself ported by probable cause. recog We have suggest the “false representation” degree nized that flexibility there is a of language relates to actor’s the status rath- particularity the requirement. In State v. purpose er than to the actor’s in accom- Hannuksela, (Minn. plishing penetration the or contact. The 1990), we commented that “A warrant effect on the victim is not lessened the things which describes in generic broad or representation fact that the false may terms ‘when description valid the professional; fact, licensed health care in specific as as the circumstances and nature may exacerbate the harm. activity investigation per under ” [Quoting mit.’ United States v. Santar reject any We also contention that elli, (11th Cir.1985) 778 F.2d In ]. the statute is unconstitutionally vague ei this of activity the nature under ther on applied its face or as to defendant’s investigation permit investigative conduct. complete knowledge authorities even Since there is no merit to defendant’s supporting total number victims. The contention that his convictions should be affidavits for the warrants detailed com outright, reversed we address defendant’s plaints from several of patients arguments several support in of his conten- describing position his use as a doc tion that he was denied a fair trial and long ago tor as as 1980 to commit sexual given therefore should be a new trial. assault the course of exams. Because the examinations were The most troubling arguments of these very personal nature, sensitive and it relates to the two search warrants obtained highly unlikely seems all victims agents BCA and executed at defen- report would defendant’s conduct on their dant’s clinic. The first of these warrants own initiative. Given the “nature of the authorized the search for and seizure of activity investigation,” under we conclude “[p]atient lists, registers, or writings, other that the sufficiently specif warrants were which identify female of Dr. Poole Moreover, reject ic. we defendant’s con who would have been at least tention that sup warrants were not age at the time Dr. visited ported by probable cause. including patient’s name, birth, date of phone number.” address The second Our concern is not the violation of warrant authorized the search for defendant, and sei- any privacy rights of because zure of: support the record does not such a conten- Holmes, Jr., 2. 1 O.W. Legal Interpretation, Holmes-Pollock Letters 12 Harv.L.Rev. 417 (1941). Holmes, Jr., Theory (1899). See also O.W. The argues that pa- the witnesses were concerned that tion, are but we give opinion testimony allowed to to the doc- incident privacy interests tients’ legal of a conclusion on the ultimate potentially form sub- relationship are tor-patient jury. ob- issue Defendant neither any searches of time ject to invasion jected at trial to the case are conducted. in this type authorized did he raise the issue in the course, ground nor not, of have does The defendant Furthermore, appeals. any determination standing to benefit expert opinion testimony presented privacy interests event, any without the aid same issue. proce- unreasonably by the invaded were expert testimony jury here would fact, does That dures used. way knowing had have no whether concern. is not cause for that there mean purpose” fide medical for de- “bona appropriate occasion This is not an conduct, accordingly the evi- fendant’s safeguards articulating detail the clearly rather admitted dence personnel and law enforcement which Rules pursuant to the Minnesota of Evi- seeking and au- consider courts should dence, particularly view of Rule in case of this thorizing warrants search provides in fact effect mere analogous A list of in an context. kind or *5 expert testimony embraces an that ultimate however, in- might, consider safeguards to objec- testimony not render the issue does by high a level centralized review clude: tionable. of prosecutor officer or law enforcement officials by against law enforcement defen decision Evidence admitted investigation likely to involve included other-crime evidence conduct dant rights of privacy innocent his second cousin testimony invasion form feasible, initial use of in parties; third where she was a visitor that while old, techniques (e.g., 1979, years investigative less intrusive in she was 14 home when by magis- review subpoenas3); (1) careful her, re applications for warrants autho- at her mother’s
trates of
on
examination
likely
privacy
rizing
searches
to intrude
the examination made
quest, and
emphasis
rights
parties;
profession
of innocent third
of a lack of
indicative
comments
detachment;
(2)
describing
day,
in
the material
particularity
on the next
al
and
finally,
procedure
sought;
use of a
in
back
they
passengers
and
were
while
automobile,
digitally
are
whereby papers and records seized
of an
seat
in
years
and then
in camera
sealed
reviewed
her.
later
penetrated
Several
conversation,
issuing judge
eye
protecting
with an
the defen
telephone
recorded
parties
privacy interests of innocent third
act
that
it was
admitted the
and
dant
are
given
only trying
before law enforcement officials
wrong but said he
generally,
“pleasure.”
access to the items seized.
“give”
See
her
Chananie,
R.
Steven
Criminal
Goldstock &
com
that defendant
The evidence
Lawyers: The Use Electronic Surveil-
con
clear and
prior offense was
mitted the
lance and
Warrants in the Inves-
Search
to the
vincing;
was relevant
the evidence
tigation
Attorneys
and Prosecution of
motive,
proba
and
and
its
issue
intent
Suspected
Wrongdoing, 136
Criminal
outweighed by
poten
its
tive value was not
(1988);
LaFave,
2
U.Pa.L.Rev. 1855
W.
prejudice.
v.
creating
unfair
State
tial
4.1(g) (2d
1987).
ed.
Search and Seizure §
(Minn.1992).
Frisinger,
It
484 N.W.2d
complains
a number
also
about the
is true that the incident occurred
charged
expert opinion
the date
trial court’s admission
before
offenses,
indicate that
that the described conduct in the
but our cases
prior
and the
interval
offense
examination of
serve
between
charged
only
bearing
one factor
purpose.’’ Specifically,
“bona fide medical
offense is
Johnson,
police
subpoena
search
3.
should use
rather than
See O’Connor
fendant and had no about his TOMUANOVICH, (concurring Justice presenting conduct. After testimony, part part). dissenting *6 proof regard- defendant made an offer of agree I majority with the that the statute ing testimony remaining lay wit- prohibits the behavior of Dr. Poole prepared nesses. Several witnesses were believe, I proper. conviction was do not testify to regarding perineal massage appeals that the court of reduc- defendant had on them. Addi- tion of the sentence from 18 to prepared testify tional witnesses were to appropriate. was about examinations made defen- may A defendant not sentenced con- dant; one would have testified that defen- secutively unfairly exagger- if the sentence during an cyst discovered ovarian See, criminality ates the conduct. procedure. Finally, defendant offered to Norton, 146-47 present evidence from who had (Minn.1982). 18-year Dr. Poole’s sentence gowns him, received arguing unfairly exaggerate criminality state’s evidence of his conduct in that re- Rather, of his conduct. I believe spect proof amounted to of habit which he appeals court reduction the sentence was entitled to rebut. The trial court ex- criminality to 12 minimizes cluded the testimony these additional pro- his conduct. Under the banner of his witnesses. fession, young Dr. Poole used these women appeals The court of affirmed the trial appeared toys. as sexual He to feel that it proffered court’s exclusion of the testimo sexually upon him initi- was incumbent to ny, holding that there “no was abuse of deplorable young This ate these women. evidentiary rulings.” discretion these conduct. (Minn. State v. N.W.2d App.1992). agree. position judge We The evidence was The trial the best was permit criminality cumulative because defendant was to the conduct. evaluate explain judge ted to trial sat own conduct when he It was the who stand, permitted took defen- present to the trial. He observed the witness, dant, expert evidence from and was he observed victims and their present allowed to seven families and was better able than the court patients, former six of whom to determine the sentence. testified sentence, the court of reducing the the sentence compare decided felony mur- sentence presumptive made, to be comparisons are If such der. compare appropriate more seem
it would felony murders. to one for 16
the sentence incident, victim one not a one
This be evaluated A sentence should
crime. the crime or the nature of
relation com- in each individual
crimes for some other to the sentence
paring it crime.
unrelated 18-year sentence. reinstate the
I would DUNN, Appellant, Virginia
Lillian Minnesota, Respondent.
STATE
No. C0-92-1669.
Supreme of Minnesota. Court
April 30, 1993. Stuart, Defender, M.
John State Public Maki, Susan K. Asst. State Defend- Public er, Minneapolis, appellant. Dunn, pro
Lillian se. V.