A State of Minnesota, vs. Brent Kruse, RESPONDENT'S BRIEF

Transcription

1 A STATE OF MINNESOTA IN COURT OF APPEALS State of Minnesota, vs. Brent Kruse, Respondent, Appellant. RESPONDENT'S BRIEF JOHN M. STUART State Public Defender ROY G. SPURBECK Assistant State Public Defender 540 Fairview Avenue North Suite 300 St. Paul, Minnesota ATTORNEYS FOR APPELLANT LORI SWANSON Attorney General State of Minnesota JOHN B. GALUS Assistant Attorney General Atty. Reg. No Minnesota Street, Suite 1800 St. Paul, Minnesota (651) (Voice) (651) (TTY) JANELLE KENDALL Stearns County Attorney Administration Center 705 Courthouse Square, Room 448 St. Cloud, Minnesota ATTORNEYS FOR RESPONDENT

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii LEGAL ISSUES... 1 PROCEDURAL HISTORY... 2 STATEMENT OF THE CASE... 2 STATEMENT OF FACTS... 2 ARGUMENT... 5 I. THE TRIAL COURT DID NOT DEPRIVE APPELLANT OF A FAIR TRIAL BY NOT REQUIRING THE STATE TO ACCEPT APPELLANT S OFFER TO STIPULATE OR BY PERMITTING THE STATE TO INTRODUCE AN UNREDACTED COPY OF THE HARASSMENT RESTRAINING ORDER CONTAINING REFERENCES TO APPELLANT S PRIOR HARASSING CONDUCT THAT LED TO THE ISSUANCE OF THE ORDER A. The Trial Court Did Not Abuse Its Discretion By Not Compelling The State To Accept Appellant s Offer To Stipulate To The Existence Of The Harassment Restraining Order B. The Trial Court Did Not Err Or Abuse Its Discretion In Concluding That The Unredacted Restraining Order Was Admissible As Relationship Evidence C. The Unredacted Harassment Restraining Order Was Not Rendered Inadmissible Merely Because The Judicial Findings Contained In It Were Relatively Brief And Conclusory D. Appellant Was Not Prejudiced By The Trial Court s Admission Of The Unredacted Harassment Restraining Order II. THE TRIAL COURT DID NOT COMMIT PLAIN ERROR IN NOT ACTING SUA SPONTE TO PROVIDE THE JURY WITH CAUTIONARY INSTRUCTIONS CONCERNING THE REFERENCES IN THE RESTRAINING ORDER TO HIS PRIOR HARASSMENT OF HIS ESTRANGED WIFE CONCLUSION i

3 TABLE OF AUTHORITIES Page FEDERAL CASES Sullivan v. Louisiana, 508 U.S. 275 (1993) MINNESOTA CASES State v. Bell, 719 N.W.2d 635 (Minn. 2006)... 7 State v. Carnahan, 482 N.W.2d 793 (Minn. Ct. App. 1992)... 6 State v. Caulfield, 722 N.W.2d 304 (Minn. 2006)... 10, 11 State v. Chomnarith, 654 N.W.2d 660 (Minn. 2003)... 5, 6, 10 State v. Cross, 577 N.W.2d 721 (Minn. 1998) State v. Crowsbreast, 629 N.W.2d 433 (Minn. 2001) State v. Davidson, 351 N.W.2d 8 (Minn. 1984)... 7 State v. Griller, 583 N.W.2d 736 (Minn. 1998)... 12, 13 State v. Jones, 556 N.W.2d 903 (Minn. 1996) State v. LaForge, 347 N.W.2d 247 (Minn. 1984) State v. Loebach, 310 N.W.2d 58 (Minn. 1981) State v. Meldrum, 724 N.W.2d 15 (Minn. Ct. App. 2006) ii

4 State v. Meyer, 749 N.W.2d 844 (Minn. Ct. App. 2008) State v. Mills, 562 N.W.2d 276 (Minn. 1997)... 9 State v. Volstad, 287 N.W.2d 660 (Minn. 1980)... 9 State v. Williams, 593 N.W.2d 227 (Minn. 1999) State v. Wren, 738 N.W.2d 378 (Minn. 2007)... 11, 12 MINNESOTA STATUTES Minn. Stat. 518B Minn. Stat , 6, 8 Minn. Stat Minn. Stat , 8 MISCELLANEOUS AUTHORITIES Minn. R. Crim. P Minn. R. Crim. P Minn. Practice, CRIMJIG (5th ed. 2006)... 5, 10 iii

5 LEGAL ISSUES I. Did the trial court abuse its discretion by not requiring the state to accept appellant s offer to stipulate to the existence of a valid restraining order prohibiting appellant from contacting or harassing his estranged wife and by admitting an unredacted copy of the restraining order which included references to appellant s prior harassment of his estranged wife? The trial court did not require the state to stipulate and admitted an unredacted copy of the restraining order. State v. Bell, 719 N.W.2d 635 (Minn. 2006) State v. Mills, 562 N.W.2d 276 (Minn. 1997) State v. Davidson, 351 N.W.2d 8 (Minn. 1984) II. Did the trial court commit plain error in not acting sua sponte to provide the jury with cautionary instructions concerning the restraining order s references to appellant s prior harassment of his estranged wife? The trial court did not act sua sponte to provide the jury with cautionary instructions. State v. Williams, 593 N.W.2d 227 (Minn. 1999) State v. Griller, 583 N.W.2d 736 (Minn. 1998) State v. Meyer, 749 N.W.2d 844 (Minn. Ct. App. 2008) State v. Meldrum, 724 N.W.2d 1 (Minn. Ct. App. 2006) 1

6 PROCEDURAL HISTORY Respondent accepts appellant s statement of the procedural history. STATEMENT OF THE CASE Appellant Brent Kruse was charged by a complaint filed in Stearns County District Court with felony violation of a harassment restraining order in violation of Minn. Stat , subd. 6(d) (2006) (knowing violation of a harassment restraining order within ten years of the first of two or more previous qualified domestic violence-related offense convictions). The complaint alleged that appellant knowingly violated a harassment restraining order by leaving a voice mail message for his estranged wife on April 8, Following a jury trial presided over by the Honorable Frederick Grunke, appellant was found guilty as charged and sentenced to a 27-month prison term, the presumptive sentence for this severity level IV offense committed by an offender with appellant s criminal history score of five. See Minn. Sentencing Guidelines IV and V (eff. Aug. 1, 2007). This direct appeal followed. STATEMENT OF FACTS Appellant was previously married to Donna Kruse (T ). 1 Donna began dating Donald Ihrke in December 2005 and began living with him in early 2006 (T. 273, , 293, ). In March 2006, appellant filed for a divorce (T. 270, 281). 1 T. refers to the trial transcript. 2

7 At some point, appellant began making harassing phone calls to Donna, both at her home and at her work place (T ). Appellant s harassing phone calls were frequent, sometimes five or six times in a single day (T. 272). Donna obtained a harassment restraining order against appellant on October 20, 2006 (T. 271; Exh. 1; A. 1-2). 2 The order recites the issuing court s finding that there were reasonable grounds to believe that appellant had harassed Donna by making uninvited visits, harassing phone calls and threats, by frightening her with threatening behavior, and by stealing property from her (A. 1). The order provided that appellant shall not harass Donna and shall have no contact with her (Id.). The issuance of the harassment restraining order, however, did not cause appellant s harassing phone calls to cease (T. 272). On April 8, 2007, Donna received a voice mail message on her cell phone as she and Donald Ihrke were driving back from Walker to their home in St. Joseph (T , , 287, 294). Donna and Ihrke both recognized appellant s voice on the voice mail message (T , , 297). Appellant s voice mail message stated, Why don t you just give up you know he s done with you. I mean, (indiscernible) more fuckin lies. (Indiscernible) Why you just can t keep your fuckin legs closed. Leave him alone. (T. 274; Exhs. 3 and 4). 2 A. refers to the appendix to appellant s brief which contains a copy of the harassment restraining order issued October 20, The order was admitted into evidence at appellant s trial as Exhibit 1. 3

8 Appellant s message frustrated and upset Donna, and she promptly reported it to the police (T , , 297). 3 In response to Donna s report, a Stearns County sheriff s deputy met her at her house and recorded the voice mail message onto a CD (T , 284, 286, ). Appellant s first trial ended in a mistrial (T. 201). At his second trial, appellant offered to stipulate that there was a harassment restraining order in effect on April 8, 2007, and objected to the admission of the harassment restraining order on the ground that it contained prejudicial evidence of appellant s prior bad acts (T , ). The state declined the offer of stipulation, and the trial court overruled appellant s objection to the admission of the harassment restraining order (Id.). The state introduced the restraining order into evidence, and Donna, Ihrke and the sheriff s deputy who responded to Donna s complaint testified as prosecution witnesses (T. 268, 292, 310). Appellant rested without presenting any evidence. After receiving the court s instructions, hearing the arguments of counsel and having an opportunity to deliberate, the jury found appellant guilty as charged (T ). 3 Donna Kruse s cell phone records indicate that appellant s voice mail message was received at 6:54 p.m. and that she called the police at 6:57 p.m. (T. 279; Ex. 5). 4

9 ARGUMENT I. THE TRIAL COURT DID NOT DEPRIVE APPELLANT OF A FAIR TRIAL BY NOT REQUIRING THE STATE TO ACCEPT APPELLANT S OFFER TO STIPULATE OR BY PERMITTING THE STATE TO INTRODUCE AN UNREDACTED COPY OF THE HARASSMENT RESTRAINING ORDER CONTAINING REFERENCES TO APPELLANT S PRIOR HARASSING CONDUCT THAT LED TO THE ISSUANCE OF THE ORDER. In order to have the jury find appellant guilty of violating a harassment restraining order, the state needed to prove, among other things, that such an order existed, and that appellant was aware of the order and its terms. See Minn. Stat , subd. 6(d) (2006); 10 Minn. Practice, CRIMJIG (5th ed. 2006). Appellant offered to stipulate that there was a harassment restraining order in effect on April 8, 2007 (T ). The state declined the offer of stipulation and the trial court overruled appellant s related objection to exclude the harassment restraining order on the ground that it contained prejudicial evidence of appellant s prior bad acts (T , ). Appellant claims that the trial court erred in not compelling the state to accept appellant s offer to stipulate and in overruling appellant s objection to admission of the harassment restraining order on the ground that it contained prejudicial evidence of appellant s prior bad acts (App. Br. 8-15). 4 Rulings on evidentiary matters rest within the sound discretion of the trial court, and the appellate court will not reverse such evidentiary rulings absent a clear abuse of discretion. State v. Chomnarith, 654 N.W.2d 660, 665 (Minn. 2003). The defendant has the burden on appeal of proving both that the trial court abused its discretion by admitting the challenged evidence and that the 4 App. Br. refers to appellant s brief. 5

10 defendant was thereby prejudiced. Id. Here, the trial court did not abuse its discretion in permitting the state to introduce an unredacted version of the harassment restraining order, and, in any event, appellant was not prejudiced by its admission. A. The Trial Court Did Not Abuse Its Discretion By Not Compelling The State To Accept Appellant s Offer To Stipulate To The Existence Of The Harassment Restraining Order. Although appellant objected to the admission of the harassment restraining order on the ground that it contained evidence of appellant s prior harassment of Donna Kruse, he never explicitly asked the trial court to compel the state to accept his offer of stipulation concerning the existence of the harassment restraining order and appellant s knowledge of its terms and conditions, including in particular the condition that appellant not have any contact with Donna Kruse. Assuming that the trial court s overruling of appellant s objection amounted to the same thing, there was no error. In order to have the jury find appellant guilty of violating a harassment restraining order, the state needed to prove, among other things, that such an order existed and that appellant was aware of it and its terms. See Minn. Stat , subd. 6(d) (2006); 10 Minn. Practice, CRIMJIG (5th ed. 2006). Admission of the restraining order was thus directly relevant to prove these elements of the state s case. Moreover, as appellant himself concedes, a defendant s offer to stipulate generally does not take away the state s right to offer relevant evidence on an element of the offense. State v. Carnahan, 482 N.W.2d 793, 795 (Minn. Ct. App. 1992). This general rule is particularly applicable where the evidence sought to be excluded [by the stipulation] would bear in any way upon any other issues not covered by the stipulation. State v. Davidson, 351 N.W.2d 8, 6

11 10 (Minn. 1984). Here, the evidence sought to be excluded by the stipulation appellant s prior harassing conduct toward Donna Kruse was relevant for reasons beyond the state s need to prove the existence of the harassment restraining order and appellant s knowledge of its terms and conditions. As set forth below, the trial court properly concluded that appellant s prior history of harassing Donna Kruse was admissible relationship evidence. B. The Trial Court Did Not Err Or Abuse Its Discretion In Concluding That The Unredacted Restraining Order Was Admissible As Relationship Evidence. In admitting the unredacted harassment restraining order, the trial court remarked that it was the type of relationship evidence that this statute contemplates (T. 250), an apparent reference to Minn. Stat which authorizes the admission of evidence of past conduct between the alleged victim and the accused which sheds light on the relationship between them. See, e.g., State v. Bell, 719 N.W.2d 635, n. 4 (Minn. 2006). That statute provides as follows: Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Similar conduct includes, but is not limited to, evidence of domestic abuse, violation of an order for protection under section 518B.01; violation of a harassment restraining order under section ; or violation of section or , subdivision 1. Domestic abuse and family or household members have the meanings given under section 518B.01, subdivision 2. Minn. Stat

12 Appellant claims that the statute is inapplicable and thus cannot serve to justify the trial court s decision to admit the unredacted harassment restraining order. He argues that Minn. Stat only authorizes the admission of evidence of similar conduct by the accused against the victim of domestic abuse, that violation of a harassment restraining order is not domestic abuse, and that appellant was thus not charged with an act of domestic abuse in this case (App. Br. 12). Contrary to appellant s claim, Donna Kruse is arguably the victim of domestic abuse within the meaning of Minn. Stat The harassment restraining order was based upon findings, among others, that appellant threatened Donna Kruse and frightened her with threatening behavior (A. 1), and Minn. Stat. 518B.01, subd. 2 defines domestic abuse to include the infliction of fear of imminent physical harm, bodily injury, or assault. Moreover, Minn. Stat deals with the admission of evidence of similar conduct and specifically defines similar conduct to include not only evidence of domestic abuse but also acts of harassment in violation of Minn. Stat and violations of a harassment restraining order in violation of Minn. Stat For these reasons, the findings of the harassment restraining order clearly involve evidence of similar conduct within the meaning of Minn. Stat Moreover, even assuming for argument s sake that Minn. Stat is not applicable to the circumstances of this case, as set forth below appellant would not be entitled to a new trial because he has failed to demonstrate that he was prejudiced by the admission of the unredacted restraining order. 8

13 C. The Unredacted Harassment Restraining Order Was Not Rendered Inadmissible Merely Because The Judicial Findings Contained In It Were Relatively Brief And Conclusory. Minn. Stat and Minnesota case law both reflect the general principle that evidence of the relationship between the accused and his victim is presumptively admissible to illuminate the relationship, to aid the jury in understanding the strained relationship, or to place the charged offense in proper context. See, e.g., State v. Mills, 562 N.W.2d 276, 285 (Minn. 1997); State v. Volstad, 287 N.W.2d 660, 662 (Minn. 1980). Here, for example, the state needed to convince the jury beyond a reasonable doubt that appellant violated the terms of the harassment restraining order on April 8, The harassment restraining order provided that appellant shall not harass Donna Kruse or contact her (A. 1). Evidence of appellant s prior harassment of Donna Kruse clearly illuminated the nature of their strained relationship and aided the jury in determining whether appellant harassed or contacted Donna Kruse in violation of the restraining order by leaving her a voice mail message on April 8, Appellant does not dispute the general principle that evidence of the relationship between the victim and the accused may be admissible to illuminate the nature of a strained relationship or place the charged offense in context if such evidence is helpful to the jury. He nevertheless claims that the relationship evidence at issue here was not helpful to the jury because it was conclusory in nature (App. Br. 13). This particular claim is unconvincing. The brevity or conclusory nature of the restraining order s reference to appellant s prior harassment of Donna Kruse goes to the weight of the evidence, not its admissibility. Despite its brevity, the restraining order s reference to 9

14 appellant s prior harassment still illuminated the nature of their estranged relationship and put the charged offense in context. D. Appellant Was Not Prejudiced By The Trial Court s Admission Of The Unredacted Harassment Restraining Order. Even if this Court were to conclude that the trial court abused its discretion in admitting the unredacted harassment restraining order, appellant would not be entitled to relief because he has failed to meet his burden on appeal of proving that he was prejudiced by the ruling. See State v. Loebach, 310 N.W.2d 58, 64 (Minn. 1981); Chomnarith, 654 N.W.2d at The nonprejudicial nature of the unredacted harassment restraining order is apparent for a number of reasons. First, the restraining order was presented to the jury in a manner that did not give any significant focus to its references to appellant s previous harassing conduct. Indeed, no witness read to the jury any of the order s references to appellant s prior harassing conduct. Although Donna Kruse briefly testified that she had received a number of harassing phone calls prior to seeking the restraining order, she made no mention of any of the other sorts of appellant s prior harassing conduct mentioned in the restraining order. See State v. Caulfield, 722 N.W.2d 304, 317 (Minn. 2006) (noting that a finding of 5 Citing Loebach, appellant s brief initially sets forth the correct standard of review, namely, that [a] defendant claiming error in the trial court s reception of evidence has the burden of showing both the error and the prejudice (App. Br. 8). He later cites State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996), and Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), for the proposition that this Court must reverse appellant s conviction unless the trial court s error in admitting the unredacted restraining order was harmless beyond a reasonable doubt. (App. Br. 14). Jones and Sullivan, however, involve constitutional errors in the exclusion of defense evidence. The harmless-error standard for constitutional errors clearly does not apply here. 10

15 harmless error may be based upon the presentation of the challenged evidence in a manner that did not give it significant focus). Second, the state did not dwell on the restraining order s references to appellant s prior harassing conduct either in its opening statement or closing argument. Indeed, the prosecutor made absolutely no mention of the order s references to appellant s prior harassing conduct. See id. (noting that a finding of harmless error may be based upon the state s failure to dwell on the challenged evidence in opening and closing statements). Third, the state likewise failed to dwell on the restraining order s references to appellant s prior harassment of Donna Kruse in its examination of witnesses. Specifically, although the prosecutor elicited from Donna Kruse that she had received a number of harassing telephone calls before seeking the restraining order, the prosecutor did not elicit any testimony concerning the restraining order s references to appellant s previous harassment of Donna Kruse. See id. (noting that a finding of harmless error may be based upon the state s failure to dwell on the challenged evidence in examining witnesses). Finally, the evidence of appellant s guilt was strong. Donna Kruse and Donald Irhke both testified that they recognized appellant s voice on the voice mail message, and their testimony was corroborated by Donna s cell phone records. See id. (noting that a harmless error conclusion may be reinforced by the strength of the evidence of guilt ); see also State v. Wren, 738 N.W.2d 378, 394 (Minn. 2007) (stating that strength of evidence, while not controlling, was part of the harmless error analysis ). 11

16 II. THE TRIAL COURT DID NOT COMMIT PLAIN ERROR IN NOT ACTING SUA SPONTE TO PROVIDE THE JURY WITH CAUTIONARY INSTRUCTIONS CONCERNING THE REFERENCES IN THE RESTRAINING ORDER TO HIS PRIOR HARASSMENT OF HIS ESTRANGED WIFE. In its closing instructions, the trial court did not caution the jury not to convict appellant for his past harassment of Donna Kruse. Appellant did not object to the trial court s instructions or request any cautionary instructions. After reading its final instructions to the jury, the trial court asked if counsel had any additions or corrections to propose to the court s instructions as written (T. 359). Defense counsel replied No, your honor (Id.). Appellant now claims for the first time on appeal that he was denied his right to a fair trial because the trial court did not caution the jury not to convict him on the basis of his past harassment of Donna Kruse (App. Br ). This claim is without merit. A defendant who fails to object to jury instructions at trial generally forfeits his right to object on appeal. See State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001); State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (citing State v. LaForge, 347 N.W.2d 247, 251 (Minn. 1984)); see also Minn. R. Crim. P , subd. 18(3) (stating that [n]o party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict ). In such a situation, an appellate court has discretion to consider the issue only if the error was plain error affecting substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998); Minn. R. Crim. P

17 The test for plain error has three parts: (1) there must be error, (2) it must be plain, and (3) it must affect substantial rights. Griller, 583 N.W.2d at 740 (citation omitted). Even if a defendant satisfies the three-part test, the appellate court must decide whether the forfeited error seriously affects the fairness, integrity, or public reputation of judicial proceedings before granting relief. See id. at 742. As measured by these standards, appellant is clearly not entitled to a new trial because of the trial court s failure to caution the jury not to convict him on the basis of his previous harassment of Donna Kruse. It is the preferred practice for the district court to instruct a jury regarding the use of relationship evidence, both when the evidence is received and in the final jury charge. But the failure to supply such limiting instructions to the jury does not constitute plain error where appellant s claim fails the third part of the plain-error test, which requires a showing that the error affected substantial rights. See, e.g., State v. Williams, 593 N.W.2d 227, 237 (Minn. 1999); State v. Meyer, 749 N.W.2d 844, 850 (Minn. Ct. App. 2008); State v. Meldrum, 724 N.W.2d 15, 21 (Minn. Ct. App. 2006). Substantial rights are affected if the error was prejudicial and affected the outcome of the case. Griller, 583 N.W.2d at 741. Error is prejudicial if there is a reasonable likelihood that it had a significant affect on the jury s verdict. Id. (citation omitted). The defendant bears a heavy burden of persuasion to demonstrate prejudice. Id. (citation omitted). Appellant has failed altogether to satisfy his heavy burden of showing that he was prejudiced by the trial court s failure to caution the jury not to convict him on the basis of his previous harassment of Donna Kruse. 13

18 As noted above, the restraining order was presented to the jury in a manner that did not give any significant focus to the order s references to appellant s prior harassment of Donna Kruse, the State did not mention much less dwell on those portions of the restraining order in its opening and closing statements or in its examination of witnesses, and the evidence of appellant s guilt was strong. In these circumstances, there is no reason to believe that the omission of such an instruction was prejudicial, and appellant has totally failed to meet his heavy burden of showing a reasonable likelihood that the giving of the instruction would have had any affect on the jury s verdict. 14

19 CONCLUSION For the foregoing reasons, respondent respectfully asks this Court to affirm appellant s conviction. Dated: July 8, Respectfully submitted, LORI SWANSON Attorney General State of Minnesota JOHN B. GALUS Assistant Attorney General Atty. Reg. No Minnesota Street, Suite 1800 St. Paul, Minnesota (651) (Voice) (651) (TTY) JANELLE KENDALL Stearns County Attorney Administration Center 705 Courthouse Square, Room 448 St. Cloud, Minnesota ATTORNEYS FOR RESPONDENT AG: # v1 15