State v. Danforth

• Decision Date: 16 December 1997
• Docket Number: C0-96-1650,Nos. C8-96-1637,s. C8-96-1637
• Parties: STATE of Minnesota, Appellant (C8-96-1637), Respondent (C0-96-1650), v. Stephen (NMN) DANFORTH, Respondent (C8-96-1637), Appellant (C0-96-1650).
• Court: Minnesota Court of Appeals

Page 369

573 N.W.2d 369

STATE of Minnesota, Appellant (C8-96-1637), Respondent (C0-96-1650), v. Stephen (NMN) DANFORTH, Respondent (C8-96-1637), Appellant

(C0-96-1650).

Nos. C8-96-1637, C0-96-1650.

Court of Appeals of Minnesota.

Dec. 16, 1997.

Review Denied Feb. 19, 1998.

Syllabus by the Court

1. Contact in the parties' absence between the trial judge and a deliberating jury to avoid potential imminent disorder among the jury is left to the sound discretion of the district court and, absent prejudice, is not grounds for reversal.

2. The district court lawfully admitted into evidence the videotaped interview of the child victim of a sex crime after properly declaring the child incompetent to testify at trial under Minn.Stat. § 595.02, subd. 3 (1996).

3. The district court did not abuse its discretion by refusing to instruct the jury that it had found the child victim incompetent to testify.

4. Notwithstanding Minn.Stat. § 609.1352, subd. 1(b) (1996), in implementing the patterned sex offender sentencing provisions of section 609.1352, the sentencing court must impose and execute a sentence of at least double the presumptive guidelines sentence (but not more than the statutory maximum sentence) if the court finds that the defendant meets the criteria in subdivision 1(a) of that statute.

John M. Stuart, State Public Defender, Lyonel F. Norris, Assistant State Public Defender, Minneapolis, for appellant/respondent Danforth.

Hubert H. Humphrey, III, Attorney General, St. Paul, for appellant State of Minnesota.

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, Minneapolis, for respondent/appellant State of Minnesota.

Considered and decided by HUSPENI, P.J., and KLAPHAKE and HARTEN, JJ.

OPINION

HARTEN, Judge.

Stephen Danforth was convicted of first-degree criminal sexual conduct for sexually abusing J.S., a six-year-old boy. Danforth appealed his conviction and the state appealed the sentence; the appeals were consolidated.

Danforth asserts that irregularities during jury deliberations deprived him of a fair trial. Danforth also argues that the district court erred in admitting a videotaped interview of J.S., after finding J.S. incompetent to testify at trial, because the videotape constituted hearsay that violated his right to confrontation. Finally, Danforth claims that the district court erred in failing to instruct the jury that J.S. had been found incompetent to testify and by disallowing the parties to mention that finding.

The state argues that the district court erred by departing from statutory mandates in implementing Minn.Stat. § 609.1352 (1996) in that it failed to sentence Danforth to an executed term of imprisonment of not less than double the presumptive sentence.

We affirm Danforth's conviction, but reverse in part and remand for resentencing in accordance with Minn.Stat. § 609.1352 and this opinion.

FACTS

Danforth is a multiply-convicted pedophile with an extensive history of sexually abusing young boys during the 1970's and 1980's. Danforth and J.S.' parents, particularly J.S.' father, were close friends for many years; Danforth was like a "favorite uncle" to J.S. and his siblings, having spent a great deal of time with the family.

On August 11, 1995, a neighbor discovered six-year-old J.S. with his pants down atop a younger girl, acting in a sexual manner. When confronted by his mother and asked where he had learned such things, J.S. said that "Steve" had put his mouth on J.S.' "pee-pee" and his finger in J.S.' "poopie butt." That evening, J.S.' mother called the police to report the alleged sexual abuse.

When interviewed by the police, J.S. said that "Steve" had put his "pee" in his buttocks and that "Steve" had made him "kiss his pee." On August 23, 1995, J.S. was interviewed at CornerHouse, a non-profit sexual abuse center. J.S. gave substantially similar information during this videotaped interview and clearly indicated that he had been sexually abused by Danforth. Danforth was then arrested and charged with first degree criminal sexual conduct.

The trial was lengthy, lasting from February 7 through March 6, 1996. Danforth, a disbarred attorney, represented himself for much of the trial, although he had access to stand-by counsel.

On the day that testimony was scheduled to begin, a competency hearing was held to determine whether J.S. and his five-year-old sister, A.S., were competent to testify. Danforth strongly urged the district court to find J.S. incompetent and to rule the CornerHouse videotape inadmissible. The state agreed that J.S. appeared incompetent to testify, but argued that the videotape was nevertheless admissible. Because J.S. had limited ability to focus on questions and give relevant answers, the district court declared him incompetent. The district court found A.S. competent to testify, however, because she exhibited a far superior ability to concentrate than J.S.

The district court admitted the videotape because it found that the taped conversations bore sufficient indicia of reliability. Among other factors, the district court noted that J.S.' remarks appeared spontaneous and largely unsolicited by leading questions, and that J.S. lacked any apparent motivation to fabricate the accusation.

At trial, the jury viewed the CornerHouse videotape, and A.S. testified that she had seen "Steve" put his mouth on J.S.' "pee-pee" and "private" one day in the men's room by the pool at their aunt's apartment. A.S. did not identify Danforth in the courtroom, however. The state called former victims to testify about the sexual abuse underlying some of Danforth's previous convictions.

Danforth testified on his own behalf. He claimed that J.S.' parents trumped up the charges because J.S.' father was repulsed by Danforth's admitted homosexuality and J.S.' mother was angry with Danforth for various disparaging comments and criticism of her parenting skills. Danforth also claimed that he was reformed and understood the evil of his past ways.

The jury convicted Danforth of first-degree criminal sexual conduct. The district court denied Danforth's detailed motion for a new trial and sentenced him to an executed term of imprisonment of 216 months, an upward durational departure of 58 months, but less than double the presumptive sentence, which the state asserted was the minimum sentence required under Minn.Stat. § 609.1352 (the patterned sex offender statute).

ISSUES

1. Did irregularities in the jury deliberation process deprive Danforth of a fair trial?

2. Did the district court err in admitting the CornerHouse videotape?

3. Did the district court err by refusing to instruct the jury that J.S. had been found incompetent to testify and by prohibiting the parties from mentioning that finding to the jury?

4. Did the district court err in implementing Danforth's sentence as a patterned sex offender under Minn.Stat. § 609.1352?

ANALYSIS

1. Jury deliberation process.

a. Judge's contact with jury.

Danforth argues that the district court committed reversible error by addressing the jury outside his and counsels' presence and in forcing the jury to deliberate until they reached a verdict.

Contact between the judge and jury without notice to the parties is generally considered error, but will be grounds for reversal only if appellant shows that the contact was prejudicial. State v. Kelley, 517 N.W.2d 905, 908 (Minn.1994). Contact between the judge and jury on matters not substantively relating to the case (such as matters relating to physical comfort and the like), however, is not necessarily error and is left to the sound discretion of the district court. Id. at 908-09.

Only hours into jury deliberations, following weeks of trial, juror L sent a note to the district court, complaining about the lack of air flow in the jury room and claiming that the jury was "hopelessly deadlocked." Despite the juror's premature conclusion that the jury was deadlocked, the district court gave the note serious attention and called the parties to the courtroom to discuss what response should be given. The parties, including Danforth, agreed that one of the jury instructions should be reread to the jury and that they should be sent back for further deliberations.

Later that same day, the bailiff informed the district court that tensions in the jury room were running high and that he believed violence could be imminent. The bailiff also said that one of the jurors, juror H, was threatening to leave. Because it had taken over 45 minutes to convene the parties following juror L's note, the district court spoke with juror H and then the entire jury without first notifying counsel or Danforth.

The district court's remarks to juror H and the rest of the jury were on the record and were limited to matters necessary to enable the jury to continue deliberating. Far from coercing the jury to deliberate until they reached a verdict, the district court attempted to correct some jurors' misimpression that they were not allowed to become a hung jury and reassured them that it was only asking them to deliberate until the next day. The district court's remarks were merely a request for cooperation, diligence, and goodwill and an assurance that the jurors were still free to do as they wished.

In Kelley, the Minnesota Supreme Court cited the A.B.A. Standard Relating to Trial by Jury 15-4.4(b) (1986) with approval:

"If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in paragraph (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals."

The commentary to Standard 15-4.4(b) states that:

[A] court may send the jury back for additional deliberations even though the jury has indicated once, twice, or several times that it cannot agree or even after...