This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Rodney Robert Rosengartner,
Filed March 27, 2001
Gregory D. Larson, Hubbard County Attorney, Courthouse, Second Floor, Post Office Box 486, Park Rapids, MN 56470 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Poritsky, Judge.*
U N P U B L I S H E D O P I N I O N
SCHUMACHER, ROBERT H., Judge
A jury found appellant Rodney Robert Rosengartner guilty of second-degree (intentional) murder in violation of Minn. Stat. § 609.19, subd. 1(1) (1998) and second-degree (felony) murder in violation of Minn. Stat. § 609.19, subd. 2(1) (1998) in the death of his wife Laura Rosengartner. The court sentenced Rosengartner on the second-degree felony murder count to a prison term of 402 months (33.5 years), to be served consecutive to a 35-year Texas sentence. Rosengartner claims the trial court erred by (1) denying his motion for a mistrial; (2) admitting in evidence a written confession; (3) admitting evidence of previous domestic assaults; (4) allowing evidence of five prior felony convictions for impeachment purposes; and (5) sentencing him to an upward departure and making the sentences consecutive. We affirm.
Rosengartner and his wife lived with his wife's two daughters, M.E. and C.R. in Park Rapids, Minnesota. On the evening of November 6, 1996, Rosengartner and his wife were seen together drinking and arguing at two local bars near Park Rapids. They were seen leaving a bar together at 11:00 or 11:30 p.m. Rosengartner returned home alone between 1:00 and 2:00 a.m. the next morning. He told M.E. that he and her mother were playing bingo and her mother went into the restroom and never returned.
On November 7, 1996, Rosengartner left M.E. and C.R. with a friend and on November 9 went to his mother's house in Nebraska. Laura Rosengartner's purse and blood-stained jacket were found in a dumpster in Park Rapids on November 13. Bureau of Criminal Apprehension Special Agent Brad Barker and Hubbard County Sheriff Gary Mills were dispatched to South Sioux City, Nebraska to interview Rosengartner. During the interview, Rosengartner denied responsibility for his wife's disappearance.
Laura Rosengartner's partially decomposed body was found near Park Rapids on April 28, 1997. About the same time, Rosengartner left Nebraska and went to Texas. Barker traveled to Texas to interview Rosengartner again on August 6, 1997 and January 27, 1998. Rosengartner claimed on both occasions he did not remember what happened to his wife.
Texas Detectives Gary Sweet and Bill Brown interviewed Rosengartner in the Dallas County Jail on November 11, 1998, where he was in custody on another charge. Rosengartner at that time confessed to killing his wife. He told the detectives that when he and his wife were out drinking they argued because his wife wanted to buy some heroin and he did not. Rosengartner said his wife became angry with him and started hitting him while they were parked in a car in front of their apartment. Rosengartner said he just "went off and choked her until she died." He told the detectives he went to a wooded area and dumped her body. He reduced this confession to writing in his own handwriting. In the confession, Rosen wrote the words, "I done couck [sic] Laura. She was dead." The detective asked him what the word "couck" meant and Rosengartner replied the word should have been "choked." Rosengartner testified at trial that he did not mean to kill his wife but "just snapped."
D E C I S I O N
1. Rosengartner claims the trial court erred by denying his motion for a mistrial when a prosecution witness, who was a friend of Laura Rosengartner, testified that Rosengartner had molested M.E. The evidence of the alleged molestation was ruled inadmissible before trial. M.E.'s testimony did not mention the alleged molestation. The prosecutor had asked, "Did you find out – did you ask [M.E.] anything else or did she tell you anything else?" The witness responded,
Yeah. I asked her how things were going and how she got to school. She said that Rodney had brought them. She told me that Rodney had molested her.
Rosengartner moved for a mistrial. The trial court denied the motion. The court gave the jury a cautionary instruction, but not in the form Rosengartner requested.
The standard of review for denial of a motion for mistrial is abuse of discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998). If a witness testifies to information the court has ordered excluded, the error is not prejudicial if the reference is in passing and the jury did not use the information against the defendant. State v. Ebert, 346 N.W.2d 350, 351 (Minn. 1984). Here, the prosecutor expressed surprise at the witness's response and said it was not intentionally elicited. Although the prosecutor asked an open-ended question, the record does not support the claim that it was a deliberate attempt to elicit testimony about the alleged molestation. The witness's testimony was the only reference to the alleged molestation by anyone at any time during the trial.
Any prejudicial effect caused by the witness's statement was minimized by the court's cautionary instruction. The general rule is that an error caused by erroneously admitted evidence is cured when the evidence is stricken from the record and accompanied by a clear instruction to the jury to disregard the evidence. State v. Bergland, 290 Minn. 249, 254, 187 N.W.2d 622, 626 (Minn. 1971). The court will grant a new trial only if the evidence is so prejudicial that withdrawing it from the jury cannot remove its harmful effects. Id. Here, the jury was instructed not to consider the allegation as evidence of Rosengartner's character or conduct. Because the witness's reference to the alleged molestation was brief and in passing and the court gave an appropriate cautionary instruction, the trial court did not abuse its discretion in denying Rosengartner's motion for a mistrial.
Rosengartner also claims he was prejudiced by the trial court's failure to use the cautionary instruction he requested. The trial court has "'considerable latitude' in selecting the language for jury instructions." State v. Auchampach, 540 N.W.2d 808, 816 (Minn. 1995) (quoting Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986)). "A refusal to give a requested jury instruction in a criminal case lies within the broad discretion of the trial court." Auchampach, 540 N.W.2d at 816 (citing State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985)). Rosengartner asked the court to instruct the jury that the Hubbard county attorney dismissed the sexual misconduct allegations for lack of evidence. The prosecutor argued such an instruction would be factually inaccurate because the county attorney did not pursue the allegations as part of an overall plea bargain and not for lack of evidence. The trial court did not abuse its discretion in selecting the jury instruction language.
2. Rosengartner claims the trial court erred by admitting his November 11, 1998 confession into evidence because it was not electronically recorded. He further argues that it was secured by false promises and therefore involuntary.
Minnesota law requires that a custodial interrogation be recorded when the questioning occurs at a place of detention. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994). The rationale behind the recording requirement is to avoid factual disputes when a claim is made that the accused's constitutional rights were violated. In the absence of such factual disputes, the recording requirement serves no purpose. State v. Williams, 535 N.W.2d 277, 289 (Minn. 1995). A confession is suppressed under Scales only when there is a "substantial" violation. Scales, 518 N.W.2d at 592. Factors to be considered by the court include the extent of deviation from lawful conduct, the willfulness of the violation, the extent to which the violation would lead the defendant to misunderstand his legal rights, the extent to which exclusion of the statement will prevent other violations, and the extent to which the violation influenced the defendant's decision to make the statement. Id. at 593 n.5.
Rosengartner was interviewed while in custody in the Dallas County jail on separate charges. Detective Sweet from Dallas testified that Rosengartner appeared confident, with a high level of understanding, intelligence in legal matters, and in good physical condition. Rosengartner himself testified that Sweet read him his Miranda rights from a written form, and he then signed the form. Rosengartner further testified that he wrote and signed the confession. We conclude that because there were no factual disputes concerning whether Rosengartner's constitutional rights were violated, any violation of the Scales recording requirement was not substantial. We note that the Dallas police officers were not aware of the recording requirement and did not willfully violate Minnesota law. The record before us indicates that Rosengartner appeared to understand his rights before giving his confession.
Rosengartner further claims his confession was involuntary because it was coerced by Detective Sweet's false promises that "his sentences would be served concurrently." The voluntariness of a confession is reviewed de novo as a question of law based on "all factual findings that are not clearly erroneous." State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999) (quoting State v. Anderson, 396 N.W.2d 564, 565 (Minn. 1986)), cert. denied, 120 S. Ct. 1184 (2000). The voluntariness of a statement or confession depends on the totality of the circumstances. Ritt, 599 N.W.2d at 808. The officer's actions must be
so coercive, so manipulative, so overpowering that [the defendant] was deprived of his ability to make an unconstrained and wholly autonomous decision to speak as he did.
State v. Pilcher, 472 N.W.2d 327, 333 (Minn. 1991). Relevant factors to be considered include the defendant's age, maturity, intelligence, education, experience, and ability to comprehend; the lack or adequacy of warnings; the length and legality of the detention; the nature of the interrogation; and whether the defendant was deprived of physical needs or denied access to friends. Id.
There is no evidence of coerciveness or manipulation in the detectives' conduct. Rosengartner made no claim that he was threatened or physically intimidated. The detectives interviewed Rosengartner for a short time in the mid-afternoon. Rosengartner had experience in the criminal justice system. He was read his Miranda rights, which he waived, and he wrote and signed a statement 25 minutes after the Miranda warning was given. While Rosengartner claims Sweet promised his sentences would run concurrently if he confessed, Sweet testified he did not make that promise. Even if Sweet did make that statement, "[c]ourts do not mechanically hold confessions involuntary just because a promise has been involved." State v. Thaggard, 527 N.W.2d 804, 811 (Minn. 1995) (citation omitted) (finding defendant's statement was not involuntary where police officer allegedly made promises of drug treatment and implied defendant would not be prosecuted for rape). The courts look to the totality of the circumstances, considering all the factors bearing upon voluntariness. Id. The record here does not support a showing that the detectives' conduct was coercive, manipulative or so overpowering as to overcome Rosengartner's will or ability to make decisions. The trial court did not err in finding that Rosengartner's confession was voluntary.
3. Rosengartner claims the trial court erred by admitting Spreigl evidence of an assault on his previous wife and relationship evidence that he assaulted the victim four months before her death.
Evidence of past crimes, wrongs or acts is inadmissible to prove an individual's character or that the individual acted in conformity therewith. Minn. R. Evid. 404(b); State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999). "[E]vidence of prior bad acts and previously committed crimes is commonly known as Spreigl evidence." State v. Moorman, 505 N.W.2d 593, 601 (Minn. 1993). Spreigl evidence may be admitted in a criminal prosecution if the trial court determines the evidence is clear and convincing that the defendant participated in the conduct alleged, the evidence is relevant and material to the state's case, and the probative value of the evidence outweighs any potential prejudicial effect. State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998). The evidence may be admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." Minn. R. Evid. 404(b); State v. DeWald, 464 N.W.2d 500, 502-03 (Minn. 1991). The decision to admit prior bad acts evidence rests within the sound discretion of the trial court and will not be reversed absent a clear abuse of that discretion. Dewald, 464 N.W.2d at 503.
Rosengartner's ex-wife testified that he abused her four or five times during the marriage. Rosengartner claims the evidence was not relevant to the state's case and the prejudicial effect outweighed the probative value. Evidence of a prior crime, wrong, or act is admissible to establish the absence of mistake or accident. Minn. R. Evid. 404(b); DeWald, 464 N.W.2d 500, 508 (Minn. 1991). Rosengartner admitted he choked the victim but claimed he did not mean to kill her. The evidence that he abused his ex-wife is admissible to show killing his wife was not an accident. See, e.g., State v. Rainer, 411 N.W.2d 490, 497 (Minn. 1987) (admitting evidence of violence against defendant’s ex-wives where defendant was convicted of killing his girlfriend because evidence tended to disprove defendant’s claims that gun discharged accidentally).
The evidence was not unfairly prejudicial because the court gave a cautionary instruction to the jury before the evidence was admitted and again cautioned the jury in its final instructions. See Lynch, 590 at 81 (stating that cautionary instructions used in case, which were same instructions used in present case, assured that jury did not give improper weight to Spreigl evidence). The trial court did not abuse its discretion in admitting the Spreigl evidence.
Rosengartner also claims the trial court erred by admitting a tape-recorded statement by an unavailable witness regarding Rosengartner's assault against the victim four months before her death. Relationship evidence may be admitted upon a showing of clear and convincing evidence that the defendant committed the prior bad act and that the probative value of the evidence outweighs any unfair prejudice. State v. Bauer, 598 N.W.2d 352, 364 (Minn. 1999). "Character evidence which tends to show the 'strained relationship' between the accused and the victim is relevant to establishing motive and intent and is therefore admissible." Bauer, 598 N.W.2d at 364 (citations omitted); cf. State v. Blanchard, 315 N.W.2d 427, 431 (Minn. 1981) (finding evidence pertaining to relationship between defendant and homicide is ordinarily admissible, regardless of its reference to another crime). The fact that Rosengartner assaulted his wife and broke her nose four months before her death shows his assaultive behavior toward her during their marriage.
Rosengartner further claims the statement was inadmissible hearsay. Prior to trial, however, Rosengartner moved for an order allowing him to read the statement into the record pursuant to the catchall hearsay exceptions in Minn. R. Evid. 803(24) and 804(b)(5). Rosengartner intended to use the statement as evidence of Laura Rosengartner's behavior when she was intoxicated. The trial court granted the motion, allowing Rosengartner to read the statement into the record "at the appropriate time." Rosengartner only objected when the state proposed to read the statement during its case-in-chief. Error in the admission of evidence can be waived by a party introducing the evidence himself. Jones v. Fleischhacker, 325 N.W.2d 633, 639 (Minn. 1982). We conclude that Rosengartner waived any hearsay objection to the evidence by securing an order for its admission himself. We further find that the probative value of the evidence outweighed its prejudicial effect, and the trial court did not err in admitting the statement.
4. Rosengartner claims the trial court erred by admitting evidence of his prior convictions. Rosengartner had five prior felony convictions: theft by false representation, escape from federal custody, forgery, aggravated assault, and aggravated robbery. Evidence that a witness has been convicted of a crime is admissible for impeachment if the crime was punishable by death or imprisonment in excess of one year and the probative value outweighs its prejudicial effect; or the crime involved dishonesty or false statement, regardless of the punishment. Minn. R. Evid. 609(a). The convictions for forgery and theft were admissible because the convictions involved dishonesty or false statements. Minn. R. Evid. 609(a)(2). Rosengartner argues the other three convictions should have been excluded, particularly the conviction for aggravated assault, because the jury may have used the information as evidence Rosengartner had a propensity for assaulting others.
Rulings on the admissibility of impeachment evidence are within the trial court's discretion and will not be reversed absent a clear abuse of discretion. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). The trial court held that the prior convictions for escape from federal custody, aggravated assault and aggravated robbery were sufficiently dissimilar to second degree murder to avoid any likelihood of confusion. Minnesota courts have admitted prior convictions for impeachment even when the prior crime is the same as the crime charged. See, e.g., State v. Frank, 364 N.W.2d 398, 399 (Minn. 1985); State v. Betting, 295 N.W.2d 542, 546 (Minn. 1980); State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979). Impeachment evidence is important to provide the jury with an adequate basis to determine whether the defendant was telling the truth. See State v. Bias, 419 N.W.2d 480, 487-88 (Minn. 1988).
Rosengartner claimed he did not intentionally kill his wife but "just snapped." His credibility was important to help the jury determine whether he intentionally killed her. The jury was instructed "not [to] consider these convictions as evidence of defendant's character or conduct except as you think it reflects on believability." The cautionary instruction minimized any potential unfair prejudice of the evidence. The trial court did not abuse its discretion in allowing Rosengartner's five prior felony convictions to be used for impeachment purposes.
5. Rosengartner was sentenced to 402 months (33.5 years) imprisonment and ordered to serve the sentence consecutive to a 35-year Texas sentence. The court departed upward from the presumptive sentence of 306 months (25.5 years) based on a finding that Rosengartner was a dangerous offender and a danger to public safety. Minn. Stat. § 609.152 (1996). Rosengartner argues the trial court unfairly exaggerated the criminality of his acts by departing from the sentencing guidelines and ordering that his sentence be served consecutively.
The decision to depart from sentencing guidelines rests within the trial court's discretion and will not be reversed absent a clear abuse of that discretion. State v. Givens, 544 N.W.2d 774, 776 (Minn. 1996). This court will not interfere with a trial court's discretion in sentencing unless the sentence is disproportionate to the offense. State v. Sanders, 598 N.W.2d 650, 656 (Minn. 1999). The dangerous offender statute provides:
Whenever a person is convicted of a violent crime, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive imprisonment sentence up to the statutory maximum sentence if the offender was at least 18 years old at the time the felony was committed, and:
(1) the court determines on the record at the time of sentencing that the offender has two or more prior convictions for violent crimes; and
(2) the court finds that the offender is a danger to public safety and specifies on the record the basis for the finding, which may include:
(i) the offender's past criminal behavior, * * * or
(ii) the fact that the present offense of conviction involved an aggravating factor that would justify a durational departure under the sentencing guidelines.
Minn. Stat. § 609.152, subd. 2 (1996). Rosengartner was convicted of aggravated robbery and aggravated assault, both violent crimes. Rosengartner's criminal history began with a 1982 felony conviction and continued with five more felonies before the present crime. The court also found aggravated factors in the present crime, namely that he killed his wife knowing she was physically vulnerable due to physical infirmities resulting from a car accident and that she was intoxicated at the time. The court determined on the record that Rosengartner was convicted of two or more violent crimes, he was a danger to public safety and aggravating factors were present. The trial court was within its discretion in departing upward from the presumptive sentence.
Rosengartner also argues that ordering the Minnesota sentence to be served consecutive to the Texas sentence was unfair. Consecutive sentences are permissive when the defendant has "[m]ultiple current felony convictions for crimes against persons" and the presumptive disposition for the current offense is commitment to the Commissioner of Corrections. Minn. Sent. Guidelines § II.F. The court may order consecutive service of a sentence in addition to departing durationally. Minn. Sent. Guidelines cmt. II.F.04. See State v. Munger, 597 N.W.2d 570, 575 (Minn. App. 1999) (holding that trial court did not abuse its discretion in ordering upward duration and consecutive service where career-offender statute allowed upward durational departure and consecutive sentencing was permissive), review denied (Minn. Aug. 25, 1999). Rosengartner was convicted of second-degree felony murder in the death of his wife and is also serving a 35-year felony sentence in Texas for the crime of injury to a child under 14. Both are "crimes against persons" and the presumptive disposition for his current offense is commitment to the Commissioner of Corrections. We therefore conclude that consecutive sentencing was permissive and not a departure. Moreover, the sentence did not unfairly exaggerate Rosengartner's criminal record or his dangerousness. The trial court did not abuse its discretion in ordering that the sentences be served consecutively.