Moll v. State, C9-83-1629

• Decision Date: 05 June 1984
• Docket Number: No. C9-83-1629,C9-83-1629
• Citation: 351 N.W.2d 639
• Parties: Lawrence Donald MOLL, Petitioner-Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Court of Appeals

Page 639

351 N.W.2d 639

Lawrence Donald MOLL, Petitioner-Appellant, v. STATE of Minnesota, Respondent.

No. C9-83-1629.

Court of Appeals of Minnesota.

June 5, 1984.

Syllabus by the Court

1. The trial court committed reversible error by including the unconstitutional language of Minn.Stat. Sec. 609.341, subd. 11 (1980), in the jury instructions.

2. Appellant could properly be excluded from preliminary chambers examination to determine the competency of two child witnesses.

3. Exclusion of appellant's attorney from the court's preliminary chambers examination to determine the testimonial competency of two very young child victims in a sexual abuse case was within the sound discretion of the trial court.

4. If counsel are excluded from the court's in-chambers interrogation to determine competency of a young child witness to testify, the court must make a record of the specific reasons for excluding counsel and the interrogation of the child must be on the record.

Reversed and remanded.

C. Paul Jones, Minn. State Public Defender, Robert D. Goodell, Asst. State Public Defender, University of Minnesota, Minneapolis, for petitioner-appellant.

Hubert H. Humphrey, III, Atty. Gen., Robert A. Stanich, Sp. Asst. Atty. Gen., St. Paul, W.M. Gustafson, Nicollet County Atty., St. Peter, for respondent.

Considered and decided en banc by POPOVICH, C.J., and PARKER, FOLEY, WOZNIAK, SEDGWICK and LANSING, JJ.

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. Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 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, Sec. 601.01 (1979), citing Rule 104(a), "[p]reliminary questions concerning the qualification of a person to be a witness * * * 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. Sec. 595.06 (1982) provides that "When an infant * * * is produced as a witness, the court may examine him to ascertain his capacity, * * * 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. Sec. 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...