This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
State of Minnesota,
Karen Marie Martineau,
Carlton County District Court
File No. K4-03-1261
Mike Hatch, Attorney General, James B. Early, Assistant
Attorney General, 1800
Thomas H. Pertler, Carlton County Attorney, 204 Courthouse,
John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.
Appellant challenges her conviction for first-degree arson. Because we find that sufficient evidence supports the verdict, that the district court did not err in denying appellant’s motion to suppress evidence from the fire scene on the basis of an alleged violation of discovery rules, and that appellant was not denied her right to a fair trial by prosecutorial misconduct, we affirm.
A few days after the romantic relationship between appellant Karen Martineau and Randy Erickson ended, appellant and her son visited Erickson at his mobile home residence. Erickson told appellant that he did not want to resume their relationship. After leaving, appellant called Erickson at least once and stopped back the same evening. Erickson thought appellant was upset. During one of her visits, appellant returned a key for Erickson’s mobile home. Later that evening, Erickson left for some night fishing with a friend. At approximately 11:05 p.m., police received a call reporting that Erickson’s mobile home was on fire.
A fire investigator concluded that the fire at Erickson’s mobile home was started intentionally. The investigator determined that a burner on the kitchen stove had been turned on, that a frying pan was sitting on towels on the burner, and that a “trailer” of towels led to the floor, presumably to spread the fire. The investigator also utilized a dog trained to alert to various fire accelerants. The dog’s response indicated that an accelerant was present on the towels.
Erickson testified that when he left his home, the burners were off, there were metal covers on each of the burners, and there were no towels or rags in the kitchen. However, Erickson noted that lamp oil and rags were missing from a camper in his yard.
A police officer interviewed appellant at her parents’ home. Both in that interview, and in a subsequent interview at the police department, appellant stated that she had been at Erickson’s home early in the evening and stayed home all night. However, based on other information, appellant was charged with first-degree arson, in violation of Minn. Stat. § 609.561, subd. 1 (2002).
At her omnibus hearing, appellant moved to suppress evidence related to the investigation of the fire scene because Erickson’s mobile home was demolished and disposed of, precluding appellant from conducting her own investigation. Erickson testified that the fire investigator told him that he could demolish the mobile home after the investigator completed his investigation, which Erickson did. The district court denied appellant’s motion.
Multiple witnesses at appellant’s jury trial testified that they saw appellant at the trailer home both shortly before the fire and in the vicinity during the fire. Appellant was convicted of first-degree arson, sentenced to 52 months, and ordered to pay restitution. This appeal follows.
first issue is whether appellant’s conviction is supported by sufficient
evidence. In considering a claim of
insufficient evidence, the reviewing court will not disturb the verdict if the
jury, acting with due regard for the presumption of innocence and the
requirement of proof beyond a reasonable doubt, could reasonably conclude the
defendant was guilty of the charged offense.
Bernhardt v. State, 684 N.W.2d
465, 476-77 (
evidence is entitled to the same weight as direct evidence, but warrants
stricter scrutiny. State v. Bauer, 598 N.W.2d 352, 370 (
conviction for arson in the first degree is warranted when one “unlawfully by
means of fire or explosives, intentionally destroys or damages any building
that is used as a dwelling at the time the act is committed.” Minn. Stat. § 609.561, subd. 1
(2002). Arson convictions often rely on
circumstantial evidence because typically no one is at the scene when the fire
is discovered. State v. Jacobson, 326 N.W.2d 663, 665 (
Appellant does not argue that the fire was unintentional, but instead argues that the state did not establish that she was the one who set the fire. Erickson testified that he and appellant had multiple discussions on the day of the fire about ending their relationship and that appellant was upset and hurt. This establishes a motive for appellant to set fire to Erickson’s trailer. Other evidence indicates that appellant had the means to gain entry and commit arson. Erickson testified that he left two windows open in his home, that there were hay bales near one of the windows, and that he used the bales to climb in the window when he was locked out. He also testified that the materials used to start the fire were available in the trailer or the camper in the yard.
Several witnesses placed appellant at the scene shortly before the fire. Dawn Abramowski, who had known appellant since childhood, testified that she and her children drove by Erickson’s home around 10:00 or 10:15 p.m. and that she saw appellant and her son standing outside Erickson’s home, and appellant’s car parked near the house. Appellant argues that this testimony is not credible because Abramowski was driving a car with six children, and was speeding, but this argument is weakened by the fact that Abramowski testified that she specifically remembered waving to appellant as she drove by. Appellant also argues that Abramowski likely was confused and actually drove by earlier in the evening when appellant was present at the home, but this argument is not persuasive because Abramowski did not indicate any confusion as to her sighting of appellant.
Laurie Hansen, who formerly worked with appellant, testified that she drove by Erickson’s residence at approximately 10:30 p.m. Hansen said that she saw appellant’s car, which she knew to be a white Grand Prix, parked in front of the mobile home. Although appellant challenges the sufficiency of Hansen’s identification of appellant’s vehicle, because of her detailed description and her prior knowledge of the vehicle, the challenge is not persuasive. The testimony of Abramowski and Hansen permits the inference that appellant was outside the home at 10:00 or 10:15 p.m., and then inside at 10:30 p.m.
Officer Tom Foldesi testified that he directed traffic away from the fire scene from approximately 11:30 p.m. to 1:00 a.m. and saw appellant drive through the intersection. Appellant argues that Foldesi could not have seen her because the area was not well-lit, but Foldesi testified that he had known appellant for several years, that her car came to a stop 10 yards from him, that he had a flashlight, and that he was certain he saw appellant driving the car.
Erickson’s mother, Corrine Wick, testified that she also drove through the same intersection during the fire and saw appellant driving the car in front of her. Appellant argues that Wick’s testimony is not persuasive because Wick admitted that her son initially identified appellant. At a minimum, this testimony undermines the credibility of appellant’s claim that she had been at home all night. Erickson also testified that appellant taunted him about the fire sometime afterwards.
We conclude that based on our review of the record the state provided evidence of appellant’s motive, means, and opportunity to set fire to Erickson’s mobile home and that the record supports appellant’s conviction for first-degree arson beyond a reasonable doubt.
The second issue is whether the district court erred in denying appellant’s motion to suppress evidence from the scene of the fire because the mobile home was demolished before appellant was charged, thus precluding her from conducting her own investigation. Appellant frames her argument in the context of a violation of the discovery provisions in the Minnesota Rules of Criminal Procedure.
A prosecutor is required to provide a defendant access to certain evidence:
Without order of court . . . the prosecuting attorney on request of defense counsel shall . . . allow access at any reasonable time to all matters within the prosecuting attorney’s possession or control which relate to the case and make the following disclosures:
(3) Documents and Tangible Objects. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce books, grand jury minutes or transcripts, law enforcement officer reports, reports on prospective jurors, papers, documents, photographs and tangible objects which relate to the case and the prosecuting attorney shall also permit defense counsel to inspect and photograph buildings or places which relate to the case.
Minn. R. Crim. P. 9.01, subd.
1. Appellant argues that this provision
implies a requirement that the state preserve evidence – including evidence
belonging to a private party, such as Erickson’s mobile home – in order to
permit future access by the defendant.
“Whether a discovery violation occurred is an issue of law which this
court reviews de novo.” State v. Palubicki,
700 N.W.2d 476, 489 (
have interpreted the above-quoted language from rule 9.01 and concluded that it
“does not explicitly limit the defense right to inspect the alleged crime scene
to those premises in the ‘possession or control’ of the prosecution.” State
v. Lee, 461 N.W.2d 245, 246 (
if there were a violation of discovery rules, a district court has broad
discretion when imposing sanctions for such violations, and this court will not
reverse the district court’s determination absent an abuse of that
discretion. State v. Moore, 493 N.W.2d 606, 608 (Minn. App. 1992), review denied (Minn. Feb. 12,
1993). Factors to be considered in
deciding whether to impose sanctions include “(1) the reason why disclosure was
not made; (2) the extent of prejudice to the opposing party; (3) the
feasibility of rectifying that prejudice by a continuance; and (4) any other
Here, the district court denied appellant’s motion to suppress the evidence from the crime scene, finding that appellant was not prejudiced because “the scene was preserved in great detail by numerous photos by the investigators, as well as a full video.” Appellant argues that by independently investigating the fire scene, she could have challenged testimony that the fire was set intentionally. But appellant did not present any expert evaluation of the photos and video at the trial and did not indicate how the photos and video were insufficient. Appellant also argues that an investigation may have given her an opportunity to find evidence of how an intruder entered the home. But police found no evidence of forced entry, and appellant does not explain why she believes such evidence existed. The district court did not err in denying appellant’s motion to suppress the evidence from the crime scene.
The third issue is
whether appellant was denied a fair trial due to prosecutorial misconduct. This court will reverse a conviction due to
prosecutorial misconduct at trial only if the misconduct, “when considered in
light of the whole trial, impaired the defendant’s right to a fair trial.” State
v. Powers, 654 N.W.2d 667, 678 (
a party waives any challenge to the alleged misconduct on appeal by failing to
object or seek a cautionary instruction.
State v. Ture, 353 N.W.2d 502,
respect to prosecutorial misconduct during closing argument, we look at the
closing argument “as a whole.” State v. Walsh, 495 N.W.2d 602, 607 (
argues that the prosecutor improperly stated his opinion when he characterized
Hansen’s testimony. However, the
challenged statements were not expressions of the prosecutor’s opinion. Instead, the prosecutor was merely describing
the evidence, which does not constitute misconduct. See
Appellant also argues that the prosecutor improperly bolstered the credibility of the state’s witnesses with his own opinion. In most of the challenged statements, the prosecutor highlighted factors to the jury that were relevant to a credibility determination, such as the strong emotional reaction of Erickson’s mother, Corrine Wick, upon seeing appellant at the scene, and, in general, the state’s witnesses’ lack of “waffling.” These statements do not express the prosecutor’s opinions on credibility, but instead properly point to factors the jury can consider in deciding credibility.
Appellant finally challenges the following statement by the prosecutor regarding testimony by Dawn Abramowski: “I would suggest to you, what she saw is what she saw, a human, breathing person.” Even if this was an improper statement of the prosecutor’s opinion as to Abramowski’s credibility, it does not rise to the level of plain error.
Reviewing the incidents of alleged misconduct, we conclude that individually none is plain error and that collectively they do not establish that appellant was denied her right to a fair trial due to prosecutorial misconduct.
also makes two arguments in her pro se supplemental brief. First she asserts that she was denied the
effective assistance of counsel because her attorney was referred to in
transcripts as both a private attorney and a public defender. This appears to be a clerical mistake, and
appellant does not allege any specific prejudice. Appellant’s claim does not merit relief. See
Gates v. State, 398 N.W.2d 558, 561 (