IN COURT OF APPEALS
Filed April 25, 2006
Hennepin County District Court
File No. 04042057
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public
Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
S Y L L A B U S
1. A critical stage of trial implicating a defendant’s constitutional right to be present does not include the right to be present when a jury reviews videotaped evidence during deliberations.
2. Although an expert may not testify to a witness’s credibility, such testimony is not necessarily prejudicial when the jury could judge for itself the witness’s credibility, utilizing all of the factors on which the expert relied in making a credibility assessment.
3. An out-of-court statement offered in a party-declarant’s favor may be assumed to be offered for its truth unless the proponent identifies a relevant nonhearsay purpose for the statement or unless such a purpose is readily apparent from its nature, content, or context.
4. Evidence that the victim’s sister allegedly had been sexually abused by someone other than the appellant was irrelevant and the court did not err in excluding it on that ground.
5. Appellant has failed to carry his burden of showing that his defense attorney’s failure to make certain objections, “investigate,” and call certain witnesses would have altered the outcome of the case.
O P I N I O N
Appellant challenges his conviction for criminal sexual conduct, arguing that (1) his constitutional right to confrontation was violated; (2) the district court made several errors in its evidentiary rulings; and (3) his counsel was ineffective. Appellant also raises in his pro se brief a separate issue of ineffective assistance of counsel and argues that the evidence was tainted. Because we find no reversible error, we affirm.
Appellant Earl Wembley was convicted of criminal sexual conduct against his 12-year-old daughter.
M.C. had two daughters by Wembley, L.C. and K.C. Wembley, M.C., and the girls lived together for a time, but then M.C. and the girls moved to another residence. Thereafter, both girls occasionally visited Wembley.
In May 2004, when K.C. was 12 years old, she stayed at Wembley’s apartment for a weekend. L.C. did not accompany her on this visit. After that visit, K.C. told L.C. and M.C. that Wembley rubbed her body with lotion, made her watch a pornographic videotape, and sexually touched and penetrated her.
M.C. called the police, and Detective Kent Nielsen investigated. He took K.C. to CornerHouse, a child-advocacy agency, for a forensic interview; arranged for a medical examination; arrested and interviewed Wembley; and searched Wembley’s apartment, where he located the pornographic videotape that K.C. alleged that she watched.
The state charged Wembley with criminal sexual conduct, and he opted for a jury trial. K.C. testified, as did Detective Nielsen and Jodi Lashley, an expert forensic interviewer employed by CornerHouse. K.C.’s interview was videotaped, and the tape was received in evidence as a trial exhibit. During its deliberations, the jury was allowed to view a replaying of the videotaped interview.
The jury found Wembley guilty, and he brings this appeal, alleging constitutional and evidentiary errors and ineffective assistance of counsel.
1. Is a defendant in a criminal case entitled to be present while the jury, during its deliberations, reviews a videotaped statement that was admitted into evidence as an exhibit?
2. Even though an expert witness impermissibly testifies to the credibility of an alleged crime victim, is the testimony unfairly prejudicial when all of the expert’s “assessment criteria” are factors that the jury could observe and discern without expert assistance?
3. When a party offers his own out-of-court statement in his favor and fails to identify a relevant nonhearsay purpose for the statement, may the district court assume that the statement is offered for its truth unless a nonhearsay purpose is otherwise apparent from the nature or content of the statement or its context?
4. Did the district court err in excluding as irrelevant evidence that someone other than the appellant allegedly sexually abused the victim’s sister?
5. Was appellant’s defense counsel ineffective when she failed to object to expert testimony and other evidence, failed to present certain witnesses to testify, and allegedly failed to investigate the allegations against appellant?
1. Wembley’s Absence During Videotape Replay
Shortly after the jury retired to deliberate, it sent a note to the court requesting the videotape of K.C.’s CornerHouse interview. At the court’s direction, the jury returned to the courtroom, and, in the presence of the prosecutor, defense counsel, and Wembley, the court told the jury that the videotape would be played in its entirety in the courtroom and that only the bailiff and the court’s clerk would be present. Wembley did not object to this procedure. The court, counsel, and Wembley left the courtroom, and the jury viewed the entire videotape a single time.
Wembley claims for the first time on appeal that the district court committed reversible error by allowing a replaying of the videotape in his absence and without his waiver of his right to be present at a critical stage of the trial.
Because Wembley did not object to
the court’s procedure for reviewing the videotape, he is presumed to have
waived any alleged error in that procedure.
Wembley presupposes that the jury’s reviewing of the videotape after deliberations had begun was a critical stage of the trial. He cites various cases holding that, after a jury retires to deliberate, communications between judge and jury, requests by the jury to have certain testimony read, questions by the jury, and instructions by the court to the jury are all critical stages of the trial at which a criminal defendant is entitled to be present and as to which he is entitled to be heard. We agree, but there are three crucial distinctions between Wembley’s authorities and the proceedings at issue.
First, the videotape of K.C.’s
statement was not testimony. It was not
under oath. See Minn. Stat. § 595.01 (2004) (to be a “witness,” a person
must give declarations under oath); Minn. R. Evid. 603 (before testifying, a
witness must, by oath or affirmation, declare to testify truthfully). Nor was the statement adversarial in the
sense that it was subject to cross-examination at the time of its making. And the statement was not subject to any of
the rules of the adversarial system. See, e.g., Minn. R. Evid 611(c)
(regulating the use of leading questions).
A principal authority that Wembley cites and quotes is a case from
Second, K.C.’s CornerHouse
statement, as recorded, was offered and received, without objection, as an exhibit at trial. Rule 26.03, subd. 19(1), provides that the
“court shall permit the jury, upon
retiring for deliberation, to take to the jury room exhibits which have been received in evidence . . . except
depositions . . . .”
(Emphasis added.) The mandate
“shall” in the rule implicitly confers on the jury a right to have the use of
exhibits that have been received in evidence.
This is precisely what the supreme court indicated when it considered
the question of whether a deliberating jury in a kidnapping trial was entitled
to view videotapes that had been received in evidence of the defendant
assaulting and engaging in discussions with his victims: “In analyzing this
problem, it is necessary to keep in mind that the jury had a right to view the video tapes since they had been
received into evidence.” State v. Ming Sen Shiue, 326 N.W.2d 648,
But the supreme court has been
reluctant to read the rule as an absolute right, stating that, when applying
the rule to videotapes, “trial courts should exercise caution and
discretion.” Kraushaar, 470 N.W.2d at 515.
The supreme court further indicated that the rule does not mean that the
district court has “unreviewable discretion” in allowing the jury to use such
Wembley’s concern is primarily that he was not allowed to be present while the jury viewed the videotape. That brings us to a third distinction, namely, between the proceedings the court employed preliminarily to the replaying of the tape and the actual playing of the tape for the jury. Wembley surely was entitled to know that the jury had requested a replaying of the tape; he was entitled to be heard as to whether the court would grant the request and, if it did, what procedure would be followed; and he was entitled to be present when the jury returned to the courtroom to hear the judge respond to the request and instruct the jury as to what procedure would be used. He was present for the entire preliminary proceedings, and nothing in the record suggests that he was denied an opportunity to object to the replaying of the tape or to be heard as to the procedure the court proposed to use in the replaying. But bearing in mind that the videotape was an exhibit in the trial which the jury had a right to review to some extent, he was not entitled to be present while the jury performed its function of reviewing that item of evidence any more than he would be entitled to be present when the jury reviewed any other item of evidence. We know of no authority, and Wembley has cited none, that allows any party, or even the court, to supervise or monitor a jury’s review of admitted evidence during its deliberations.
The sense of rule 26.03, subd. 19, in light of pertinent caselaw, is that the district court may reasonably regulate the manner and extent of the jury’s use of a videotape exhibit, but it would be in clear contravention of the rule if no use of the exhibit were permitted at all. Thus, Wembley was not denied his right to be present at and to be heard about a critical stage of the trial.
Wembley also raises a concern about the presence of the bailiff and the judge’s law clerk during the replaying of the video. Consistent with our conclusion that neither the parties nor the district court is entitled to be present when the jury engages in its function of reviewing evidence, court personnel should not be present either. Rule 26.03, subd. 19, does not adequately address the logistics of replaying a nontestimonial recorded statement. But it is inadvisable to have anyone other than jurors present while the jury performs its official function. The potential for extraneous influence from nonjurors exists when nonjurors mix with jurors during evidence review. Wembley has neither argued nor shown that the nonjurors present for the replaying of this tape influenced the jury in any way. And the court was cautious to limit the jury to a single viewing of the tape in its entirety and to instruct the jury to make no comment or engage in any discussion until it returned to the jury room. Absent a comprehensive procedural rule providing for the jury’s right to view the exhibit balanced against safeguards addressing concerns of misuse, undue prejudice, and avoidance of the potential for, or even the appearance of, extraneous influence, the court here selected a reasonable procedure, did not abuse its discretion, and did not commit error in excluding Wembley from the courtroom when the jury viewed the exhibit.
Because videotaped statements of
children who allegedly have suffered sexual abuse have become commonplace in
trials, and because rule 26.03, subd. 19, does not fully address the situation
that arose here, some guidance for future trials might be helpful. At the threshold is the rule that the
child-declarant’s out-of-court statement is hearsay if it is offered to prove
that what the child said was true.
So, there are proper bases for
allowing the jury to hear such statements. The problematic issue arises when the recording is offered and received as an exhibit because that triggers the jury’s
right to view the recording during its deliberations. Ming
Sen Shiue, 326 N.W.2d at 653. There
are at least three approaches through which the statement may be allowed, if it qualifies under the Rules of
Evidence, but the videotape of the statement may be disallowed. First, the videotape of the statement is cumulative
evidence. The jury will have heard the
child’s testimony at trial. It will then
have heard the identical, or substantially similar, statement through the
playing of the videotape during the trial.
If the videotape is an exhibit
in the case, the jury then is entitled to hear the same information a third
time. The court may disallow the
videotape exhibit as “needless
presentation of cumulative evidence.”
The second approach for allowing the
statement but excluding the recording as an exhibit is that the exhibit, when
replayed during deliberations, tends to highlight and isolate one portion of
the trial evidence, thus inviting, perhaps encouraging, undue emphasis on that
The third approach is an application of Minn. R. Evid. 611(a). That rule vests the court with “control over the mode . . . of . . . presenting evidence so as to . . . make the . . . presentation effective for the ascertainment of the truth.” (Emphasis added.) The court may rely on this rule in deciding that the statement is admissible and may be played through the videotape during the trial but the videotape itself will not be received as an exhibit.
We recognize that there might be instances in which an objection relates to the audio or the visual aspect of the recorded statement and that the recording should be received as an exhibit to facilitate meaningful appellate review. But if, as here, there is no objection to the statement in audio-visual form, or if an objection relates to a matter for which the videotape itself need not be preserved for appellate review, courts should be cautious about receiving such videotapes as exhibits, keeping in mind the implications of doing so.
2. Expert Testimony of CornerHouse Interviewer
CornerHouse is a child-advocacy center that, among other things, conducts forensic interviews of children who allegedly have been sexually abused. Jodi Lashley is the training coordinator and an interview specialist at CornerHouse. She has a bachelor’s degree in sociology, a master’s degree in social work, and training and experience in conducting forensic interviews of children in alleged sex-abuse cases. She interviewed K.C., videotaped the interview, and testified at trial about the process and content of the interview. Wembley contends that it was error for the court to allow Lashley to give expert testimony as to K.C.’s credibility.
Drawing on her expertise, Lashley performed two functions respecting K.C.: First, she interviewed K.C., using her expert background and skill to attempt to ensure that the process and content of the interview would be appropriate for and meaningful to K.C., considering K.C.’s age and background. Second, she “assessed” the interview. Lashley testified that in making her “assessment” she evaluated four criteria: (1) content, that is, what the child is able to say about the sex-abuse allegation; (2) consistency, that is, whether the child is consistent in what she says and what she is able to illustrate through the use of anatomical dolls or diagrams; (3) context, that is, “peripheral details which are not just the core things that happen,” such as “[s]ensory details, things they’ve heard or smelled or felt or saw perhaps while abuse was occurring”; and (4) affect, that is, the emotions the child displays during the interview, including considerations of reluctance, spontaneity, and body language. The “assessment” also includes an exploration of “the alternative hypothesis,” that is, a consideration of whether someone else other than the alleged perpetrator committed the abuse.
The purpose of the assessment was to determine K.C.’s credibility, as revealed by Lashley’s answer to the following question by the prosecutor on redirect examination:
Q. And so then when you assess [K.C.’s] interview, that’s also what you did in that case; you simply looked at what [K.C.] told you on June 24th and made a credibility assessment of her statement?
A. That’s correct.
The fundamental rule is that
“assessment of witness credibility is a jury function.” State
v. Reese, 692 N.W.2d 736, 741 (
The Minnesota Supreme Court has
recognized that, in most criminal cases, the credibility of witnesses “is
peculiarly within the competence of the jury, whose common experience affords
sufficient basis for assessment of credibility.” State
v. Myers, 359 N.W.2d 604, 609-10 (
In most cases, even though an expert’s testimony may arguably provide the jury with potentially useful information, the possibility that the jury may be unduly influenced by an expert’s opinion mitigates against admission. Nor should the credibility of witnesses in criminal trials turn on the outcome of a battle among experts.
the fundamental rule and the foregoing explanations in mind, we turn to the
question of whether Lashley’s expert testimony violated the proscription
against expert opinion on credibility to a sufficiently serious degree as to
cause unfair prejudice to Wembley. We
begin by noting that, given the clear
Although there surely is no rule against a forensic interviewer in a child-sex-abuse case forming an opinion about the credibility of the interviewed child, the general, and nearly unexcepted rule, is that the expert may not testify directly or indirectly to that opinion. Lashley did not expressly state her opinion that she found K.C. to be credible. She did not testify that K.C. was telling the truth when she alleged that Wembley sexually molested her, and Lashley did not say that there was no fabrication in K.C.’s statement. But she did explain the criteria she used for assessing K.C.’s credibility, and she testified (1) that K.C. was able to relate the major facts of the molestation incident, thus satisfying the “content” criterion; (2) that K.C. was able to correspond her verbal recounting of the incident with pointing to parts of her own body, portions of the diagrams used, and parts of the anatomical dolls, thus fulfilling the “consistency” criterion; (3) that K.C. was able to relate various sensory details indicative of having actually experienced the sensations she described, thus meeting the “context” criterion; and (4) that, although K.C. exhibited reticence about certain aspects of the incident, she spoke with sufficient spontaneity at other times to support the “affect” criterion. In essence, Lashley, as the forensic interviewer, testified that K.C.’s interview was consistent with all factors making up the credibility assessment. This testimony violated the prohibition against expert opinion as to a witness’s credibility.
But the violation did not unfairly prejudice Wembley. The jury watched the videotape of K.C.’s interview. Lashley did not interpret the videotape for the jury, although she did testify about K.C.’s use of diagrams that was not visible on the tape. That testimony was descriptive of what K.C. pointed to and did not involve Lashley’s opinion or evaluation.
Despite Lashley’s expert testimony about the assessment criteria and K.C.’s satisfaction of the criteria, the jury could judge for itself all of the factors on which Lashley relied in making her assessment. From viewing the videotaped interview, the jury could determine the extent and depth of the content K.C. described. The jury could verify whether K.C. was consistent in her statement and in her connection of her verbal description to the diagrams, the dolls, and her own body. The jury could also decide whether the contextual details K.C. discussed rang sufficiently true to support an inference that K.C. actually experienced the events she described. Moreover, the jury could see and hear K.C. and could assess her affect and her body language. Finally, the jury was able to compare all of what they saw and heard in the videotaped interview with what they saw and heard as K.C. gave her testimony in court during the trial.
Distilled to its essence, Lashley’s expert testimony provided the jury with very little that the jury could not ascertain independently from considering the nonexpert evidence introduced at trial. Lashley’s contribution, other than having employed her expertise to conduct the forensic interview, was to suggest some commonplace factors that any layperson might think of without expert assistance to help in determining whether to believe a witness’s statement about an occurrence. Lashley’s suggestion standing alone does not appear to violate the general rule about expert opinion as to credibility because it contains no opinion about credibility but rather provides an orderly way the jury could use its common experience in deciding a relevant issue. We conclude that there was no plain error in allowing the expert testimony of Jodi Lashley.
3. Cross-Examination of Detective Nielsen
Apparently during either a bench or chambers conference that is not on the record, defense counsel stated that she would cross-examine Detective Nielsen about statements Wembley made during his interrogation. The prosecutor said she would object. Later, on the record, defense counsel said she “wanted to ask Detective Nielsen whether or not Mr. Wembley told him where to find the tape” that K.C. had testified she viewed in Wembley’s bedroom. The prosecutor’s objection was that that statement would be self-serving and hearsay. The court agreed, stating, “Okay. And I have ruled that that is not admissible because it’s self-serving hearsay.”
Wembley challenges the court’s
ruling, arguing that (1) “self-serving” is not a proper basis for an objection
or a judicial ruling excluding evidence and (2) his statement is not hearsay. In support of his argument, Wembley cites State v. Bergeron, 452 N.W.2d 918, 926 (
issue in Bergeron was entirely
different from that raised here. The
defendant was on trial for felony-murder, it being alleged that he stabbed a
homeowner to death during an attempted burglary of the decedent’s home.
On appeal, the supreme court noted
that the common-law rule disqualifying criminal defendants from being competent
witnesses because of their “self-interest” had been abolished by modern
The court’s ruling here was not merely that the evidence would be self-serving but rather would be “self-serving hearsay.” And Wembley contends that the statement would not have been hearsay. He claims on appeal that he “wanted merely to correct the inference left by Nielsen’s testimony: that the only way the police knew about the videotape was by seizing it pursuant to a search warrant.” He contends that his statement thus would have been offered for a purpose other than the truth of its content and, as such, it was not hearsay.
We note preliminarily that he is mistaken in his suggestion that, without his statement, the jury would be left to infer that “the only way the police knew about the videotape” was through the search of Wembley’s apartment. Detective Nielsen listened to K.C.’s CornerHouse interview, and he heard her tell the interviewer that Wembley made her watch a pornographic videotape while they were in the bedroom. The jurors heard K.C.’s testimony about the pornographic videotape at trial, and they heard her statement about it in the recorded CornerHouse interview. The jury also heard Detective Nielsen’s testimony that he observed the CornerHouse interview and that “[d]uring the statement given by [K.C.], she talked about a pornographic video being played during the incident. After seeing that and arresting Mr. Wembley, I wanted to try and obtain that video.” It is clear from the testimony of K.C. and Detective Nielsen that the police were aware of the pornographic videotape before they interrogated Wembley. The jury could not reasonably have inferred that the only way the police knew of the videotape was through the search of the apartment.
But Wembley is correct that a
statement is hearsay only if it is offered “to prove the truth of the matter
At trial, defense counsel did not inform the court of any relevant nonhearsay purpose for the introduction of Wembley’s statement. She told the court only that she wanted to show that Wembley told Detective Nielsen where the videotape could be found. The nonhearsay purpose Wembley now urges on appeal is not readily apparent from defense counsel’s explanation at trial of why she wanted to elicit the statement. And considering the tenuousness of the nonhearsay purpose raised on appeal, as noted in our discussion of the “inference” the statement allegedly would correct, it was reasonable for the court to conclude that the statement was going to be offered for its truth, namely, the location of the videotape. Thus, unless counsel identifies a relevant nonhearsay purpose for an out-of-court statement, or unless such a purpose is readily apparent from its nature, content, or context, it is proper for the court to treat the statement as being offered for its truth.
This was a statement by a party to
the case. A statement by a party is not
hearsay if it is offered against that party.
4. Prior Sexual Abuse of K.C.’s Sister
K.C. and her sister, L.C., lived for a time with their mother, M.C., and Steve Jones, M.C.’s boyfriend. Allegedly, Jones sexually abused L.C., and L.C. told both M.C. and K.C. something about the abuse. Wembley’s theory of defense as stated in his brief on appeal “was that [K.C.] had acquired sexual knowledge through prior sexual abuse of her sister, and possibly of herself, by Steve Jones.” Wembley wanted to testify about a conversation he had with M.C. to illustrate that the abuse of L.C. had been a family topic of conversation and that “might have suggested itself to [M.C.] or [K.C.], or both” that they could get Wembley out of their lives by accusing him of sexually abusing K.C. The court ruled that the information Wembley sought to disclose was irrelevant and more prejudicial than probative. Wembley claims this ruling denied to him the opportunity to present a complete defense.
The district court has wide
discretion in determining the relevancy of evidence. State
v. Schulz, 691 N.W.2d 474, 477 (
But the court did preclude Wembley
from testifying that he wanted to discuss with M.C. the allegations against
Jones so as to acquire more information from M.C. about the alleged sex
abuse. It appears that Wembley wanted to
testify about information he hoped to acquire from M.C. but that he did not
acquire in a conversation with her.
Evidence is relevant if it would make a fact of consequence more likely
or less likely than it would be without the evidence.
5. Ineffective Assistance of Counsel
Wembley contends that his defense counsel ineffectively assisted him when she failed to object to Lashley’s expert testimony. Much of Lashley’s testimony was proper. As we have discussed above, only the credibility assessment was improper and objectionable.
A claim of ineffective assistance of
counsel is established when it is shown that the attorney’s performance fell
below an objective standard of reasonableness and, but for this deficiency,
there is a reasonable probability that the outcome of the case would have been
different. Gates v. State, 398 N.W.2d 558, 561 (
The state contends that defense counsel refrained from objecting to Lashley’s testimony as a matter of strategy. Given the clear, and nearly absolute, rule that an expert witness is not permitted to give an “assessment” of another witness’s credibility, we cannot conceive of any strategic reason for failing to object to Lashley’s “assessment” testimony. But as we have stated above, Lashley provided very little that the jury could not discern for itself from both the videotaped interview and K.C.’s trial testimony. The jury could determine all of the factors that Lashley based her assessment on, and thus it is likely that Lashley’s influence in the trial was minimal. Even had defense counsel objected and succeeded in obtaining the exclusion of Lashley’s improper assessment testimony, very little for jury consideration would have been lost, and we are convinced that the outcome of the case would not have been different. Wembley has failed to establish his claim of ineffective assistance of counsel.
6. Wembley’s Pro Se Issues
Wembley raises two issues in his pro se brief: (1) whether counsel was ineffective by not presenting any of Wembley’s witnesses or by not doing “any form of investigations into the alleged allegations”, and (2) whether counsel allowed tainted, suggestive evidence into trial.
An assignment of error in a brief
based on “mere assertion” and not supported by argument or authority is waived
unless prejudicial error is obvious on mere inspection. State
v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (
Wembley next argues that the state’s witnesses agreed “that a lot of suggestive questions were asked of the victim” and that these witnesses stated “there is a big problem with suggestive questions.” Yet Wembley does not cite any place in the record showing “suggestive” questioning of witnesses. Nor does he show that “but for” the alleged suggestive questioning, the verdict would have been different.
D E C I S I O N
A defendant does not have a constitutional right to be present during jury deliberations when the jury reviewed exhibits submitted into evidence. Therefore, the district court did not commit reversible error when it allowed the jury to replay the videotape exhibit outside of Wembley’s presence. Although an expert may not testify to a witness’s credibility, such testimony is not necessarily prejudicial when the witness has testified and the jury could judge for itself all of the factors on which the expert relied in making a credibility assessment. When a party-declarant offers an out-of-court statement in its favor, it is self-serving hearsay and inadmissible unless counsel identifies a relevant nonhearsay purpose for the statement or unless such a purpose is readily apparent.