State v. Hernandez

Decision Date20 December 2005
Docket NumberNo. 20050047.,20050047.
PartiesSTATE of North Dakota, Plaintiff and Appellee v. Luis Ignacio HERNANDEZ, Sr., Defendant and Appellant.
CourtNorth Dakota Supreme Court

Birch P. Burdick (argued), State's Attorney, and Charles B. Neff, Jr. (appeared), third-year law student, under the Rule on Limited Practice of Law by Law Students, Fargo, N.D., for plaintiff and appellee.

Dennis D. Fisher, Stefanson, Plambeck, Foss & Fisher, Moorhead, MN, for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Luis I. Hernandez, Sr., appeals from a judgment entered after a jury found him guilty of gross sexual imposition, and from an order denying his motions for a new trial. We hold the trial court did not abuse its discretion in allowing the State's handwriting expert to identify Hernandez as the author of a letter handwritten in Spanish, the court did not obviously err in permitting the jury to see an unredacted copy of an English translation of the letter, the court did not abuse its discretion in admitting testimony about Hernandez's prior sexual abuse of the complainant, and the court did not err in admitting testimony and a report that non-motile sperm was found in a swab taken from the complainant during an examination by an emergency room pediatrician. We affirm.

I

[¶ 2] The State charged Hernandez with gross sexual imposition under N.D.C.C. § 12.1-20-03 for allegedly engaging in a sexual act with the complainant, the twelve-year-old daughter of his former girlfriend. At trial, the State presented evidence that Hernandez picked up the complainant after school on May 22, 2003, and took her to a Fargo motel, where he engaged in sexual acts with her. The complainant testified Hernandez ultimately drove her to her mother's home, where the complainant told her mother that Hernandez had raped her. The complainant's mother testified she found a letter handwritten in Spanish in the screen door of her house about a day or two after Hernandez was arrested. The letter was not addressed to a recipient and was not signed by its author. The State introduced an English translation of the letter, which stated "she went to the hotel with me and we had sex and that I didn't rape her" and "I don't deny that I got involved with her but she gave it to me voluntarily." The State also introduced expert testimony that identified Hernandez as the author of the handwritten letter.

[¶ 3] Hernandez claimed the complainant's mother manipulated her daughter to fabricate the prosecution against him. There was evidence that Hernandez and the complainant's mother had a stormy relationship over the previous ten years. They were never married, but they had a son together in 1994. According to Hernandez, the complainant's mother did not approve of his relationship with his current girlfriend, and in May 2003, his physical mobility was severely limited by a February 2003 automobile accident and a "halo" device he wore as part of his rehabilitation for a spinal cord injury. Hernandez testified he met his son, the complainant's mother, and the complainant at a Fargo motel on May 22, 2003. According to Hernandez, his son and the complainant went swimming in the motel pool, and the complainant's mother then tried to engage in sexual activity with him in the motel room. Hernandez testified the two children subsequently returned from swimming and then showered, and everyone left the motel together. He claimed he did not engage in any sexual activity with the complainant on May 22, 2003. A jury found Hernandez guilty of gross sexual imposition. The trial court denied Hernandez's motion and amended motion for a new trial.

[¶ 4] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Hernandez's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 29-28-06.

II

[¶ 5] Hernandez argues the trial court erred in permitting a licensed private investigator to testify as a handwriting expert without properly exercising the gatekeeping functions required by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Hernandez claims this Court must follow the Daubert and Kumho Tire decisions. Hernandez also argues the private investigator lacked the qualifications, proficiency, and scientific methodology to analyze the writing in the Spanish letter, and the court erred in allowing him to testify that Hernandez wrote the letter.

[¶ 6] This Court has never explicitly adopted Daubert and Kumho Tire. See Howe v. Microsoft Corp., 2003 ND 12, ¶ 27 n. 1, 656 N.W.2d 285. Contrary to Hernandez's assertion, this Court is not required to follow Daubert and Kumho Tire, which involved admissibility of expert testimony in federal courts under the federal rules of evidence. This Court has a formal process for adopting procedural rules after appropriate study and recommendation by the Joint Procedure Committee, and we decline Hernandez's invitation to adopt Daubert by judicial decision. See State v. Osier, 1997 ND 170, ¶ 5 n. 1, 569 N.W.2d 441 (refusing to adopt procedural rule by opinion in litigated appeal).

[¶ 7] Under North Dakota law, the admission of expert testimony is governed by N.D.R.Ev. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

[¶ 8] Rule 702, N.D.R.Ev., envisions generous allowance of the use of expert testimony if the witness is shown to have some degree of expertise in the field in which the witness is to testify. Gonzalez v. Tounjian, 2003 ND 121, ¶ 24, 665 N.W.2d 705. An expert need not be a specialist in a highly particularized field if the expert's knowledge, training, education, and experience will assist the trier of fact. Myer v. Rygg, 2001 ND 123, ¶ 14, 630 N.W.2d 62. A trial court has broad discretion to determine whether a witness is qualified as an expert and whether the witness's testimony will assist the trier of fact. Harfield v. Tate, 2004 ND 45, ¶ 21, 675 N.W.2d 155. A trial court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, its decision is not the product of a rational mental process leading to a reasoned decision, or it misinterprets or misapplies the law. Rygg, at ¶ 8. We have said we are reluctant to interfere with the broad discretion given to a trial court to decide the qualifications and usefulness of expert witnesses. Id. A trial court does not abuse its discretion in admitting expert testimony whenever the expert's specialized knowledge will assist the trier of fact, even if the expert does not possess a particular expertise or special certification. Id. at ¶ 15.

[¶ 9] This Court has implicitly recognized the admissibility of expert opinions about handwriting. See State v. Noorlun, 2005 ND 189, ¶¶ 15-19, 705 N.W.2d 819; Timmerman Leasing, Inc. v. Christianson, 525 N.W.2d 659, 663 (N.D.1994); In re Peterson, 178 N.W.2d 738, 740-41 (N.D.1970); Klundt v. Pfeifle, 77 N.D. 132, 139-41, 41 N.W.2d 416, 420-21 (1950). Here, the private investigator testified he had worked as an agent for the North Dakota Bureau of Criminal Investigation for almost 30 years, and in 1981 he received training for comparing questioned writing with known writing. He testified he had assisted in analyzing handwriting in 100 to 200 cases. Under our standard for the allowance of expert testimony, we conclude the trial court did not act arbitrarily, unreasonably, or unconscionably, or misinterpret or misapply the law in determining the private investigator was qualified as an expert in handwriting analysis and deciding his testimony would assist the jury. We therefore hold the court did not abuse its discretion in determining the private investigator was qualified to testify as an expert and his testimony would assist the jury.

III

[¶ 10] Hernandez argues the trial court erred in admitting into evidence an unredacted English translation of the Spanish letter. He argues the unredacted English translation of the letter included statements about prior uncharged sexual misconduct by him and violated the parties' agreement to redact references to prior sexual contact between him and the complainant in all documents submitted to the jury. Hernandez specifically cites and emphasizes the following passage from the English translation of the letter:

Do you remember when she went with me before that in the red truck and she came back with a smile from ear to ear because that day she was able to get it off twice and she was really happy. If I had raped her she wouldn't have been happy when I left her at the house. She would have been mad and she would have told you that I raped her but I didn't rape her she just put out willingly. She should say that we had sex not that I raped her. And if they ask you if you want to press charges say no. My lawyer wants me to tell the court that you were seeing me after the charges. And already checked the hotels where we were seeing each other and that you had the yellow car then I gave you the truck because a lot of people saw me in the truck but if I tell them that Child Protection will take the children away from you I don't want that. You better tell her that it was really voluntary sex not rape and you shouldn't press charges because if you don't do it they want to give me 20 years 15 at least. And if I say that you were seeing me I could do less and that you were my accomplice they can lock you up too because you didn't call the police on me. I don't want that to happen. Take care of it between you...

To continue reading

Request your trial
33 cases
  • Savage v. State
    • United States
    • Court of Special Appeals of Maryland
    • August 4, 2017
    ...). North Dakota does not use Frye or Daubert to interpret its rule regarding expert witness testimony. State v. Hernandez, 707 N.W.2d 449, 462 (N.D. 2005) (Crothers, J., concurring).5 Despite our repeated assertions that Frye –Reed applies only to new scientific methods, we have never defin......
  • Savage v. State
    • United States
    • Court of Special Appeals of Maryland
    • August 4, 2017
    ...North Dakota does not use Frye or Daubert to interpret its rule regarding expert witness testimony. State v. Hernandez, 707 N.W. 2d 449, 462 (N.D. 2005) (Crothers, J., concurring). 13. Despite our repeated assertions that Frye-Reed applies only to new scientific methods, we have never defin......
  • Flynn v. Hurley Enters., Inc., 20130426.
    • United States
    • United States State Supreme Court of North Dakota
    • March 24, 2015
    ...admitted.' ” Lawrence v. State, 846 So.2d 440, 452 (Fla.2003) (quoting Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000) ). In State v. Hernandez, 2005 ND 214, ¶ 20, 707 N.W.2d 449, we cited several cases involving ‘the admissibility of otherwise inadmissible evidence after the opposing party......
  • Coppage v. State
    • United States
    • United States State Supreme Court of North Dakota
    • March 11, 2014
    ...sufficient to remove the prejudice and limit the danger to the defendant. Laib [ v. State], 2005 ND 187, ¶ 13, 705 N.W.2d 845;State v. Hernandez, 2005 ND 214, ¶ 24, 707 N.W.2d 449;see also State v. Aabrekke, 2011 ND 131, ¶ 15, 800 N.W.2d 284 (because of the inherent dangers in admitting evi......
  • Request a trial to view additional results
1 firm's commentaries
  • 50-State Survey of State Court Decisions Supporting Expert-Related Judicial Gatekeeping
    • United States
    • LexBlog United States
    • June 1, 2023
    ...doctrine. “Rule 104(a), N.D.R.Ev., imposes a “gatekeeper” function much like that discussed in Daubert and Kumho.” State v. Hernandez, 707 N.W.2d 449, 463-64 (N.D. 2005). However, the same decision “decline[d] [the] invitation to adopt Daubert by judicial decision.” Id. at 453. Rather, advo......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT