State v. Sanders

775 N.W.2d 883, 2009 Minn. LEXIS 890, 2009 WL 4841037

• Court: Supreme Court of Minnesota
• Decided: December 17, 2009
• Docket: A06-1354
• Status: Published

Opinions

OPINION

ANDERSON, G. BARRY, Justice.

In this appeal we consider whether the district court committed reversible error when it admitted testimony regarding statements allegedly made by appellant Jonathan Sanders during an unrecorded out-of-state custodial interrogation conducted by the FBI at a place of detention. Sanders was convicted of first-degree criminal sexual conduct, Minn.Stat. § 609.342, subd. 1(a) (2008), involving the 11-year-old daughter of his girlfriend. Sanders appealed his conviction to the court of appeals, arguing in part that the district court committed reversible error when it admitted testimony regarding Sanders’s unrecorded statements to the FBI. The court of appeals affirmed, holding as a matter of first impression, that the recording requirement announced in State v. Scales, 518 N.W.2d 587 (Minn.1994), did not apply to a custodial interrogation that is conducted outside Minnesota.¹ State v. Sanders, 743 N.W.2d 616, 620 (Minn.App.2008). Based on our conclusion that the jury’s verdict was surely unattributable to the district court’s admission of testimony regarding Sanders’s unrecorded statements to the FBI, we affirm.

At trial, the State presented the following evidence. In October 2004 Sanders was living with his girlfriend S.J. and her daughter B.J. in St. Paul. On October 29, 2004, Sanders was home alone with B.J. Sanders was 28 years old, and B.J. was 11. Sanders considered B.J. his stepdaughter, having helped raise her since she was five years old. B.J. was on a living room sofa watching television when Sanders sat next to her and, according to B.J., began to touch the clothing over his penis with one hand while touching B.J.’s buttocks with his other hand. B.J. testified that she went to her bedroom, partially closed the door, and got into bed. Sanders entered B.J.’s room a few minutes later and got into bed with her. Sanders removed his pants, removed B.J.’s pants and underwear, got on top of B.J., and rubbed his penis between B.J.’s gluteal folds, or butt cheeks. He masturbated, used a towel to wipe off B.J.’s buttocks and himself, and left the room. B.J. fell asleep, and Sanders was gone when she awoke.

When her mother arrived home, B.J. told her what had happened. She also told her mother that Sanders had initiated sexual contact with her on two earlier occasions. S.J. called the St. Paul Police Department, and B.J. told police officers about the three incidents. B.J. was then interviewed and examined by a nurse at the Midwest Children’s Resource Center. S.J. suggested to police that Sanders might have gone to Chicago.

After B.J. and her mother testified, the district court held a midtrial evidentiary hearing to determine whether to suppress statements made by Sanders to the FBI agents when they later apprehended Sanders in Chicago, Illinois. At the midtrial evidentiary hearing, Special Agent Sean Burke testified to the following facts. After the October 29, 2004, incident, the St. Paul Police Department issued a warrant for Sanders and contacted the Minneapolis office of the FBI for assistance in finding him.² The FBI Minneapolis office obtained an Unlawful Flight to Avoid Prosecution Warrant and contacted the Chicago FBI and asked for help in locating Sanders. An agent in the FBI’s Chicago office ran a background check on Sanders, and on May 24, 2005, FBI agents and Chicago police officers were sent to the home of Sanders’s mother. Agents found Sanders there, and took him to a Chicago Police Department booking station.

Burke and Special Agent Matthew Al-coke interviewed Sanders from 8:12 a.m. to 10 a.m.³ The FBI agents did not record the session, because it is national FBI policy not to audiotape or videotape interviews. Burke was unaware of the recording requirement in Minnesota. Alcoke read Sanders his rights, while showing Sanders a preprinted FBI Advice-of-Rights form. Sanders orally indicated he understood, and agreed to be interviewed, but refused to sign the form. In refusing, Sanders told agents he did not want to sign anything. He asked no questions about the Advice-of-Rights form.

Sanders initially told the FBI agents that his date of birth was January 6, 1976, but later admitted that his true date of birth was January 6, 1978. Sanders also admitted that he sometimes used the name Johnny Knight. When the FBI agents asked Sanders whether Sanders had sexual intercourse or any other type of sexual contact with B.J., Sanders repeatedly gave the same response: “I did not f— her.” Sanders also stated that he would never have had sex with B.J., because he believed B.J. had a venereal disease based on an alleged vaginal odor. He further stated that he had smelled a similar vaginal odor when he was sexually active with an upstairs neighbor. Asked why his DNA would be in the house, Sanders told the agents he had masturbated throughout the house. Sanders refused the agents’ request that he provide a Q-tip swab sample of his DNA. When the interview ended, the agents prepared a report on the Sanders interview on a standard FBI form. Then the agents turned Sanders over to the Chicago police to handle his extradition to Minnesota.

Based on Burke’s testimony, the district court denied Sanders’s suppression motion. It concluded that the recording requirements announced in State v. Scales, 518 N.W.2d 587 (Minn.1994), did not apply to a custodial interrogation that is conducted outside Minnesota. The district court further concluded that Sanders “knowingly, voluntarily, and freely waived his right to remain silent.”

When the jury trial resumed, Burke testified to the facts outlined above. The State also presented expert testimony that Sanders could not be excluded as a source of the DNA found on the towel recovered from B.J.’s home. After the State’s remaining witnesses testified, Sanders decided to testify at trial. He denied committing the offense. Sanders also denied making several of the statements that Burke attributed to him. He specifically denied giving the FBI agents a false date of birth, using the word “f — ” during the FBI interview, and having sex with the upstairs neighbor.

During the State’s closing argument, the State discussed Sanders’s denial of the statements attributed to him by Burke. But, the State did not dwell on this issue; fewer than four pages of the State’s closing argument were spent discussing Sanders’s denial of the statements attributed to him by Burke. Instead, the State focused the argument on B.J.’s testimony and the DNA evidence.

During Sanders’s closing argument, defense counsel used Burke’s testimony to emphasize that Sanders immediately and consistently denied having sexual contact with B.J. Defense counsel further told the jury that they could acquit Sanders without labeling Burke a liar. Instead, the jury could simply say that the State’s evidence was not enough to prove the charges beyond a reasonable doubt.

The jury found Sanders guilty of first-degree criminal sexual conduct. The district court imposed a presumptive 144-month sentence.

On appeal, Sanders challenged his conviction, arguing in part that the district court committed reversible error when it admitted Burke’s testimony. As a matter of first impression, the court of appeals held that “the Scales recording requirement is a state procedural rule intended to govern conduct occurring within the state.” State v. Sanders, 743 N.W.2d 616, 620 (Minn.App.2008). We granted Sanders’s petition for review on the issue of whether the recording requirement announced in Scales, 518 N.W.2d 587, applies to custodial interrogation taken outside of Minnesota.

Sanders asserts that the district court and the court of appeals erred in concluding that the recording requirement announced in Scales, 518 N.W.2d 587, does not apply to a custodial interrogation that is conducted outside Minnesota. He also asserts that the district court was required to suppress his unrecorded statement to the FBI because the alleged Scales violation was substantial. Sanders further asserts that it is impossible to conclude that the jury’s verdict was surely unattributable to the court’s erroneous admission of Burke’s testimony. Based on these assertions, Sanders contends that he is entitled to a new trial.

If the jury’s verdict was surely unattributable to the district court’s admission of Burke’s testimony regarding the statements Sanders allegedly made to the FBI, we need not address whether the Scales recording rule applies to a custodial interrogation conducted outside Minnesota or whether the alleged Scales violation in this case was substantial. Consequently, we begin our analysis by considering whether the jury’s verdict was surely unattributable to the district court’s admission of Burke’s testimony.

On appeal, a defendant has the burden of proving not only that the district court abused its discretion in admitting the evidence in question, but also that he was prejudiced by the admission of the evidence. State v. Nunn, 561 N.W.2d 902, 907 (Minn.1997) (citing State v. Steinbuch, 514 N.W.2d 793, 799 (Minn.1994)). Depending on whether the district court’s erroneous admission of evidence implicates a constitutional right, we have applied two different harmless-error tests for determining whether the defendant was prejudiced by the admission of the evidence. When the error implicates a constitutional right, a new trial is required unless the State can show beyond a reasonable doubt that the error was harmless. State v. Scott, 501 N.W.2d 608, 619 (Minn.1993). An error is harmless beyond a reasonable doubt if the jury’s verdict was surely unattributable to the error. State v. Shoen, 598 N.W.2d 370, 377 (Minn.1999). When the error does not implicate a constitutional right, a new trial is required only when the error substantially influenced the jury’s verdict. State v. Anderson, 763 N.W.2d 9, 12 (Minn.2009); State v. Darveaux, 318 N.W.2d 44, 48 (Minn.1982). We have not squarely addressed whether a district court’s erroneous admission of testimony regarding statements made by a defendant during an unrecorded custodial interrogation at a place of detention implicates a constitutional right.

In Scales, we chose not to determine “whether under the Due Process Clause of the Minnesota Constitution a criminal suspect has a right to have his or her custodial interrogation recorded.” 518 N.W.2d at 592. Instead, we exercised our supervisory power to insure the fair administration of justice in announcing the Scales recording requirement. Id. Without identifying the applicable harmless-error test, we affirmed Scales’s conviction, explaining that even if his “unrecorded statements had been suppressed the result would have been the same.” Id. at 593. We explained that the evidence against Scales was very strong, even without his unrecorded statements. Id. After reviewing the evidence, we concluded that “any error in admitting the unrecorded statements was harmless.” Id.

In Scales v. State, 620 N.W.2d 706, 708 (Minn.2001), we concluded that the Knaffla rule barred Scales’s postconviction claim that the failure to record his custodial interrogation violated his right to due process.⁴ Citing Scales, 518 N.W.2d at 593, we explained that we “affirmed [Scales’s] conviction on direct appeal because even if the due process right existed and the court suppressed [Scales’s] unrecorded statement, the remaining evidence against [Scales] was strong and the result would have been the same.” Scales, 620 N.W.2d at 708. Although we referenced State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997) (holding that a claimed constitutional error is harmless beyond a reasonable doubt where the verdict was surely unattributable to the error), we did not specify whether this reference was limited to the alleged due process right or whether it also applied to the erroneous admission of statements made during an unrecorded custodial interrogation. See Scales, 620 N.W.2d at 708.

In this case, we need not, and do not, decide which harmless-error standard applies to a district court’s erroneous admission of statements made during an unrecorded custodial interrogation because even under the more favorable constitutional harmless-error standard Sanders was not prejudiced by the district court’s admission of Burke’s testimony. When determining whether a jury verdict was surely unattributable to an erroneous admission of evidence, we consider the “manner in which the evidence was presented, whether it was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defendant.” State v. Al-Naseer, 690 N.W.2d 744, 748 (Minn.2005). We also consider the strength of the evidence of guilt. State v. Hall, 764 N.W.2d 837, 842 (Minn.2009).

In this case, the evidence introduced from the unrecorded interrogation was not inculpatory. The State did not present Burke’s testimony to establish a critical element of the offense. Cf. State v. Caulfield, 722 N.W.2d 304, 314 (Minn.2006) (explaining that the erroneously admitted lab report impacted the verdict in part because the State presented the report as definitive evidence that the substance possessed by the defendant was cocaine); State v. Litzau, 650 N.W.2d 177, 184 (Minn.2002) (explaining that the erroneously admitted evidence impacted the jury’s verdict in part because it went to the critical issue of whether the defendant possessed the drugs found in his car). Burke’s testimony was not highly persuasive evidence of guilt because it in part reinforced Sanders’s claim that he did not have sexual contact with B.J. by demonstrating that Sanders immediately and consistently denied the offense. Although the State discussed in the closing argument the denial by Sanders of the statements attributed to him by Burke, the State’s discussion was brief. Defense counsel effectively countered the State’s arguments regarding Burke’s testimony by using Burke’s own testimony to emphasize that Sanders immediately and consistently denied having sexual contact with B.J. In addition, the evidence of Sanders’s guilt, including the DNA evidence recovered from the towel, was strong.

After considering all the relevant factors, we conclude that the jury’s verdict was surely unattributable to the district court’s admission of Burke’s testimony regarding statements allegedly made by Sanders during an unrecorded out-of-state custodial interrogation conducted at a place of detention. Based on this conclusion, we affirm Sanders’s conviction. We need not, and do not, decide whether the Scales recording rule applies to a custodial interrogation conducted outside Minnesota or whether the alleged Scales violation in this case was substantial.⁵

Affirmed.

1 . Scales arose from cases involving defendants’ constitutional rights against compelled self-incrimination and the procedures required by the Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See, e.g., State v. Robinson, 427 N.W.2d 217, 222 (Minn.1988). Defendants and police often differ at trial over whether police followed Miranda, whether the defendant waived his or her right to remain silent, and whether the defendant knowingly and voluntarily confessed to the crime charged. See id. at 224 n. 5 (observing that many disputes over a defendant's constitutional rights would be avoided if police interrogators recorded all their conversations with a suspect). In Robinson, we recommended recording interviews, including pre-statement conversations. Id. Three years later, we "urge[d] ... law enforcement professionals [to] use those technological means at their disposal to fully preserve those conversations and events preceding the actual interrogation.” State v. Pilcher, 472 N.W.2d 327, 333 (Minn.1991). We warned law enforcement personnel and prosecutors that we would "look with great disfavor upon any further refusal to heed these admonitions.” Id.

In Scales, we expressed our concern "about the failure of law enforcement officers to record custodial interrogations,” because law enforcement officers ignored our warnings in Pilcher and Robinson. Scales, 518 N.W.2d at 591-92. Exercising our supervisory power to insure the fair administration of justice, we held that all custodial interrogation "shall be electronically recorded where feasible.” Id. at 592. This was to include any information given to suspects about rights, any waiver of those rights, and all questioning. Id. If police failed to record, then suspects' statements "may be suppressed at trial.” Id. Exclusion was to be decided on a case-by-case basis. Id. For violations deemed "substantial,” suppression was required. Id. Conversely, suppression was not required for an insubstantial Scales violation.

2 . Sanders also used the alias "Johnny Knight.” Sanders, testifying at his trial, stated his name was John Knight. He also had an Illinois state identification card bearing the name Johnny Knight.

3 . The record is unclear as to why the FBI conducted the interview, and whether it did so at the request of the St. Paul Police Department. Alcoke did not testify at either the midtrial evidentiary hearing or the trial; Burke testified that he did not know how the interview was arranged. Sanders implies collusion between the St. Paul Police Department and the FBI in order to evade the recording requirement and requests a remand on the issue, but he fails to point to any facts in the record supporting his theory.

4 . In State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), we stated that "where direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”

5 . When an alleged evidentiary error is harmless, an appellate court need not address the merits of the claimed error. See Hall, 764 N.W.2d at 844 (explaining that the court need not decide whether the district court erred when it prevented the defense from inquiring about the manner in which Hall’s statement was taken by the police because any such error was harmless). In addition, certain deficiencies in the record complicate a discussion of whether the alleged Scales violation in this case was substantial and whether the Scales recording rule applies to a custodial interrogation conducted outside Minnesota.