State v. Kim
| Decision Date | 15 October 1985 |
| Docket Number | No. C4-85-828,C4-85-828 |
| Citation | 374 N.W.2d 814 |
| Parties | STATE of Minnesota, Appellant, v. Joon Kyu KIM, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The State in a pretrial appeal, under Minnesota Rule of Criminal Procedure 28.04, failed to show that the trial court's suppression ruling was clear and unequivocal error or that the ruling will have a critical impact on the trial.
2. We decline to review the issue raised by respondent under Minnesota Rule of Criminal Procedure 28.04, subd. 3.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Tom Foley, Ramsey Co. Atty., Steven C. DeCoster, Asst. Ramsey Co. Atty., St. Paul, for appellant.
Douglas W. Thomson, Deborah Ellis, Thomson & Hawkins, St. Paul, for respondent.
Heard, considered and decided by HUSPENI, P.J., and RANDALL and CRIPPEN, JJ.
The State appeals the trial court's evidentiary ruling in a prosecution for third and fourth degree criminal sexual conduct. The trial court ruled that testimony about the population frequency of certain genetic markers that were identified through electrophoresis testing of dried semen stains was not admissible. Respondent Joon Kyu Kim seeks review of an evidentiary ruling that electrophoresis met the Frye 1 standard for scientific acceptance and that the results of such tests are admissible.
Kim argues that the State failed to establish that the suppression ruling will have a critical impact on the outcome of the trial. We agree and affirm.
The State has charged Joon Kyu Kim with third and fourth degree criminal sexual conduct. The charge is based on a report filed by an employee of Kim's alleging that he came to her apartment on December 10, 1984, and forced her to have sex with him.
At the time the alleged victim filed the report, she gave police several items of evidence including the bed sheet from the site of the alleged rape. Also, samples of blood, saliva and hair were taken from the alleged victim, her husband and Kim. All of this evidence was given to the Minnesota Bureau of Criminal Apprehension's forensic science lab for testing.
A BCA lab analyst performed two types of tests on this evidence, the standard ABO blood typing and electrophoresis. Electrophoresis is a lab process that identifies different blood enzymes or "genetic markers." The test results showed that the stains on the sheet contained semen. From a comparison of the test results, the lab analyst concluded that the alleged victim's husband could not have been the source for these stains, but Kim could have been the source. Using genetic marker frequency tables, the analyst also concluded that only 3.6% of the population could have been the source of the semen.
A pretrial Frye hearing was held. The trial court ruled that the lab analyst could testify about electrophoresis test results but the analyst could not testify about the population frequency of the genetic markers identified from those results. The analyst was limited to testifying that the test results were consistent with the view that Kim was the source of the semen.
1. Did the State show that the trial court committed clear error and the error will have a critical impact on the trial?
2. Must this court review the issue raised by respondent under Minnesota Rule of Criminal Procedure 28.04, subd. 3?
The State's pretrial appeal
When the State appeals a pretrial criminal order under Minnesota Rule of Criminal Procedure 28.04, the State must show:
clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.
State v. Webber, 262 N.W.2d 157, 159 (Minn.1977). The State in this case has failed to demonstrate either element.
The Webber standard for showing critical impact was derived from the now-repealed Minn.Stat. § 632.12. That statute required the prosecution, on appeal, to show that the trial court's ruling had left the State with evidence that was:
(1) insufficient as a matter of law, or (2) so weak in its entirety that any possibility of prosecuting such charge to a conviction has been effectively destroyed.
Minn.Stat. § 632.12 (repealed 1979). This is a narrow standard and is not easily met. State v. Pelovsky, 347 N.W.2d 529, 531 (Minn.Ct.App.1984), pet. for rev. denied, (Minn. Oct. 11, 1984). In this case, the State has failed to meet the standard.
The suppression of population frequency evidence will not have a critical impact on the trial for several reasons. The trial court's order did not actually suppress evidence of the electrophoresis test results. It only suppressed statistics that would further explain the evidence. The State may still present expert testimony that the test results are consistent with the view that Kim was the source of the semen. Kim's identity was not raised as a key issue in the State's case since the alleged victim knew Kim. Further, she is available to testify.
Thus, the evidence remaining after suppression is not insufficient as a matter of law nor is the State's case effectively destroyed by the suppression order. Absent such a showing, the State has failed to prove the trial court's order will have a critical impact on the trial.
The trial court stated that it was suppressing the population frequency statistics based on State v. Boyd, 331 N.W.2d 480 (Minn.1983) and State v. Carlson, 267 N.W.2d 170 (Minn.1978). Both cases held that statistical probability evidence was inadmissible. The State argues that evidence of the frequency of genetic markers in the population is nonexclusive evidence and is...
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State v. Alt, C9-92-2562
...of review).This court has held that Minn.R.Crim.P. 28.04, subd. 3 does not create an absolute right to review. State v. Joon Kyu Kim, 374 N.W.2d 814, 816 (Minn.App.1985), aff'd on other grounds, 398 N.W.2d 544, 550 n. 8 (Minn.1987) (noting district court has discretion to permit defense cro......
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State v. Jenkins, No. A05-68 (MN 8/16/2005), A05-68.
...affect the defendant. . . ."). This court has the authority to decline to review issues raised in a cross-appeal. State v. Kim, 374 N.W.2d 814, 816 (Minn. App. 1985), aff'd 398 N.W.2d 544 (Minn. 1987). Respondent raises three separate issues on cross-appeal, arguing that (1) he cannot be ch......
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State v. Joon Kyu Kim
...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 ou......
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State v. Anderson
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