This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed March 8, 2005
LeSueur County District Court
File No. K9-03-589
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Brent Christian, LeSueur County Attorney, Jason L. Moran, Assistant County Attorney, 65 South Park Avenue, P.O. Box 156, LeCenter, MN 56057 (for respondent)
Walter J. Gates, III, 510 Long Street, Suite 109, P.O. Box 3008, Mankato, MN 56002 (for appellant)
Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Poritsky, Judge.
Appellant was charged with three counts of first-degree criminal sexual conduct. During trial, the district court granted appellant’s motion for a mistrial due to errors in the transcribing of statements that had been recorded by the police as part of the investigation. Following the district court’s declaration of a mistrial, appellant moved for dismissal of all charges with prejudice. The district court denied the motion and set the matter for trial. Appellant challenges the denial on the grounds of (1) due process and fair-trial rights, and (2) double jeopardy. Because the district court did not abuse its discretion in denying the motion to dismiss with prejudice and setting the matter for trial, we affirm. Because appellant failed to raise the double jeopardy argument to the district court, we decline to address it here.
Appellant Sherman Denzer (Denzer), his wife Mary Denzer (Mary), and D.P. worked at Le Sueur Incorporated, a factory in Le Sueur. Although Denzer knew D.P. from the factory, they worked in different sections and did not have significant contact with each other. Mary was somewhat better acquainted with D.P. On June 27, 2003, after work, Mary drove D.P. home because D.P.’s husband was out of town. The Denzers live five houses away from D.P. Mary then invited D.P. to a party that she and Denzer were having. D.P. accepted the invitation.
Several co-workers also attended the party. While there, D.P. drank two beers. After about an hour, D.P. left the party and walked home. Once there, she changed into her pajamas because she intended to spend the night at home. About an hour later, Denzer knocked on D.P.’s door. D.P. let him in. Denzer had been drinking all night and was heavily intoxicated. He had picked up two bottles of beer at the party, and he offered one of them to D.P. D.P. testified that she took the bottle but put it on a table without drinking anything from it. The parties dispute how long Denzer was at D.P.’s house. After spending between 20 and 90 minutes talking at D.P’s house, Denzer and D.P. walked back to the party. D.P. walked back home alone shortly afterwards and went to bed at around 9:00 p.m.
At around 3:30 a.m., D.P. heard knocking on the front door and opened it to find Denzer on her doorstep. She allowed him to come into the house. Although what happened next is largely disputed, Denzer and D.P. agree that sexual intercourse occurred. After Denzer left, D.P. phoned C.F., a friend, and asked her to come to D.P.’s house. Once there, C.F. encouraged D.P. to go to a hospital to report the incident and receive a physical exam. At the hospital, police recorded statements from D.P. and C.F. D.P. reported that Denzer had raped her.
Denzer was arrested and charged with three counts of first-degree criminal sexual conduct. Denzer acknowledged that he and D.P. had engaged in sexual intercourse but contended that it was consensual. While Denzer was in custody, six telephone conversations between him and his wife, Mary, were recorded. Denzer had been given a Le Sueur County jail manual explaining that the phone conversations could be recorded, but he is illiterate and could not read it. As a result, neither Denzer nor Mary realized that their conversations were being recorded. Transcripts were made of the telephone conversations between the Denzers. Transcripts were also made of the statements taken from C.F. and D.P. at the hospital. Audio recordings of the statements and several of the telephone conversations and copies of the transcripts were provided to both parties before trial.
A jury trial began on July 14, 2004. During testimony of one of the state’s witnesses, the state attempted to introduce one of the recorded telephone conversations between the Denzers. When the compact disk containing the conversation was inserted into the courtroom player, it became apparent that the disk contained two additional recorded conversations of which both the prosecution and the defense claimed to be unaware. The district court recessed the trial to allow the parties to listen to the additional conversations.
After this recess, Denzer brought to the court’s attention numerous discrepancies between the actual recordings and the transcripts. As a matter of trial strategy, Denzer chose not to disclose all the discrepancies in hopes of revealing the remaining errors during closing argument in order to suggest a corrupt investigation. The district court, however, decided to conduct its own research. After recessing the trial to investigate the discrepancies, the district court found approximately 34 discrepancies in the transcript of Denzer’s statement, 12 discrepancies in the transcript of C.F.’s statement, ten discrepancies in the transcript of D.P.’s statement, and 77 discrepancies in the transcripts of four recorded telephone calls between the Denzers. While some of the discrepancies were minor, some changed the meaning significantly. The district court stated that the discrepancies “cut both ways,” because there were inaccuracies both in information that was beneficial to Denzer and in other information that was beneficial to the state.
After a hearing on the issue, Denzer moved for a mistrial. During the hearing, the court denied the motion. But the next morning, after further reflection, the court decided to grant the motion and called the parties to inform them. The district court then granted the mistrial in the presence of the jury. Denzer moved for dismissal of all charges with prejudice, arguing that the discrepancies were part of an intentional effort by law enforcement to circumvent Denzer’s rights. The district court denied the motion and set the matter for retrial. Denzer challenges the denial.
1. Transcription Errors and Alleged Misconduct
Denzer argues that errors made in transcribing the recorded statements that the state planned to use at trial, coupled with other police and prosecutorial misconduct, amount to an intentional effort by law enforcement to deprive him of the right to a fair trial. Specifically, Denzer argues that the following grounds amount to intentional misconduct: (1) intentional errors in the transcripts of the telephone calls between the Denzers and in the transcript of C.F.’s statement; (2) coaching and leading witnesses to suggest the desired answer; (3) failure to disclose two telephone conversations that contain exonerating information, and belated disclosure of police field notes; and (4) the investigating officer’s insistence—including his testimony at trial—that D.P.’s underwear was torn, which, Denzer argues, was against the weight of the evidence.
None of the grounds asserted by Denzer, either individually or collectively, are sufficient to grant him relief. The district court found that none of the alleged misconduct was intentional, and Denzer has not shown that the court’s finding is erroneous. Resolution of many of the issues he raises is premature. The district court agreed with Denzer’s initial motion that declaring a mistrial was necessary due to errors in the transcripts. Thus, certain of the alleged errors in the first trial have been made moot by granting the motion for a mistrial. And if, in the retrial, either party raises an issue concerning the admissibility of testimony from the first trial, that matter will be an issue for the district court to determine.
Turning to Denzer’s specific claims of error, we reach four conclusions: First, the errors in the transcripts of the recorded statements between the Denzers and in the transcripts of D.P.’s and C.F.’s statements at the hospital have been corrected, and the erroneous transcripts will not be presented to the jury, unless Denzer chooses to do so and the district court rules that such use is proper on retrial. If Denzer chooses to introduce the audio recordings and their corresponding transcripts, the jury will decide whether the errors that occurred in the transcribing process affect the witnesses’ credibility.
Second, the allegation that D.P.’s and C.F.’s statements were the product of police coaching was presented to the district court as part of Denzer’s motion to dismiss the charges with prejudice. The district court implicitly rejected the argument. We have examined the statements, and we conclude that the district court’s ruling was correct: the statements do not appear to us to be the product of coaching and leading questions.
Third, Denzer also cites the failure to disclose before trial the recordings of two telephone conversations between himself and his wife as well as the belated disclosure of police field notes. But any error has now been corrected, as all recorded conversations and field notes have been disclosed, and the district court found that any delays in disclosure of conversations or field notes were not deliberate.
Fourth, the mistrial makes moot Denzer’s claim that a police officer’s testimony concerning D.P’s underwear was false. If Denzer chooses to bring up the matter in the retrial, it will be a credibility matter for the jury’s evaluation.
2. Double Jeopardy
Denzer also argues that double jeopardy bars his retrial. Both the federal and Minnesota constitutions guarantee that a criminal defendant may not be tried more than once for the same crime. U.S. Const. amend. V; Minn. Const. art. 1, § 7. Double jeopardy attaches when a jury is impaneled and sworn. State v. Long, 562 N.W.2d 292, 295-96 (Minn. 1997).
The record reveals, and Denzer conceded at oral argument, that the double jeopardy issue was not presented to the district court. Generally, an appellate court “will not decide issues which are not first addressed by the trial court and are raised for the first time on appeal even if the issues involve constitutional questions regarding criminal procedure.” State v. Sorenson, 441 N.W.2d 455, 457 (Minn. 1989). In this case, because both parties will have the opportunity to fully brief and argue the double jeopardy issue in district court, we decline to rule on it in this appeal.
Accordingly, we affirm the district court’s order denying appellant’s motion to dismiss with prejudice and setting the matter for trial.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.