This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Noe Contreras, petitioner,
State of Minnesota,
Reversed and remanded
Ramsey County District Court
File No. K1993420
John M. Stuart, Minnesota Public Defender, Leslie J. Rosenberg, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Lansing, Judge, and Minge, Judge.
Appellant appeals from an order denying postconviction relief. Appellant was convicted of third-degree criminal sexual conduct following a trial on stipulated facts. Appellant argues that the postconviction court erred by (1) ruling that appellant’s waiver of his right to trial by jury was procedurally adequate under Minn. R. Crim. P. 26.01, subd. 3; (2) determining that his waiver was knowing, intelligent, and voluntary; and (3) holding that the DNA evidence upon which he was convicted was admissible. Because appellant’s waiver of his right to a jury trial was not adequate under Minn. R. Crim. P. 26.01, subd. 3, we reverse and remand.
Appellant was charged with third-degree criminal sexual conduct in 1999. Because the state wanted to introduce DNA evidence against appellant, there was a Frye hearing on April 3, 2000 to determine the admissibility of the DNA evidence. At the Frye hearing, the court found the state’s DNA evidence was admissible.
At a December 11, 2000 hearing, appellant agreed to proceed with a court trial based on stipulated facts pursuant to the procedures set forth in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). At the hearing, appellant’s attorney said that appellant, “after careful consideration, would like to proceed on the basis of a Lothenbach proceeding.” After some discussion of appellant’s possible sentence if found guilty, the court asked appellant, “With that in mind, do you want to go forward under the terms that we talked about before under the Lothenbach proceeding?” Appellant answered, “Yes, I do.” Though the court referred to “the terms that we talked about before,” at that point in the hearing, the actual terms of a Lothenbach proceeding had not been discussed on the record. The record reflects only the comment by appellant’s attorney that appellant wished to proceed with a Lothenbach proceeding. After some further discussion unrelated to the nature of a Lothenbach proceeding, the case was submitted to the court on stipulated facts.
On December 19, 2000, the court found appellant guilty of third-degree criminal sexual conduct. Before the court announced its verdict, appellant’s attorney asked the court if he could “make the record clear as to [appellant’s] understanding of the proceedings.” After appellant indicated that he did not understand what was happening, appellant’s attorney explained that the case had been submitted to the judge and that the judge would render the verdict. Appellant indicated he understood that part, and his attorney said, “Because of that, you won’t be having a jury trial in this matter.” Appellant then asked if that meant he would be giving up his right to a jury trial, and his attorney explained that he would be giving up a jury trial and that all issues would be preserved for appeal. At the conclusion of the discussion, appellant’s attorney asked him whether he had any questions. Appellant answered that he did not have any questions and that he did wish to proceed. The court then announced its verdict that appellant was guilty of third-degree criminal sexual conduct.
Appellant appealed his conviction. After filing his notice of appeal, appellant moved the court of appeals to remand to the district court for a determination of whether his jury-trial waiver was valid. The court of appeals remanded the case to the district court for such a determination.
Appellant’s trial attorney submitted an affidavit to the postconviction court stating that the only record made of appellant’s waiver was the record from December 19, 2000, where appellant waived his right to a jury trial. Appellant’s trial attorney stated that no record was made as to appellant’s personal waiver of the other trial rights as is required by Minn. R. Crim. P. 26.01, subd. 3. Further, the attorney stated he could not remember ever privately discussing with appellant that appellant was waiving those rights.
The postconviction court ruled that appellant’s waiver of a jury trial was valid. The postconviction court did not have before it any of the DNA issues raised in this appeal, but those issues were preserved for appeal in the earlier Lothenbach proceeding.
The first issue we examine is whether the postconviction court erred by ruling that appellant’s waiver of his right to a jury trial and related trial rights was an adequate waiver under Minn. R. Crim. P. 26.01, subd. 3. Appellant argues that because he did not waive the rights enumerated in Minn. R. Crim. P. 26.01, subd. 3, his waiver was invalid and his conviction should be vacated. The state argues that Rule 26.01, subd. 3 does not require such a strict construction and that as long as a criminal defendant’s waiver is knowing, intelligent, and voluntary, the requirements of the rule have been met. The state further argues that even if Rule 26.01 was violated in this case, harmless-error analysis applies and prevents a reversal of appellant’s conviction.
A. Appellant’s Waiver
This issue requires us to interpret a rule of criminal procedure. The interpretation of a rule of criminal procedure is a question of law subject to de novo review. State v. Nerz, 587 N.W.2d 23, 24-25 (Minn. 1998).
Rule 26.01, subdivision 3 provides, in relevant part:
By agreement of the defendant and the prosecuting attorney, a case may be submitted to and tried by the court based on stipulated facts. Before proceeding in this manner, the defendant shall acknowledge and waive the rights to testify at trial, to have the prosecution witnesses testify in open court in the defendant’s presence, to question those prosecution witnesses, and to require any favorable witnesses to testify for the defense in court. The agreement and the waiver shall be in writing or orally on the record.
Minn. R. Crim. P. 26.01, subd. 3.
We recently interpreted Minn. R. Crim. P. 26.01, subd. 3 to require an explicit waiver. State v. Halseth, 653 N.W.2d 782 (Minn. App. 2002). In Halseth, we noted that Rule 26.01 is strictly construed and that because the rights enumerated in subdivision 3 are fundamental, it is “imperative that [a defendant’s] waiver be personal, explicit, and in accordance with Rule 26.01.” Halseth, 653 N.W.2d at 786 (citation omitted). In Halseth, we held that a defendant’s waiver pursuant to Rule 26.01, subd. 3 was not valid because the rights enumerated in subdivision 3 were never discussed or mentioned on the record. Id. at 787. Here, as in Halseth, the rights enumerated in subdivision 3 were not discussed or mentioned on the record. We conclude that appellant’s waiver was not valid because there was no attempt to comply with Minn. R. Crim. P. 26.01, subd. 3.
The requirement that a defendant personally waive the rights enumerated in subdivision 3 is a procedural safeguard that ensures that a defendant’s waiver meets the constitutional requirement that the waiver be knowing, intelligent, and voluntary. See State v. Neuman, 392 N.W.2d 706, 709 (Minn. App. 1986) (noting, “[t]he waiver requirement of [r]ule 26.01 mandates only a relatively painless and simple procedure to protect a basic right”). We note that it is possible for a defendant to meet the procedural requirements of Rule 26.01 but nonetheless argue that a waiver did not meet the constitutional requirement that the waiver be knowing, intelligent, and voluntary. See, e.g., State v. Pietraszewski, 283 N.W.2d 887 (Minn. 1979). That a defendant must personally waive the rights listed in subdivision 3 is the bare minimum that must occur for a waiver to be knowing, intelligent, and voluntary. If that procedural safeguard has not been complied with, this court does not reach the issue of whether the waiver was knowing, intelligent, and voluntary. See, e.g., State v. Sandmoen, 390 N.W.2d 419 (Minn. App. 1986) (in absence of compliance with procedural safeguards of Minn. R. Crim. P. 26.01, subd. 1, this court did not examine whether defendant’s waiver was knowing, intelligent, and voluntary).
In this case, it is clear from the record that the appellant did not personally waive the rights enumerated in subdivision 3 as is required by the rule and by Halseth. Because the procedural safeguard was not complied with, the waiver was inadequate, and we do not reach the question of whether the waiver was knowing, intelligent, and voluntary.
The state contends that even if Rule 26.01, subd. 3, was violated, harmless-error analysis applies and prevents reversal if appellant’s waiver was knowing, intelligent, and voluntary.
The state argues that a violation of a rule of criminal procedure may be harmless error. The state appears to be asserting that a violation of any rule of criminal procedure may be harmless. We can find no legal authority to support the state’s general assertion that a violation of any rule of criminal procedure may be harmless error.
Rule 26.01, subd. 3, as we noted above, is a procedural safeguard that protects a criminal defendant’s right to a trial. The Supreme Court has declared the “jury guarantee” to be a “basic” protection and that depriving a person of that right would have “consequences that are necessarily unquantifiable and indeterminate, unquestionably qualif[ying] as ‘structural error’” and requiring reversal. Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S. Ct. 2078, 2083 (1993). Paying particular attention to the Supreme Court’s language in Sullivan, we hold that violation of Rule 26.01, subd. 3, requires automatic reversal. The rights to testify, compel testimony of favorable witnesses, and confront prosecution witnesses are fundamental; and waiver of those rights must occur as required by the rules. Consequently, harmless-error analysis does not apply. See Halseth, 653 N.W.2d 782 (finding Rule 26.01, subd. 3, was not complied with and reversing without any harmless-error analysis). We also note that because Rule 26.01, subd. 3, requires strict compliance, the application of harmless-error analysis to violations of the rule would defeat the purpose of requiring such strict compliance.
Appellant also argues that the DNA evidence was improperly admitted. Because this issue may arise on retrial, we address it. Appellant argues that the admission of the DNA evidence was improper because the testing method used to obtain the evidence is relatively new and has not been shown to be sufficiently reliable. Appellant also argues that the Bureau of Criminal Apprehension (BCA), which did the DNA tests, did not comply with applicable guidelines relating to reliability of evidence. The state argues that this court should defer ruling on the motion because the question of the reliability of the testing method is currently before the Minnesota Supreme Court.
Before we address the arguments raised in this appeal, a discussion of the relevant terminology is prudent. A brief discussion of the Frye hearing will frame the issues appellant raises.
Evidence derived from new scientific techniques must be determined reliable before that evidence can be admitted. In Minnesota, the test for determining reliability is a two-prong test: (1) whether “experts in the field widely share the view that the results [of scientific testing] are scientifically reliable as accurate,” and (2) whether the laboratory complied with appropriate standards and controls. State v. Jobe, 486 N.W.2d 407, 419 (Minn. 1992) (quoting State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980)). The two-prong test is derived from Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). State v. Traylor, 641 N.W.2d 335, 339 (Minn. App. 2002), review granted (Minn. May 14, 2002).
In this case, the “new scientific technique” is a type of DNA testing referred to as PCR-STR. The test kits that were used in this case are the Profiler Plus, Cofiler, and ABI 310 Genetic Analyzer, and they rely on PCR-STR techniques.
The issue in this case is whether the PCR-STR testing complied with the “appropriate standards and controls.” There is some disagreement over what the “appropriate standards” are. There are two sets of standards: (1) those promulgated by the Technical Working Group on DNA Analysts Methods (TWGDAM standards); and (2) those promulgated by the DNA Advisory Board (DAB standards). Traylor, 641 N.W.2d at 339-40. The TWGDAM standards are more stringent than the DAB standards. Id. at 340. The Minnesota Supreme Court, in a series of cases, held that the TWGDAM standards govern whether any given type of DNA testing is sufficiently reliable to be introduced as evidence. See Traylor, 641 N.W.2d at 340 (citing cases). But, in 1994, Congress created the DNA Advisory Board and enabled that board to “develop, and if appropriate, periodically revise” standards for DNA testing. 42 U.S.C. § 14131(a)(1)(C). The FBI, pursuant to Congress’s directive, adopted the DAB standards effective October 1, 1998. In Traylor, this court held that despite the FBI adoption of the DAB standards, the TWGDAM standards still govern whether new forms of DNA testing meet the two-prong Frye test in Minnesota. 641 N.W.2d at 340-41. The Minnesota Supreme Court granted review in the Traylor case and heard oral arguments on November 5, 2002.
The Frye hearing in this case occurred before this court issued the Traylor decision and declared the appropriate standard to be the TWGDAM guidelines. At the Frye hearing, the judge limited the issues to whether the BCA complied with the appropriate standards and controls. The judge quoted the following passage from Jobe:
While we believe, given the evolving nature of this forensic specialty, a Frye hearing is still required, that hearing should focus only on whether the laboratory which did the testing was in compliance with the appropriate standards and controls. It should not be a forum for challenging the basic DNA RFLP testing procedures themselves. Challenges to the underlying scientific principles go to the weight to be accorded the evidence and are properly introduced at trial.
(quoting Jobe, 486 N.W.2d at 420). The judge then limited the scope of the hearing by explaining:
The court understands and recognizes that the case before it at the moment involves PCR-STR testing, not RFLP testing. However, based on the reading that I’ve just alluded to, I believe that the focus of this hearing should be similarly limited to whether or not the BCA conducted testing in accordance with the appropriate standards and controls. It’s the opinion of this court * * * that if the standards and controls are not sufficient in the opinion of the defense and defense witnesses, that goes to the weight that the jury should give to the evidence and not to its admissibility.
At the conclusion of the Frye hearing, the judge declared the appropriate standards to be the DAB standards. The judge found that the BCA complied with the DAB standards and that the DNA tests were therefore admissible.
Appellant argues that PCR-STR testing does not comply with TWGDAM guidelines and that the Frye hearing in this case established that the BCA failed to comply with the TWGDAM guidelines. In making its argument, appellant relies solely on Traylor. Implicit in appellant’s argument is an argument that the court erred by applying the DAB guidelines instead of the more stringent TWGDAM guidelines. The state argues that this court should defer ruling on this issue until the supreme court issues its decision in Traylor.
This area of law is in a problematic state of development and flux. It is understandable that trial courts, parties and appellate courts are uncertain how to proceed. This court’s opinion in Traylor had not yet been released when the Frye hearing was held in this case. Since this case is being reversed and remanded on other grounds, we direct that when this case is reconsidered, the district court re-examine the DNA evidence issue and apply the rule then in effect. If the Minnesota Supreme Court has not yet acted, the Traylor case as decided by this court will undoubtedly be the prevailing law. In such a circumstance, the TWGDAM guidelines are the prevailing guidelines in Minnesota and the PCR-STR testing may not comply with those guidelines. Traylor, 641 N.W.2d at 341. However, this PCR-STR testing matter may be further considered by the district court. If the district court accepts PCR-STR testing, it should make findings regarding how such testing meets the guidelines.
The final issue we address is whether certain statistical evidence in the BCA laboratory report was improperly admitted. Appellant argues the statistical evidence in the BCA laboratory report was inadmissible. Appellant appears to be alluding to a statement in the laboratory report that says the DNA profile obtained from appellant “would not be expected to occur more than once among unrelated individuals in the world population.” The state argues that this issue was waived because it was not litigated at the trial court.
The state is correct that this issue was not raised or litigated before the trial court. This court does not consider matters not argued and considered in the court below. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). Because this issue was not argued and considered in the trial court, we decline to consider it on appeal.
Reversed and remanded.
 At the hearing, and throughout this appeal, the parties have referred to the stipulated court trial as a Lothenbach proceeding. The Lothenbach proceeding has been codified by Minn. R. Crim. P. 26.01, subd. 3. In such a proceeding, a criminal defendant stipulates to the prosecution’s evidence and submits the case to a judge for a decision, preserving all appealable issues.