State v. Stroud, C7-90-854
| Decision Date | 14 August 1990 |
| Docket Number | No. C7-90-854,C7-90-854 |
| Parties | STATE of Minnesota, Appellant, v. McArthur NMN STROUD, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The denial of a request for a continuance may be appealed by the state where critical impact is shown.
2. The trial court abused its discretion in denying the state's request for a reasonable continuance to obtain DNA test results where respondent has shown no prejudice.
3. The trial court erred in refusing the state's request for a five day stay of trial proceedings to perfect an appeal under Minn. R. Crim. P. 28.04, subd. 2.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin County Atty., Beverly J. Wolfe, Asst. County Atty., Appellate Section, Minneapolis, for appellant.
Mark A. McDonough, McDonough, Vandelist & Wagner, P.A., Apple Valley, Charles F. Gegen, Gegen & Gegen Law Firm, Lakeville, for respondent.
Considered and decided by KALITOWSKI, P.J., and SCHUMACHER and THOREEN *, JJ.
Respondent was charged with criminal sexual conduct and requested a speedy trial. The state requested a continuance necessary to obtain the results of DNA testing from the FBI laboratory. When this was denied, the state requested a stay to perfect its appeal of the denial; this request also was denied. Both denials are appealed.
On November 23, 1989, a woman was attacked and raped in an Edina office complex in which she was employed to clean during the evenings. The victim's head was covered by an athletic jacket during the attack and she could only give the police a general description of her attacker. The victim described the knife used in the attack as a "Rambo" type knife with a serrated edge. Police investigated and found that respondent was one of four men who had access to the building and who fit the general description of the attacker.
Respondent was arrested as a result of an incident occurring on January 25, 1990, when he allegedly followed a woman to an apartment building in Bloomington. The woman went into the building and respondent hid in the back of her car. When discovered by the woman's friend, respondent threatened him with a "Rambo" type knife.
Evidence from the second incident led the state to charge respondent in the offense at issue. The evidence linking respondent to the first offense includes his access to the office complex on the date of the offense, his resemblance to the description of the attacker, and the same type of knife used in both offenses. In addition, respondent's blood test indicated that he has blood type B, secretor status, which was also determined by the Bureau of Criminal Apprehension to be the blood type of the attacker.
Respondent demanded a speedy trial at the time of the combined probable cause hearing. Trial on the first offense was scheduled for April 16, 1990. The state requested a two month continuance beyond the 60 day speedy trial limit to allow time to receive the results of DNA testing performed by the FBI. The state supported its request with an affidavit that the FBI had received the sample for DNA testing, that there was a four to six week waiting period to begin testing due to the volume of requests, and that the test procedure takes between eight and ten weeks.
Because a continuance of the trial until the test results were received would have prevented respondent from receiving a trial within 60 days of his speedy trial demand, the trial court denied the continuance and ordered that trial begin as scheduled. The state notified the trial court of its intent to appeal and requested a stay of proceedings to perfect its appeal. The stay was denied.
The state appealed the order denying a continuance and petitioned this court for a writ prohibiting the trial court from proceeding to trial. This court granted the writ and issued a subsequent order granting a stay of trial proceedings. On April 24, 1990, this court accepted jurisdiction of the appeal.
I. Is the denial of a request for a continuance which has a critical impact on the state's ability to successfully prosecute respondent an appealable order?
II. Did the trial court abuse its discretion in denying the continuance?
III. Did the trial court err in denying the motion for a stay of proceedings to allow the state to perfect its appeal?
The Minnesota Supreme Court has acknowledged that the state may in some cases appeal an order denying a motion for a continuance. State v. Kasper, 411 N.W.2d 182, 185 (Minn.1987). The rules of criminal procedure provide that the prosecuting attorney may appeal as of right to the court of appeals in any case from any pretrial order except an order dismissing a complaint for lack of probable cause. Minn.R.Crim.P. 28.04, subd. 1.
Appellate courts, in a pretrial appeal, will reverse the trial court only if the state can prove clearly and unequivocally both that the trial court erred and that the error will have a critical impact on the trial. State v. Kim, 398 N.W.2d 544, 547 (Minn.1987) (citing State v. Webber, 262 N.W.2d 157, 159 (Minn.1977)).
The supreme court reiterated the critical impact analysis in State v. Ronnebaum, 449 N.W.2d 722 (Minn.1990), which involved the suppression of defendant's confession of criminal sexual conduct. The supreme court found that, regardless of the strength of the state's remaining case, suppression of the confession would have a critical impact on the trial. Ronnebaum, 449 N.W.2d at 724. The state need not show that suppression of the evidence will completely destroy its case, but need only show that suppression of the evidence significantly reduces the likelihood of a successful prosecution. Kim, 398 N.W.2d at 551. Denial of the continuance here effectively suppresses the DNA evidence which has vital importance to the prosecution of this crime. State v. Schwartz, 447 N.W.2d 422, 427 (Minn.1989).
The supreme court has found DNA testing to be generally accepted by the scientific community under the Frye standard. Id. at 424-25. DNA testing reveals distinctive patterns in an individual's genetic makeup and provides a statistical correlation between a defendant's DNA and that of a sample recovered in a criminal investigation. Here, the DNA evidence may confirm physical evidence which allegedly links appellant to the charged offense. The denial of the continuance, which precludes the use of DNA test results in this prosecution, has a critical impact on the trial under the Ronnebaum analysis.
The decision whether to grant a continuance is within the trial court's discretion and will be reversed upon a showing that the trial court abused its discretion. State v. Scharfencamp, 416 N.W.2d 825, 826 (Minn.App.1987) (citing State v. Turnipseed, 297 N.W.2d 308, 311 (Minn.1980)). Scharfencamp involved a request for a continuance by the defendant rather than the state, but the court found that Scharfencamp was not "required to show that a continuance would have enabled him to obtain favorable testimony." Scharfencamp, 416 N.W.2d at 827. The trial court in this case denied the continuance on the basis that the state could not show that the DNA test results would be favorable to the state's case and admissible at trial.
In evaluating a request for a continuance, the test is whether the denial of a continuance prejudices the outcome of the trial. State v. Jones, 451 N.W.2d 55, 61-62 (Minn.App.1990) (citing State v. Vance, 254 N.W.2d 353, 358-59 (Minn.1977)). The state acted promptly to submit the sample to the FBI for DNA testing. The state is limited in options for testing centers by the supreme court's determination that:
Admissibility of specific [DNA] test results in a particular case hinges on the laboratory's compliance with appropriate standards and controls, and the availability of their testing data and results.
State v. Schwartz, 447 N.W.2d 422, 428 (Minn.1989). See also Minn.Stat. § 634.25 (Supp.1989) (). The delay in testing at the FBI facility is...
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