State of Minnesota, Respondent, vs. Blong Xiong, Appellant.

State of Minnesota, Respondent, vs. Blong Xiong, Appellant. A04-2413, Court of Appeals Unpublished, March 21, 2006.

This opinion will be unpublished and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

A04-2413

 

 

State of Minnesota,

Respondent,

 

vs.

 

Blong Xiong,

Appellant.

 

 

Filed March 21, 2006

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. K6-03-3614

 

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

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

 

 

            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Blong Xiong challenges his conviction of first-degree criminal sexual conduct and first-degree criminal sexual.  He argues that the trial court abused its discretion in admitting DNA evidence and gang-expert testimony and in limiting cross-examination and that it committed plain error by giving the no-adverse-inference instruction without appellant's consent.  Because we conclude there was no abuse of discretion and no trial error, we affirm.

FACTS

            Appellant was convicted of first-degree criminal sexual conduct committed for the benefit of a gang for participating in the group rape of 12-year-old C.L. on August 20, 2003.  The state alleged that C.L. was raped by six or more Hmong men in an unoccupied St. Paul house that was owned by appellant's parents.  Appellant was jointly tried with co-defendant Bee Chue Chang, whom the jury found not guilty.

            A critical piece of evidence against appellant was a DNA test showing he was a likely contributor to a mixture of DNA obtained from semen taken from C.L.'s pants.  The Bureau of Criminal Apprehension (BCA) records showed that the paper bag in which the pants were stored was unsealed - "(staples/tape broken)" when the forensic scientist retrieved the evidence for testing.  After a pretrial hearing on the chain of custody, the trial court denied appellant's motion to exclude the DNA test results.

            At trial, a BCA forensic scientist testified that testing done on a small area of semen found on C.L.'s pants revealed a mixture of DNA from two or more people and that the predominant DNA profile matched that of appellant.  The forensic scientist estimated the statistical probability of a random match at 1 in 52 billion.  On cross-examination, the forensic scientist conceded that the seal on the bag containing C.L.'s pants had been broken, but on re-direct she testified that the opening created was too small to remove an item of clothing. 

            At the beginning of trial, the prosecution made a motion in limine to admit expert testimony on gangs, particularly Hmong gangs.  The trial court reserved a ruling on the motion.  The prosecution presented the testimony of two gang experts, both police officers, who testified that appellant was not a gang member.  The prosecutor stated this in his opening statement, and the fact was repeated throughout the trial. 

            The officers testified as to the criteria needed to classify a person as a gang member, on the ways of joining a gang, and on the juvenile and adult criminal histories of those present during the assault of C.L.

            C.L. testified she and a man who was identified as a member of the G-Loc gang went to a drinking party.  She testified that she left the party with a man later identified as Lee Teng Lor, who drove her to another house where the party resumed.  C.L. then testified that she went to an upstairs bedroom, where Lor tried to take her clothes off.  She left the room, but later returned, fell asleep, and woke up with her clothes off and Lor trying to have sex with her.  She testified that she resisted but lost consciousness and awoke to find herself being held from behind by another Hmong man.  She testified that she was then sexually assaulted by a number of Hmong men over a long period of time and eventually lost consciousness again.  C.L. testified that she had seen appellant at the first party house earlier and at the second party house as she was leaving.  She did not testify that appellant was in the upstairs bedroom where the sexual assaults occurred.  C.L. was able to describe only three or four of her assailants.  She did not identify appellant as being in the room during the assaults.

            Lor testified, pursuant to a plea agreement, that he sexually assaulted C.L. in the upstairs bedroom of the residence after locking the door.  He testified that other men at the party, finding the door was locked, climbed onto an air conditioner and through the window.  Lor testified that appellant tried to have sex with C.L.  He testified that, several weeks after the assault, the men met in a pool hall to "make plans" should the crime be discovered.  Lor testified that appellant was there and that the plan discussed was blaming the crime on the man who was a G-Loc member. 

            Lor admitted that he had made a deal with the prosecutor under which he would receive no more than a guidelines sentence in exchange for his "truthful" testimony against the other participants.  When Chang's attorney began to cross-examine Lor on the details of his plea agreement, the state objected.  The trial court ruled that defense counsel could not elicit the number of months involved in the plea agreement because it might suggest to the jury the potential sentences faced by defendants. 

            When cross-examination resumed, Chang's attorney elicited from Lor that under his plea agreement he avoided the statutory minimum sentence, was guaranteed a sentence no longer than the presumptive sentence, and could argue for a downward departure.

            Chang testified at trial, but appellant did not.  The trial court instructed the jury to draw no adverse inference from appellant's failure to testify.  Appellant did not consent to this instruction.

            The jury found appellant guilty of both first-degree criminal sexual conduct and first-degree criminal sexual conduct committed for the benefit of a gang.

D E C I S I O N

I.

Appellant argues that the trial court abused its discretion in admitting the results of DNA testing of the sample found in C.L.'s pants because the state failed to establish an adequate chain of custody.  An appellate court will largely defer to the district court's evidentiary rulings, which will be overturned only for a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Authentication of evidence is generally left to the sound discretion of the trial court.  State v. Johnson, 307 Minn. 501, 504, 239 N.W.2d 239, 242 (1976).  The state need not eliminate all possibility of tampering or substitution, but only show "it is reasonably probable that tampering or substitution did not occur."  State v. Bailey, 677 N.W.2d 380, 394 (Minn. 2004).

The state presented a chain of custody showing that C.L.'s pants were collected, along with her other clothing, on August 22, 2003, stored in the St. Paul Police crime lab on that date, removed on October 8, 2003, and taken to the BCA, where the top of the bag was sealed with tape. The bag in which the pants were stored was removed by a BCA forensic scientist on November 4, 2003.  At that point, the tape had become unsealed, or torn, although the opening at the top of the bag was not large enough to permit removal of the pants.  The forensic scientist then tested the semen sample found on the crotch of the pants.

A chain of custody must be shown to lay foundation for admitting "common items such as drugs, blood and urine."  State v. Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992), review denied (Minn. Nov. 25, 1992).  If the "item is unusual enough to be recognized," the testimony of a person possessing personal knowledge of the item is sufficient.  Id.  C.L. identified the pants as the pair she wore on the night of the assault, and the defense does not claim, and the record appears to exclude all reasonable possibility, that a different pair of pants had been substituted for those of C.L.

The issue, therefore, is the possibility of contamination of the semen sample found on the pants.  Appellant argues there was an insufficient showing of the reliability of the BCA's testing procedure.  This court reviews the district court's findings of foundational reliability under an abuse of discretion standard.  State v. Jones, 678 N.W.2d 1, 14 (Minn. 2004).  The BCA protocols require, among other things, that evidence "be properly sealed prior to acceptance into the Laboratory," and that unsealed evidence be sealed prior to acceptance.  The protocols define proper methods of sealing. 

Appellant argues that the collection and storage of the DNA sample "rendered the [DNA test] result unreliable and inadmissible pursuant to the Frye-Mack foundational reliability requirement."  The second prong of the Frye-Mack test requires that the state show that the laboratory conducting the scientific technique at issue complied with appropriate standards and controls.  State v. Jobe, 486 N.W.2d 407, 419 (Minn. 1992).

Appellant cites no case applying the second prong of Frye-Mack to a chain-of-custody problem such as is presented here.  The supreme court in Bailey applied the second Frye-Mack prong to the use of a Bunsen burner to heat a lab slide in order to remove a cover slip that had been on it for 16 years.  Bailey, 677 N.W.2d at 399.  Assuming that Frye-Mack applies to routine evidence-storage issues that would arise with any type of testing, not just testing involving novel scientific techniques, we conclude that the second Frye-Mack prong has been satisfied.

The most analogous case is Jones, in which the defendant claimed that the tests of vaginal swabs were not shown to be reliable because the test "run folder" was mis-dated and all tests were shown to have been run at the same time, which was impossible.  Jones, 678 N.W.2d at 15.  The court noted that the BCA technician "was unable to explain these mislabelings" but concluded that "there is no evidence in the record indicating, that discrepancies in the date and time listings on the run folder made the results of the testing per se inaccurate."  Id.

Appellant argues that the state failed to exclude the possibility that the semen sample on the victim's pants was contaminated by other materials, particularly a condom stored in another paper bag.  This possibility is highly speculative.  Appellant was unable, either at the pretrial hearing or at trial, to suggest any plausible scenario in which the semen found on C.L.'s pants could have become contaminated due to the broken seal on the paper bag.  At the pretrial hearing, defense counsel suggested that the semen from the condom or from a carpet piece could have gasified and transferred to the pants.  But the BCA forensic scientist testified that this was not possible.  There was no evidence of a transfer of liquids from the paper bag containing the condom, which remained sealed, to the paper bag containing the pants.  Thus, there was no "significant evidence that the results . . . were adversely affected by BCA procedures."  See id.

II.

Appellant argues that the trial court clearly abused its discretion in admitting expert testimony on gangs, particularly Asian gangs, from two St. Paul police officers.  The admissibility of expert testimony is within the sound discretion of the district court and will not be reversed absent "clear error."  State v. DeShay, 669 N.W.2d 878, 884 (Minn. 2003).  Potential problems with admitting expert testimony on gangs include:  (1) duplicating other evidence, particularly lay testimony; (2) opening the door for admission of inadmissible hearsay in the guise of "expert opinion"; (3) allowing the state to present highly prejudicial evidence of crimes committed by people other than the defendant; and (4) justifying far-flung testimony on other gangs, particularly gangs in other states, that has little relevance to the offense.  Id. at 886-87.

The prosecutor elicited some evidence on gangs from lay witnesses.  Bee Yang testified that members of the Crazy Bloods gang to which Chang belonged committed sexual crimes, stole cars, and fought with members of other gangs.  Lor admitted that he was a member of the Crazy Bloods, answered questions about the TMC (Tiny Man Crew) and G-Loc gangs, and testified that members of the Crazy Bloods had been arrested for auto theft and riot.  Lor testified that the participants in the assault met several weeks later and agreed to blame a G-Loc member for the sexual assault. 

Two officers offered gang-related testimony.  One explained in detail the ways of joining and leaving a gang and listed the crimes committed, either as juveniles or as adults, by those gang members present at the party.  But their testimony was not highly duplicative of the lay testimony, except as to who belonged to what gang, and this evidence was hardly prejudicial to appellant, who the state acknowledged was not a gang member.  Yang and Lor offered some testimony as to crimes committed by those present during the assault, but their testimony was sketchy, and the defense severely attacked the credibility of Lor as a "government snitch" who had named names in order to get a deal.

The officers' testimony concerning prior gangs was not presented in dramatic terms.  There was no lurid detail about crimes committed by Crazy Bloods or TMC members and no significant testimony about gangs in other states.  Their expert testimony was not used to launder otherwise inadmissible hearsay.  See DeShay, 668 N.W.2d at 883 (noting information from gang members and police informants that was described in gang expert's testimony).  The gang-expert testimony in this case was carefully limited to comply with the limits set out in DeShay, and the trial court did not abuse its discretion in admitting it.  Moreover, the state repeatedly emphasized that appellant was not a gang member, and appellant has not shown how the gang-expert testimony could have significantly prejudiced him.

III.

Appellant argues that the trial court abused its discretion in precluding the defense from questioning Lor about the details of his plea agreement.  Appellant acknowledges the supreme court's holding that there is no right to cross-examine a co-defendant "about the exact number of months his sentence could be reduced under the plea agreement."   State v. Greenleaf, 591 N.W.2d 488, 502 (Minn. 1999).  He argues, however, that Greenleaf was wrongly decided, and that the analysis in United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989) is the constitutionally correct approach.  We disagree.

Lor, like the co-defendant in Greenleaf, had pleaded guilty under an agreement that would reduce his sentence, while deferring sentencing until after he testified "truthfully" against his co-defendants.  See Greenleaf, 591 N.W.2d at 495-96.  The jury heard that under the plea agreement, Lor would plead guilty to first-degree criminal sexual conduct committed for the benefit of a gang, but he would not be subject to the statutory minimum sentence; his sentence would be capped at the guidelines presumptive sentence, and his attorney could argue for a downward departure.  But defense counsel was not allowed to elicit the specific lengths of the sentences.

The supreme court in Greenleaf agreed with the trial court's rationale that allowing the jury to hear the details of the plea agreement as to the co-defendant's potential sentence "properly prevented the jury from speculating about possible sentences" the defendant could receive.  591 N.W.2d at 502.  This court, as an intermediate appellate court, does not have the authority to overrule Greenleaf.  See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) ("[T]ask of extending existing law falls to the supreme court or the legislature, but it does not fall to this court."), review denied (Minn. Dec. 18, 1987).  Even if this court had that authority, it is not clear that Roan Eagle conflicts with Greenleaf.

First, in Roan Eagle, the details of the plea agreement that had been barred in cross-examination included the charge to which the co-defendant pleaded guilty.  Roan Eagle, 867 F.2d at 443.  Defense counsel here elicited the fact that Lor had pleaded guilty to first-degree criminal sexual conduct committed for the benefit of a gang.  Second, the Roan Eagle language appellant relies on appears to be dictum, as the court noted that the co-defendant's credibility "was not really an issue" and his testimony "did not incriminate Roan Eagle in any way."  Id.  The court, therefore, could simply have held that any error was harmless.  Finally, Roan Eagle involved only the disclosure of broad statutory sentencing ranges affected by the plea agreement, not hard numbers mandated by a determinate sentencing scheme, so the risk of the jury deducing the specific sentence faced by the defendant was much lower.

Lor's credibility was thoroughly attacked on cross-examination, particularly by Chang's counsel, who repeatedly characterized Lor as a "government snitch."  The jury knew Lor had received a favorable deal in exchange for his testimony.  Appellant points to nothing that suggests that knowledge of the specific sentence durations involved in the deal would have affected the jury's assessment of Lor's credibility, particularly as Lor's exact sentence was still uncertain.

IV.

            Appellant also argues that the trial court committed plain error in instructing the jury, without appellant's personal consent, not to draw an adverse inference from his failure to testify.  A trial court should obtain the defendant's request before giving CRIMJIG 3.17, but the failure to do so does not necessarily entitle the defendant to a new trial.  State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988).  This court applies a plain-error analysis when there is no defense objection to the giving of CRIMJIG 3.17.  See State v. Darris, 648 N.W.2d 232, 240 (Minn. App. 2002).

Appellant's co-defendant Chang did testify, thereby drawing a contrast to appellant's failure to do so.  It is even more difficult than in the usual case, therefore, for appellant to show prejudice, given that CRIMJIG 3.17 is, by its terms, favorable to the non-testifying defendant and the jury is presumed to follow the court's instructions.  State v. Budreau, 641 N.W.2d 919, 926 (Minn. 2002).

The supreme court has held it was not plain error to give CRIMJIG 3.17 in a case in which the court held the evidence supporting the conviction on one of the two homicide counts to be insufficient.  State v. Darris, 648 N.W.2d 232, 240-41 (Minn. 2002).  Here, the state presented DNA evidence implicating appellant, which was corroborated by significant circumstantial evidence.  A defendant has a "heavy burden" to show prejudice from the unconsented reading of CRIMJIG 3.17.  Id. at 240.  The impact of his co-defendant's testifying was far more damaging to appellant than any tendency the jury may have had to disregard the language of the no-adverse-inference instruction.  We conclude that appellant has not met his "heavy burden" of showing prejudice from the giving of CRIMJIG 3.17 without his consent.

            Affirmed.