Moll v. State

351 N.W.2d 639, 1984 Minn. App. LEXIS 3200

• Court: Court of Appeals of Minnesota
• Decided: June 5, 1984
• Docket: C9-83-1629
• Status: Published

Opinions

OPINION

PARKER, Judge.

Lawrence Donald Moll was convicted on two counts of criminal sexual conduct in the second degree. He appeals from an order denying his petition for post conviction relief. Appellant claims the trial court committed reversible error by including the unconstitutional statutory language of Minn.Stat. § 609.341, subd. 11 (1980), in the jury instructions. Appellant claims further that the trial court committed reversible error by excluding appellant and appellant’s attorney from a preliminary chambers examination where the competency of two child witnesses was determined. Appellant also claims the trial court’s departure from the Minnesota Sentencing Guidelines was improper. We reverse and remand.

FACTS

On September 10, 1981, C.S.’s babysitter, Judy Hagen, brought C.S., age four, to appellant’s home in a St. Peter, Minnesota, trailer park. Hagen, 21, lived with C.S. and C.S.’s father, J.S., in the same trailer park as appellant. According to Hagen, C.S. played and then took a short nap. During C.S.’s nap, Hagen and appellant had sex together. Hagen testified (1) that after C.S. woke up, appellant placed his penis between C.S.’s legs, (2) touched her arm with his penis, (3) that C.S. started crying and hit appellant, and (4) that she was too upset to take any action while the sexual contact was taking place.

That evening, the father was driving with C.S. to visit relatives when she said “Larry kissed me with his bic.” In C.S.’s vocabulary, “bic” meant penis and “beeper” meant vagina. After J.S. stopped the car to inquire further, C.S. said that appellant had “kissed” her with his “bic”. Later that night, C.S. gave further details. She said appellant had placed his penis between her legs and under her arms and that she hit appellant and started to cry. Her father called the St. Peter police who interviewed C.S. C.S. repeated her story and added that appellant had been wearing only pink underwear that day.

N.P., age six, lived in a trailer home near appellant. She and her older brother visited appellant’s home on numerous occasions and would play games and color. On September 11, 1981, N.P.’s mother noticed that her daughter was afraid to go near appellant’s trailer home. Later, N.P.’s mother learned that N.P. had been walking to her friend’s trailer, became scared to the point of shaking, and ran home.

On September 13, N.P.’s mother asked her if anything had happened at appellant’s trailer. At first, N.P. denied that anything had happened. But when her mother told N.P. they were going to the doctor and that the doctor would know if she was telling the truth, N.P. admitted that appellant had put his hand inside her underpants and touched her private parts. N.P.’s mother immediately contacted the St. Peter police who interviewed N.P. N.P. repeated her story and said that this also had happened in May.

At trial, both C.S. and N.P. were permitted to testify. Prior to their testimony, the trial judge interrogated in chambers each child to determine competency to testify. Appellant, his counsel and the prosecutor were excluded. The trial judge asked questions designed to determine if each child knew the difference between the truth and a lie, but did not ask either child to relate the facts about which they would be testifying. The court found both children competent to testify.

As part of the jury instructions, the trial judge quoted Minn.Stat. § 609.341, subd. 11 (1980), stating “sexual contact includes any of the following acts, if the acts can be reasonably construed as being for the purpose of satisfying the actor’s sexual or aggressive impulses.” The jury returned a verdict of guilty on two counts of criminal sexual conduct in the second degree. Appellant was acquitted on a third count.

At sentencing, the trial court chose to depart from the sentencing guidelines, which would have imposed a sentence of two consecutive 21-month terms stayed. Instead, the trial court imposed a sentence of 42 months executed. Appellant is currently incarcerated at the Stillwater correctional facility.

ISSUES

1. Did the trial court commit reversible error by including the unconstitutional language of Minn.Stat. § 609.341, subd. 11, in the jury instructions?

2. Did the trial court commit reversible error by excluding appellant and his attorney from the preliminary chambers examination to determine the competency of two child witnesses?

3.Was the trial court’s departure from the Sentencing Guidelines proper?

DISCUSSION

I

Instructions

In his jury instructions, the trial judge included the unconstitutional language of Minn.Stat. § 609.341, subd. 11 (1980), which states, “ ‘Sexual contact’ includes any of the following acts, if the acts can reasonably be construed as being for the purpose of satisfying the actor’s sexual or aggressive impulses.”

In State v. Tibbetts, 281 N.W.2d 499 (Minn.1979), the Minnesota Supreme Court held that inclusion of Minn.Stat. § 609.341, subd. 11, in the jury instructions “obscured and diluted the time-honored rule that in a criminal case the state must prove all facts beyond a reasonable doubt * * Id. at 500; See also State v. Bicknese, 285 N.W.2d 684 (Minn.1979).

The instructions in this case are remarkably similar to those in Tibbetts. Although no objection was made at trial, the express mandate of Tibbetts was overlooked. This constitutes plain error reviewable by this court. Minn.R.Crim.P. 31.02 (1984); State v. Malaski, 330 N.W.2d 447 (Minn.1983); Cf. State v. LaForge, 347 N.W.2d 247 (Minn.1984). Under Tibbetts, the defendant was denied due process and thus he is entitled to a new trial.

II

Attendance at the Preliminary Chambers Examination

The trial court reasoned that because appellant’s counsel would not be permitted to participate in the competency examination, there was no need for his presence. In addition, the trial court did not want the two young sexually abused children to be unnecessarily frightened by a formal proceeding.

A. Because this appears to be a question of first impression in Minnesota,' we take the opportunity to spell out the following principles for the guidance of trial courts.

1. The competency determination is one peculiarly committed to the trial court’s discretion. Thompson, Minnesota Practice, Evidence, § 601.01 (1979), citing Rule 104(a), “[preliminary questions concerning the qualification of a person to be a witness * * ⅜ shall be determined by the court * * See State v. Amos, 347 N.W.2d 498, 501 (Minn.1984); State ex rel. Dugal v. Tahash, 278 Minn. 175, 153 N.W.2d 232 (1967); See also People v. Byrnes, 33 N.Y.2d 343, 352 N.Y.S.2d 913, 308 N.E.2d 435 (1974).

The concurrence implies that the defendant had a “right” to examine the children on the competency question. We do not agree that this is the law in Minnesota. Minn.Stat. § 595.06 (1982) provides that “When an infant * ⅜ ⅜ is produced as a witness, the court may examine him to ascertain his capacity, ⅝ ⅜ ⅜ and the court may inquire * * * what peculiar ceremonies he deems most obligatory in taking an oath.” See State ex rel. Dugal v. Tahash, 278 Minn. 175, 177, 153 N.W.2d 232, 234 (1967). See also State v. Berry, 309 N.W.2d 777 (Minn.1981); State v. Tribblett, 281 Minn. 505, 162 N.W.2d 121 (1968). Many children are intimidated in the courtroom environment; the problem would be heightened if defendants had a “right” to interrogate them in a competency examination.

The concurrence also points out that the jury may be alienated by the defense posing competency questions if excluded from the preliminary chambers examination. This ignores the ability of trial counsel to ask delicate questions probing a witness’ capacity for memory and perception. Effective trial advocates understand the techniques needed to probe a witness’ testimony concerning intimate details. This is an inherent problem with any testimony of a sexual nature.

2. Typically, the trial judge holds a preliminary examination and this may be done in chambers. Amos, 347 N.W.2d at 501. The interrogation of the prospective witness should be done by the trial court and must be on the record.

3. The standard of competency to be tested by the court for a child witness under age ten in a sex abuse case is one “who is able to describe or relate in language appropriate for a child of that age the events or facts respecting which the child is examined.” Minn.Stat. § 595.02(6) (1982). Thus, the trial court has broad discretion as to the type of question to be put to the child during this preliminary examination, but should not elicit from the child the anticipated testimony concerning the alleged offense, recognizing the suggestibility of young children.

4. We express a strong preference for attorneys for the parties to be present during the in-chambers examination unless the court should determine, in the exercise of sound discretion, that the presence of counsel might be intimidating to the child or otherwise interfere with the ability of the child to communicate.

5. If counsel are excluded from the examination in chambers, the court must set forth the reasons for doing so either on the record or by separate order. It is possible for the trial court, in its discretion, to make certain physical arrangements which would avoid any appearance that the preliminary chambers examination was being used to prejudice the defendant’s rights to fair trial. For example, counsel could listen in on the court’s interview by waiting in an anteroom with the door left open; counsel also could listen through the use of electronic equipment. A videotape with closed-circuit viewing is also an option.

This “preliminary chambers examination” (as termed in Amos, 347 N.W.2d at 501) is not viewed as a stage of the trial or proceeding at which the defendant has a right to have counsel present. “The Sixth

Amendment is not so inflexible as to require the presence of counsel when that presence would destroy the character of the proceeding, especially in light of minimal prejudice to the defendant.” Smith v. Estelle, 445 F.Supp. 647, 661 (N.D.Tex.1977). Reserving some discretion to the trial court to exclude counsel does not interfere with defendant’s right of confrontation because if the court determines the child is competent to testify, defendant will be present in the courtroom with the full right of cross examination. Nonetheless, in view of the foregoing, the presence of counsel at the preliminary chambers examination must not be lightly or customarily denied. We are mindful of the concerns of the concurring opinion and agree that a balance must be struck between the protection afforded a child sex abuser and the child victim. In light of the increased awareness of the problems of sexual abuse of children, we are concerned about any procedural devices which may inhibit their testimony. Children of sexual abuse have enough difficulty testifying in open court without the added burden the concurrence would require. We believe the burden of young sex victims should be made lighter, not more onerous, not only to ensure that sex abusers are fully prosecuted, but to aid in the victims’ recovery from this traumatic experience.

B. The trial court also barred the defendant from the competency examination. In Minnesota, a defendant has the right to be present at “every stage of the trial.” Minn.R.Crim.P. 26.03, subd. 1(1) (1984); see also Minn.R.Crim.P. 11 (1984). A defendant’s constitutional right to be present exists, however, only “to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (Cardozo, J.). Recently, the Court stated that a defendant has a right to be present where his absence might frustrate the fairness of the proceedings. Faretta v. California, 422 U.S. 806, 819 n. 15, 95 S.Ct. 2525, 2533 n. 15, 45 L.Ed.2d 562 (1975). See also State v. Grey, 256 N.W.2d 74, 76 (Minn.1977). A defendant does not have the right to attend proceedings “when [his] presence would be useless, or the benefit but a shadow.” Snyder, 291 U.S. at 106-07, 54 S.Ct. at 332-33. U.S. v. Gunter, 631 F.2d 583, 589 (8th Cir.1980) (in-chambers conference on question of law not a stage of trial); Cox v. U.S., 309 F.2d 614, 616 (8th Cir.1962) (no right of defendant to attend chambers conference dealing with ruling on matter of law); see also State v. Farrar, 271 Minn. 330, 332, 136 N.W.2d 68, 70 (1965) (defendant had no right to attend discussion of procedural matter between judge, prosecutor, and defendant's attorney); Foster, 318 N.W.2d 176, 179 (Iowa 1982) (pretrial proceedings involving questions of law not a stage of trial requiring defendant’s presence).

We conclude that the criminal defendant himself does not have the right to attend the chambers examination held to determine the competency of child witnesses.¹ People v. Breitweiser, 38 Ill.App.3d 1066, 349 N.E.2d 454, 455-56 (1976); State v. Ritchey, 107 Ariz. 552, 490 P.2d 558 (1971). The presence of a defendant would serve no purpose other than to intimidate the child because the form of inquiry at a competency hearing is within the sound discretion of the trial judge. State ex rel. Dugal v. Tahash, 278 Minn. 175, 177, 153 N.W.2d 232, 234 (1967); accord State v. Yahnke, 336 N.W.2d 299 (Minn.1983); State v. Johnson, 256 N.W.2d 280 (Minn.1977); State v. Tribblet, 281 Minn. 505, 162 N.W.2d 121 (1968); State v. Norgaard, 272 Minn. 48, 136 N.W.2d 628 (1965).

DECISION

The jury instruction which included unconstitutional language of Minn.Stat. § 609.341, subd. 11, was reversible error under Tibbetts. The trial court could properly exclude appellant from the preliminary chambers examination, but counsel should be permitted to attend unless the court finds that their presence will likely intimidate the child or interfere with the child’s ability freely to communicate. We need not address appellant’s contention that he was improperly sentenced.

Reversed and remanded.

1 . We are not unmindful of State v. Cermak, 350 N.W.2d 328 (Minn.1984), in which the Supreme Court held that a valid waiver of such right as the defendant had to be present did not indicate incompetence of counsel. Inasmuch as the point discussed here was neither directly addressed by the court, nor apparently briefed by counsel, we regard the court’s characterization of defendant’s “constitutional right to be present” as dictum.