State v. Joon Kyu Kim

• Citation: 398 N.W.2d 544
• Decision Date: 02 January 1987
• Docket Number: No. C4-85-828,C4-85-828
• Parties: STATE of Minnesota, Appellant, v. JOON KYU KIM, Respondent.
• Court: Supreme Court of Minnesota (US)

Page 544

398 N.W.2d 544

STATE of Minnesota, Appellant, v. JOON KYU KIM, Respondent.

No. C4-85-828.

Supreme Court of Minnesota.

Jan. 2, 1987.

Syllabus by the Court

In order to prevail on a pretrial appeal from an order suppressing evidence in a criminal prosecution, the state must clearly and unequivocally establish that the trial court's ruling was erroneous and that the trial court's ruling, unless reversed, will have a critical impact on the trial; here the state failed to so establish that the order suppressing expert evidence of the statistical frequency with which the defendant's blood type occurs in the general population was erroneous.

Steven C. DeCoster, Asst. Co. Atty., Hubert H. Humphrey, III, Atty. Gen., St. Paul, for appellant.

Douglas W. Thomson, Deborah Ellis, St. Paul, for respondent.

William P. Kennedy, Chief Henn. County Pub. Defender, David Knuston, 1st Asst., Philip D. Dust, Asst., David Warg, MN Trial Lawyers Assoc., Minneapolis, Hubert H. Humphrey, III, Atty. Gen., Paul P. Kempainen, Asst., St. Paul, C. Paul Jones, State Public Defender, Kathy King, Mark F. Anderson, Assts., Minneapolis, for amicus curiae.

Heard, considered and decided by the court en banc.

WAHL, Justice.

This appeal questions the standard that governs state appeals of pretrial orders in criminal prosecutions as well as the propriety of the trial court ruling in this case. Joon Kyu Kim is charged with accomplishing sexual penetration by use of force or coercion in violation of Minn.Stat. §§ 609.344(c) and 609.345(c) (1984). At a pretrial hearing, the state proferred scientific evidence in the form of blood test results linking Kim to semen found at the scene of the alleged rape and a statistical analysis of the frequency with which Kim's blood type occurred in the local male population. The trial court ruled that the blood test results and expert testimony that the test results were consistent with Kim having been the source of the semen could be admitted at trial, but ruled that the statistical population frequency evidence was to be excluded. The state appealed the portion of the order suppressing evidence and Kim cross-appealed the portion of the order admitting evidence. The court of appeals held that the state failed to clearly establish that the trial court erred and that the suppression of the evidence would have a critical impact on the trial. The court of appeals declined to review the cross-appeal on the ground that Kim had an adequate remedy in a direct appeal of his conviction. State v. Kim, 374 N.W.2d 814, 816 (Minn.Ct.App.1985).

The state alone has sought further review of the decision of the court of appeals. The Minnesota Attorney General has, with our permission, raised the issue of the appropriate standard for permitting pretrial state appeals in criminal prosecutions. We affirm the decision of the court of appeals.

The facts in this case, as derived from police reports, indicate the complainant reported to police that on December 10, 1984, Joon Kyu Kim, her employer, had forcible, nonconsensual sexual intercourse with her. The complainant and her husband were employed as managers of a St. Paul apartment complex owned by Kim. On the evening of December 10, 1984, the complainant told police she was home alone. She and her husband had quarreled earlier in the evening and he had left the apartment. Her husband told police that after he left the apartment, he went to talk with Kim and they discussed, among other things, his marital problems. About 10 p.m., the complainant reported, Kim showed up at her apartment and began to talk about her marital relationship, telling her she wasn't having enough sex with her husband and that he would show her how. She said Kim then grabbed her breast, but she pulled away and told him to leave. Kim grabbed her again, she told police, forced her into the bedroom and onto the bed. She said she felt very afraid. He removed his clothing and her clothing and then climbed on top of her, she stated, sucking on her breasts and penetrating her vagina with his penis until he ejaculated. She said that as he left, Kim gave her a twenty dollar bill and told her next time it would be thirty dollars. He also told her she wouldn't call the police because she "needed the job too much." The complainant contacted the police shortly after Kim left the apartment.

At the time the complainant reported the incident, she turned over to police the sheet from the bed where she alleged she had been raped, a pair of panties she was wearing, a sanitary pad, a towel she had used to clean herself, and the twenty dollar bill she alleged Kim had given her. At the hospital, swab samples were taken of fluid present in the complainant's vagina. The Bureau of Criminal Apprehension Laboratory (BCA) found semen present on the bed sheet and on the vaginal swabs.

Kim was questioned by police the next day and denied having had sexual intercourse, consensual or nonconsensual, with the complainant. He admitted he had gone to her apartment that night, but stated he went there to fire her from her job as caretaker. He claimed her accusation was motivated by this firing. He pleaded not guilty to the criminal sexual conduct charges subsequently filed against him.

The trial court, on the state's motion, ordered samples of Kim's blood, saliva and hair taken for purposes of comparing his blood type with the semen found on the bed sheet and in the complainant's body. ¹ Comparison samples of blood were also taken from the complainant and from her husband. The samples were tested at the BCA Lab using blood type testing (ABO system) and electrophoresis testing, a procedure that identifies distinctive enzymatic genetic markers present in the blood and bodily fluids. The tests were repeated at the Minneapolis War Memorial Blood Bank and the BCA results were replicated. The BCA Lab analyst was prepared to offer testimony that the semen found in the complainant's body and on the bed sheet was consistent with Kim's blood type and PGM reading. ² Further, the analyst was prepared to testify that 96.4 percent of males in the Twin Cities metropolitan population, but not Kim, could be excluded on the basis of this combination of blood factors as possible sources of the semen found on the bed sheet.

Kim objected to all of the scientific evidence at the pretrial hearing. As to the statistical population frequency evidence, he argued that its prejudicial impact outweighed its probative value. The trial court excluded the statistical population frequency evidence under the rule of State v. Boyd, 331 N.W.2d 480 (Minn.1983). This pretrial appeal followed.

1. The standard governing our review of this case is that set out in State v. Webber, 262 N.W.2d 157 (Minn.1977). This court will, in a pretrial appeal, reverse the determination of the trial court only if the state demonstrates clearly and unequivocally, first, that the trial court erred in its judgment and, second, that unless reversed, the error will have a critical impact on the outcome of the trial. Id. at 159.

Under the Webber standard, we consider first whether the state met its burden of clearly establishing that the trial court's suppression order was erroneous. The court of appeals held that the state did not meet this burden and concluded that the trial court had properly interpreted and applied the rule of our decision in Boyd, supra, to suppress the statistical population frequency evidence. Kim, 374 N.W.2d at 816. The defendant in Boyd was prosecuted for criminal sexual conduct in the third degree, Minn.Stat. § 609.344(b) (1982), for having sexual intercourse with a 14-year-old girl, who became pregnant and gave birth as a result. We held that expert testimony that there was a 99.911 percent likelihood of paternity, based on population frequency statistics applied to interpret blood test results, must be excluded. "[T]here is a real danger," we stated, "that the jury will use the [statistical population frequency] evidence as a measure of the probability of the defendant's guilt or innocence, and that the evidence will thereby undermine the presumption of innocence, erode the values served by the reasonable doubt standard, and dehumanize our system of justice." Id. at 483. ³

The state argues in this appeal that the statistical evidence it seeks to introduce against Kim can be distinguished from that we disapproved in Boyd. The difference between the evidence in Boyd --that 99.911 percent of the population, but not the defendant, could be excluded as donors--and the evidence it has proferred in this case--that 3.6 percent of the population, including the defendant, are possible donors--is the difference between inclusion and exclusion. The state contends that when statistics are stated as an exclusion figure, as in Boyd, the risk is greater that the jury will interpret the statistical percentage as a statement of the probability of the defendant's guilt. By contrast, when stated as an inclusion figure, the danger of such quantification is urged to be less. ⁴

The court of appeals correctly rejected this purported distinction, stating that Boyd "do[es] not focus on the nature of the statistics but rather on the impact of the statistics on the trier of fact." Kim, 374 N.W.2d at 816. The danger we recognized in Boyd is that statistics on the frequency with which certain blood type combinations occur in a population will be understood by the jury to be a quantification of the likelihood that the defendant, who shares that unique combination of blood characteristics, is guilty. This danger exists as much in an inclusion as in an exclusion figure because, as the trial court noted, faced with an exclusion percentage, a jury will naturally convert it into an inclusion percentage. ⁵ Because we cannot meaningfully distinguish the evidence offered in Boyd from that in the case now before us, we conclude that Boyd controls. We affirm the decision of the court of...