Opinion
No. C0-96-2023.
Filed July 15, 1997.
Appeal from the District Court, Ramsey County, File No. K8953731.
Hubert H. Humphrey, III, Attorney General, (for Respondent)
Susan Gaertner, Ramsey County Attorney, Jessica S. McConaughey, Assistant County Attorney, (for Respondent)
John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, (for Appellant)
Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant Stephen Louis Anderson challenges his convictions of first- and second-degree criminal sexual conduct, claiming prosecutorial misconduct. We affirm.
FACTS
The events leading to Anderson's convictions took place between 1990 and 1992, when J.R., mother of the victims, lived in St. Paul with her four children. Anderson was a family friend, who often cared for the children and took them on outings and gave them gifts.
In October 1995, J.R.'s 15-year-old daughter, K.G., reported that she had been sexually abused by Anderson. K.G. told school social worker Nancy Mulvey that the abuse began when she was 10 years old and continued until she was 14. K.G. also reported specific instances of abuse by Anderson with J.R.'s 12-year-old daughter, S.R. Mulvey reported the allegations to Ramsey County Human Services. Both K.G. and S.R. were questioned about the sexual abuse allegations by pediatric nurse Kristen Moore, St. Paul Police Sergeant Cregg Brackman, school psychologist Brooke Garrettson, and St. Paul Police Officer Lynn Wild.
On February 5, 1996, Anderson was charged with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subds. 1(a), 2, and two counts of second-degree criminal sexual conduct in violation of Minn. Stat. § 609.343, subds. 1(a), 2.
K.G. and S.R. testified at trial to the incidents of sexual abuse by Anderson. The prosecutor showed the jury a video of Moore's interview with K.G., which was consistent with both girls' testimony. Moore testified that her physical examination of the girls revealed that both had been sexually abused. Sergeant Brackman testified that his interview with the girls regarding the alleged abuse was consistent with their trial testimony. Anderson denied the allegations of sexual abuse and claimed that he had never touched the girls inappropriately.
A jury found Anderson guilty of one count of first-degree criminal sexual conduct, involving K.G., and two counts of second-degree criminal sexual conduct, one involving K.G. and one involving S.R. The district court sentenced Anderson to 86 months on the first-degree criminal sexual conduct conviction and to a consecutive 21 months stayed on the second-degree criminal sexual conduct conviction involving S.R. This appeal followed.
DECISION 1. Alleged Prosecutorial Misconduct
Anderson claims that the prosecutor's following questions of the investigating officer are reversible error:
Q [The state]: Sergeant Brackman, are you aware that you — or we would not be able to use the results of a lie detector test in court?
A [Brackman]: Yes.
Q [The state]: Do you ever ask a suspect to take a lie detector test anyway?
MR. SHANDS [appellant's attorney]: Objection, Your Honor, irrelevant.
THE COURT: Sustained
Q [The state]: Did you ask the defendant to take a test of any kind —
MR. SHANDS: Objection, Your Honor, —
[question continuing] — in this case?
MR. SHANDS: — irrelevant.
THE COURT: Sustained.
Anderson argues that the prosecutor attempted to get before the jury inadmissible evidence regarding a lie detector test. Anderson contends that although the trial court sustained objections to the questions, "the court could do nothing to erase the inescapable inference that [Anderson] had either refused or failed a lie detector test." Anderson asserts, therefore, that he must be given a new trial. We disagree.
Results of lie detector tests and any direct or indirect references to the taking or refusal to take such a test are inadmissible, State v. Fenney , 448 N.W.2d 54, 61 (Minn. 1989), because lie detector tests have not been proven to be completely reliable. State v. Anderson , 379 N.W.2d 70, 79 (Minn. 1985), cert. denied , 476 U.S. 1141 (1986). Reference to a lie detector test, however, is not necessarily reversible error. See Fenney , 448 N.W.2d at 62 (concluding that reference to polygraph test, although wrongly admitted, did not constitute reversible error).
We conclude that here the reference to lie detector testing, although inappropriate, was harmless error. Both victims testified to the sexual abuse, and their testimony was corroborated by the video of Moore's interview with K.G. and Sgt. Brackman's testimony. Because there was abundant direct evidence of Anderson's guilt, it is doubtful that the reference to a lie detector test had any substantial impact on the jury's verdict. Cf. State v. Kolander , 236 Minn. 209, 222, 52 N.W.2d 458, 465 (1952) (stating that where the conviction rests solely on circumstantial evidence, reference to lie detector test may "tip the scales" against defendant). There was no evidence before the jury of the results of a lie detector test or that a lie detector test either was taken or was refused. Anderson's attorney promptly objected to the state's questions regarding a lie detector test, and the trial court sustained the objections, thereby mitigating any damage.
2. Pro Se Arguments
Anderson argues pro se that he was denied a fair trial because (1) the state failed to call the victims' cousin as a witness, (2) the prosecutor elicited improper vouching testimony regarding the victims' credibility, and (3) the prosecutor stated in closing argument that she believed the victims' testimony. The state's failure to call a witness does not warrant a new trial because Anderson had the opportunity to call the witness himself. Moreover, defense counsel failed to object at trial to these alleged errors. Failure to raise issues at trial generally constitutes waiver of those issue on appeal. State v. Beard , 288 N.W.2d 717, 718 (Minn. 1980). Nevertheless, "this court will consider plain error affecting substantial rights if the error had the effect of denying the defendant a fair trial." Van Buren v. State , 556 N.W.2d 548, 551 (Minn. 1996). We therefore will address Anderson's claim that he was denied a fair trial because of improper vouching testimony and because of the prosecutor's statements that the victims were credible.
At trial, the state asked the victims' mother if she believed K.G.'s allegation that Anderson raped her, and the mother answered in the affirmative. The state asked the mother if her daughters have ever lied to her about serious matters, and the mother stated that they had not. In closing arguments, the prosecutor stated, "The girls were honest with you. Mom was honest with you." Although the vouching testimony and the prosecutor's statements were improper, under the facts and circumstances of this case, Anderson was not denied a fair trial. In light of K.G.'s and S.R.'s testimony detailing sexual abuse by Anderson, evidence that the victims' trial testimony was consistent with prior interviews, and physical corroboration of the fact that the victims had been sexually abused, there is no reasonable likelihood that any error substantially affected the verdict. See id. (concluding that test for plain error is whether there was reasonable likelihood that any error substantially affected verdict).