State of Minnesota, Respondent, vs. Tony Dejuan Jackson, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-98-1837

State of Minnesota,

Respondent,

vs.

Tony Dejuan Jackson,

Appellant.

 

Filed September 7, 1999

Affirmed

Willis, Judge

Ramsey County District Court

File No. K0971881

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 Kellogg Boulevard West, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

WILLIS

, Judge

Appellant Tony Dejuan Jackson challenges his convictions of first-degree criminal sexual conduct and first-degree burglary in violation of Minn. Stat. §§ 609.342, subd. 1(e)(i), 609.582, subd. 1(b), and 609.582, subd. 1(c) (1996). He also claims the district court abused its discretion in sentencing. Because we conclude that no reversible error occurred at trial and that the district court did not abuse its discretion in sentencing, we affirm.

 

FACTS

Appellant Tony Jackson was charged with one count of first-degree criminal sexual conduct and two counts of first-degree burglary for sexually assaulting C.B. in her home on May 8, 1997.

C.B. testified that she awoke in her bedroom to find a man putting a pillow over her head. She could see her attacker was a black man, wearing a fanny pack with the words "The St. Paul" printed on it in white lettering. The attacker put duct tape over C.B.'s mouth and tied her arms behind her back with rope. He then sexually penetrated her vaginally and anally, and he subsequently penetrated her orally as well.

C.B. testified that she could not see the face of her attacker but thought she recognized his voice as that of a man she had confronted in her home less than three months earlier. That man had asked C.B. several questions, during which she had a good opportunity to observe him before he departed, at her insistence.

C.B. identified Jackson in a videotape lineup in which Jackson and five other men entered a room and read the words C.B.'s attacker had spoken. C.B. identified Jackson by appearance as the man she had earlier confronted in her house and identified his voice as the voice of the man who raped her.

The state presented evidence that when Jackson was arrested, 11 days after the rape, he had in his car a large knife, a 9-mm handgun, some rope, a mask, a roll of duct tape, handcuff keys, and a blue fanny pack with the words "The St. Paul" printed on it in white letters. The state also presented evidence that DNA testing on semen stains found on the sheets from C.B.'s bed showed the samples were consistent with the DNA from a known sample from Jackson. A BCA forensic scientist testified that the probability of a random match was 1 in 3.3 billion.

Jackson presented an alibi defense through his girlfriend. The jury found him guilty on all three counts, and the district court sentenced him to life in prison, under the repeat sex offender statute, for the first-degree criminal sexual conduct, and to a consecutive 96 months, a double durational departure, for the first-degree burglary.

 

D E C I S I O N

 1. Pretrial identification

Jackson argues that the district court abused its discretion in admitting evidence that C.B. and other prosecution witnesses identified him in a videotape lineup. This court independently reviews a pretrial identification procedure to determine whether it was impermissibly suggestive. State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996).

Lineups need not be of perfect composition, consisting of matching subjects, to produce admissible identification evidence. See State v. Roan, 532 N.W.2d 563, 572 (Minn. 1995) (holding lineup need not use "exact clones" of accused). The lineup here consisted of a variety of participants, each reasonably close to the suspect's age and general description. Moreover, because it was videotaped, the lineup allowed C.B. and the Spreigl witnesses to match the movements, mannerisms, and voices of the participants against their recollections of the perpetrator. The physical similarities of the participants, therefore, were not as critical as in ordinary silent, stationary lineups or photo displays. Notably, C.B. recognized Jackson's voice as matching the voice of her attacker. We conclude the videotape lineup was not impermissibly suggestive. Moreover, even if it were impermissibly suggestive, we conclude it did not create a very substantial likelihood of irreparable misidentification, and, therefore, its admission is not reversible error. See Neil v. Biggers, 409 U.S. 188, 198, 93 S. Ct. 375, 381 (1972).

 2. Spreigl evidence

Jackson argues that the district court erred in admitting Spreigl evidence. This court reviews the district court's rulings on the admissibility of Spreigl evidence for a clear abuse of discretion. State v. Smith, 563 N.W.2d 771, 773 (Minn. App. 1997).

Jackson argues that the state did not show a need for the Spreigl evidence to support its proof of identity. In general, before admitting such evidence, the court must find that the state's evidence on the relevant issue is weak or inadequate and that the evidence is necessary for the state to meet its burden of proof. State v. DeWald, 464 N.W.2d 500, 504 (Minn. 1991).

But the state is entitled to present Spreigl evidence if the defendant presents an alibi defense. See State v. Moorman, 505 N.W.2d 593, 602 (Minn. 1993) (holding that where identity is at issue and defendant offers an alibi, state may buttress its case with Spreigl evidence). Jackson presented the testimony of his girlfriend that he was with her on the morning that C.B. was raped. Therefore, the district court did not abuse its discretion in admitting Spreigl evidence to support the state's proof of identity.

 3. DNA evidence

Jackson argues that the district court improperly allowed the state to present its DNA evidence in terms of a "fixed bin" random-probability figure and that it erred in failing to give cautionary instructions to the jury on how to consider the DNA evidence. A decision to admit expert testimony is within the district court's discretion and will not be reversed absent an apparent error. State v. Borchardt, 478 N.W.2d 757, 760 (Minn. 1991).

The district court may admit expert testimony on the significance of DNA evidence, including an expert opinion that there is a "match" between the defendant's DNA and the DNA of a sample found at the scene, as well as a numerical expression of the probability of a random match. State v. Bloom, 516 N.W.2d 159, 167-68 (Minn. 1994). But Bloom also suggests that cautionary instructions may be necessary. Id. at 169 n. 7 (stating that the "content of cautionary instructions must develop on a case-by-case basis").

We need not address the necessity of giving cautionary instructions in this case because Jackson has waived the issue. At the time the DNA evidence was discussed, defense counsel argued that Bloom required cautionary instructions. But he later agreed with the state that the final jury instructions should not include any cautionary instructions concerning the DNA evidence.

The district court allowed the state's expert witness to testify, over a defense objection, that the random match probability was one in 3.3 billion, a calculation using the "fixed-bin method" of calculating statistical probability. The court rejected a defense argument that Bloom requires that the random-match probability be calculated under the "interim-ceiling principle," a much more conservative method that would have yielded a significantly higher probability of a random match, possibly as high as one in 14 million.

The Bloom court cited use of the interim-ceiling principle, adopted by the National Research Council (NRC) in its 1992 Report, as one of the reasons it decided to allow DNA statistical probability evidence. Id. at 167. The Bloom court carefully stated its holding:

Accordingly, any properly qualified prosecution or defense expert may, if evidentiary foundation is sufficient, give an opinion as to random match probability using the NRC's approach to computing that statistic.

Id.

(emphasis added). The state argues that Bloom did not intend to freeze the form of statistical evidence admissible in Minnesota and disregard subsequent developments in DNA technology. We are reluctant to address that issue on the very sparse record available here. And we need not address it because we conclude that any error in departing from the interim-ceiling principle was harmless.

The erroneous admission of evidence is harmless if there is no reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). Although the DNA random-match probability figure was highly probative on the issue of identity, the state also presented eyewitness identification, very similar Spreigl offenses, and physical evidence conclusively tying Jackson to the crime, particularly the distinctive fanny pack with the words "The St. Paul." We conclude that admitting testimony of a DNA random-match probability of one in 3.3 billion, rather than one in 14 million, did not significantly affect the verdict.

4. Prosecutorial misconduct

Jackson argues that the prosecutor committed prejudicial misconduct in attacking Jackson's character in closing argument and through her cross-examination of Jackson's girlfriend. Jackson also contends that improper "character" evidence was introduced in the form of a videotape involving anal sex that was found in Jackson's apartment and a police officer's reference to the materials found in Jackson's car as the kit of a "rolling rapist."

Jackson did not object to the prosecutor's closing argument and therefore has waived that issue. See State v. Kline, 306 N.W.2d 132, 133 (Minn. 1981). Even if the issue were not waived, we believe the prosecutor's argument, although colorful, was based on evidence produced at trial and was not misconduct. See State v. Porter, 526 N.W.2d 359, 363 (Minn. 1995) (holding that prosecutor's closing argument need not be "colorless" but must be based on the evidence).

Most of the prosecutor's cross-examination of Jackson's girlfriend was relevant to show either a possible attempt to construct an alibi or that the alibi testimony was not credible. But the prosecutor's questions about Jackson's failure to explain to his girlfriend the state's strongest evidence, particularly DNA evidence, had little relevance and may have suggested to the jury that Jackson had a burden of rebutting that evidence. Nevertheless, given the probative value of the DNA evidence itself, the admission of evidence that Jackson had failed to explain that evidence to his girlfriend could hardly be considered so prejudicial as to warrant a new trial.

Jackson's challenge to the admission of character evidence is without merit. The videotape involving anal sex was plainly relevant to prove identity, given the testimony of C.B. and the Spreigl victims that the perpetrator was most interested in that form of intercourse. See State v. Naylor, 474 N.W.2d 314, 318 (Minn. 1991) (holding that admission of books on Satanism was proper in case where defendant was charged with ritualistic slaying of fellow cult member). Sergeant Flaherty's "rolling rapist" remark referred to the rope, mask, and other incriminating items found in Jackson's car. It was a comment on the materials Jackson carried with him, not on his character. But even if it could be construed as character evidence, it was hardly so prejudicial as to require reversal in a case in which rape was actually charged and supported by graphic testimony of the victim.

 5. Sentencing

Jackson argues that the district court could not sentence him to life imprisonment on the first-degree criminal sexual conduct conviction without a grand jury indictment. But the supreme court has recently held to the contrary. State v. Ronquist, ___ N.W.2d ___ (Minn. July 22, 1999) (affirming sentence of life imprisonment for first-degree criminal sexual conduct without grand jury indictment).

Jackson also claims that the court abused its discretion in departing upwardly on the burglary offense. This court reviews a sentencing departure under an abuse-of-discretion standard. State v. Anderson, 463 N.W.2d 551, 553 (Minn. App. 1990), review denied (Minn. Jan. 14, 1991). Jackson argues that the circumstances of this case do not rise to the level of the severe aggravating circumstances required to support the double departure on the burglary and consecutive sentencing, which together constitute a greater-than-double departure. See generally State v. Halvorson, 506 N.W.2d 331, 340 (Minn. App. 1993) (holding that severe aggravating circumstances are required to depart both durationally and with respect to consecutive service). We disagree.

Multiple penetrations alone will generally justify a double departure. State v. Allen, 482 N.W.2d 228, 232 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992). Jackson had a prior offense involving a victim injury, which will also justify at least a one and one-half departure and as much as a double departure. State v. Lomax, 437 N.W.2d 409, 410 (Minn. 1989) (holding that victim injury plus prior victim-injury offense justified double departure); State v. Magee, 413 N.W.2d 230, 234 (Minn. App. 1987) (affirming one and one-half departure for prior victim-injury offense), review denied (Minn. Nov. 24, 1987). In addition, C.B. was bound and gagged, was subjected to multiple forms of penetration, and was particularly vulnerable because she was asleep when the assault began. These and other aggravating factors, which are more than would be required to support a double departure, present severe aggravating circumstances. See generally Perkins v. State, 559 N.W.2d 678, 692 (Minn. 1997) (holding that greater-than-double departure requires severe aggravating circumstances).

 6. Pro se brief

Jackson's pro se supplemental brief raises a number of additional claims that are without merit. The district court correctly determined that no Miranda warning was required when police stopped Jackson's car. See State v. Walsh, 495 N.W.2d 602, 604-05 (Minn. 1993) (holding that Miranda warning not required for "on-the-scene" questioning that seeks explanation for confusing situation). Jackson's claim that there was other illegal police conduct tainting his consent to search his car is without merit, as are his challenges to the presentation of one witness's testimony by videotaped deposition and the district court's refusal to allow the defense to impeach a police officer with internal affairs records.

 Affirmed.