State of Minnesota, Respondent, vs. Russell Henry Kewatt, Appellant.

State of Minnesota, Respondent, vs. Russell Henry Kewatt, Appellant. A04-464, Court of Appeals Unpublished, March 1, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-464

 

 

State of Minnesota,

Respondent,

 

vs.

 

 

Russell Henry Kewatt,

Appellant.

 

Filed March 1, 2005

Affirmed

Toussaint, Chief Judge

 

Blue Earth County District Court

File No. K0-02-2704

 

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

 

Thomas Keith Russell, 410 S. Fifth Street, P.O. Box 3129, Mankato, MN 56002 (for respondent)

 

Roy George Spurbeck, Assistant State Public Defender, 2221 University Avenue S.E., Suite 425, Minneapolis, MN 55414; and

 

Mary M. McMahon, Suite 140, 2499 Rice Street, Roseville, MN 55113 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Huspeni, 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

 

            Appellant Russell Kewatt challenges his conviction for first-degree criminal sexual conduct, claiming that he was denied a fair trial because (1) the trial court denied his challenges for cause against prospective jurors; (2) the trial court allowed the jury to view, during deliberations, the victim's videotaped police interview; and (3) the state impeded discovery of Paradee materials.  Because the prospective jurors were rehabilitated and the trial court did not abuse its discretion in allowing the jury to view the videotape interview in the courtroom or in reviewing the Paradee materials and concluding they were not useful to the defense, we affirm.

D E C I S I O N

I.

Challenges for Cause

            Kewatt claims he was denied a fair trial when the trial court denied his challenges for cause against four prospective jurors.  A juror may be challenged for cause and excused if the court is satisfied that the juror's state of mind will not allow the juror to try the case impartially and without prejudice to the substantial rights of the party challenging.  Minn. R. Crim. P. 26.02, subd. 5 (1).  If a prospective juror admits to this state of mind "described in the rule, the juror should be excused, unless rehabilitated."  State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995).  "Typically rehabilitation takes the form of the prospective juror stating unequivocally that he/she will follow the trial court's instructions and will fairly evaluate the evidence."  Id.  Because the trial judge is in the best position to observe the demeanor of the prospective juror, the trial judge is given deference in determining whether a prospective juror should be removed for cause.  State v. Graham, 371 N.W.2d 204, 206 (Minn. 1985). 

            During voir dire, the defense challenged for cause two prospective jurors who indicated they would have difficulty presuming Kewatt innocent.  The first prospective juror stated that because of the age difference between Kewatt and the victim he was "having a problem with the presumption of innocence."  He added that because of his initial thoughts, it would be better if he were removed from the jury.  This juror stated, however, that because he had been a defendant in the past, he understood the possibility of innocence.  Most importantly, when asked, after further discussion, if he could decide the case on the evidence presented, he replied affirmatively.  In light of these facts, we conclude that the trial court did not abuse its discretion in concluding that this juror was rehabilitated.  The second prospective juror indicated that he feared he might not be impartial because he personally had been accused of "touching."  But when asked whether he could set aside his past experience and decide the case on the merits, he said, "I think I can be impartial."  Therefore, we see no abuse of discretion of the trial court when it determined this juror was also rehabilitated. 

            In spite of their initial difficulty in presuming Kewatt innocent, these two prospective jurors ultimately stated they understood the law and agreed to judge Kewatt on the evidence.  Because these prospective jurors were "rehabilitated," the court acted within its discretion in denying the challenges for cause. 

            The defense also exercised a challenge for cause against a third prospective juror whose wife and niece had been victims of sexual abuse.  This prospective juror, however, never indicated that he could not be impartial.  In fact, when specifically asked if he could be fair and impartial, he said, "Yes, yes."  Therefore, the court acted within its discretion in denying the challenge for cause. 

          A fourth juror, who ultimately served on the jury, was challenged for cause because she was a victim of sexual abuse, and her niece was raped at age sixteen.  We note, as an initial matter, that crime-victim status, alone, is not a basis for removal for cause.  See State v. Roan, 532 N.W.2d 563, 568 (Minn. 1995).  Furthermore, although this juror indicated that she felt uncomfortable talking about her past in front of Kewatt, she stated that she would not be reluctant to speak during deliberations.  Most importantly, when this juror was asked if she could be impartial, she replied, "I feel I could be."  Thus, the district court did not abuse its discretion in denying the challenge for cause as to this juror.

II.

Replay of Videotaped Interview

            Kewatt claims he was denied a fair trial because at the jury's request, the trial court replayed, during deliberations, the videotaped interview of the victim.  He also argues that the court allowed the court reporter to read the transcript of the victim's in-court testimony, but did not read excerpts from her first interview. 

            The Minnesota Rules of Criminal Procedure provide that "[i]f the jury, after retiring for deliberation, requests a review of certain testimony or other evidence, the jurors shall be conducted to the courtroom.  The court, after notice to the prosecutor and defense counsel, may have the requested parts of the testimony read to the jury and permit the jury to re-examine the requested materials admitted into evidence."  Minn. R. Crim. P. 26.03, subd. 19 (2)1.  The Rule further states: "The court need not submit evidence to the jury for review beyond that specifically requested by the jury, but in its discretion the court may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested."  Id. subd. 19(2)2.  While the trial court's discretion under this rule is broad, it is subject to the abuse-of-discretion standard of review.  State v. Kraushaar, 470 N.W.2d 509, 515 (Minn. 1991). 

            In Kraushaar, the trial court ruled that the jury could view a videotape of the victim, even though the jury took it into the jury room.  Id. at 516.  The supreme court added, however, that it would have been preferable for the jury to review the video in the courtroom.  Id.  Here, the court allowed the jury to see the video only in the courtroom, and upon defense counsel's request, and also had the court reporter read the victim's in-court testimony.  Kewatt argues that the court should have instructed the court reporter to read the transcript of the victim's first interview, which he claims included inconsistent statements.  The first interview, however, was never submitted as evidence, and therefore, could not have been considered by the jury.  Because the trial court followed the guidelines set in Kraushaar, itdid not abuse its discretion in allowing the jury to view, during deliberations, the victim's videotaped interview.

III.

Discovery of Paradee Materials

            Kewatt argues that he was denied a fair trial because the state impeded the discovery of Paradee materials.  Under State v. Paradee, if defense counsel has reason to believe that potentially exculpatory or relevant evidence is contained in confidential files, the trial court should obtain the requested documents and conduct an in camera review of the files to determine whether they are material and relevant to the defense of the charges. 403 N.W.2d 640, 642 (Minn. 1987).  At pretrial hearings on June 24 and September 29, 2003, defense counsel requested disclosure of the victim's psychological records.  The prosecution stated that it did not have access to those documents.  In both instances the trial court agreed to issue orders directing the relevant institutions to release those files to the court for in-camera review.  During the November 10, 2003, sentencing hearing, defense counsel requested access to psychological records that were referenced in the victim's impact statement.  The court continued the sentencing hearing and issued another order directing the relevant institutions to release the files to the court for in-camera review. 

At the continued hearing, the trial court admonished the prosecution for not disclosing the names of the entities that had the requested files.  However, the court also stated that after reviewing "literally hundreds of pages," it found nothing that contradicted the victim's statement or the basis for the jury verdict.  Rather, the court added, some of the materials would have been helpful to the prosecution.  Because the court found no exculpatory evidence in the files, no prejudice resulted from any prosecutorial misconduct. 

Affirmed.

* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI § 10.