Opinion
No. C4-01-2073.
Filed September 17, 2002.
Appeal from the District Court, Hennepin County, File No. 01006233.
Mike Hatch, Attorney General, and Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, (for respondent)
John M. Stuart, State Public Defender, Theodora Gaitas, Assistant State Public Defender, (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges his conviction of first-degree criminal sexual conduct, arguing that the district court (1) prejudicially erred in closing the courtroom during the 13-year-old victim's testimony; (2) committed plain error by admitting DNA test results obtained by the PCR-STR method without holding a Frye-Mack hearing; and (3) committed plain error by admitting statistical probability evidence regarding the DNA match that was not calculated in the manner approved by the supreme court. Appellant also raises several issues in his pro se brief. We affirm.
DECISION I.
Minn. Stat. § 631.045 (2000) permits the district court to exclude the public from the courtroom during a juvenile crime victim's testimony upon a showing that closure is necessary to protect a witness if the court gives the prosecutor, defendant, and members of the public the opportunity to object to the closure and specifies the reasons for closure in an order closing all or part of the trial. The right to an open and public trial is of constitutional importance, although not absolute, and closure of the courtroom is not justified merely because a minor testifies. State v. Fageroos, 531 N.W.2d 199, 201-02 (Minn. 1995). The failure to make findings regarding closure is error. State v. Bashire, 606 N.W.2d 449, 451-52 (Minn.App. 2000), review denied (Minn. Mar. 28, 2000).
Appellant argues that his constitutional right to a public trial was violated because the courtroom was closed during the victim's testimony and the district court failed to make the required findings to support the closure. We disagree.
At trial, the state requested that the courtroom be cleared of all spectators during the victim's testimony. Appellant did not object to the closure but only objected to the state's request to allow three support persons to be present for the victim, S.H. Because appellant did not object to the closure, appellant has waived the issue. See id. at 452 (concluding that defendant who failed to object to closure waived error where district court failed to make specific findings for closure). Moreover, we note that even if appellant could establish error, he has not established any prejudice as a result of the closure. See id. (noting that defendant failed to show prejudice as result of closure).
II.
On appeal, plain errors that affect substantial rights may be considered even if the alleged errors were not brought to the attention of the district court. Minn.R.Crim.P. 31.02. But the appellant must meet a three-prong plain-error test before an appellate court reviews an unobjected-to error by showing that the district court erred, that the error is plain, and that the error affected appellant's substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If appellant establishes these three prongs, "the appellate court assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings." Id.
Appellant argues that the district court erred by admitting DNA test results without first ordering a Frye-Mack hearing. See State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980) (recognizing that admissibility of emerging scientific techniques is governed by Frye-Mack test, which considers whether experts widely share the view that the results are scientifically reliable and whether laboratory complied with appropriate controls and standards). Appellant did not object to the admission of the DNA evidence at trial and did not make a motion for new trial based on the alleged error. Appellant asserts, however, that the error constitutes plain error. We disagree.
To establish error, appellant cites a recent opinion by this court, State v. Traylor, to support his position that a Frye-Mack hearing was necessary to determine whether the Bureau of Criminal Apprehension (BCA) and Hennepin County DNA testing methods used on evidence in this case, the PCR-STR method and a PCR-based method respectively, have gained general acceptance by the scientific community. See State v. Traylor, 641 N.W.2d 335, 339-41 (Minn.App. 2002), review granted (Minn. May 14, 2002) (concluding admission of DNA results reached by PCR-STR method of testing was error because PCR-STR method has not been approved by Technical Working Group on DNA Analysis Methods (TWGDAM) and because supreme court has "consistently and repeatedly" held that standards promulgated by TWGDAM are standards that govern reliability determinations of particular testing procedure).
But we need not determine whether appellant has established error based on Traylor because even if it was error, we cannot conclude that the error was plain or that the error affected appellant's substantial rights. A plain error is an error that is clear or obvious. State v. Ihle, 640 N.W.2d 910, 917 (Minn. 2002). But where a defendant does not object to the admissibility of the DNA evidence, the objection to its admission is knowingly waived. State v. Schneider, 597 N.W.2d 889, 894 (Minn. 1999). Moreover,
tactical decisions as to whether to request a Frye hearing, object to the admission of DNA evidence, or otherwise attempt to cast a reasonable doubt on the reliability of the DNA evidence were matters of trial strategy.
Id.
Here, a review of the record shows that appellant considered various strategies with respect to the DNA evidence. At a pretrial hearing, the district court asked appellant if he planned to hire an expert if the DNA tests came back positive. Appellant's counsel responded:
If the DNA comes back positive, I will be discussing with [appellant] what options we should pursue. As the court is aware, we don't have a whole lot of money and have an alleged expert in our office regarding this matter. So I would be first turning it over internally and see if we needed to go from there.
Additionally, counsel and the court amply considered the DNA evidence and its admission in the extensive chain-of-custody discussion before trial began. Thus, appellant's actions with respect to the DNA evidence were the result of trial strategy. And we cannot conclude that appellant's knowing waiver when made as part of trial strategy constituted plain error that was obvious or clear. Finally, we note that this case is distinguishable from the supreme court's recent decision in State v. Roman Nose, No. CX-01-1560, 2002 WL 1929494 (Minn. Aug. 22, 2002). In that case, the defendant requested and was refused a Frye-Mack hearing regarding DNA evidence. Here, because appellant failed to request a hearing or otherwise object to the DNA evidence at trial, he waived the issue.
Appellant has also failed to establish that the "error was prejudicial and affected the outcome of the case." See Griller, 583 N.W.2d at 741 (citation omitted). Plain error is prejudicial if there is a reasonable likelihood that the error would have had a significant effect on the jury's verdict. Id. Here, there was considerable detailed testimony by the victim, S.H., describing how appellant sexually assaulted her. We conclude that S.H.'s testimony was sufficient to convict appellant. See Minn. Stat. § 609.347, subd. 1 (2000) (stating that victim's testimony need not be corroborated in prosecutions for violations of Minn. Stat. § 609.342). Appellant has failed to establish that he was prejudiced by any error.
III.
Appellant argues that the district court committed plain error by admitting DNA statistical evidence and by failing to give a cautionary instruction to the jury on DNA evidence. But, we need not determine whether appellant has established error because, as discussed above, appellant knowingly waived this issue by failing to object to the statistics. SeeSchneider, 597 N.W.2d at 894 (where defendant did not object to admissibility of DNA evidence, objection was knowingly waived). Because appellant made a tactical decision not to object, there is no evidence in the record challenging the BCA scientist's assertions that the statistical method employed by BCA is generally accepted in the scientific community as accurate and reliable for estimating rarity or commonness of a particular profile. Moreover, plain error is only prejudicial if there is a reasonable likelihood that the error would have had a significant effect on the jury's verdict. Griller, 583 N.W.2d at 741. In light of the other evidence presented at trial, including the victim's testimony, appellant has not shown that the admission of statistical evidence significantly affected the jury's verdict. He has therefore failed to show that he was prejudiced by any alleged error.
Finally, appellant argues that the district court's failure to give a cautionary instruction regarding DNA evidence constituted plain error. See State v. Bloom, 516 N.W.2d 159, 169 (Minn. 1994) (stating that district courts have the responsibility to craft appropriate cautionary instructions when admitting probability statistics). But again, appellant has waived this issue for appeal by failing to request such an instruction at trial. In addition, even if the district court erred, appellant has not established that the alleged error had a significant effect on the jury's verdict.
IV.
Appellant makes several arguments in his pro se brief. After a careful review of the record, we conclude they are without merit. And we also note that appellant, by failing to make appropriate objections at trial, precluded appellate review of all but his ineffective assistance of counsel claim. See State v. Malaski, 330 N.W.2d 447, 451 (Minn. 1983) (stating if defense counsel fails to object to error at trial, defendant is deemed to have forfeited his right to have an appellate court consider that error on appeal).
Appellant has also failed to establish that his trial counsel was ineffective. To succeed on a claim for ineffective assistance of counsel, a defendant must affirmatively prove that his counsel's representation fell below an objective standard of reasonableness and that but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987). There is a strong presumption that a counsel's performance falls within the range of reasonableness, and this court does not find ineffective assistance of counsel unless the defendant was prejudiced as a result of the errors. State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). After a review of the record, we conclude that any alleged errors by trial counsel constituted trial strategy and did not fall below an objective standard of reasonableness.