This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






State of Minnesota,





Marilyn Jane Erickson,



Filed June 24, 2003


Kalitowski, Judge


Olmsted County District Court

File No. KX012181


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Raymond F. Schmitz, Olmsted County Attorney, James S. Martinson, Criminal Division Head, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)


John M. Stuart, State Public Defender, Sara L. Martin, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge, Anderson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


Appellant challenges her conviction of second-degree murder, arguing that (1) she did not validly waive her Miranda rights and her confession was involuntary; (2) the district court abused its discretion in precluding the introduction of certain evidence; and (3) the prosecutor committed prejudicial misconduct.  We affirm.




            For a custodial statement that is the product of interrogation to be admissible at trial, the prosecution must prove that:  (1) the defendant knowingly, intelligently, and voluntarily waived her Miranda rights; and (2) the defendant gave her statement voluntarily.  State v. Dominguez-Ramirez, 563 N.W.2d 245, 252 (Minn. 1997).  The “two requirements serve different purposes.”  Id.  The first ensures that the defendant was aware of her right to remain silent, and the second protects the trustworthiness of the incriminating statement by ensuring that she was not coerced into confessing falsely.  Id.

1.         Waiver of Miranda rights

            We will not overturn the district court’s conclusion that a waiver was knowing, voluntary, and intelligent unless the finding is clearly erroneous.  State v. Camacho, 561 N.W.2d 160, 168-69 (Minn. 1997).  When an appellant argues that credible evidence supports a finding of an invalid waiver, we conduct a “subjective factual inquiry to determine whether under the totality of the circumstances the waiver was valid.”  Id. at 169 (citation omitted).  However, the standard of review remains whether the district court’s finding was clearly erroneous.  Id.

            If the police give a Miranda warning and the interrogation continues without an attorney for the accused and results in an incriminating statement, the prosecution has the burden of proving that the accused “knowingly and intelligently waived” the privilege against self-incrimination and the right to counsel.  Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 1628 (1966).  Generally, the prosecution is deemed to have met this burden by proving that the Miranda warning was given, and the individual indicated that he or she understood those rights and then gave a statement.  Camacho, 561 N.W.2d at 168.

            Here, it is undisputed that appellant was given a Miranda warning and that she stated she understood those rights and wished to speak with the investigator.  But appellant contends that there is other credible evidence suggesting the waiver was not valid.  We thus conduct a “subjective factual inquiry” and consider the totality of the circumstances.  Id. at 169. 

Under the totality-of-the-circumstances test, we consider the following other factors:  age, maturity, intelligence, experience, the ability of the accused to comprehend, the adequacy of the Miranda warning, the length and legality of the detention, the nature of the interrogation, any physical deprivations, limits on access to counsel or friends, familiarity with the criminal justice system, physical and mental condition, and language barriers.  Id. at 168.

            Appellant claims her limited intelligence, inexperience with the criminal justice system, and inability to comprehend made it impossible for her to fully understand the consequences of waiving her Miranda rights.  But the district court found that appellant:  (1) graduated from high school; (2) lived alone; (3) was able to interact socially with others; (4) was articulate and cognizant throughout the interrogation; (5) was competent to stand trial; and (6) was given an adequate Miranda warning.  Thus, the district court determined that her waiver was sufficiently knowing, voluntary, and intelligent.  We agree.

            At the omnibus hearing, a clinical psychologist testified on behalf of the defense that appellant’s IQ is 69, which is generally considered to be borderline mentally retarded.  While the psychologist testified that appellant suffers from depression, anxiety, and posttraumatic stress disorder, she also noted that appellant “may not actually qualify for a diagnosis of mild mental retardation” if she has high adaptive-functioning skills.  Moreover, a mental deficiency “may not automatically mandate a finding of incompetence to waive.”  Wold v. State, 430 N.W.2d 171, 178 (Minn. 1988).

            In addition, appellant was articulate and cognizant throughout the interrogation.  After she confessed to the officer, appellant declared, “It wasn’t premeditated * * * .”  Further, the officer testified he was surprised to learn that appellant’s IQ is 69 because she was able to give her personal information, lived alone, and communicated effectively during the interrogation.  In addition, the record indicates the officer did not threaten or coerce appellant into making an incriminating statement.  In fact, the officer comforted appellant and reassured her during the interview.  Finally, the length of the interrogation was reasonable, lasting approximately 2 hours and 15 minutes.

2.         Voluntary statement

            It is the state’s burden to prove by a preponderance of the evidence that a confession was voluntary.  State v. Anderson, 404 N.W.2d 856, 858 (Minn. App. 1987), review denied (Minn. June 25, 1987).  The reviewing court examines the entire record and independently determines whether the confession was given voluntarily.  Camacho, 561 N.W.2d at 169.

            A conviction founded on an involuntary confession deprives the defendant of due process under the Fourteenth Amendment.  Id. at 168.  Coercive police activity is a necessary predicate to finding that a confession was involuntary.  Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522 (1986).  A court examines the totality of the circumstances in determining whether a confession was voluntary, analyzing the same factors that are used to determine whether a Miranda waiver was valid.  State v. Williams, 535 N.W.2d 277, 287 (Minn. 1995).  However, a “mere examination of the confessant’s state of mind can never conclude the due process inquiry.”  Connelly, 479 U.S. at 165, 107 S. Ct. at 521.

            The district court held that appellant’s confession was voluntarily made because there was no evidence “indicating overbearing on the part of the police or that suggests any contrivance or attempt to coerce [appellant].”  Appellant argues that because of her low IQ, history of mental illness, and inexperience with the criminal justice system, the officer’s interrogation tactics overbore her will, making her confession involuntary.  We disagree.

            The record is devoid of any evidence of coercive police activity.  The officer gave appellant a Miranda warning and employed standard interviewing methods.  Appellant requested and received water, indicating the responsiveness to appellant’s needs during the interview.  Although appellant was crying while she confessed, the officer testified that in his experience, it is not unusual for an individual to break down and cry prior to confessing.  Moreover, the officer told appellant that he did not think that she was a terrible person and that he understood she did not mean for this to happen.

            Further, after appellant confessed to shaking the victim, the officer asked her about the victim’s prior leg injury.  Appellant responded that she did not know how that happened, and she would “stand by” her statement that she had nothing to do with it.  Appellant’s denial of responsibility for the leg injury, after she confessed to shaking the victim, indicates that her will was not overborne by the officer’s interviewing methods.  See State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999) (“Although the interrogation may have been unpleasant for [the defendant], there is little indication that her will was overborne, particularly since she continued throughout the interview and formal statement to deny any intent to place the blanket over the heater to cause a fire.”), cert. denied, 528 U.S. 1165, 120 S. Ct. 1184 (2000).  In addition, appellant acknowledged that the officer did not make any promises to her or threaten her, and she was speaking because she wanted the truth to be told.

            Because there is no evidence of coercive police activity, we conclude that appellant’s statements were voluntarily made and were not extracted in violation of her right to due process.


            A criminal defendant must be treated with fundamental fairness and “‘afforded a meaningful opportunity to present a complete defense.’”  State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (quotation omitted).  “Nonetheless, criminal defendants are bound by the rules of evidence, which are designed to assure fairness and reliability in ascertaining guilt or innocence.”  State v. Henderson, 620 N.W.2d 688, 698 (Minn. 2001) (citation omitted).  Therefore, even when an appellant argues that her inability to present a defense violates her constitutional rights, “evidentiary questions are reviewed for an abuse of discretion.”  Id. (citation omitted).

1.         Tape-recorded statement

            Appellant argues that she should have been allowed to play her entire taped interview for the jury, even though she did not testify, because that was the only way to effectively demonstrate how “the repeated questioning eroded Appellant’s will until she [falsely] confessed.”  We conclude that the district court did not abuse its discretion by ruling that appellant could play parts of the tape for impeachment purposes but not the entire recording.

            The other parts of the tape are hearsay, and consequently are not admissible unless they fall within an exception to the hearsay rule because they were offered by appellant, not against her.  Minn. R. Evid. 801(c); Minn. R. Evid. 802; cf. Minn. R. Evid. 801(d)(2) (providing that the statement of a party offered against that party is not hearsay).  And the supreme court has held that criminal defendants are not entitled to introduce their own self-serving statements into evidence without first testifying at trial and being subject to cross-examination regarding the statements. 

[A] practical reason exists for not allowing the introduction of self-serving statements.  To permit the introduction of such statements could afford a defendant the opportunity to present his version of the facts without ever being subject to cross-examination by the state.


State v. Taylor, 258 N.W.2d 615, 622 (Minn. 1977). 

Moreover, the “rule of completeness” does not apply to appellant’s introduction of the tape because no part of the actual recording was introduced into evidence by the prosecution.  Minn. R. Evid. 106; State v. Bauer, 598 N.W.2d 352, 368 (Minn. 1999) (“we recognize that Minn. R. Evid. 106 is not applicable unless portions of the actual recording have been introduced into evidence”). 

            Appellant argues in the alternative that the prosecution “opened the door” to the evidence on the tape by eliciting testimony from the officer regarding his tone of voice, whether he was coercive or threatening during the interview, and appellant’s emotional state.  But appellant does not cite any holding or rule of evidence supporting her position that the prosecution’s questions resulted in the admission of the entire tape.  Moreover, the district court’s ruling allowed appellant to use parts of the tape to impeach the investigator’s testimony regarding tone of voice and whether he was threatening or coercive, but appellant chose not to do so. 

            Finally, the district court allowed appellant great latitude in cross-examining the officer.  Therefore, the jury heard almost all of appellant’s exculpatory statements. 

            We conclude that the district court’s ruling on this issue was not an abuse of discretion.  Rather, the district court properly struck “a careful balance between allowing the prosecution to present its case regarding [the defendant’s statements] * * * and protecting [the defendant’s] right to present a meaningful defense * * * .”  State v. Mills, 562 N.W.2d 276, 287 (Minn. 1997).

2.         Expert witness

            The admissibility of expert testimony rests within the sound discretion of the district court and will not be reversed absent an abuse of discretion.  Ritt, 599 N.W.2d at 810.

            Appellant argues that the district court violated her right to present a complete defense in precluding the clinical psychologist from testifying regarding how appellant’s low IQ and history of mental illness rendered her susceptible to making a false confession.  The district court concluded that the psychologist’s proposed testimony was of limited probative value and was outweighed by the risk of unfair prejudice.  We agree.

            It is well-settled that “psychiatric opinion testimony is generally not admissible during the guilt phase of a * * * trial.”  State v. Persitz, 518 N.W.2d 843, 847 (Minn. 1994) (citation omitted).  Psychiatric evidence may be admissible if the “defendant has a past history of mental illness” and the evidence is factual background information used to explain the whole person.  Mills, 562 N.W.2d at 285.  When determining whether to admit psychiatric evidence, district courts should

require an offer of proof on the admissibility of the evidence and carefully weigh the relevancy and probative value * * * against the likelihood of prejudice or confusion.


Id. (citation omitted).  Moreover, a defendant does not have a right to present expert testimony that her mental impairment makes her susceptible to police coercion.  Bixler v. State, 582 N.W.2d 252, 256 (Minn. 1998).

            If the district court had allowed this type of testimony during the guilt phase of the trial, it may have suggested to the jury that appellant was not responsible for her actions due to an alleged mental condition.  But appellant never raised an insanity defense, and “Minnesota does not recognize the defense of diminished responsibility * * * .”  Mills, 562 N.W.2d at 285 (citation omitted).  Thus, the district court did not abuse its discretion by excluding the testimony.

            Appellant argues in the alternative that the psychologist’s testimony was admissible under the doctrine of curative admissibility, contending the testimony was necessary because the prosecution opened the door by improperly eliciting testimony about appellant’s mental health.  But appellant’s trial counsel failed to object to the evidence regarding appellant’s mental health.  And failure to object to an alleged error generally constitutes waiver of the right to raise the issue on appeal.  State v. Vick, 632 N.W.2d 676, 684-85 (Minn. 2001) (applying waiver standard to evidentiary error).  However, an appellate court may consider the waived issue if it is (1) error, (2) that is plain, and (3) the error affects the defendant’s substantial rights.  State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). 

            Here, we conclude there was no error because appellant did not meet the requirements for curative admissibility.  “For curative evidence to be admitted as a matter of right, the original evidence must have been inadmissible and prejudicial.”  State v. Profit, 591 N.W.2d 451, 462 (Minn. 1999) (citation omitted).  But here, the statements in question were admissible as admissions by a party-opponent.  Minn. R. Evid. 801(d)(2)(A).  The admission that appellant had stopped taking her medication demonstrated the inconsistencies in her explanations for her behavior, and therefore, diminished the credibility of her story because appellant did not say anything to the police about being off of her medication.  In addition, the statements that she vomited on the way home after the incident and wanted to be sent to the state security hospital were admissible to prove appellant’s guilty conscience.  See Griller, 583 N.W.2d at 743 (evidence tending to prove consciousness of guilt is admissible).

            Therefore, we reject appellant’s argument that the psychologist’s testimony was admissible under the doctrine of curative admissibility and conclude that the district court did not abuse its discretion by precluding her testimony.


            “Even if established, prosecutorial misconduct does not in and of itself require a new trial.”  State v. Steward, 645 N.W.2d 115, 121 (Minn. 2002) (citation omitted).  In cases where less serious misconduct is involved, the misconduct is not prejudicial unless it had a substantial role in influencing the jury to convict.  State v. Caron, 300 Minn. 123, 127-28, 218 N.W.2d 197, 200 (1974).  If the misconduct is unusually serious, that misconduct is not harmless unless there is a certainty beyond a reasonable doubt that the misconduct was harmless.  Id. 

            Here, the misconduct alleged by appellant consists only of a few phrases of the prosecutor’s closing argument, which covered approximately 50 pages of transcript.  With respect to claims of misconduct during closing arguments, the closing argument is considered as a whole, rather than focusing on particular “phrases or remarks that may be taken out of context or given undue prominence.”  State v. Johnson, 616 N.W.2d 720, 728 (Minn. 2000) (quotation omitted).  Therefore, we conclude that this is a case where less serious misconduct is involved.

            First, appellant argues that the prosecutor inflamed the jury’s passions and belittled the defense by referring to the defense expert as “Dr. Defense or Dr. Doubt” and by saying that the expert’s “major occupation” is helping “child killers” avoid judgment.  While we do not condone the prosecutor’s language, when the statements are looked at in context, the thrust of the prosecutor’s remarks was to attack the expert’s credibility.  And prosecutors are allowed to “vigorously argue that defendant and his witnesses lack credibility.”  State v. Dupay, 405 N.W.2d 444, 450 (Minn. App. 1987) (quotation omitted). 

Moreover, the prosecutor pointed out during the trial that the expert:  (1) has testified on behalf of criminal defendants 40-50 times over the past 4-5 years in cases involving children who have suffered head injuries and in which the defendants were charged with murder; (2) has testified in Minnesota, Florida, Wisconsin, Hawaii, Colorado, California, Mississippi, Montana, Illinois, Kentucky, New York, and Canada; and (3) has never seen or reviewed a case where he concluded that a child’s injuries were caused by shaking. 

Thus while it was improper for the prosecutor to refer to the expert as Dr. Defense or Dr. Doubt, we conclude that it did not have a substantial role in influencing the jury to convict.  As previously mentioned, the prosecutor’s closing argument covers approximately 50 pages of transcript.  See State v. Powers, 654 N.W.2d 667, 679 (Minn. 2003) (noting that the improper statement was only two sentences in a closing argument that amounted to over 20 transcribed pages).  Out of those 50 pages, he referred to the expert as Dr. Defense twice and Dr. Doubt twice.  The rest of the time, he called him by his name.

Appellant also argues that the prosecutor misstated the burden of proof in his closing argument when he said that the purpose of the expert’s testimony was to “plant the seeds of doubt in your minds.  Because the defendant doesn’t have to prove anything * * * .  All the defendant has to do is create a reasonable doubt.”  Appellant contends that by suggesting that the defense must “create” a reasonable doubt, the prosecutor placed the burden of proof on appellant.  We disagree.

In addition to saying that the defendant must “create” reasonable doubt, the prosecutor also correctly said, “[T]he defendant doesn’t have to prove anything.”  Moreover, the court instructed the jury regarding the burden of proof beyond a reasonable doubt.  The court also told the jury that if an attorney’s statements or arguments regarding the law differ from the court’s instructions, the attorney’s statements should be disregarded.  And we presume that the jurors followed the court’s instructions.  See State v. James, 520 N.W.2d 399, 405 (Minn. 1994) (“jurors are presumed to follow instructions”).

Finally, appellant argues that the prosecutor distracted the jury from its “dispassionate” fact-finding role by telling the jury their role was to “ensure that justice is done in this case.”  But Minnesota law allows prosecutors to encourage jurors to seek justice:

[P]rosecutors are ethically bound to ‘seek justice.’  It is therefore eminently proper for a prosecutor to beseech a jury to ‘seek justice’ or to avoid its converse, injustice, by convicting a defendant on the charged offense, when the evidence establishes the defendant’s guilt beyond a reasonable doubt.  To hold otherwise would in effect punish prosecutors for beseeching the jury to do precisely what prosecutors are ethically obliged to do – ‘seek justice.’


State v. Atkins, 543 N.W.2d 642, 648 (Minn. 1996).  Thus, the prosecutor’s statements were not improper.

            Finally, even if any of the prosecutor’s statements qualify as misconduct, in light of the overwhelming evidence of guilt in this case, we conclude that the alleged improper statements did not play a substantial role in influencing the jury to convict.  See State v. Ives, 568 N.W.2d 710, 714 (Minn. 1997) (statements were harmless beyond a reasonable doubt in light of overwhelming evidence of guilt).



*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.