This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2428

 

 

State of Minnesota,

Respondent,

 

vs.

 

Raymond Earl Sweeney,

Appellant.

 

 

Filed April 3, 2007

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 04061766

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)

 

John M. Stuart, State Public Defender, Rochelle R. Winn, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Raymond Earl Sweeney appeals from his conviction of and sentence for first-degree criminal sexual conduct, challenging the trial court’s admission of a forensic interviewer’s opinion and denial of his motion for a new trial after a Schwartz hearing.  Appellant also argues that he was denied his right to a public trial when the trial court closed the courtroom during the child victim’s testimony and that the court lacked authority to submit sentencing factors to the jury.  We affirm.

FACTS

Five-year-old S.R. was placed in appellant’s custody by S.R.’s mother while she was hospitalized in the psychiatric unit of Hennepin County Medical Center.  When S.R.’s mother was discharged, she picked S.R. up at appellant’s apartment.  About a week later, S.R.’s mother went into the medical center’s crisis intervention center.  S.R.’s mother asked the center to arrange for S.R.’s care and mentioned to the social worker that she suspected appellant had sexually assaulted S.R.    

On the way to the crisis nursery, S.R. told the social worker that “Ray snuggled me.”   S.R. later elaborated that appellant licked her, put “his nut in” her, and “peed on” her.  As a mandatory reporter, the social worker filed a report, and Sergeant David Hansen was assigned the case.

S.R.’s CornerHouse interview was videotaped.  S.R. told the interviewer that appellant hurt her private parts by sticking his “nut” inside her and in her mouth and that he licked her privates.  S.R. had a physical examination at Children’s Hospital and told the examining doctor that appellant had put his “nuts” in her private and in her butt.

After the CornerHouse interview, Hansen interviewed appellant at the jail.  The jury heard the recorded interview after agreed-upon redactions.   During the interview, appellant initially denied touching S.R. and said that S.R.’s mother’s boyfriend, E.J., had abused S.R.[1]   Later in the interview, appellant testified that S.R. slept in his bed with him, saw him in the bathroom urinating, rubbed his penis, got on him and “humped” him, and grabbed his hand and told him to rub her and “finger” her.  He also testified that he had washed her privates with a washcloth.  He said he “could have” ejaculated, but he did not remember. 

Appellant was charged with first-degree criminal sexual conduct.  The state filed a notice seeking an upward departure and requesting a sentencing jury.  The jury found the appellant guilty as charged. The next day, the trial court convened a sentencing jury and submitted aggravating factors to the jury in the form of special interrogatories.  The jury found the factors beyond a reasonable doubt.

Prior to sentencing, a juror contacted the prosecuting attorney.  Among other things, the juror mentioned that the jury had heard during deliberations an unredacted tape of appellant’s interview with Hansen.  The trial court held a Schwartz hearing, questioned the jurors, and denied appellant’s motion for a new trial.

At sentencing, appellant argued that, after Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004),the court was not authorized to impose an upward departure.  The trial court sentenced appellant to a double upward departure of 288 months. 

D E C I S I O N

I.

 

Appellant argues that it was error for the trial court to allow, over objection, testimony by the CornerHouse interviewer that abuse had occurred.  The interviewer testified that CornerHouse interviewers make a finding of whether abuse occurred “just on the interview itself” and independent of “other corroborative factors.”  When the prosecutor asked what the interviewer’s finding was, defense counsel objected on relevancy grounds.  The court explained:

Jurors, people who may be qualified as experts are allowed to express opinions.  I’m going [to] give you further instructions on how to deal with opinions later in the trial.  I’m going to allow the witness to express an opinion.

 

The interviewer then told the jurors that her finding was that S.R. had been sexually abused.   

Expert opinion testimony that indicates abuse occurred, but not by whom, is admissible.  State v. Dana, 422 N.W.2d 246, 250-51 (Minn. 1988).    An expert’s testimony regarding the credibility of witnesses, in contrast, is generally not admissible. State v. Myers, 359 N.W.2d 604, 610-11 (Minn. 1984); see also State v. Wembley, 712 N.W.2d 783, 791 (Minn. App. 2006) (concluding that CornerHouse interviewer’s testimony violated prohibition against expert opinion as to child-witness’s credibility), review granted (Minn. Aug. 15, 2006).  Credibility determinations in criminal cases are peculiarly a jury determination, and an expert opinion on credibility might unduly influence a jury.   

The interviewer’s testimony that abuse had occurred was properly admitted.  Furthermore, even if the challenged testimony was deemed impermissible credibility opinion, the jurors viewed the interview themselves and thus had an independent basis to determine S.R.’s credibility.   In addition, the jurors had already heard both parties raise the issue of S.R.’s mother’s disbelief in S.R.’s allegations that appellant had abused her.  See, e.g., id. at 611-12 (concluding that objection to expert’s opinion on credibility was waived).  Allowing testimony rebutting the mother’s credibility opinion was not an abuse of discretion. 

II.

 

Appellant argues that the jury’s exposure to a statement made by appellant during his interview with Hansen requires a new trial.  The record indicates that prior to trial the parties agreed to redact references to appellant’s prior conviction and that the state voluntarily produced a redacted tape for trial.  At issue on appeal is one additional statement that defense counsel did not object to until the day of trial when it was too late to have it removed from the tape.  The statement was:  “I couldn’t do it because I had my kids taken away from me and I just couldn’t do it.”    The state agreed to, and did, stop the tape and skip over that statement when playing the tape to the jury during the trial.  Unbeknownst to the court or counsel, however, the jurors played the tape during deliberations and heard the statement.  A juror shared this information with the prosecutor about a week after the trial.  

The court heard arguments and then set the matter on for a Schwartz hearing.  See State v. Martin, 614 N.W.2d 214, 226 (Minn. 2000); see Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960).  The court separately gave each juror the opportunity to share what the juror could recall regarding any difference between the interview tape played during deliberations and the tape played during the trial.  Although several jurors were aware that they were hearing the whole tape during deliberations, unlike during trial, only three recalled that the difference between the tapes had to do with appellant’s children being taken away from him. 

Whether extraneous material influenced the verdict depends on “the nature and source of the prejudicial matter, the number of jurors exposed to the influence, the weight of the evidence properly before the jury, and the likelihood that curative measures were effective in reducing the prejudice.”  State v. Cox, 322 N.W.2d 555, 559 (Minn. 1982).  The trial court’s denial of a new trial is reviewed for an abuse of discretion.  Id.at 558.

The trial court considered the Cox factors and determined that (1) the statement heard by the jurors was “inconsequential,” (2) only three jurors had any recollection of the statement, (3) the weight of evidence before the jury (without the statement) was “extremely compelling . . . and that mitigates strongly in favor of not granting a new trial,” and (4) there was no ability to take curative measures. Given the jurors’ recollections and the weight of evidence of guilt, there was no basis for the trial court to determine that the extra statement about appellant’s children had any impact on the jurors or their decision.  Furthermore, appellant does not assert an independent legal basis for exclusion of the statement.  The court did not abuse its discretion in denying the new trial motion.

III.

Appellant argues that the trial court violated the constitution and statutory law by closing the courtroom when S.R. took the stand.  Appellant argues that the only reason the court closed the courtroom was S.R.’s “extremely tender age.” 

In criminal sexual conduct cases in which the victim is under 18 years of age, “the judge may exclude the public from the courtroom during the victim’s testimony or during all or part of the remainder of the trial upon a showing that closure is necessary to protect a witness or ensure fairness in the trial.”  Minn. Stat. § 631.045 (2004).  Although access to criminal trials and the right to a public trial are of constitutional stature, case law has clarified that “limited closure during the testimony of minor victims of sex crimes may be constitutional.”  State v. McRae, 494 N.W.2d 252, 258 (Minn. 1992) (citing Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606, 102 S. Ct. 2613, 2619 (1982)).  Where it appears that a minor is unable to testify competently and coherently before an audience because of embarrassment or fright, temporary exclusion of the public is permitted.  Id. (citing State v. Schmit, 273 Minn. 78, 82, 139 N.W.2d 800, 804 (1966)).  Factors to be considered are the minor victim’s age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives.  State v. Fageroos, 531 N.W.2d 199, 201 (Minn. 1995).

Here, the record reflects that the trial court had previously conducted a competency hearing with the child.  When the prosecutor moved for closure of the courtroom during the trial, the court heard from both counsel.  Both addressed the victim’s age and the psychological difficulty of testifying at the competency hearing.   Defense counsel stated that “it was difficult for [S.R.] to come to court and even answer preliminary questions” for the competency interview.  He thought it would “be very difficult for her to testify.”   The prosecutor added that “over the last couple of weeks, [groups of] junior high and high school students” had been entering courtrooms.   He argued that “the more people that are in the courtroom, the less likely the child is to feel comfortable and safe.”   He also argued that it would be harder to get the truth and whole story if there were unnecessary spectators.  The nature of the crime was known to the court and no preferences were expressed by parents or family.  On the basis of this record, the trial court closed the courtroom for S.R.’s testimony, stating that it did so “with hesitation, but because of the extremely tender age of this young girl.” 

Appellant argues that the trial court’s specific finding, that of the child’s extremely tender age, is insufficient to close the courtroom.  The record supports the finding and provides additional detail regarding the other factors for consideration.  Given the adequate basis to support closure in the record, we decline to remand for the trial court to restate what is apparent on the record.

IV.

 

Appellant argues that the trial court erred in submitting the aggravating factors to the jury on special interrogatories.  The sole basis for his argument is that this court’s decision in State v. Chauvin, 2005 WL 2979382 (Minn. App. 2005), was wrong and that the trial court did not have authority from the legislature or the Sentencing Guidelines Commission to submit the matter for findings by a jury.  He does not otherwise attack the jury’s findings.

            Since the filing of briefs in this matter, State v. Chauvin was affirmed:

The district court had the inherent judicial authority to impanel a jury to make factual findings on aggravating sentencing factors where the court correctly determined that the judicial fact finding portion of the Minnesota Sentencing Guidelines violated the Sixth Amendment, where the legislature had not yet provided for an alternate process, and where the court could not otherwise effectuate the legislative policy to depart from the presumptive sentence in appropriate cases.

 

723 N.W.2d 20, 21 (Minn. 2006).  Chauvin is dispositive of the sentencing issue raised by appellant and supports the trial court’s decision to submit the factors to the jury.

            Affirmed.