This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Robert Allen Shattuck,
Filed April 13, 2004
Affirmed as modified and remanded
Hennepin County District Court
File No. 01011914
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Roy G. Spurbeck, Assistant Public Defender, Suite 425, 2221 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)
Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
A jury found Robert Shattuck guilty of five felony counts, and the district court sentenced him on the convictions for kidnapping and first-degree criminal sexual conduct. On appeal Shattuck challenges three evidentiary rulings and the denial of a continuance to obtain evidence for a postconviction hearing, the sufficiency of the evidence to support his convictions, the length of his sentence, and the calculation of jail credit. Because the district court did not err in its evidentiary or procedural rulings and because the evidence supports the convictions, we affirm the convictions and sentence, but we remand for recalculation of jail credit.
F A C T S
The facts of the kidnapping and sexual assault are uncontested. Robert Shattuck’s defense at trial and on appeal is that he was misidentified as the person who committed the crimes. The assault and kidnapping took place near a bus stop at 42nd Street and Minnehaha Avenue in south Minneapolis on January 30, 2001. R.E., a seventeen-year-old high school student, got off a bus at that stop about 10:30 p.m.
As R.E. walked away from the bus, she observed that she was being followed by a man wearing a blue and yellow jacket and pushing a mountain bike. When the man caught up to her, he asked her what time it was, displayed a knife, and told her to do as he said or he would stab her. He then directed her into the alley, took $25 from her pocket, and told her to pull down her pants and bend over. He penetrated her vaginally with his fingers and his penis. He punched her, breaking her jaw, and then threatened to kill her if she told anyone about the assault. He asked R.E. what he looked like and when she described him as white, he said, “No, you’re wrong, I’m Mexican.” He then rode away on his bike.
The evidence at trial established that Shattuck was working that evening at a Subway shop on south Hiawatha Avenue, near 42nd Street and Minnehaha Avenue. According to his boss, Shattuck had a mountain bike that he had recently purchased and a dark jacket with yellow in it. Shattuck left the shop between 10:15 and 10:20 p.m. During Shattuck’s shift, he asked his boss which street had more foot traffic, Minnehaha or Hiawatha. He also asked what would happen if he did not show up for work the next day.
Shattuck arrived at his home around 11 p.m. He told his girlfriend that he had been attacked by two men, who beat him and took his jacket and bike. He said that the blood on his hands was from an attacker’s knife. When he told her that they would need to get rid of his clothes, she refused to help.
Shattuck failed to show up for his scheduled work shift the next day. That same day, he told a clerk at Southdale Mall that he had been in a fight with some “Mexicans” and that he was wanted by police. The clerk called police after seeing a televised report with Shattuck’s picture. Shattuck called to tell his girlfriend that he was a suspect in a rape but that it could not be true. He then left Minnesota and went to Georgia, where he was arrested on separate charges.
About a week after the crime, a Minneapolis police officer interviewed Shattuck in Georgia. The officer obtained a search warrant that authorized him to draw a blood sample, to take pubic hair samples, and to photograph Shattuck’s hand. During the interview Shattuck stated that he wanted an attorney. While the officer supervised the drawing of the blood sample and photographing of the hand, Shattuck stated that he had cut his hand while in Georgia. Shattuck also commented that the police were “going through all this sh-t for nothing.” The interviewing officer then said, “Well, you know, there was a young, there was a, a young lady that, that says you raped her, what can I tell ya?” Shattuck responded that he could account for his time between when he left work and when he arrived home on the night of the assault.
Shattuck was charged by amended complaint with (1) kidnapping (facilitation of felony), in violation of Minn. Stat, § 609.25, subds. 1(2, 2(2) (2000); (2) kidnapping (terrorized or committed bodily harm against victim), in violation of Minn. Stat. § 609.25, subds. 1(3), 2(2) (2000); (3) first-degree criminal sexual conduct (use of weapon), in violation of Minn. Stat. §§ 609.342, subds. 1(d), 2, .11, .101, subd. 2,.109, subd. 7 (2000); (4) first-degree criminal sexual conduct (personal injury to victim), in violation of Minn. Stat. §§ 609.342, subds. 1(e)(i), (2), 609.101, subd. 2, .109, subd. 7 (2000); (5) first-degree aggravated robbery (inflicting bodily harm), in violation of Minn. Stat. § 609.245, subd. 1 (2000); and (6) first-degree aggravated robbery (use of dangerous weapon) in violation of Minn. Stat. §§ 609.245, subd. 1, .11 (2000).
Shattuck moved to suppress the statements he made to the officer in Georgia. Following an evidentiary hearing, the district court denied the motion, ruling that the statements were not the product of interrogation. The district court also allowed, over the defense’s objection, Spreigl evidence of Shattuck’s 1993 conviction for criminal sexual conduct in the third degree.
The BCA conducted DNA testing on clothing that R.E. was wearing at the time of the assault and several articles of clothing seized from Shattuck. A BCA technician testified that a blood spot found on Shattuck’s pants matched R.E.’s DNA profile. Tests conducted by Hennepin County Medical Center on samples obtained from R.E. following the assault were inconclusive for seminal fluid and negative for sperm.
The jury returned guilty verdicts on all counts except count five, first-degree aggravated robbery (inflicting bodily harm). Shattuck filed posttrial motions, and the state agreed to DNA testing on slides obtained from R.E.’s rape kit. The BCA tested the slides for DNA and reported inconclusive results. At a posttrial hearing, the district court denied Shattuck’s request for a continuance to retain experts to rebut the BCA technician’s testimony and denied his motion for a new trial.
The district court sentenced Shattuck to 360 months on the first-degree-criminal-sexual-conduct charge and a concurrent 161 months on the kidnapping charge. The court found that Shattuck’s crime fulfilled the criteria for sentencing under the mandatory-minimum-sentencing statute, Minn. Stat. § 609.109, subd. 4 (2000). Although Shattuck’s probation officer recommended jail credit of 661 days, Shattuck’s attorney stated on the record that Shattuck only requested jail credit of 315 days. The district court ordered 315 days of jail credit. Shattuck appeals, challenging (1) the district court’s evidentiary rulings and the denial of a continuance, (2) the sufficiency of evidence to support his convictions, and (3) the length of his sentence and amount of jail credit.
Shattuck challenges three evidentiary rulings: the admissibility of uncounseled statements made during the police interview in Georgia, the admissibility of a 1993 sexual-assault conviction as Spreigl evidence, and the late disclosure of items of physical evidence. He also challenges the denial of a continuance to obtain expert evidence to rebut the BCA’s posttrial testimony on the DNA testing of R.E.’s rape-kit slide.
Under the Fifth Amendment to the United States Constitution, a defendant must be informed of his right to have counsel present during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 471, 86 S. Ct. 1602, 1626 (1966); State v. Hannon, 636 N.W.2d 796, 804 (Minn. 2001). Once a suspect has invoked his right to counsel, he may not be further interrogated until counsel has been made available, unless the suspect himself initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85 (1981); State v. Munson, 594 N.W.2d 128, 138 (Minn. 1999).
“Interrogation” in this context refers to express questioning, as well as any words or actions on the part of police that they should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90 (1980). But the mere possibility that police words or actions will elicit an incriminating response is insufficient to constitute interrogation; the words or actions “‘must reflect a measure of compulsion above and beyond that inherent in the custody itself.’” State v. Tibiatowski, 590 N.W.2d 305, 310 (Minn. 1999) (quoting Innis, 446 U.S. at 300, 100 S. Ct. at 1682). Minnesota courts apply federal constitutional standards using a totality-of-the-circumstances test to determine the voluntariness of a suspect’s statement, analyzing whether the overall effect of the circumstances would be enough to overpower the suspect. Tibiatowski, 590 N.W.2d at 310.
The transcript of Shattuck’s interview reflects an exchange between the police officer and Shattuck while the officer was obtaining the authorized blood sample. Shattuck initiated the conversation by commenting that the police were going through all this “for nothing.” The officer stated, as he had initially, that there was a young lady that said he raped her. Shattuck responded that he could account for his time between when he left work and when he arrived home on the night of the assault.
Due process requires that a defendant be fully informed of the nature of the charges against him. See Schmuck v. United States, 489 U.S. 705, 718, 109 S. Ct. 1443, 1451 (1989) (recognizing that knowledge of charges allows for preparation of defense); State v. Gisege, 561 N.W.2d 152, 157 (Minn. 1997) (same). The officer’s statement, taken in the totality of the circumstances, was in the nature of providing information to Shattuck on why the blood sample was necessary and what the charge was against him. The officer had told Shattuck that he was not questioning him further after Shattuck requested an attorney and had later admonished him not to say anything without counsel present. The officer’s statement of the complaint was not reasonably likely to elicit an incriminating response. It was not designed to pressure Shattuck to volunteer further information and reflected no measure of compulsion beyond that inherent in the custody itself.
We agree with the district court’s finding that the officer’s comment did not constitute interrogation. See, e.g., Innis, 446 U.S. at 303, 100 S. Ct. at 1691 (holding that conversation between police officers was not interrogation even though, in response to conversation, the accused made incriminating statements). The district court did not err in declining to suppress Shattuck’s statement as to his whereabouts on the night R.E. was assaulted.
Shattuck challenges the district court’s admission of Spreigl evidence of his 1993 conviction for criminal sexual conduct, in which he threatened a victim, pulled a knife on her, and committed a sexual assault by penetrating her from behind.
Evidentiary rulings are within the sound discretion of the district court and will not generally be reversed absent an abuse of discretion. State v. Kennedy, 585 N.W.2d 385, 389 (Minn. 1998). On appeal, the defendant bears the burden of demonstrating prejudicial error. Id.
Although evidence of past crimes is not admissible to prove the defendant’s character in order to show that the defendant acted in conformity with that character, it may be admissible for the limited purpose of showing “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Minn. R. Evid. 404(b); see also State v. Spreigl, 272 Minn. 488, 491, 139 N.W.2d 167, 169 (1965) (approving admissibility of other-crimes evidence for limited purposes, subject to notice). In order to admit the evidence, the district court must find by clear and convincing evidence that the defendant participated in the crime, the evidence is relevant and material, and its probative value outweighs the potential for unfair prejudice. State v. Lynch, 590 N.W.2d 75, 80 (Minn. 1999).
Shattuck argues that the evidence of his prior conviction was prejudicial and impermissibly admitted to show a general propensity to commit the type of crime involved. We disagree. The district court properly made findings on each of the factors relating to relevancy and prejudice that are outlined in Lynch, 590 N.W.2d at 80. The evidence of Shattuck’s past criminal conviction was relevant and material to show a pattern of threatening women with a knife, assaulting them sexually by approaching them from behind, and then threatening them a second time. See, e.g., State v. Wermerskirchen, 497 N.W.2d 235, 242 (Minn. 1993) (allowing Spreigl evidence that showed a pattern of opportunistic sexual exploitation of young girls). The state’s case was weakened by the lack of positive identification of Shattuck because R.E. had not identified Shattuck in a photo line-up. Under these circumstances, the district court did not abuse its discretion in admitting evidence of Shattuck’s past conviction.
Late disclosure of physical evidence
Shattuck contends that the state’s late disclosure of five knives not positively identified by R.E.—three knives seized from Shattuck, one knife from a Subway shop, and one found in an unrelated vehicle near the crime scene—entitles him to a new trial in the interests of justice. See Minn. R. Crim. P. 9.01, subd. 1(6) (requiring prosecutor to disclose to defense any exculpatory information within the prosecuting attorney’s possession); see also Minn. R. Crim. P. 26.04, subd. 1 (district court may grant new trial if required in interests of justice). We review the district court’s decision whether to impose sanctions for violating a discovery rule under an abuse-of-discretion standard. State v. Freeman, 531 N.W.2d 190, 198 (Minn. 1995).
The reviewing court should not order a new trial to remedy a discovery violation unless the evidence was material exculpatory evidence, indicating a “reasonable probability” that disclosure of the evidence would have affected the outcome of the trial. State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988). The fact that R.E. could not identify any of the knives did not materially prejudice the defense’s case, since the existence of additional evidence not linked to the crime did not tend to exonerate the defendant. Any possible prejudice was averted by the court reading to the jury the parties’ stipulation that certain knives had been shown to R.E., that she did not identify any of them as being used by her attacker, and that this was not reflected in the police report and not disclosed to the defense until after trial had begun. The district court did not abuse its discretion in denying the motion for a new trial.
Denial of continuance to rebut posttrial DNA evidence
The district court denied the defense’s request for a continuance to contest and clarify the BCA expert’s posttrial testimony on DNA evidence obtained from R.E.’s rape-kit slide. See State v. Rainier, 411 N.W.2d 490, 495 (Minn. 1987) (noting that denial of a continuance is a matter within the discretion of the district court, and this court will not reverse such a decision absent an abuse of discretion). In denying the motion, the district court observed that the BCA expert testified that the evidence was inconclusive, and that the defense had previously discussed whether it would call its own expert.
The DNA evidence that linked Shattuck to the crime was obtained from the blood spot on Shattuck’s pants, not from the fluids collected for R.E.’s rape kit. In view of the BCA report’s characterization of the DNA testing on the fluids as inconclusive and the DNA testing on the blood spot on Shattuck’s pants matching R.E.’s DNA profile, we cannot conclude that the district court abused its discretion in denying a continuance. See State v. Turnipseed, 297 N.W.2d 308, 311 (Minn. 1980) (reviewing court must examine circumstances at time motion was made to determine whether district court’s decision prejudiced defendant by materially affecting outcome of trial).
In a challenge to the sufficiency of the evidence, appellate review is limited to a painstaking analysis of the record, viewing the evidence in the light most favorable to the conviction. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). In this review, circumstantial evidence is weighed the same as other evidence, and a conviction based on circumstantial evidence will be upheld if the reasonable inferences from that evidence are consistent only with the defendant’s guilt and inconsistent with any rational hypothesis other than guilt. State v. Robinson, 604 N.W.2d 355, 366 (Minn. 2000). We sustain the conviction if the factfinder, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could have reasonably concluded that the defendant was guilty of the crime charged. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).
Shattuck contends that the evidence is insufficient to sustain his conviction because R.E. did not identify her attacker when shown a photo lineup. Despite the weakness of direct identification, the overall evidence of Shattuck’s guilt is strong. The record established that Shattuck owned a mountain bike and a jacket that matched the description of the one worn by R.E.’s attacker. Shattuck’s boss testified that on the evening of the assault, Shattuck asked whether he would be reported if he did not show up for work the next day, and he inquired about the foot traffic on nearby streets. In fact, Shattuck did not show up for work the next evening and instead left for Georgia. The jury could reasonably conclude that “[e]vidence of flight suggests consciousness of guilt.” State v. Church, 577 N.W.2d 715, 719 (Minn. 1998) (quoting State v. Bias, 419 N.W.2d 480, 485 (Minn. 1988)). The injuries to Shattuck’s hand were also inconsistent with his stated activities on the night of the assault.
The defense, and Shattuck in his pro se supplemental brief, question the reliability of the development of the physical evidence, including the rape-kit samples taken from R.E. and the subsequent DNA testing of the HCMC slide. But it was the blood spot on Shattuck’s pants, not the rape kit slides, that tested positive for DNA evidence linking Shattuck to the crime, and there is no credible challenge to the DNA testing of the pants. And the district court, in denying Shattuck’s motion for a new trial, concluded that, although the DNA testing of the HCMC slide was inconclusive, the inconclusiveness did not support an acquittal. The evidence as presented amply supports the jury’s finding that Shattuck was guilty of the crimes charged.
The district court found that Shattuck qualified for a mandatory 30-year sentence under Minn. Stat. § 609.109, subd. 4 (2000) and sentenced him under the mandatory-minimum-sentencing statute. As required by that statute, the district court specifically found the presence of aggravating factors, other than factors applicable to repeat criminal-sexual-conduct convictions, to provide grounds for an upward departure under the sentencing guidelines. The court found that the offense was committed with particular cruelty, the victim was particularly vulnerable, and the victim suffered great emotional harm.
The defense acknowledges that Shattuck’s sentence does not exceed the 30-year statutory-maximum sentence for the convicted offense under Minn. Stat. § 609.342, subd. 2 (2000). But the defense contends that because the sentence exceeds the 161-month presumptive sentence under the Minnesota Sentencing Guidelines, Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), requires that the departure be based on the jury findings under a reasonable-doubt standard.
This argument seeks to extend the holding of Apprendi. The United States Supreme Court has held that “[w]hether chosen by the judge or the legislature, the facts guiding judicial discretion below the statutory maximum need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt,” and that a judge may impose any sentence within the range between the maximum and minimum sentences without violating Apprendi. Harris v. United States, 536 U.S. 545, 565, 122 S. Ct. 2406, 2418 (2002); see also State v. McCoy, 631 N.W.2d 446, 451 (Minn. App. 2001) (noting that Apprendi applies “only to situations where a court sentences a defendant to a term that exceeds the statutory maximum”) (emphasis in original). The district court acted within its discretion in finding that aggravating factors provided a sufficient basis for sentencing Shattuck under the mandatory-minimum-sentencing statute, and that decision did not violate the holding of Apprendi.
Finally, Shattuck contests the district court’s granting of jail credit in an amount less than that recommended by his probation officer. A defendant is entitled to jail credit for time spent in custody in connection with the current offense. Minn. R. Crim. P. 27.03, subd. 4(B); see also Minn. Sent. Guidelines III.C (providing that court shall deduct from sentence imposed the time spent in custody in connection with the offense for which person is sentenced). The decision to grant jail credit is not discretionary with the district court. State v. Parr, 414 N.W.2d 776, 778 (Minn. App. 1987), review denied (Minn. Jan. 15, 1988).
At the sentencing hearing, Shattuck’s probation officer recommended that Shattuck receive 661 days jail credit. Shattuck’s counsel told the district court that Shattuck was requesting jail credit only from January 15, 2002, which amounted to 315 days. The attorney apparently believed that this was the extent of the credit to which Shattuck was entitled. The district court credited Shattuck with 315 days of jail service.
On appeal, the state does not contest the probation officer’s calculation of jail credit but argues that Shattuck waived his right to full jail credit. Credit for jail time is governed by principles of fairness and equity. State v. Dulski, 363 N.W.2d 307, 310 (Minn. 1985). The issue of jail credit is not readily waived. See State v. Fritzke, 521 N.W.2d 859, 862 (Minn. App. 1994) (holding that defendant did not waive jail credit issue by failing to appeal sentence or postsentencing orders).
We conclude that a waiver of jail credit, as with a waiver of other rights, should include at minimum the defendant’s personal acknowledgement of waiver, stated in open court. The statement of Shattuck’s counsel, made without Shattuck’s personal testimony, reduced Shattuck’s jail credit time by nearly a year from the calculation made by the probation officer. We therefore remand to allow full jail credit for the time Shattuck was in custody and for correction of the commitment order.
Affirmed as modified and remanded.