State of Minnesota, Respondent, vs. Christopher Malz, 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This opinion will be unpublished and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

A03-1164

 

State of Minnesota,
Respondent,
 
vs.
 
Christopher Malz,
Appellant.

 

Filed October 19, 2004

Affirmed in part and remanded in part

Minge, Judge

 

Le Sueur County District Court

File No. K0-02-261

 

 

Mike Hatch, Attorney General, Kimberly Parker, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Brent Christian, Le Sueur County Attorney, 88 South Park Avenue, P.O. Box 156,        Le Center, MN 56057 (for respondent)

 

John M. Stuart, State Public Defender, Ann McCaughan, Assistant Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

Appellant requests that we reverse his conviction of and sentence for first-degree criminal sexual conduct on the grounds that (1) the district court erred in refusing to suppress appellant's initial statements to police prior to receiving a Miranda warning and later statements made during his custodial interrogation; (2) the prosecutor committed prejudicial misconduct; and (3) the court abused its discretion in imposing a double upward departure sentence.  We affirm in part and remand in part.

FACTS

            On March 19, 2002, Victor Atherton, lead investigator for Le Sueur County Adult and Child Protection, received a report from a school social worker alleging that appellant Christopher Malz was sexually abusing his nine-year-old daughter, S.M.  Atherton notified Le Sueur County Sheriff's Deputy David Tietz of the situation.  At the school, S.M. told Atherton that appellant had been sexually abusing her for several years  in a variety of ways that included oral sex.  S.M. gave Deputy Tietz specific details regarding appellant's anatomy and reported that appellant would play pornographic movies while the abuse occurred.  S.M. stated that appellant would sometimes tie her hands and legs to the bed and perform oral sex on her.  S.M. also reported that appellant penetrated her anally.

            Atherton and Tietz brought S.M. home and explained to her mother what had occurred.  When appellant arrived at the house, Deputy Tietz told him he was under arrest for first-degree criminal sexual conduct, handcuffed appellant, and placed him in the front seat of the squad car.  Appellant asked: "[H]ow can I be placed under arrest for First-Degree Crim Sex when I never penetrated her[?]"  Deputy Tietz testified that he told appellant that he could not talk to appellant about the investigation until he had read him his rights and was recording the conversation.

            Shortly after arriving at the law enforcement center, Deputy Tietz turned on the tape recorder and read appellant his Miranda rights.  Appellant then made a detailed confession, admitting that S.M. had manually and orally stimulated him, that they had watched pornographic movies together, that he had tied S.M.'s hands and legs down to orally stimulate her, and that he had anally penetrated S.M. two or three times.  Most of appellant's confession was consistent with S.M.'s report. 

            Appellant was charged with six counts of criminal sexual conduct in the first degree in violation of Minn. Stat. § 609.342, subd. 1(a), (e)(1), (h)(ii) (2002).  Appellant moved to suppress his pre-Miranda statement in the squad car and his post-Miranda confession.  Following an omnibus hearing, the district court found that appellant's testimony in support of his motion to suppress was "extremely self-serving," concluded that, given his detailed admission of guilt and other evidence in the record, appellant's position "defie[d] reason and logic," and denied appellant's motion to suppress.

            At trial, the jury heard testimony from Atherton, Tietz, and S.M., and was presented with appellant's confessions and other statements.  Appellant testified that Deputy Tietz promised appellant certain types of favorable treatment if he would admit his guilt and that these representations induced his confession.  There was inconsistency in S.M.'s assertions; at one point she recanted her statement as to the nature of appellant's criminal activity.  The jury convicted appellant of all six counts of first-degree criminal sexual conduct.  The district court sentenced appellant to 288 months, double the presumptive sentence of 144 months, with 96 months in a supervised release program, plus a five-year conditional release.  Appellant appeals his conviction and sentence.

D E C I S I O N

 

I.

The first issue is whether the district court erred by not suppressing certain statements that appellant made to law enforcement.  "[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court's decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed." State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). Underlying factual findings are subject to a clearly erroneous standard of review.  State v. George, 557 N.W.2d 575, 578 (Minn. 1997).

Police are required to give a Miranda warning during custodial interrogations.  Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966); State v. Hince, 540 N.W.2d 820, 823 (Minn. 1995).  "Interrogation" in this context refers to express questioning, as well as "any words or actions on the part of police . . . that the police should know are reasonably likely to elicit an incriminating response."  Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-90 (1980).  But the mere possibility that police words or actions will elicit an incriminating response is insufficient to constitute interrogation; the words or actions "must reflect a measure of compulsion above and beyond that inherent in custody itself."  State v. Tibiatowski, 590 N.W.2d 305, 310 (Minn. 1999) (quotation omitted).

Minnesota courts apply federal constitutional standards using a totality-of-the-circumstances test to determine the voluntariness of a suspect's statement, analyzing whether the overall effect of the circumstances would be enough to overpower the suspect.  Id.  The relevant factors include the "[suspect's] age, maturity, intelligence, education, experience, and ability to comprehend; the lack of or adequacy of a warning; the nature of the interrogation; and whether the defendant was deprived of physical needs or denied access to friends."  State v. Wilkens, 671 N.W.2d 752, 756 (Minn. App. 2003).

[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion.  A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded the admission of the earlier statement. 

 

Oregon v. Elstad, 470 U.S. 298, 314, 105 S. Ct. 1285, 1296 (1985).

 

Appellant argues that the district court erred by not suppressing his statement made to law enforcement upon his arrest.  Deputy Tietz testified that when he informed appellant that he was under arrest for first-degree criminal sexual misconduct, appellant replied by asking how he could be under arrest for first-degree criminal sexual misconduct when he never penetrated his daughter.  Appellant argues that he should have been given a Miranda warning immediately upon his arrest and that the deputy purposefully refrained from doing so. 

Deputy Tietz and appellant testified to different accounts of what led appellant to admit to sexual activity short of penetration during the ride to the law enforcement center in the squad car. The district court weighed this testimony and credited the account provided by Deputy Tietz.  There is ample evidence to support the district court's conclusion that appellant was not the subject of a custodial interrogation when he was in the squad car and that the statements he made in the car were voluntary and spontaneous.  Using a totality-of-the-circumstances analysis, we conclude that the district court's ruling with respect to the statement made in the squad car was not clearly erroneous. 

Appellant also argues that the district court erred in not suppressing the statements he made in his confession following his receipt of the Miranda warning.  Appellant argues that the statements were not voluntary because the deputy engaged in coercive and deceptive police tactics to compel appellant to state particular things.  Specifically, appellant claims that while being transported in the squad car from his home to the law enforcement center, the deputy: (1) gave him specific details of the alleged criminal activity; (2) promised that appellant could go home if he just admitted to those details; (3) minimized the seriousness of the alleged conduct; and (4) told appellant that he and his family would only get help if he confessed to everything.  Appellant argues that the conversation in the squad car resulted in appellant's involuntary waiver of his right to remain silent and his subsequent statements amounted to a coerced confession.

Ultimately, appellant again asks this court to weigh witness credibility and credit his version of events.  At the omnibus hearing, Deputy Tietz specifically denied making such statements, and the transcript of the confession shows that appellant was twice asked and twice denied that the deputy made any threats or promises.  Having been presented with conflicting testimony, the district court concluded that appellant's testimony "defie[d] reason and logic."  We find no basis to disturb the district court's assessment of credibility.  The record supports the district court's findings that appellant's statements were voluntary and, giving due regard to its ability to assess the credibility of the witnesses, we conclude that the district court did not err in refusing to suppress appellant's post-Miranda statements.  See Minn. R. Civ. P. 52.01.

II.

Next, appellant makes various allegations of prosecutorial misconduct, arguing that he is now entitled to a new trial.  Prosecutorial misconduct will only warrant a new trial "when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant's constitutional right to a fair trial was impaired."  State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000).  When the reviewing court recognizes that the prosecution committed less serious misconduct, the specific test for determining whether a new trial is proper is "whether the misconduct likely played a substantial part in influencing the jury to convict."  State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).  However, where the reviewing court identifies serious misconduct, it will be found "harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error."  Id.

A.

            First, appellant argues that the prosecutor engaged in misconduct by eliciting inadmissible testimony and failing to prepare a witness.  The state has some duty to prepare its witnesses prior to testifying to avoid inadmissible or prejudicial statements.  State v. Carlson, 264 N.W.2d 639, 641 (Minn. 1978) (citation omitted).  A reviewing court is more likely to find prejudicial misconduct when the state intentionally elicits impermissible testimony.  State v. Richmond, 298 Minn. 561, 563, 214 N.W.2d 694, 695 (1974).  But an intentional elicitation of impermissible testimony, although erroneous, will warrant reversal only when it is likely that the impermissible testimony substantially weighed on the jury's decision.  See id., 214 N.W.2d at 695-96.

            The objectionable testimony regarded earlier visits by county officials to appellant's home.  The prosecution asked Atherton of Adult and Child Protection: "Now, had you had prior contacts with the Malz family before this incident was reported?"  Appellant objected, and the court ordered the answer stricken from the record.  Later, Atherton stated that S.M.'s mother was "a little upset that we were out there because we had had prior contact."  Appellant again objected and the reference was stricken from the record.  Next, the prosecution asked Atherton where the Malz home is located.  Atherton replied by stating that he "usually go[es] to the residence through the alley . . . ."  Appellant did not object to this statement, but now protests that the use of the word "usually" alludes to prior contacts with the family.  Finally, Atherton also stated that he was surprised that Ms. Malz allowed him inside the residence "because I had not been inside her house for quite sometime."  Appellant objected, and the court stated: "Sustained.  The jury should disregard any comments regarding prior visits.  Mr. Atherton, that's the last time."

            Appellant claims that the prosecutor intentionally elicited statements from Atherton alluding to prior contact.  But after the court sustained appellant's objection to the prosecutor's initial question, we find no evidence in the record that any subsequent references to prior contacts were intentionally elicited by the prosecutor.  Here, the court not only admonished Atherton, but also specifically ordered the jury to disregard such references.  Finally, we note that the state offered a strong case against appellant with direct evidence of his abuse.  The trial produced almost 600 pages of testimony.  In light of the district court's instruction to the jury to disregard such allusions to prior contact with appellant's family, we conclude that the five pages of transcript cited by appellant did not substantially influence the jury's decision.

B.

            Next, appellant claims that the prosecutor committed misconduct by attempting to elicit testimony, and referencing in closing argument, that appellant began dating his wife when she was 13 years old.  Appellant claims this is Spreigl evidence for which no notice was given and that the prosecution improperly attempted to show that his romance with his wife at age 13 was a prior bad act demonstrating his propensity to engage in sexual conduct with adolescent girls. 

            Here, on cross-examination, the prosecutor elicited testimony from appellant's wife that she met appellant when she was 13 years old and appellant was 17 years old.  Appellant's counsel objected and a discussion was held off the record.  The prosecutor then returned and the following was stated:

Q:Ms. Malz, how old are you right now?

A:I'm 26.

Q:So you have known Mr. Malz for 13 years?

A:Yes.

 

Appellant did not object to this questioning and also did not object to statements during closing argument, when the prosecutor stated:  "What exactly did [Ms. Malz] know, you heard the testimony.  What did she know?  She knew Mr. Malz for 13 years."  Appellant now contends these statements constitute reversible error.

            We conclude that the issue presented in the instant case is not one involving Spreigl evidence.  Here, the prosecutor's attempt to elicit facts regarding the duration of appellant's relationship with his wife does not constitute a "bad act" for the purposes of demonstrating appellant acted in conformity with bad character.  Rather, evidence that Ms. Malz knew appellant for half of her life goes toward assessing her credibility and bias as a defense witness.  Further, appellant did not object to its reference during closing argument.  See State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984) ("generally, a defendant is deemed to have waived his right to raise an issue concerning the prosecutor's closing remarks if the defendant fails to object or seek cautionary instructions.").  Accordingly, we find no evidence of prejudice and conclude that the admission of this evidence was not reversible error.

C.

Next, appellant argues that the prosecutor committed misconduct during closing argument by intentionally inflaming the passions of the jury, bolstering the credibility of S.M., and misstating appellant's testimony.  "[T]he prosecutor and the defense have considerable latitude in closing argument, for neither is required to make a colorless argument."  State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996).  But it is generally improper for a prosecutor to express his personal opinion as to the credibility of a witness.  See State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984).  Ordinarily, by failing to object to closing arguments, the defendant is deemed to have forfeited his right to have the issue considered on appeal.  State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980).  When a defendant fails to object to the prosecutor's statements, it suggests that he did not consider them prejudicial.  State v. Thomas, 305 Minn. 513, 517, 232 N.W.2d 766, 769 (1975).

First, appellant claims that the prosecutor inflamed the passion of the jury when rhetorically asking in closing argument what reasonable inferences could be made from Ms. Malz's testimony that S.M. obtained detailed information about her body from a book she checked out from school.  On cross-examination, the prosecutor asked Ms. Malz whether S.M. said the book described the taste of sperm or "tying up little children and having anal sex with them."  Appellant had objected to this last question at trial as argumentative and the court sustained the objection.  Appellant claims that it was improper for the prosecutor to pose the following question for the jury to consider:

What about the sex education [S.M.] received at school?  What about the book that she took from the library about sex education?  Is it reasonable to think that a school would show or describe a little girl being tied up and anally penetrated or that a book on sex education would describe the taste of semen?

 

            Appellant did not object to this statement during closing arguments and can be deemed to have forfeited his right to have the issue considered on appeal.  Furthermore, we conclude that the closing statement is nothing more than a reasonable inference drawn from the testimony and evidence.  Ms. Malz asserted that S.M. learned details about body parts from a book, not her sexual encounters with appellant, and the prosecutor questioned that assertion based on other evidence in the record.  Accordingly, we do not find the prosecutor's question or the unobjected-to statement in the prosecutor's closing argument sufficiently prejudicial as to warrant a new trial.

            Next, appellant claims that the prosecution inappropriately bolstered S.M.'s testimony by providing possible explanations for the inconsistency between the number of videotapes and ropes S.M. testified appellant had used and the number that were actually found.  As to the videotapes, the prosecutor stated:

[S.M.] said there were ten to 15, only two were recovered.  You heard Investigator Tietz testify that he viewed those videos and there were numerous scenarios on each tape with clear breaks, so every break, from different scenario, [S.M.] may have thought that that was just a new videotape.

 

Appellant's objection to this statement was overruled.  We find this statement to be nothing more than a reasonable inference drawn from other evidence in the record and conclude that the statement did not cause prejudice as to warrant a new trial.   

As to the number of ropes, the prosecutor stated:

What about [S.M.] saying that there were four ropes but only two were recovered.  Mr. Malz himself said that there was over 100 feet of rope around the house.  [S.M.] said she was tied to metal things that kept the bed off the floor.  She was tied down, face forward, by her hands and feet.  She was tied in four places.  She figured four ropes.

 

Appellant did not object to this statement at trial and can be deemed to have waived the issue on appeal.  Further, appellant cites to no legal authority and does not argue how these statements present any impropriety or prejudice.  We find no reversible error in this statement.

            Finally, appellant claims that the prosecutor engaged in misconduct by misstating appellant's testimony.  Here, the prosecutor stated: "Now, [S.M.] testified that the last anal penetration was about three months ago, the Defendant testified that the last anal intercourse was about six months ago, either way, three, six months . . . ."  Appellant objected and a discussion was held off record.  Appellant fails to note in his brief that the district court then stated:

Ladies and gentlemen, I want to make just a correction to what [the prosecutor] indicated.  There was not testimony by the Defendant as to anal penetration.  His testimony was that he denied that.  That information came from his statement that he gave to Deputy Tietz, but not from the Defendant's testimony.

 

We find no evidence that the prosecutor intentionally misstated appellant's testimony and conclude that any prejudice resulting from this misstatement was remedied by the district court.

D.

Next, appellant claims that the prosecution inflamed the passion of the jury by asking Ms. Malz rhetorically whether the reason that she testified that S.M. appeared happy was because "the ropes [that appellant used to tie her to the bed] were going" away.  Appellant objected to this statement as argumentative and the court sustained the objection.  We note that the prosecutor then went on to his next topic and did not return to this line of questioning or reiterate the topic in his closing argument.  We do not find that this single question was so prejudicial as to warrant a new trial for appellant.

E.

            Finally, appellant claims that the cumulative effect of this alleged misconduct warrants a new trial.  This is a hard claim to accept.  In some instances, the district court both sustained appellant's objection and made a statement to the jury to correct the error.  Furthermore, the state's evidence in this case appears to be strong, making it unlikely that any such "error" played a substantial part in the jury's decision.  We conclude that the claim regarding cumulative effect is neither persuasive nor a basis for a new trial.

III.

            Finally, appellant argues that the district court abused its discretion by imposing a sentence of 288 months a double upward departure from the presumptive sentence of 144 months.  As aggravating factors supporting the departure, the district court cited appellant's parent-child relationship with the victim, the multiple incidents with the same victim over a period of time, the invasion of the victim's zone of privacy because the abuse occurred in the home, and appellant's false remorse.  After this appeal was submitted to this court, the United States Supreme Court issued its opinion in Blakely v. Washington, 124 S. Ct. 2531 (2004).  In Blakely, the Supreme Court determined that allowing judicially found facts to enhance a sentence deprived a defendant of the federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to sentencing.  Id. at 2537-38.  Although we affirm appellant's conviction, the district court has not had an opportunity to address appellant's argument concerning the possible application of Blakely to his sentence.  Accordingly, we remand to the district court for consideration of the application, if any, of Blakely to appellant's sentence.

 Affirmed in part and remanded in part.