IN COURT OF APPEALS
Vusumuzi Keke Zulu,
Affirmed in part, reversed in part, and remanded
Hennepin County District Court
File No. 04010720
Mike Hatch, Attorney
General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
Kassius O. Benson, Special Assistant Public Defender, 2915 Wayzata Boulevard South, Suite 101, Minneapolis, MN 55405 (for appellant)
Considered and decided by Toussaint, Presiding Judge, Stoneburner, Judge, and Huspeni, Judge.*
S Y L L A B U S
1. A defendant may waive the right to have a jury determine the existence of aggravating sentencing factors without waiving the right to testify and confront and cross-examine witnesses.
2. Whether an offense occurred after the effective date of the amendment to Minn. Stat. § 609.342, subd. 2(b) (2002), which increased the presumptive sentence for first-degree criminal sexual conduct from 86 to 144 months, is a factual determination that should be made by a jury unless a defendant validly waives the right to a jury determination.
Appellant challenges his conviction of criminal sexual conduct in the first degree, arguing that the district court abused its discretion by admitting evidence prejudicial to appellant. Appellant also challenges the upward durational sentencing departure imposed by the district court, arguing that (1) his waiver of a jury determination of aggravating sentencing factors was not knowing, intelligent, and voluntary; (2) he did not waive his right to a jury determination of whether the alleged criminal conduct occurred after the effective date of amendments to Minn. Stat. § 609.342, subd. 2(b); and (3) the district court erred by using unproven and uncharged conduct to support the departure.
K.Z., who was born on
Appellant was charged with criminal sexual conduct in the first and third degree. Appellant denied sexually abusing K.Z. and asserted that she is fabricating the allegations due to jealousy over his girlfriend whom he married prior to trial (wife). Prior to trial, appellant moved to exclude the admission of the Cornerhouse interview into evidence as hearsay. The state argued that the interview was admissible as a prior consistent statement, noting that K.Z.’s credibility was at issue and that K.Z. and the interviewer would testify at trial and be available for cross-examination. The motion was denied.
After K.Z. testified at trial, appellant renewed the motion to exclude the statement arguing, in part, that six major inconsistencies in the interview prevented the statement from being a prior “consistent” statement. After reviewing a transcript of the interview, the district court concluded that the statement was “substantially consistent” with K.Z.’s trial testimony, and therefore admissible.
During jury deliberations the jury was allowed, on its request, to view a portion of the interview videotape “where [K.Z.] is describing the room and where the ejaculant is on the carpet.” The jury found appellant guilty as charged.
At a presentence hearing, appellant was questioned by his attorney about his understanding of his rights under Blakely “to have the jury decide beyond a reasonable doubt whether certain potentially aggravating factors have been met in this case.” Appellant stated that he understood and further understood that even if the jury found the existence of aggravating factors, the district court would be responsible for determining the sentence. Appellant was asked by counsel: “And after discussions with me, is it your decision to waive that right to have a jury determine imposition?” Appellant responded: “Yes, it is.”
At the sentencing hearing, the state noted that the presumptive sentence for criminal sexual conduct in the first degree increased from 86 months to 144 months effective August 1, 2000, and asked the district court for a double durational departure to 288 months. Appellant argued against an upward departure and requested a downward dispositional departure, arguing that he is amenable to probation. The district court concluded that the state had proved beyond a reasonable doubt that (1) appellant committed criminal sexual conduct in the first degree both before and after August 2000; (2) appellant had committed multiple acts and multiple types of criminal sexual conduct; (3) appellant had abused a position of authority; and (4) appellant had invaded K.Z.’s zone of privacy. Appellant objected to a departure based on “any other alleged conduct,” and the court replied: “That did not enter into my decision making.” The district court sentenced appellant to 195 months, and this appeal followed.
I. Did the district court abuse its discretion when it admitted the Cornerhouse interview as a prior consistent statement?
II. Was appellant’s Sixth Amendment right to trial by jury violated because he did not waive rights in addition to the right to have a jury determine the existence of aggravating factors or because sentencing was based on a judicial finding that appellant committed criminal sexual conduct in the first degree after August 1, 2000?
I. Admission of Cornerhouse statement
Appellant argues that the district
court abused its discretion by failing to redact K.Z.’s Cornerhouse interview
to eliminate statements that were inconsistent with her trial testimony,
including statements that were in the interview but not testified to at
trial. “Evidentiary rulings rest within
the sound discretion of the trial court and will not be reversed absent a clear
abuse of discretion. On appeal, the
appellant has the burden of establishing that the trial court abused its
discretion and that appellant was thereby prejudiced.” State
v. Amos, 658 N.W.2d 201, 203 (
An out-of-court statement is not
hearsay, and is admissible as substantive evidence if (1) the declarant
testifies at the trial or hearing; (2) the declarant is subject to cross-examination
concerning the statement; (3) the statement is consistent with the declarant’s
testimony; and (4) the statement is helpful to the trier of fact in evaluating
the declarant’s credibility as a witness.
In this case, appellant alleged six specific inconsistencies between K.Z.’s trial testimony and the videotaped interview. The district court did not specifically address any of the alleged inconsistencies but found the interview “substantially consistent” with K.Z.’s trial testimony. We agree. The first alleged major inconsistency concerned who was present when K.Z. reported the abuse to her mother. At trial, K.Z. and her mother testified that K.Z. first mentioned the sexual abuse at a family meeting, whereupon K.Z.’s mother took her to the bedroom to continue the discussion in private. In the Cornerhouse interview, K.Z. stated that the other family members were present when she told her mother about the abuse. The district court did not abuse its discretion by concluding that this inconsistency was not substantial.
Appellant next points to a statement that K.Z. made at Cornerhouse, but did not testify to at trial, that wife found pages from K.Z.’s journal describing the abuse, that appellant told wife that K.Z. wrote the entry to get attention, and that appellant told K.Z. not to write about the abuse again. But K.Z. testified at trial that she had written in her journal about the abuse, had torn out the entry and placed it in a box, and did not know what happened to it. Wife testified that she had found the entry, which indicated that K.Z. was sexually active but did not indicate she was having sex with appellant, and gave it to appellant. And appellant testified that when he was given the entry he discussed it with K.Z. and expressed concern that she might be engaging in sexual intercourse. Again we conclude that the district court did not abuse its discretion by finding this discrepancy between K.Z.’s trial testimony and interview was not substantial.
In the Cornerhouse interview, K.Z. stated that appellant’s wife may have seen appellant with his pants down while K.Z was on the couch, but that K.Z. was not sure because the lights were off and wife acted as if she had not seen anything. K.Z. did not testify about this at trial. We conclude that this omission does not constitute an inconsistency because K.Z. never asserted that wife actually witnessed anything.
At Cornerhouse, K.Z. described an incident as having occurred at the “Orange Apartment” and in her trial testimony described the incident as having occurred at the home of appellant’s parents. Again, given the time over which the abuse occurred and the multiple locations involved, we conclude that the district court did not abuse its discretion by concluding that this inconsistency was not substantial.
The fifth and sixth inconsistencies that appellant alleges involve statements made at trial about people who may have been present during instances of abuse that K.Z. did not make in the Cornerhouse interview. Even if these omissions could be considered “inconsistent” with trial testimony, they were not substantial and the district court did not abuse its discretion by so finding.
On appeal, appellant argues for the first time that although K.Z. used a diagram at Cornerhouse to point out where appellant’s semen might be on a floor, she did not specifically point to such a location during her trial testimony. But, at trial, K.Z. indicated where the incident that led to appellant’s ejaculation on the carpet occurred by pointing a laser pointer at an exhibit showing the room in question. This was reasonably consistent with K.Z.’s Cornerhouse statement.
K.Z. was subject to cross-examination about the Cornerhouse statement, and appellant was allowed to argue all inconsistencies to the jury. We conclude that the district court did not abuse its discretion in admitting the Cornerhouse interview. Because there was no abuse of discretion, we need not address the issue of prejudice.
In this case, appellant’s right to a
jury determination of aggravating sentencing factors established in Blakely v. Washington, 542 U.S. 296,
303, 124 S. Ct. 2531, 2537 (2004), and applied to the Minnesota Sentencing
Guidelines in State v. Shattuck, 704
N.W.2d 131, 141-42 (Minn. 2005), was recognized. Appellant was offered the opportunity to have
a jury determine the existence of five aggravating factors identified by the
state as having been established during the trial. Appellant, on the record, indicated he
understood and waived the right to a jury determination of the existence of
those factors. The case law establishing
that in order for waiver of a jury trial to be knowing, voluntary, and
intelligent, the defendant must specifically waive the right to testify, to
have the witnesses testify in open court in the defendant’s presence, to
cross-examine the witnesses, and to require any favorable witnesses to testify
applies only when a defendant is agreeing to a court determination of
aggravating factors based on stipulated facts.
State v. Thompson, 694 N.W.2d
117, 122 (Minn. App. 2005) (citing State
v. Halseth, 653 N.W.2d 782, 785 (Minn. App. 2002), review granted (
Appellant also challenges the
judicial finding that he committed criminal sexual conduct in the first degree
Before appellant waived jury consideration of aggravating factors, the state had identified the five factors on which it was seeking departure, but the amendment to Minn. Stat. § 609.342, subd. 2(b), was not brought to the attention of the district court or defendant until the day of sentencing, after appellant had waived jury consideration of the identified aggravating factors. Although appellant did not request a jury instruction addressing this issue, the issue was not relevant until appellant was convicted. To have asked that the trial jury determine the date he committed offenses that he denied committing would have been contrary to and prejudicial to his theory of defense. Although there may be situations in which a failure to request such an instruction at trial may be considered a waiver, this is not such a situation.
Furthermore, because the state did not raise the issue of the application of the increased penalty until after appellant had waived a jury determination on the identified aggravating factors, we conclude that appellant did not make a knowing, intelligent, and
voluntary waiver of the right to have a jury determine whether he committed first-degree criminal sexual conduct after the effective date of the amendment to the statute. Because appellant was never informed of his right to have a jury determination of this issue, we further conclude that his failure to object at sentencing to the district court’s determination of the issue did not constitute a valid waiver. We hold that, in this case, the failure to have a jury determine the issue absent a valid waiver of the right to a jury determination was plain error. We therefore reverse the sentence imposed and remand for resentencing consistent with appellant’s right to a jury determination of whether appellant committed first-degree criminal sexual conduct after August 1, 2000, the effective date of the amendment to Minn. Stat. § 609.342, subd. 2(b). On remand, appellant may choose to waive jury consideration of this issue and may agree to have the issue determined on stipulated facts, but if so, the district court must take care to ensure a full record on each right appellant waives in connection with this determination.
D E C I S I O N
The district court did not abuse its discretion in admitting a videotape of the victim’s Cornerhouse interview that was substantially consistent with her trial testimony. Appellant validly waived his right to have a jury determine the existence of five aggravating factors identified by the state prior to the waiver. Unless he validly waives the right, appellant is entitled to a jury determination of whether he committed first-
criminal sexual conduct after
Affirmed in part, reversed in part, and remanded.
Dated: December 20, 2005
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Effective August 1, 2000, the