This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
John J. Kotowski,
Filed May 4, 1999
Dakota County District Court
File No. K4972352
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street,
St. Paul, MN 55101; and
James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County
Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN
55033 (for respondent)
Michael F. Cromett, Assistant State Public Defender, McMahon & Cromett,
2499 Rice Street, Suite 260, Roseville, MN 55113 (for appellant)
Considered and decided by Short, Presiding Judge, Peterson, Judge, and
U N P U B L I S H E D O P I N I O N
A jury convicted John J. Kotowski of two counts of first-degree
criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c),
(e)(i) (1996), and one count of kidnapping in violation of Minn. Stat. §
609.25, subd. 1(2) (1996). On appeal, Kotowski argues the trial court
erroneously: (1) refused to suppress evidence obtained pursuant to a warrant
executed at nighttime; (2) admitted irrelevant, prejudicial statements Kotowski
allegedly made to a witness while precluding cross-examination of that witness
on bias; and (3) deprived Kotowski of a fair trial by committing four errors.
D E C I S I O N
Generally, search warrants may only be executed between the
hours of 7:00 a.m. and 8:00 p.m. Minn. Stat. § 626.14 (1996). However, a
nighttime search may be authorized to "prevent the loss, destruction, or
removal of the objects of the search or to protect the searchers or the
public." Id. But the state must make a sufficient showing to
justify inclusion of a nighttime search clause. See, e.g.,
State v. Lien, 265 N.W.2d 833, 840 (Minn. 1978) (holding police
did not make sufficient showing to justify inclusion of nighttime search
Kotowski argues the information presented in the application for the search
warrant was insufficient to make the nighttime execution reasonable under the
state and federal constitutions. See U.S. Const. amend IV; Minn.
Const. art. I, § 10. (prohibiting unreasonable searches and seizures). We
disagree. The record demonstrates: (1) the affidavit detailed the sexual
assault and specified numerous items of evidence that could be easily moved or
destroyed; (2) although Kotowski was in custody at the time the search was
executed, two other people had access to the evidence; and (3) due to the
victim's delay in reporting, 24 hours had elapsed between the sexual assault
and the search. These circumstances justify inclusion of a nighttime search
clause. See State v. Ailport, 412 N.W.2d 35, 38 (Minn. App.
1987) (holding deputy's affidavit contained requisite showing to justify
no-knock, nighttime entry), review denied (Minn. Nov. 18,
Rulings on evidentiary matters rest within the sound discretion of
the trial court and will not be reversed absent an abuse of that discretion
that results in prejudice. State v. Kennedy, 585 N.W.2d 385, 389
(Minn. 1998). Evidence that a defendant committed a prior crime or misconduct
is inadmissible to show character as a basis for an inference that the
defendant acted in conformity with that trait on a particular occasion. Minn.
R. Evid. 404. Such evidence is admissible to establish motive, intent, or the
existence of a common plan or scheme. Minn. R. Evid. 404(b); State v.
Forsman, 260 N.W.2d 160, 167 (Minn. 1977). But even when offered for a
proper purpose, evidence of a prior crime is admissible at trial only if the
Spreigl requirements are met. See State v.
Bolte, 530 N.W.2d 191, 196-97 (Minn. 1995) (requiring notice,
disclosure of evidence, relevance, clear and convincing evidence defendant
participated in other offense, and probative value outweighing prejudice).
Kotowski argues the trial court erred by admitting testimony from Christian
Knappe in violation of State v. Spreigl, 272 Minn. 488, 139
N.W.2d 167 (1967), and precluding cross-examination for bias in violation of
Minn. R. Evid. 616. But the record shows: (1) Knappe's limited testimony
involved statements made by Kotowski, but excluded any reference to Kotowski's
prior acts; (2) the testimony was admitted to show intent, plan, and design
under Minn. R. Evid. 404(b); (3) the testimony was limited to information
consistent with the victim's account of the attack; (4) the trial court
analyzed the evidence under Minn. R. Evid. 403; and (5) Kotowski's offer of
proof regarding a burglary was vague and unsubstantiated. Under these
circumstances, the trial court did not abuse its discretion by admitting
limited testimony from Christian Knappe.
Kotowski also argues the cumulative effect of four errors made during
trial warrants reversal. See State v. Underwood,
281 N.W.2d 337, 344 (Minn. 1979) (holding cumulative effect of errors compelled
reversal). We disagree. First, the trial court did not abuse its discretion
when it permitted the prosecution a brief rebuttal to address factual
misstatements by defense counsel. See Minn. R. Crim. P. 26.03,
subd. 11(j) (stating trial court may allow state to make rebuttal if court
determines defense made misstatement of law or fact); State v.
Nielsen, 467 N.W.2d 615, 619 (Minn. 1991) (holding permission to rebut
was appropriate, and rebuttal was properly limited to short and direct response
to misstatement). Second, Kotowski was in the courtroom when his counsel
consented to allow the jurors to separate over the weekend, and there is no
allegation of resulting prejudice from the trial court's failure to sequester.
See Minn. R. Crim. P. 26.03, subd. 5(1) (stating trial court may
allow jurors to separate overnight with defendant's consent). Third, the jury
instructions as a whole did not give the impression that Kotowski had a duty to
present evidence. See State v. Schmieg, 322 N.W.2d
759, 760 (Minn. 1982) (holding court will not reverse where jury instructions
as a whole did not give impression that defendant had duty to present
evidence). And fourth, Kotowski does not claim the judge's off-the-record
conversations with the jury while they were deliberating were prejudicial.
See State v. Danforth, 573 N.W.2d 369, 373 (Minn.
App. 1997) (citing State v. Kelley, 517 N.W.2d 905, 908 (Minn.
1994)) (holding new trial is warranted only where judicial misconduct is
prejudicial), review denied (Minn. Feb. 19, 1998). Under these
circumstances, a new trial is not warranted based on judicial misconduct.
After a careful review of the record, we conclude the additional issues raised
in the pro se supplemental brief are without legal or factual support and there
are no grounds for a new trial.