State v. Brouillette, 49101.
| Decision Date | 27 November 1979 |
| Docket Number | No. 49101.,49101. |
| Parties | STATE of Minnesota, Respondent, v. Michael James BROUILLETTE, Appellant. |
| Court | Minnesota Supreme Court |
Thomson & Nordby and Jack S. Nordby, Joseph G. Brown, St. Paul, for appellant.
Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Norman B. Coleman, Jr., Spec. Asst. Atty. Gen., St. Paul, Roger Van Heel, County Atty., St. Cloud, for respondent.
Heard before SHERAN, C. J., WAHL and KENNEDY, JJ., and considered and decided by the court en banc.
Defendant Michael Brouillette appeals from a judgment of conviction entered in Stearns County District Court after a jury found him guilty of criminal sexual conduct in the fourth degree in violation of Minn. Stat. § 609.345(c) (1978). We affirm.
On February 1, 1977, the complainant, a 19-year-old woman student, wearing a knee-length T-shirt with an "AWB" emblem on it, entered the bathroom on the second floor of Holes Hall,1 her residence at St. Cloud State University, between 3:40 and 3:45 a. m. When she emerged from the bathroom stall, she discovered defendant standing in front of a mirror "fussing" with his hair. She was startled and angry to see a man in the bathroom and yelled, "What are you doing in here?" He replied that he thought he was on the fifth floor, which is occupied by men, and asked her the same question.2 She told him it was a women's bathroom and that he should leave. Defendant approached complainant, removed a cigarette from her hand, pointed to her chest, touched the emblem, and stated, "I really like that ass on your T-shirt."3 He grasped her shoulders, turned her around, lifted her T-shirt, and touched her buttocks, saying, "I really like your ass too." He then grabbed her shoulders again, turned her around, and touched her groin area.
Complainant yelled at defendant to leave and tried to move away from him but was hindered by a broken toe. Defendant was standing between her and the door. Although defendant never threatened her, complainant testified that she was afraid that he would harm her. When she began yelling, defendant ran from the bathroom. Complainant followed him and met the assistant director of the dormitory, Steven Bell, who lived on the second floor and had heard her screams. After hearing her story, Mr. Bell and the night attendant searched unsuccessfully for the assailant.
On February 16, 1977, complainant was shown a display of six photographs, including two photographs of defendant, and immediately identified defendant as her assailant. Defendant was arrested on May 12, 1977, and charged in district court on May 18, 1977. He was released on his own recognizance pending trial. At the omnibus hearing on February 13, 1978, defendant challenged the identification procedures and moved for dismissal on the ground that his right to a speedy trial had been violated. The motion was denied, and the case was tried to a jury on February 13 and 14, 1978. At the close of the state's case, the trial court denied defendant's motion for a judgment of acquittal which was made on the ground that the state had not proven force, a necessary element of the crime. The district court also ruled that if defendant testified, the state could use his prior conviction for criminal sexual conduct in the third degree4 for impeachment. Defendant did not testify or present any evidence at trial. After deliberating for less than an hour, the jury found defendant guilty as charged. Defendant's motion for a new trial due to insufficient evidence, unnecessarily suggestive photographic display, and incorrect evidentiary rulings was denied.
The following issues are raised by this appeal:
(1) Was the evidence sufficient to support the jury verdict?
(2) Was defendant denied his right to a speedy trial?
(3) Were the pretrial identification procedures impermissibly suggestive?
(4) Did the trial court err by ruling that defendant's prior conviction was admissible for impeachment purposes?
(5) Were the trial court's comments and instructions, when read as a whole, improper so as to deprive defendant of a fair trial?
1. Our review of the sufficiency of the evidence in a criminal case is limited to ascertaining whether, under the evidence contained in the record, the jury could reasonably find defendant guilty of the offense charged. In making this determination, we view the evidence in the light most favorable to the state and assume that the jury believed the state's witnesses and disbelieved contradicting testimony. E. g., State v. Hawkins, 260 N.W.2d 150 (Minn.1977); State v. Bowser, 305 Minn. 431, 234 N.W.2d 890 (1975).
Criminal sexual conduct in the fourth degree is proscribed by Minn.Stat. § 609.345(c) (1978), which reads, in relevant part, as follows:
A person is guilty of criminal sexual conduct in the fourth degree * * * if he engages in sexual contact with another person and if * * * the actor uses force or coercion to accomplish the sexual contact.
Defendant contends there is insufficient evidence of force or coercion to find him guilty under § 609.345(c). We cannot agree. The term "force" is defined in Minn.Stat. § 609.341, subd. 3 (1978), as including the "commission or threat by the actor of an assault, as defined in section 609.22 * * *." An assault is committed under Minn.Stat. § 609.22 (1978), when a person:
At the time of the incident giving rise to this case, the complainant was dressed only in an undershirt, intending to use the restroom prior to retiring for the night. As she exited from a bathroom stall she was shocked to see a man in the women's bathroom. The complainant testified that defendant grabbed her forcefully by the shoulders, twirled her around, and grabbed her in the buttocks and vaginal area. She was fearful that "anything could happen" and specifically stated that she was afraid defendant might hurt her. This testimony establishes a reasonable basis for the jury to find that defendant acted with the force required by § 609.345(c).
2. Defendant asserts that he was denied his constitutional right to a speedy trial because there was an 11-month delay between the complaint and the trial.5 To determine whether a defendant has been denied a speedy trial, we must balance four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether defendant asserted his right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Corarito, 268 N.W.2d 79 (Minn.1978).
The delay in this case was sufficient to trigger an inquiry, but that delay alone did not establish a violation of defendant's right to a speedy trial. See, State v. Corarito, supra; State v. Enebak, 272 N.W.2d 27 (Minn.1978). The only explanation the state offered was the resignation of two successive public defenders and defendant's failure to assert his right. Such a reason weighs against the state, but not as heavily as if there had been a deliberate delay to hamper the defense or harass the defendant. The fact that defendant never requested a speedy trial may have been due to the resignation of the public defenders, but he might not have demanded an immediate trial, had he been represented by the same counsel throughout the pretrial period, because he was released pending trial. Thus, his failure to demand a trial does not weigh heavily on either side of the balance.6 Finally, there is no showing that defendant was prejudiced by the delay. None of the witnesses who testified displayed any lack of memory. Defense counsel vigorously cross-examined each witness and, thus, had an opportunity to establish any memory lapses or uncertainties. Balancing these four factors, we find no violation of defendant's right to a speedy trial.
3. Defendant contends that complainant's identification of him at trial should have been excluded because the procedures leading to the identification were unnecessarily suggestive. Complainant was shown a display of six photographs, two of which were of defendant. The display was unnecessarily suggestive because defendant's photograph was the only one in color, it was the only one from Washington County, and it appeared twice. See, Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The trial court did not err, however, in permitting complainant to identify defendant in court. Even though the unnecessarily suggestive photographic display may have created a likelihood of misidentification, here, as in State v. Sickels, 275 N.W.2d 809 (Minn.1979), the record before us does not show the requisite substantial likelihood of irreparable misidentification. See, Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Moose, 266 N.W.2d 521 (Minn.1978). Complainant saw her assailant for two or three minutes in a well-lighted room. She was face-to-face with him at less than arm's length most of that time. She gave the police an accurate and detailed description soon after the occurrence and repeated that description at trial. Only two weeks elapsed between the crime and the photographic display; and upon seeing the photographs, she selected defendant's photograph immediately and was very certain of her choice. It also appears in the record that shortly before the incident in question, defendant had given his name to a woman he talked to on another floor of Holes Hall.
4. Defendant's next claim relates to the trial court's ruling that defendant's prior conviction for criminal sexual conduct in the third degree was admissible for impeachment purposes. A motion was made during the omnibus hearing to preclude the introduction of this prior conviction should defendant take the stand...
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