may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Troy Anthony Dunlap,
Hennepin County District Court
File No. 00107809
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from convictions of first- and third-degree criminal sexual conduct, appellant Troy Anthony Dunlap argues that the district court abused its discretion in (1) denying his motion for a mistrial, (2) replaying to the jury during its deliberations a videotape of his interrogation by police, and (3) allowing the jury to hear a technician’s interpretation of DNA test results and statistical evidence that the test results uniquely matched appellant’s DNA profile. We affirm.
On November 7, 2000, Christine Jensen, a transsexual in the preoperative stage, was at a bus stop in Minneapolis at approximately 12:30 a.m. After the bus passed by without stopping, Jensen began to walk home. Dunlap drove up next to Jensen, who he believed to be a woman, and asked if she wanted a ride. Jensen initially declined, but after Dunlap said that he was an undercover cop, displayed a badge, and told Jensen not to worry, Jensen got into Dunlap’s vehicle.
Dunlap passed the turn to Jensen’s house and pulled over to the side of the road. Jensen testified that Dunlap began playing with handcuffs and said that he wanted to have sex with her. Jensen told him no. Dunlap said that if she did not have sex with him, he would take her downtown and arrest her for prostitution. Jensen told him to go ahead and take her downtown.
When Jensen continued to say no, Dunlap hit her in the face. After Jensen was hit, Dunlap’s jacket was open, and Jensen could see that Dunlap was carrying a gun, which Jensen thought was a police service revolver. Jensen testified that Dunlap pushed her into the back of the van and began to take off his pants. He pulled down her pants, pushed her against the side of the van, and had anal sex with her. After the sexual encounter, Dunlap pushed Jensen out of the van and drove off.
Jensen started walking home but then decided to walk to the fifth precinct police station to report that someone she believed to be a police officer had raped her. Officer Kellie Mosley took Jensen’s statement and testified that Jensen was visibly upset. Mosley drove Jensen to Hennepin County Medical Center. Jensen refused a medical examination. Jensen testified that she had been a nurse for ten years, and an examination could not help her because she knew she was not injured. Because there was semen on Jensen’s shirt and pants, a nurse took the clothes for a possible DNA sample.
On November 10, 2001, Dunlap was apprehended. Sergeant Lori Janikowski interrogated Dunlap. Janikowski testified that during the interrogation, Dunlap said that Jensen had flagged him down, that he had anal sex with Jensen, that he used a condom, and that Jensen removed the condom, tied it in a knot, put semen on her hand, and then put the semen on her clothing. A few days later, Jensen was unable to identify Dunlap in a line-up.
Dunlap was charged by complaint for the assault on Jensen and for another assault that occurred on October 25, 2000. Charges for the two incidents were severed for trial. Dunlap made a pretrial motion to suppress DNA evidence. The district court ruled the DNA evidence admissible.
Dunlap was tried before a jury on three counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct. The jury found Dunlap guilty of all counts, and the court sentenced him to 144 months’ imprisonment for one of the first-degree criminal-sexual-conduct convictions.
During the prosecutor’s direct examination of the police officer that apprehended Dunlap, the following statements were made.
QWhat was it about that vehicle that attracted your attention?
AIt matched the description of a vehicle that was used in previous sexual assaults.
QAnd you were aware of a description of a suspect, is that right?
QAnd what did you do regarding the vehicle?
AMade an investigative stop.
* * * *
QAnd you stopped him and what happened after that?
AHe gave me his driver’s license and I compared his driver’s license to his actual person and in my opinion it matched the description of the previous sexual assaults, the suspect.
At this point, defense counsel made a motion for a mistrial, arguing that because the charges stemming from the two assault incidents had been severed for trial and the court had not yet ruled on the state’s motion to admit evidence of the other incident as Spreigl evidence, the police officer’s reference to more than one assault was highly prejudicial. The court denied the motion for a mistrial and, instead, instructed the jury as follows:
Jurors, this witness just made some mention of other assaults. That testimony is stricken and should be disregarded. Any testimony of previous assaults at this time is stricken and should be disregarded.
This court reviews a district court’s denial of a motion for a mistrial to determine whether the district court abused its discretion. State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998).
The relevant inquiry for whether the trial court erred in not granting a mistrial based upon a witness’s statement is whether there has been a due process violation. Whether a due process violation occurred depends upon whether the witness’s statement “so infected the trial with unfairness as to make the resulting conviction a denial of due process.”
Phea v. Benson, 95 F.3d 660, 661 (8th Cir. 1996) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871-72 (1974)) (citations and quotation omitted); see also State v. Hogetvedt, 488 N.W.2d 487, 489 (Minn. App. 1992) (“Inherent in this right [to a fair trial] is the principle that guilt must be established by probative evidence, not external factors.”).
Dunlap argues that he was denied a fair trial because the curative instruction failed to remedy the police officer’s highly prejudicial reference to Dunlap’s other sexual-assault charge. But we must presume that the jurors followed the instruction to disregard the testimony about any previous assaults. See State v. Miller, 573 N.W.2d 661, 675 (Minn. 1998) (on appeal from order denying motion for mistrial where witness stated on defense cross-examination that defendant had past felonies and trial court promptly instructed jury to disregard statement, supreme court presumed that jurors followed judge’s instruction). Dunlap has not overcome this presumption.
The police officer’s testimony did not refer to another sexual-assault charge as Dunlap contends. The testimony referred to previous sexual assaults and indicated that Dunlap could be a suspect in those assaults. The jury was never told that Dunlap was charged with another sexual assault, and because the court later denied the state’s motion to admit evidence of the other assault as Spreigl evidence, the jury never learned anything about any other assaults. Because the jury never learned anything about another assault, or even that Dunlap was charged with another assault, it is not apparent how the brief reference to other assaults and the possibility that Dunlap could be a suspect in those assaults could lead the jury to find Dunlap guilty on some basis other than the evidence before it. We, therefore, conclude that the officer’s testimony did not so infect the trial with unfairness as to make the resulting conviction a denial of due process. See State v. Farr, 357 N.W.2d 163, 166 (Minn. App. 1984) (holding mistrial was not warranted when statement was passing in nature and the impact could have been missed by the jury).
In arguing that he was denied a fair trial, Dunlap also cites several events that occurred during trial after his motion for a mistrial was denied. Dunlap contends that these events revealed a pattern of overzealous prosecution. But because these events occurred after the trial court ruled on Dunlap’s motion for a mistrial, they do not demonstrate that the court abused its discretion when it denied Dunlap’s motion. When ruling on the motion for a mistrial, the court could not abuse its discretion by failing to consider events that had not occurred.
Although the argument on appeal is not clear, Dunlap may be citing the events that occurred after his motion for a mistrial was denied to support a separate argument that this court should reverse his conviction because he was denied a fair trial rather than to support his argument that the court abused its discretion by denying his mistrial motion.
The events Dunlap cites are: (1) While questioning Sergeant Janikowski about her interrogation of Dunlap, the prosecutor kept eliciting Janikowski’s opinion about Dunlap’s guilt in a manner that suggested that Dunlap had admitted his guilt, and the prosecutor did not clarify to the jury that Janikowski was not repeating admissions that Dunlap made; (2) The prosecutor elicited testimony about the police having obtained a search warrant for Dunlap’s home even though the prosecutor knew that the court had ruled that there should be no reference to any items seized during the search; (3) The nurse who dealt with Jensen on the night of the assault referred to Jensen as a “victim;” and (4) During closing argument, the prosecutor referred to Dunlap’s “fun and games kit,” asked the jury to step into the victim’s shoes, and stated that “[Jensen] thought it was a cop gone bad and there’s no limit to what could have happened,” which raised the specter of other possible atrocities that, in the prosecutor’s opinion, Dunlap would commit.
An appellate court must decide whether the challenged conduct was: (1) in error; and (2) so prejudicial that it constituted a denial of the defendant’s right to a fair trial. If the misconduct is “unusually serious,” it must be harmless beyond a reasonable doubt, to avoid reversal. When the misconduct is deemed less serious, an appellate court must look to whether it had a “substantial” influence upon the jury’s decision to convict the defendant.
Sanderson v. State, 601 N.W.2d 219, 225 (Minn. App. 1999) (citations omitted), review granted (Minn. Jan. 18, 2000) and review denied (Minn. Mar. 28, 2000).
With respect to the first event Dunlap cites, defense counsel objected to the form of the questions the prosecutor put to Sergeant Janikowski, and the court required the prosecutor to ask additional questions to try to clarify for the jury that Dunlap had not made admissions to Janikowski. Also, defense counsel had an opportunity during cross-examination to clarify that Dunlap had not made admissions. Furthermore, during the discussion that followed the objection to the form of the prosecutor’s questions, it is apparent that it was difficult for the court and counsel to identify the precise problem with the form of the questions, and defense counsel acknowledged that the argument was about some pretty subtle points.
With respect to the second event, before the trial began, counsel agreed that none of the items seized during the search of Dunlap’s home would be referred to during trial. During trial, the prosecutor asked Sergeant Janikowski whether a badge was recovered during the search of Dunlap’s home, and Janikowski replied that a badge had been found. There was no objection by defense counsel, but the court struck the comment about the search warrant and instructed the jury to disregard the comment. At the close of evidence, the prosecutor explained that it was his understanding that the pretrial agreement was that there would be no reference to guns seized during the search. The court indicated that it did not infer any bad faith by the prosecutor. On appeal, Dunlap does not offer any explanation of what influence the reference to the badge had upon the jury’s decision.
With respect to the third event, the nurse did not specifically refer to Jensen as a victim. Instead, when asked what she did as an employee of the Sexual Assault Resource Service, the nurse said that she collected evidence “when a victim is brought in.” Then, without an objection being made, the judge stopped the testimony, excused the jury, and told the nurse that using the term “victim” in the context the nurse had just used it was okay but that in the course of her testimony she should refer to Ms. Jensen. Dunlap contends that this was another instance of the prosecutor failing to prepare a witness, but he does not offer any explanation of what influence the single use of the term “victim” might have had upon the jury’s decision.
Finally, with respect to the fourth event, the prosecutor did not make up the phrase “fun and games kit.” In his statement to police, Dunlap referred to the items he used to lead people to believe that he was a police officer as his “fun and games kit.” Given that the phrase was the terminology Dunlap used, the prosecutor’s use of the term three times during closing argument was not unusually serious misconduct. Nor were the prosecutor’s statements asking the jurors to step into the victim’s shoes or speculating about other atrocities Dunlap could commit unusually serious misconduct.
We conclude that, considered cumulatively, all of the events cited by Dunlap did not deny his right to a fair trial. Given the subtle nature of the first event, and the difficulty that the court and counsel had identifying the precise problem with the prosecutor’s questions, even if asking the questions was misconduct, it was not serious misconduct, and we find no basis to conclude that the event had a substantial influence upon the jury’s decision to convict Dunlap. We also find no basis to conclude that the second or third event had a substantial influence upon the jury. Defense counsel did not object to either event, and the district court acted promptly to reduce the possibility that the jury would use the evidence improperly. Finally, the prosecutor’s statements during closing argument were based on evidence admitted at trial, and although the prosecutor’s statements unnecessarily raised the specter of crimes Dunlap could commit, we are not persuaded that this speculation during closing argument substantially influenced the jury’s decision to convict Dunlap.
2. Minn. R. Crim. P. 26.03, subd. 19(1) (2), state:
(1)Materials to Jury Room. The court shall permit the jury, upon retiring for deliberation, to take to the jury room exhibits which have been received in evidence, or copies thereof, except depositions and may permit a copy of the instructions to be taken to the jury room.
(2) Jury Requests to Review Evidence.
1. If the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom. The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence.
2. The court need not submit evidence to the jury for review beyond that specifically requested by the jury, but in its discretion the court may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.
“The trial court has broad discretion under the rule.” State v. Kraushaar, 470 N.W.2d 509, 514 (Minn. 1991). The trial court’s “discretion is reviewable pursuant to an abuse-of-discretion test.” Id. at 515. When exercising its discretion, three of the considerations the trial court should take into account are
(i) whether the material will aid the jury in proper consideration of the case;
(ii) whether any party will be unduly prejudiced by submission of the material; and
(iii) whether the material may be subjected to improper use by the jury.
Id. (quoting ABA Standards for Criminal Justice 15-4.1 (2d ed. 1980)).
After the jurors retired for deliberations, they requested a transcript of Sergeant Janikowski’s interview of Dunlap, or, if a transcript of the entire interview was not available, a transcript of the portion of the interview that had been presented during trial by videotaped testimony. The district court denied the request for a transcript, but, over the objection of defense counsel, brought the jurors into the courtroom and, in the presence of the judge, attorneys, and Dunlap, allowed them to view the portion of the videotape of the interview that had been played during trial. Before playing the tape, the district court instructed the jury that
the statements of the officer on the tape and the officer’s recitation of the officer’s version of the facts is not evidence. You’ll be permitted to see the tape only because of the statements of [Dunlap] and so the officer’s statements can be considered only to the extent that they add meaning or clarification in the context to the words of [Dunlap].
Dunlap argues without further explanation that replaying the videotape, which included the officer’s interpretations of the evidence unsupported by the facts, was overly prejudicial. The instruction the district court gave the jury before replaying the videotape specifically addressed this concern. The district court did not abuse its discretion in allowing the jury to see the videotape again.
3. Dunlap argues that the district court erred by allowing the jury to hear a technician’s subjective interpretation of a relatively new DNA test because the prejudice to appellant inherent in improperly presenting this evidence as showing a match unique to Dunlap outweighed any probative value. Dunlap also argues that the court further erred by allowing the jury to hear statistical evidence that the DNA test results uniquely matched Dunlap’s DNA profile, which prevented the jury from realistically assessing the true weight of the DNA test results.
These arguments must be considered in light of the court’s pretrial decision to admit DNA evidence.
Dunlap brought a pretrial motion to suppress the DNA evidence on the grounds that the prosecution failed to (1) show acceptance in the scientific community of the reliability of the test method used; (2) prove acceptable laboratory reliability; and (3) provide needed discovery. Dunlap also argued that the prosecution should not be allowed to offer statistical evidence using the so-called “product” method of computation. After a hearing, the court concluded that (1) the test method is generally accepted and defense counsel had conceded that it is generally accepted; (2) the laboratory equipment and procedures used by the BCA are reliable; and (3) the state did not possess the requested discovery material and made the required showing of admissibility of the DNA evidence without using the material. The court also concluded that the “product” method of calculating the statistical frequency of a DNA match is generally accepted in the scientific community as reliable and accurate. Based on these conclusions, the court denied the suppression motion.
On appeal, Dunlap has not challenged the denial of the suppression motion. Instead, Dunlap argues that the testimony of a technician, which was used to present the DNA evidence, should not have been admitted. But Dunlap did not object to the testimony that he now argues should not have been admitted.
Failure to object to the admission of evidence generally constitutes waiver of the right to appeal on that basis. However, an appellate court may consider a waived issue if there is (1) error, (2) that is plain, and (3) the error affects the defendant’s substantial rights. * * * If these three prongs are met, the court must then decide whether it should address the issue in order to “ensure fairness and the integrity of the judicial proceedings.” Only after all these factors are satisfied may an appellate court exercise its discretion to correct an unobjected-to error.
State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001) (citations omitted) (quoting State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998)). For purposes of the second prong, “‘[p]lain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’” United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993) (citations omitted).
Because Dunlap’s pretrial motion to suppress the DNA evidence had been denied after the court heard evidence about the testing method and laboratory procedures used to obtain the DNA test results, and the technician’s testimony described the methods and procedures that had been ruled upon by the court, it was not obvious that the technician’s testimony was inadmissible. Furthermore, because Dunlap could have directly challenged the denial of his suppression motion on appeal, rather than indirectly challenging the admission of the DNA evidence by arguing that the technician’s testimony was inadmissible, it is not necessary for us to address the admissibility of the technician’s testimony in order to ensure fairness and the integrity of the judicial proceedings.
4. In his pro se brief, Dunlap argues that Jensen gave false testimony during the trial. Dunlap’s only evidence that Jensen’s testimony was false is his own version of the events. The jury found Jensen’s testimony credible. “It is the province of the jury to determine the weight and credibility of individual witnesses and of the defendant’s story.” State v. Flores, 595 N.W.2d 860, 867 (Minn. 1999) (citation omitted).
Dunlap also argues that he gave his statement to the police under duress. But he cites no evidence to support this claim.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.