State of Minnesota, Respondent, vs. Mark Allen Biggs, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-02-486

 

State of Minnesota,

Respondent,

 

vs.

 

Mark Allen Biggs,

Appellant.

 

Filed March 25, 2003

Affirmed

Kalitowski, Judge

 

Scott County District Court

File No. 200102181

 

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

 

Thomas J. Harbinson, Scott County Attorney, Jason W. Eldridge, Assistant County Attorney, Scott County Government Center, 200 West Fourth Street, Shakopee, MN 55379 (for respondent)

 

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

 

            Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Mark Allen Biggs argues that the district court abused its discretion by (1) permitting the medical examiner to testify that the victim's death was a homicide; (2) giving the state permission to cross-examine appellant about prior acts of assault if appellant took the witness stand; (3) sentencing appellant as a career offender; and (4) ruling that DNA evidence that was analyzed using the PCR-STR method of DNA testing was admissible.  We affirm.

D E C I S I O N

 

I.

 

The determination of the sufficiency of foundation for an expert's testimony and the admissibility of that testimony is left to the sound discretion of the district court.  Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760-61 (Minn. 1998).  A district court is given wide latitude in determining whether there is sufficient foundation on which an expert may state an opinion.  Benson v. Northern Gopher Enters., Inc., 455 N.W.2d 444, 446 (Minn. 1990).  Even if this court would have reached a different conclusion as to the sufficiency of the foundation, the decision of the district court will not be reversed absent a clear abuse of its discretion.  Benson, 455 N.W.2d at 446.

Contrary to appellant's assertions, the state established sufficient foundation for the expert testimony.  The doctor testifying was a coroner and board certified in the areas of anatomic, clinical, and forensic pathology.  She had performed more than a thousand autopsies and also performed the autopsy in this case.  The doctor also reviewed photos of the crime scene, and her medical opinion was based on the location of the gunshot wound, the direction of the gunshot wound, and other injuries to the victim's body.  We conclude that because the doctor was a trained coroner and had experience investigating causes of death, there was sufficient foundation for the district court to permit her to testify as to how she believed the victim was killed.  The doctor's background and the work she performed on this case sufficiently established that she had the type of education, training, and experience required for interpreting and determining a cause of death. 

Appellant further argues that even if the state established a proper foundation for the doctor's testimony, the district court abused its discretion in allowing the testimony because the question of whether appellant intentionally killed the victim was a question for the jury, not the state's medical expert.  We disagree.  Under Minn. R. Evid. 704

[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

 

The basic consideration in determining whether expert testimony should be admitted is whether or not it will be helpful to the jury.  Minn. R. Evid. 702; State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980).  An expert opinion is helpful if

the members of the jury, having the knowledge and general experience common to every member of the community, would be aided in the consideration of the issues by the offered testimony.

 

Clark v. Rental Equip. Co., Inc., 300 Minn. 420, 428, 220 N.W.2d 507, 512 (1974). 

In State v. Bradford, 618 N.W.2d 782 (Minn. 2000), the appellant argued that the district court erred by allowing a medical examiner to testify that the victim's death was domestic abuse murder rather than suicide.  The Minnesota Supreme Court determined that the medical examiner properly testified that he believed the victim's manner of death was a homicide.  Bradford, 618 N.W.2d at 793.  The supreme court concluded that the examiner's testimony was helpful to the jury because a lay juror could not differentiate between a self-inflicted gunshot wound and one inflicted by another.  Id.  Therefore, the supreme court determined that the examiner's specialized knowledge assisted the jurythe trier of factto understand the evidence submitted with respect to the circumstances surrounding the victim's death.  Id.  Because of that, the supreme court held that the district court did not commit error by allowing the examiner to testify regarding his opinion that the victim's death was a homicide.  Id. 

Based on the reasoning in Bradford, the district court here properly allowed the doctor to state her opinion as to whether the victim's death was a homicide.  Knowledge of gunshot wounds and anatomy is outside the range of common knowledge and experiences that a lay juror brings to court.   Therefore, the doctor's testimony was helpful in that it added "precision" and "depth" to the jury's ability to reach conclusions involving the victim's death.  Helterbridle, 301 N.W.2d at 547.

II.

Evidentiary rulings are reviewed under an abuse of discretion standard.  State v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992).  Appellant contends that the district court abused its discretion by ruling that the state would have been permitted to question appellant about prior acts of assault if appellant had testified.  We disagree.

The Minnesota Rules of Evidence permit the state to rebut evidence of a pertinent trait of character offered by an accused.  Minn. R. Evid. 404(a)(1).  Therefore, after appellant questioned a state witness as to whether that witness ever observed appellant with a gun or ever observed appellant behave in a violent way, the district court properly determined that appellant's questions opened the door for the state to call rebuttal witnesses to testify as to appellant's violent nature.  See State v. Sharich, 297 Minn. 19, 23, 209 N.W.2d 907, 911 (1973).

And while Minn. R. Evid. 404 determines when character evidence is admissible, Minn. R. Evid. 405 determines the proper methods of introducing character evidence.  Minn. R. Evid. 405(a) states that

[i]n all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

 

Because evidence of appellant's violent character was permitted under Minn. R. Evid. 404(a)(1) for purposes of rebuttal, Minn. R. Evid. 405(a) gave the district court discretion to permit the state to cross-examine appellant about specific instances of violent behavior if appellant chose to testify at trial.  Thus, based on the rules of evidence, the district court did not abuse its discretion by indicating that the state would be permitted to question appellant about past instances of violence if he chose to testify at trial.

III.

Under Minnesota's career offender statute, the district court may sentence a defendant up to the statutory maximum

if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.

 

Minn. Stat. § 609.1095, subd. 4 (2000).  Sentencing under the career offender statute is a departure from the sentencing guidelines.  Minn. Stat. § 609.1065, subd. 4.  The decision to depart from sentencing guidelines is within the district court's discretion and that decision will not be disturbed absent a clear abuse of that discretion.  State v. Schmit, 601 N.W.2d 896, 898 (Minn. 1999).

Applying the career offender statute, the district court sentenced appellant to 40 years for the crime of second-degree intentional murder.  The penalty for second-degree intentional murder is a sentence of "not more than 40 years."  Minn. Stat. § 609.19, subd. 1 (2000).

Appellant argues that the district court abused its discretion when it sentenced appellant as a career offender because his current offense was not "part of a pattern of criminal conduct."  Minn. Stat. § 609.1095, subd. 4.  Appellant points out that most of his prior felony convictions occurred before 1985 and that between 1985 and 1997 he was not convicted of any felonies.  Appellant also notes that prior to this conviction he only had three convictions after 1997.  Thus, appellant argues that because there was a 12-year gap in criminal activity, followed by reduced criminal activity after 1997, it was an abuse of discretion for the district court to find that appellant was engaged in a pattern of crime.  We disagree.

Appellant's criminal history is extensive.  Appellant's felony convictions involve convictions of (1) burglary; (2) felony theft; (3) car theft; (4) concealing stolen property; (5) theft from a person; (6) sale/delivery of a controlled substance; (7) battery of a law officer; (8) financial transaction card fraud; (9) receiving stolen property; and (10) escape from custody.  These convictions establish appellant's continued involvement in criminal activity.  Moreover, convictions do not decay under the Minnesota career offender statute as they do under the Minnesota sentencing guidelines.  The fact that a majority of appellant's convictions occurred prior to 1985 is irrelevant, and the district court properly considered appellant's entire career criminal record.   In addition, the gap in appellant's criminal activity between 1985 and 1997 can be explained in part by the fact that from 1985 through 1990, appellant was incarcerated.   Based on appellant's extensive criminal record, the district court did not abuse its discretion in sentencing appellant as a career offender.

Appellant further argues that because his prior convictions had little in common with his conviction of second-degree murder, the connection between his present offense and his prior criminal conduct did not warrant application of the career offender statute.  We disagree. 

The career offender statute "targets offenders whose primary occupation is committing crimes or whose lifestyle is one of criminality."  State v. Flemino, 529 N.W.2d 501, 503 (Minn. App. 1995).  Appellant fits this description.  Further, in Flemino this court stated that a "pattern" was necessary because it was expressly written into the statute, but that the offenses need not be of a similar type.  Id. at 504.  The court noted that such an interpretation could result in an aggravated durational departure where the offense was similar while less severe, while being inapplicable to a dissimilar but more severe offense.  Id.  The court concluded that it could not assume that the legislature would allow longer prison sentences for a less severe but "similar" offense while disallowing it for a more severe, but different type of, offense.  Id.

Here, appellant's conviction of second-degree murder is more severe than any of appellant's prior crimes.  Following the reasoning in Flemino,this fact does not prevent appellant from being sentenced under the career offender statute where appellant's extensive criminal record shows that his lifestyle is one of criminality.  We conclude the district court did not abuse its discretion in sentencing appellant under the career offender statute. 

IV.

            Under the Frye-Mack test, a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community, and the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable.  State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002) (citing Goeb v. Tharaldson, 615 N.W.2d 800, 810 (Minn. 2000)).  In other words, the Frye-Mackstandard asks first whether experts in the field widely share the view that the results of scientific testing are scientifically reliable, and second, whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls.  State v. Jobe, 486 N.W.2d 407, 419 (Minn. 1992).

The standard of review for admissibility determinations under Frye-Mack is two-pronged.  Goeb, 615 N.W.2d at 815.  Conclusions about whether a technique is generally accepted are questions of law that are reviewed de novo.  Id.  Determinations under the second prong, foundational reliability, are reviewed under an abuse of discretion standard.  Id.   

Appellant contends that the district court erred by (1) failing to conduct a pretrial Frye-Mack hearing on the general acceptance within the relevant scientific community of the PCR-STR method of DNA testing used by the Bureau of Criminal Apprehension (BCA) in this case; and (2) admitting the DNA evidence in this case without a foundational showing of reliability under the second prong of the Frye-Mack standard. 

1.         General Acceptability

The Minnesota Supreme Court has recently determined that the PCR-STR method of DNA testing is generally accepted within the relevant scientific community.  State v. Traylor, 656 N.W.2d 885, 893 (Minn. 2003).  And once the supreme court has reviewed and confirmed the general acceptance of a scientific technique, then the evidence produced by the technique may be admitted without the need for a pretrial hearing on the first prong of the Frye-Mack test.  Roman-Nose, 649 N.W.2d at 821. 

Therefore, the district court did not err by denying appellant's motion to suppress the DNA evidence on the ground that it was not generally accepted within the relevant scientific community.  The district court may not have held a formal evidentiary hearing on the matter, but based on the supreme court's decision in Traylor, such a hearing is no longer necessary.  And here, the state presented a wide range of information to the district court that compelled the conclusion that the PCR-STR method of DNA testing was widely accepted.  The state pointed to a number of decisions from other appellate courts that found PCR-STR testing to be generally accepted.  Moreover, the state pointed to a number of decisions from district courts in Minnesota that found PCR-STR testing to be generally accepted.  Finally, the state pointed to numerous scientific papers that showed PCR-STR testing to be generally accepted.  Given all of this information, the general acceptability prong of Frye-Mack was met by the evidence presented in this case.

2.         Foundational Reliability

Appellant contends that the district court abused its discretion by allowing forensic scientists from the BCA to testify about the results of the PCR-STR tests at appellant's trial because the evidence was not obtained in accordance with the Technical Working Group on DNA (TWGDAM) standards.

But in Traylor, the supreme court recently held that the DNA Advisory Board (DAB) standards are the appropriate standards and procedures against which laboratories must be measured to ensure the foundational reliability of DNA testing.  Traylor, 656 N.W.2d at 897. 

Based on the supreme court's decision in Traylor, the district court did not abuse its discretion in concluding that the BCA complied with the DAB standards.  Forensic scientists responsible for DNA testing at the BCA, testified as to (1) the BCA's quality control and assurance program; (2) the validation studies performed on the testing; and (3) how the BCA's standard operating procedures complied with the DAB standards.  Similar evidence was considered sufficient to establish foundational reliability in Traylor.  Id. at 897-98.  Therefore, given this detailed testimony, the district court did not abuse its discretion by finding that the foundational reliability prong of the Frye-Mack test was met.

Finally, we have considered the additional arguments in appellant's pro se brief and find them to be without merit.

Affirmed.