State v. Sewell
| Decision Date | 01 June 1999 |
| Docket Number | No. C9-98-1652,C9-98-1652 |
| Citation | 595 N.W.2d 207 |
| Parties | STATE of Minnesota, Respondent, v. Jeffrey Edward SEWELL, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The presentation through Interactive Television (ITV) of testimony of a witness who was medically unable to be physically present in the courtroom did not violate appellant's right to be confronted by witnesses against him.
2. Statements in the prosecutor's final arguments did not prejudice appellant or deny him a fair trial.
Mike Hatch, Attorney General, Nancy Bode, Assistant Attorney General, St. Paul, Gregory D. Larson, Hubbard County Attorney, Park Rapids, for respondent.
Frederic Bruno, Timothy R. Anderson, Frederic Bruno & Associates, Minneapolis, for appellant.
Considered and decided by CRIPPEN, Presiding Judge, AMUNDSON, Judge, and SHUMAKER, Judge.
Appellant Jeffrey Edward Sewell challenges his conviction for second-degree felony murder on grounds that the trial court's allowance of testimony through Interactive Television (ITV) impaired his constitutional right of confrontation and prosecutorial misconduct during final arguments deprived him of a fair trial. We affirm.
On September 5, 1997, law enforcement officers found the badly decomposed body of Daniel Santa Cruz partially buried in the woods on appellant's father's tree farm in Hubbard County, Minnesota. Santa Cruz had multiple stab wounds in his chest; his head had been severed, his left arm shattered, and the bones in the left side of his face fragmented. Some of the injuries were consistent with blows from the blade and the handle of a shovel. Officers found a shovel with Santa Cruz's blood on it in a tool shed on the farm. The blade matched the configuration of some of Santa Cruz's wounds.
Santa Cruz was last seen alive on July 25 and 26, 1997. His first wife, Debra, saw him at a bus depot on July 25 and spoke with him on the telephone later that day. Santa Cruz told her that he was going to the Sewell tree farm to get his social security check. Edward Sewell, appellant's father, owned the farm, and Santa Cruz was married to Edward's daughter.
At about 9:30 p.m. on July 25, Santa Cruz's friend, Susan Rother, called the Sewell farm and first spoke with appellant, who was staying there alone while his father was out of town. She next spoke with Santa Cruz. Santa Cruz said that he was going to pick up his check and return to Minneapolis.
During the evening of July 25 and apparently into the morning of July 26, appellant and Santa Cruz drank heavily and used Valium.
Early on the morning of July 26, a friend of appellant called the farm and spoke to appellant, who sounded drunk. Rother called Santa Cruz at the farm at noon that day. In the mid-afternoon appellant and Santa Cruz walked six miles into the town of Nevis to buy more alcohol. Because both men appeared inebriated, the liquor store clerk sold them only one six-pack of beer.
On their way back to the tree farm, they stopped at the home of Jeanette Wambolt and her 25-year-old son Jason. Jason did not want them on the premises and he offered to drive them home in his pickup truck. He told the men to get into the back of the pickup. Santa Cruz did so but appellant got into the cab. Jeanette Wambolt, concerned for her son's safety, followed the pickup surreptitiously in her car.
During the trip to the tree farm, appellant told Jason that Santa Cruz was trying to kidnap him and that he had already kidnapped his sister. Appellant asked, "Can you help me get rid of him?" and proposed that Jason drive over a bump in the tree farm driveway and cause Santa Cruz to fall out of the truck. Appellant then proposed that Jason could run over Santa Cruz with the pickup. Appellant then said,
Jason drove into the driveway and stopped near a barrel with a shovel in it. The men got out of the pickup. As Jason slowly backed out of the driveway, he saw appellant swing the shovel like a baseball bat and hit Santa Cruz. The blade flew off. Appellant then raised the shovel handle over his head and again hit Santa Cruz. Appellant next jammed the handle into Santa Cruz's midsection. Frightened, Jason left rapidly and called the sheriff. The deputy who answered did not treat the call seriously and did nothing more than make one unanswered telephone call to the tree farm.
Rother filed a missing person report on July 30, 1997. Investigating officers discovered Santa Cruz's body and arrested appellant. While appellant was being held in jail, he shared a cell with William Hurt, a resident of Arizona. Hurt had six prior felony convictions and was being held in lieu of $40,000 bail on a charge of first-degree criminal sexual conduct. Hurt told law enforcement authorities that appellant had admitted killing Santa Cruz.
The case was tried twice. The first trial ended in a mistrial because the jury was unable to reach a unanimous verdict.
Hurt testified for the state in both trials. In the first trial, he was physically present in the courtroom. He testified that appellant confessed to him that he had beaten a relative with a shovel and had dragged him into the woods. Appellant said the relative was a worthless drug addict. Hurt also testified that appellant said he would use "blackouts" as a defense.
Prior to the first trial, Hurt had broken his neck and needed surgery. He postponed the operation for the trial. After his testimony, he went home to Arizona for the surgery.
When the case was called for the retrial, Hurt was in Arizona and was under a medical restriction not to travel. The trial court decided that it would not permit the reading of Hurt's prior testimony but suggested that either a videotaped deposition or interactive television (ITV) would be suitable options for presenting Hurt's testimony. Appellant objected to both procedures but involuntarily agreed to ITV because the cost of a deposition would be prohibitive. Hurt then testified at the retrial through ITV, which produced a live transmission of video and audio into the courtroom. 1 Hurt related appellant's confession.
During his final argument, the prosecutor noted that appellant had been indicted by a grand jury. The court sustained a defense objection to the reference. The prosecutor argued that a "cry went out" but was ignored. It was "a cry for justice, a cry that I hope you will hear in the jury room during the course of your deliberations." At one point in his argument, the prosecutor stated:
[T]he constitution and the laws of Minnesota are written in courtrooms like this every day. Not by the attorneys, not by the judges, not by the legislators in St. Paul, but by you, ladies and gentlemen. You write the law. You enforce the law in courtrooms throughout this state, throughout this country. You, the citizens, determine the law.
Finally, the prosecutor suggested possible motives for the killing of Santa Cruz. Appellant did not object to any of the statements other than the grand jury reference.
At the conclusion of the trial, the jury found appellant guilty of felony murder in the second degree. The trial court denied defense motions for a new trial.
1. Did the admission of trial testimony by Interactive Television (ITV) violate appellant's Confrontation Clause rights found in the Sixth Amendment to the U.S. Const. or Minn. Const. Art. I, § 6 when the witness was unavailable to testify?
2. Did respondent prejudice appellant by committing prosecutorial misconduct in its closing argument?
Appellant contends that the use of ITV for the presentation of the testimony of William Hurt violated his constitutional right to be confronted by witnesses against him. Minn. Const. art 1 § 6; U.S. Const., amend. VI. We review constitutional issues de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn.1984).
The retrial of this case began April 29, 1998. On May 7, 1998, Hurt underwent neck surgery in Arizona. By affidavit and through telephone contact, Hurt's physician informed the court that Hurt would risk paralysis if he traveled to Minnesota, that he would not be able to travel for three months, and that he was scheduled for additional surgery in two weeks. Although the state made no attempt to subpoena Hurt, the trial court ruled that, because of Hurt's serious medical condition, he was not available to testify in Minnesota. Appellant does not contest this determination.
Appellant appears to raise three issues regarding the use of ITV in this case. He suggests that the trial court had no authority to permit the use of ITV. He argues that the technical transmission of the testimony was distorted. And he appears to contend that the use of ITV to present important testimony in a criminal case per se violates the Confrontation Clause.
The trial court viewed the use of ITV as an extension of the rules authorizing the use of depositions in criminal cases. Minn. R.Crim. P. 21.01 and 21.06, subd. 1. Rule 21.01 authorizes the taking of a deposition when there is a reasonable probability that the testimony of an unavailable witness will be used at a trial. Rule 21.06, subd. 1, provides:
At the trial * * * a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if it appears: (a) that the witness is * * * unable to be present or to testify at the trial * * * because of then existing physical * * * illness or infirmity * * *.
Minn. R.Crim. P. 21.04, subd. 2, provides that the deposition shall be taken stenographically "unless the court orders otherwise." The Committee Comment to Rule 21 states: "Rule 21.04, subd. 2 providing for recording a deposition by other than stenographic means if the court...
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