Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Michael Allen Grimmett,
Filed June 16, 1998
Cass County District Court
File No. K2960728
John M. Stuart, State Public Defender, Susan K. Maki, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Michael Grimmett was convicted of second-degree assault, kidnapping, first-degree criminal sexual conduct, and terroristic threats. See Minn. Stat. §§ 609.222, subd. 1, 609.25, subd. 1(2), 609.342, subd. 1(c), (d), 609.713, subd. 1 (1996). Besides making several claims of trial error, Grimmett contends that the prosecutor committed prejudicial misconduct, and that the trial court abused its discretion in departing upward from the presumptive sentence. We affirm.
On July 29, 1996, police responded to a hostage situation at a Cass County farm. Arthur Borman, the owner of the farm, called 911 to report that Grimmett was holding D.C. hostage in Borman's farmhouse. Jeff Lorenson, Borman's farmhand, also called 911 to report that Grimmett had stabbbed him and was holding a knife to D.C.'s throat. Police response teams surrounded the house, and BCA Agent Bruce Preece conducted telephone negotiations with Grimmett for over seven hours. These negotiations, during which Grimmett uttered numerous threats to kill D.C., were taped. Grimmett was charged with kidnapping and assaulting D.C. and Jeff Lorenson, sexually assaulting D.C., and uttering terroristic threats against D.C.
The trial court granted in part Grimmett's pretrial motion to exclude references made in the taped negotiations to Grimmett's criminal record. Borman, Lorenson, D.C., Agent Preece, and several members of the police response team testified about the lengthy incident. Borman testified that he had found Grimmett and D.C. naked on the couch and saw Grimmett holding a knife to D.C.'s back. Lorenson testified that he also came down and saw Grimmett and D.C. sitting naked on the couch, with two shotguns nearby. When Lorenson tried to grab the guns, Grimmett stabbed him.
D.C. testified that Grimmett threatened her with a knife to get her to disrobe. He demanded oral sex, while holding the knife to her side. D.C. testified that after Grimmett forced her to go upstairs and to help barricade them in a second-floor bedroom, he forced her to perform oral, anal, and vaginal sex. He also threatened to kill Lorenson, who was hiding on the third floor, and fired shots up through the ceiling to where he believed Lorenson was hiding.
The jury found Grimmett guilty of seven of the eight counts, acquitting him of the charge of kidnapping Lorenson. The trial court sentenced Grimmett to 360 months for first-degree criminal sexual conduct, 41 months for terroristic threats, and 54 months for kidnapping, all sentences to be served concurrently. In departing upwards on the first-degree criminal sexual conduct offense, the court found that Grimmett was a patterned sex offender and also a dangerous repeat offender.
D E C I S I O N
The trial court struck numerous references in the negotiation transcript to Grimmett's criminal record. Although these references came out in the course of a long, rambling hostage negotiation, and some came out through D.C., they all originated with Grimmett and are inseparable from his threats and his attempts to convince police he was serious about the threats. Statements by a defendant revealing his criminal record, made to reinforce a threat, may be admitted in a terroristic threats prosecution. See State v. Stephenson, 361 N.W.2d 844, 845-46 (Minn. 1985). The court is not required to censor a defendant's own statements made at the time of the offense to delete references to prior "bad acts." See State v. Fratzke, 354 N.W.2d 402, 409 (Minn. 1984) (holding defendant's admission to another homicide, made as he drove away from scene, was relevant, and even if too unduly prejudicial to be admitted under Rule 403, was harmless error). Thus, the trial court was not required to strike even the more explicit references to Grimmett's criminal record. It was not error to fail to strike the vague references to Grimmett's record, and error, if any, was harmless given the overwhelming nature of the evidence.
Grimmett also argues that failing to strike an investigator's testimony about Grimmett's "satanic tattoo" was prejudicial error. Although a prosecutor generally has some responsibility to prepare his witnesses to prevent them from blurting out inadmissible evidence, if the prejudicial response is elicited at least in part from defense counsel, it is less likely to be found prejudicial error. See State v. DeWald, 463 N.W.2d 741, 744 (Minn. 1990) (noting police officer's opinion testimony, claimed to be a legal conclusion, was offered in response to leading questions by defense counsel as well as prosecutor); State v. Carlson, 264 N.W.2d 639, 641 (Minn. 1978) (noting prosecutor's duty to prepare witnesses but placing principal blame on defense counsel, who could have taken steps to prevent prejudicial, nonresponsive answer). The investigator's reference to Grimmett's "satanic tattoo" came in response to defense counsel's question whether the investigator had asked "to view any parts of [Grimmett's] body for possible evidence." Although Grimmett argues that defense counsel was only trying to elicit that Grimmett had no blood on him, that fact had already been established by the preceding question. The investigator could logically have concluded that the next question was directed at some other type of evidence. Even if we could find an abuse of discretion in failing to strike the investigator's answer, this error too would be harmless.
The trial court's decision to depart from the presumptive sentence will not be reversed absent an abuse of discretion. State v. Halvorson, 506 N.W.2d 331, 336 (Minn. App. 1993). The patterned sex offender statute requires a minimum departure of double the presumptive sentence. Minn. Stat. § 609.1352, subd. 1(a). There are numerous aggravating factors to support the additional departure to 2.7 times the presumptive sentence. These include multiple penetrations, multiple forms of penetration, a very protracted incident with numerous gratuitous threats to kill, and the use of more than one weapon to coerce the victim. All of these constitute particular cruelty to a degree that amply supports the departure. See State v. Hudspeth, 535 N.W.2d 292, 295 (Minn. 1995) (gratuitous violence); State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992) (multiple penetrations, kidnapping, and other aggravating factors), review denied (Minn. Apr. 13, 1992); State v. Yanez, 469 N.W.2d 452, 456 (Minn. App. 1991) (multiple penetrations and abduction), review denied (Minn. June 19, 1991). The trial court did not abuse its discretion in imposing the statutory maximum sentence for first-degree criminal sexual conduct.