This opinion will be unpublished and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

A03-1436

 

 

In the Matter of: Elaine Johnson,

petitioner,

Respondent,

 

vs.

 

Tedd LeRoy Johnson,

counter-petitioner,

Appellant.

 

 

Filed June 1, 2004

Affirmed

Anderson, Judge

 

Scott County District Court

File No. F-03-11461

 

Elaine Johnson, 11125 Dupont Court, Elko, MN  55020 (pro se respondent)

 

Marc G. Kurzman, Kurzman, Grant & Ojala, 219 Main Street Southeast, Suite 403,

Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant and respondent applied for orders for protection against each other.  Appellant produced the results of a polygraph examination and tapes recorded from a wiretap.  In deciding the case, the district court refused to admit the results of the polygraph examination but did admit the tapes into evidence.  But the district court refused to listen to the tapes and granted respondent’s request for an order for protection.  We affirm.

FACTS

 

            On July 16, 2003, respondent sought an order for protection (OFP) under Minnesota Statutes section 518B.01 (2002), alleging that appellant had held her by the throat while respondent held the couple’s child, pushed respondent against a wall, delivered an open handed slap to respondent’s face and then a backhand to the same side of respondent’s face as she turned away.  Respondent stated that she was a fulltime mother but that she also worked at Fairview Ridges Hospital.  An ex parte OFP was granted that day. 

On July 17, 2003, appellant also sought an OFP.  Appellant alleged: (1) on July 15, respondent had threatened to kill him, spat at him, threatened to destroy his life, and kicked him, (2) on July 9, respondent had struck the parties’ child with her elbow for spilling soup, and (3) respondent verbally abuses the child, spanks the child for crying, yells at the child to “shut up” or to “stop it” when the child cries, and has burned the child with a frying pan.  Appellant also alleged that respondent abuses drugs and steals medication from her employer.  Appellant stated that he had previously been involved in an OFP proceeding with respondent in October 2002.

On July 22, 2003, appellant took a psychophysiological detection of deception examination.  This is more commonly known as a polygraph/voice stress examination.  During the examination, appellant denied slapping respondent, grabbing respondent’s throat, or pushing respondent; the examiner determined that appellant was not deceptive in these answers and that the probability of deception was less than .01 percent.  But relying on long-standing Minnesota precedent, the district court ruled that the testimony of the test’s administrator concerning the results of the examination was inadmissible.  

At the hearing, the parties testified to the allegations set out in their respective applications for protective orders.  Respondent testified that on the morning in question, appellant came downstairs, where respondent and the parties’ son were, at approximately 9:00 a.m.  Respondent stated that she tried to make conversation with appellant because she had not seen him for several days and she also asked him for money to buy some items for the parties’ child because she had no money.  Respondent testified that appellant reacted angrily by grabbing her throat and pushing her against the wall so hard that she could not breathe; respondent was holding the parties’ child at the time.  Respondent said that appellant then slapped her across the left side of her face and then, as she was turning away to protect the child, backhanded her across the left side of her face again; appellant then left for work at approximately 9:15 a.m.  Respondent testified that she tried to calm the baby and later called the police at approximately 10:00 a.m. 

On cross-examination, respondent denied ever yelling at the parties’ child to “shut up,” conspiring with a man named “Angelo” to make false allegations of abuse against appellant to destroy his credibility, and ever taking drugs from work.  Respondent testified that she did have money on the 16th when she had asked appellant for money and that she works approximately two days per week.  As impeachment evidence, appellant introduced a bag full of various prescription medicines, which respondent denied were hers.  One of the prescriptions came from New York Hospital, where respondent used to work.

Appellant introduced a tape that appellant claims came from his house in which an unidentified woman is heard yelling at a crying baby to “shut up.”  Appellant also introduced a tape made from a wiretap he had installed on his telephone.  Over respondent’s objections, which are not at issue, the district court admitted the tapes.  Appellant identified one voice as respondent’s, and, on the tape, respondent identified the other speaker as Angelo.  After hearing a small part of the tape and a very short synopsis, the district court refused to listen further to the tapes and stated the tapes “provided absolutely nothing.” 

The sheriff’s deputy who responded to respondent’s call testified that respondent was bruised and swollen on the left side of her face.  The deputy stated that he had never seen someone who had self-inflicted similar bruises and that he did not suspect respondent had, either, but admitted he had no personal knowledge of how respondent’s injuries occurred.  The deputy who arrested appellant[1] stated that respondent had locked herself in a bathroom when appellant had returned home.  The deputy testified that respondent appeared to be scared and that he had no reason to suspect she had taken drugs but he was not looking for indicia of drug use, either.  The deputy, however, did not notice any bruising on appellant’s knuckles. 

Appellant denied all of respondent’s allegations, including that there was an argument on the morning of the 16th.  Appellant testified that he left the parties’ house in Elko at 8:45 a.m. and arrived at his jobsite in White Bear Lake at 10:00 a.m.  Appellant’s supervisor corroborated that appellant arrived in White Bear Lake at 10:00 a.m.  Appellant restated his allegations that respondent abused him.  The district court granted respondent an OFP and denied appellant’s application for an OFP.  This appeal followed.

 

DECISION

            I.  Polygraph

            Appellant seeks a Frye-Mack hearing to determine the admissibility of the results of his polygraph.  See State v. Mack, 292 N.W.2d 764, 767-68 (Minn. 1980) (stating the standard to be used in hearings to determine the admissibility of expert testimony).  The Minnesota Supreme Court has repeatedly ruled, “Results of polygraph tests . . . are not admissible in Minnesota in either criminal or civil trials.”  State v. Opsahl, 513 N.W.2d 249, 253 (Minn. 1994).  The reason for this rule is “because there is insufficient evidence of their reliability.”  State v. Anderson, 379 N.W.2d 70, 79 (Minn. 1985).

Appellant argues that an evidentiary hearing to determine the admissibility of his polygraph examination is necessary because polygraph examinations now have a proven track record of reliability.  At the district court, appellant argued that numerous federal agencies allow or mandate the use of polygraph examinations and that there is at least one study indicating that they are 97-98% accurate, with the accuracy rate climbing above 98% when voice stress analysis is included, as it was here.

But given that the Minnesota Supreme Court has stated clearly and unequivocally that the results of polygraph examinations are inadmissible as a matter of law, Opsahl, 513 N.W.2d at 253, an evidentiary hearing is pointless.  The district court did not err in excluding the polygraph evidence. 

II.  Wiretap evidence

Appellant argues that the district court improperly ignored the audiotapes.  The record reflects that the district court admitted the tapes into evidence but then paid little attention to the contents of those tapes. 

“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Minn. R. Evid. 401.  Even if evidence is relevant, “it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . or by considerations of . . . waste of time. . . .”  Minn. R. Evid. 403.  We review the district court’s evidentiary decisions on an abuse of discretion basis.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).

Here, the tapes and synopsis of those tapes are not clearly relevant because they do not directly address the precise issues before the district court–allegations of physical abuse by each party against the other party.  While a contrary result would certainly have been defensible, we can not say on this record that the district court’s conclusion that the wiretap evidence at issue here was not sufficiently relevant to form the basis of the district court’s order was an abuse of discretion.[2]

III.  Findings of Fact

Appellant’s last argument is that the district court’s findings of fact implicit in the issuance of the OFP for respondent were clearly erroneous.  Appellate courts defer to the district court’s credibility determinations and only reverse if they are clearly erroneous.  In re Estate of Serbus v. Serbus, 324 N.W.2d 381, 384-85 (Minn. 1982).  The district court’s findings of fact will not be disturbed unless clearly erroneous.  Esselman v. Prod. Credit Ass’n of St. Cloud, 380 N.W.2d 183, 186 (Minn. App. 1986), review denied (Minn. Mar. 21, 1986).  A finding of fact is clearly erroneous if this court “is left with the definite and firm conviction that a mistake has been made.”  Id.  The district court has not clearly erred “if the evidence as a whole sustains the trial court’s findings,” regardless of whether the district court could have reasonably reached another conclusion.  Total Equip. Leasing Corp. v. LaRue Inv. Corp., 357 N.W.2d 347, 350 (Minn. App. 1984), review denied (Minn. Feb. 19, 1985).

Here, the evidence presented for consideration by the district court consisted principally of the testimony of the two parties with the critical addition of physical evidence that respondent had suffered bruises.  The district court was faced with a difficult credibility determination and given the record before us, and in particular given respondent’s bruises, we cannot say the district court clearly erred in crediting respondent’s version of events on the narrow question of whether to issue an order for protection favoring respondent.[3]

            Affirmed.



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

[1] Appellant, upon returning home in the evening, was arrested for fifth-degree domestic assault. 

 

[2] Neither the parties nor the district court addressed the impact of Minnesota Statutes chapter 626A, which discusses the use of wiretap evidence in criminal and civil proceedings.  Because the issue was not addressed or briefed by the parties, we do not decide the relevance and effect, if any, of chapter 626A, in the context of these proceedings.

 

[3] While we affirm the district court here, largely on the basis of the record and our standard of review, it is impossible not to share the district court’s warning to both parties that neither party was going to have any credibility left by the time the proceedings were concluded.  In particular, while of dubious relevance to the precise issue before the district court, the content of the wiretap evidence can only be described as disturbing.