State of Minnesota, Respondent, vs. Sherman Jerome Denzer, Appellant.

State of Minnesota, Respondent, vs. Sherman Jerome Denzer, Appellant. A05-2024, Court of Appeals Unpublished, December 12, 2006.

This opinion will be unpublished and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

A05-2024

 

State of Minnesota,

Respondent,

 

vs.

 

Sherman Jerome Denzer,

Appellant.

 

Filed December 12, 2006

Affirmed

Randall, Judge

 

Le Sueur County District Court

File No. K9-03-589

 

 

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Brent Christian, LeSueur County Attorney, 88 Park Avenue South, LeSueur, MN 56057 (for respondent)

 

John M. Stuart, State Public Defender, Suzanne M. Senecal-Hill, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            Appellant challenges his conviction of first degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(c) (2002); first degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2002); and third degree criminal sexual conduct in violation of Minn. Stat. § 609.344, subd. 1(c) (2002).  Appellant argues that the district court erred in determining that double jeopardy did not bar the state from retrying appellant.  Appellant also argues that his rights to due process and to a fair trial were violated when the primary investigator vouched for the victim's credibility.  We affirm.

FACTS

            Appellant Sherman Denzer (Denzer), his wife Mary Denzer (Mary), and D.P. worked at Le Sueur Incorporated, a factory in Le Sueur.  Although Denzer knew D.P. from the factory, they worked in different sections and did not have significant contact with each other.  Mary knew D.P. a little better.  After work on June 27, 2003, Mary drove D.P. home because D.P.'s husband was out of town.  The Denzers live five houses away from D.P.  Mary then invited D.P. to a party that she and Denzer were having, and D.P. accepted the invitation. 

            While at the party, D.P. drank two beers.  After about an hour, D.P. left the party and walked home.  Once there, she changed into her pajamas, because she intended to spend the night at home.  About an hour later, Denzer knocked on D.P's door and she let him in.  He had brought over two bottles of beer from the party, and he offered one to D.P.  Later,
Denzer and D.P. walked back to the party.  D.P. walked back home alone shortly afterwards and went to sleep around 9:00 p.m. 

            Around 3:30 a.m., D.P. heard knocking at the front door and opened it to find Denzer.  She let him in.  Although what happened next is largely disputed, Denzer and D.P. agree that sexual intercourse occurred.  After Denzer left, D.P. phoned C.F., a friend, and asked her to come to D.P.'s house.  Once there, C.F. encouraged D.P. to go to the hospital to report the incident and to receive a physical exam.  At the hospital, D.P. reported that Denzer had raped her. 

            Denzer was arrested and charged with two counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct.  Denzer admitted that he and D.P. had engaged in sexual intercourse but stated that it was consensual.  While in custody, Denzer had about five phone conversations with Mary that were recorded.  Denzer had been given a Le Sueur County jail manual explaining that the phone conversations could be recorded.  But Denzer is illiterate, and consequently neither Mary nor Denzer realized that their conversations were being recorded.  Transcripts were created of the conversations.  Transcripts were also made of the statements taken from C.F. and D.P. at the hospital.  Audio recordings of the statements and several of the telephone conversations and copies of the transcripts were provided to both parties before the first jury trial. 

            The first jury trial began on July 12, 2004.  During testimony of one of the state's witnesses, the state attempted to introduce one of the recorded telephone conversations between the Denzers.  When the c.d. containing the conversation was inserted into the courtroom player, it became apparent that the disk contained three additional recorded conversations of which both the prosecution and the defense claimed to be unaware.  The district court recessed to allow the parties to listen to the additional conversations. 

            After this recess, appellant brought to the court's attention numerous discrepancies between the actual recordings and the transcripts.  As a matter of trial strategy, appellant chose not to disclose all the discrepancies, hoping to reveal the remaining errors during closing argument in order to suggest a corrupt investigation.  The district court conducted its own research to investigate the discrepancies.  It found approximately 34 discrepancies in the transcript of appellant's statement, 12 discrepancies in the transcript of C.F.'s statement, ten discrepancies in the transcript of D.P.'s statement, and 77 discrepancies in the transcripts of four recorded telephone calls between the Denzers.  While some of the discrepancies were minor, others changed the meaning significantly.  The district court stated that the discrepancies "cut both ways," because there were inaccuracies both in information that was beneficial to appellant and in other information that was beneficial to the state. 

            After a hearing on the issue, appellant moved for a mistrial.  During the hearing, the district court denied the motion, reasoning that the errors could be remedied.  But the next morning, after further reflection, the court decided to grant the motion and called the parties to inform them.  The district court then granted the mistrial in the presence of the jury.  Appellant then moved for dismissal of all charges with prejudice, arguing that the discrepancies were part of an intentional effort by law enforcement to circumvent appellant's rights.  The district court denied that motion and set the matter for retrial.  Appellant filed an appeal in this court, challenging the denial.  This court affirmed the district court's order denying appellant's motion to dismiss with prejudice and setting the matter for a new trial.  The district court and this court both concluded that there had been no intentional prosecutorial misconduct.  This court did not address the double jeopardy issue argued by appellant, because appellant had not yet presented the issue to the district court. 

            Subsequently, the parties fully briefed and argued the issue of double jeopardy.  On April 18, 2005, the district court denied appellant's motion to prevent his retrial by application of the double jeopardy clause of the U.S. Constitution and the Minnesota Constitution.  The district court also denied appellant's request for reconsideration.  After the second trial, held from May 16 to May 20, 2005, the jury found appellant guilty of all three charges.  This appeal followed.

D E C I S I O N

I.

We review a trial court's declaration of a mistrial under an abuse-of-discretion standard.  State v. Long, 562 N.W.2d 292, 296 (Minn. 1997).  The termination of a trial is discretionary with the court, but that discretion must be exercised with caution and only so as to serve the ends of public justice.  State v. McDonald, 298 Minn. 449, 454, 215 N.W.2d 607, 610 (1974).  "The trial court is best situated to decide whether, for compelling reasons, the ends of substantial justice cannot be attained without discontinuing the trial."  Long, 562 N.W.2d at 296 (quotation and citation omitted).  "‘[T]he overriding interest in the evenhanded administration of justice' requires that we accord ‘the highest degree of respect' to the trial court's evaluation that a mistrial was necessary.  Id. (quoting Arizona v. Washington, 434 U.S. 497, 511, 98 S. Ct. 824, 833, 54 L. Ed. 2d 717 (1978)).

Both the federal and Minnesota constitutions guarantee that a criminal defendant may not be tried more than once for the same crime.  U.S. Const. amend. V ("No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb."); Minn. Const. art. 1, § 7 ("[N]o person shall be put twice in jeopardy of punishment for the same offense.").  Jeopardy attaches as soon as the jury is sworn.  McDonald, 298 Minn. at 452, 215 N.W.2d at 609.  Here, the jury had been sworn and the trial was underway.

There are two different standards of review pertaining to an appellant's claim that the double jeopardy doctrine bars re-prosecution after the district court has ordered a mistrial.  The first standard applies when a criminal trial is terminated over the defendant's objection before a verdict is reached.  In such a situation, the double-jeopardy clauses of the federal and state constitutions bar a retrial unless the previous trial was terminated for a "manifest necessity" or was terminated because the ends of public justice required it.  State v. Fuller, 374 N.W.2d 722, 726-27 (Minn. 1985).  Under that standard, "the critical inquiry is whether less drastic alternatives were available."  Long v. Humphrey, 184 F.3d 758, 761 (8th Cir. 1999); also see State v. Olson, 609 N.W.2d 293, 302 (Minn. App. 2000), review denied (Minn. July 25, 2000).  The second standard applies to a situation in which a trial is terminated at the defendant's request.  In such a case, the double jeopardy clause does not bar a second trial unless the mistrial resulted from governmental misconduct intended to provoke the mistrial request.  Fuller, 374 N.W.2d at 726. 

The district court correctly ruled that there is no double jeopardy bar to the second trial here.  The district court correctly applied the second standard: "If the defendant requests a mistrial, double jeopardy does not bar a second trial unless governmental misconduct provoked the mistrial."  The district court noted that "[appellant's] counsel requested a mistrial on July 15, 2004, and although the request was initially denied, Judge Richard C. Perkins, reconsidered his decision, and sua sponte declared a mistrial on July 16, 2004."  Appellant's own attorney moved for a mistrial, the judge denied it, thought about it overnight, and then he granted the appellant what he had requested the day before: a new trial.  The district court properly applied the second standard in its April 20, 2005 order.

II.

Vouching testimony is not permitted.  It is well settled that one witness may not "vouch for or against the credibility of another witness."  State v. Ferguson, 581 N.W.2d 824, 835 (Minn. 1998).  "The credibility of a witness is for the jury to decide."  State v. Koskela, 536 N.W.2d 625, 630 (Minn. 1995). 

            Appellant challenges alleged vouching testimony by Officer Lukes for the first time on appeal.  This court has discretion to consider an issue raised for the first time on appeal if it is plain error affecting substantial rights.  State v. Ramey, 721 N.W.2d 294, 302 (Minn. 2006); see Minn. R. Crim. P. 31.02.  The court in Ramey held that the defendant has the burden of showing that error occurred and that the error was plain; "[u]sually this is shown if the error contravenes case law, a rule, or a standard of conduct."  Ramey, 721 N.W.2d at 302.  If the defendant demonstrates that the prosecutor's conduct constitutes error that is plain, "the burden would then shift to the state to demonstrate lack of prejudice; that is, the misconduct did not affect substantial rights."  Id.  In the prosecutorial misconduct context, the state would have to show that there is no "reasonable likelihood that the absence of the misconduct in question would have had a significant effect on the verdict of the jury."  Id. (citing State v. MacLennan, 702 N.W.2d 219, 236 (Minn. 2005)).

            Respondent argues that there was no error, because appellant's trial lawyer opened the door to Officer Lukes' vouching testimony during defense re-cross of Officer Lukes.  After the line of questioning from appellant that opened the door, the state elicited Officer Lukes' vouching testimony.  After Officer Lukes gave the vouching testimony, defense counsel cross-examined him on his training and ability to recognize deception.  Appellant argues that, because defense counsel asked a brief and hypothetical question, the state should have been able only to clarify the response on redirect.  The record is not clear.  Appellant argues that he did not open the door "that wide" to Lukes's vouching testimony.  But it is difficult to conclude that appellant opened the door only slightly (enough for the prosecutor to be able to clarify the response on redirect) and then try to reverse a district court judge who felt that appellant opened the door "a little more."  The district court felt that appellant's attorney did open the door with his questioning of Officer Lukes.  Appellant did not object.  Appellant had the opportunity to, and did, cross-examine Officer Lukes on the issue.  Here, there was no error.  Because there was no error, we do not address the second and third prongs of the Ramey test.

Although we found no error in this case, we note that vouching testimony is a serious issue.  When credibility is central to the case, law enforcement vouching for credibility does carry a lot of weight, and the potential to improperly sway the jury is present.  See Maurer v. Dept. of Corr., 32 F.3d 1286, 1290-91 (8th Cir. 1994) (finding reversible error where witness testified that complainant was sincere in her complaint and her credibility was central to the state's case); Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996) (reversing where the case hinged on who the jury found more credible and the prosecutor elicited vouching testimony from witnesses, including the investigating officer, that people believed the victim's story). 

Appellant's attorney did open the door with his questioning of Officer Lukes, appellant did not object, and appellant had the opportunity to cross-examine Officer Lukes on the issue.

Affirmed.