State v. Rud

OPINION POPOVICH, Chief Judge. This is a prosecution for criminal sexual conduct. The defendants subpoenaed the alleged child victims and a potential child witness to appear at defendants’ omnibus hearing. The avowed purpose of eliciting the childrens’ testimony was further specificity of the dates of the alleged criminal conduct. The defendants might then either take the stand or call other witnesses to support a motion to dismiss the case for lack of probable cause. The trial court held the defendants could not call alleged victims in an omnibus hearing and therefore quashed the subpoenas. In so ruling, the court certified the question as important and doubtful pursuant to Rule 28.03 of the Minnesota Rules of Criminal Procedure. We reverse. FACTS On November 17, 1983, criminal complaints and warrants against Alvin and Rosemary Rud were issued in Scott County. The complaints were based on two alleged *482 incidents, one occurring between June and August of 1983 and the other in September of 1983. Each complaint charged four counts of criminal sexual conduct in the first degree, Minn.Stat. § 609.342(a) (1982) and four counts of criminal sexual conduct in the second degree, Minn.Stat. § 609.-343(a) (1982). All eight counts against each defendant also charged liability for crimes of another, Minn.Stat. § 609.05 (1982). The information contained in the complaint was obtained from two of the minors allegedly victimized. The omnibus hearing for both defendants was set for February 1, 1984. At the outset of the hearing, the state objected to subpoenas the defense served on the alleged victims and their appointed guardians. The state maintained a defendant may not call alleged victims who are the state's witnesses absent an in-camera showing that the victim’s testimony is likely to exonerate the defendant. The defense, however, claimed a right to call the children to lay foundation for future witnesses, including the defendants, that would produce evidence exonerating the defendants. The defense maintained the children’s testimony was necessary because neither the complaint nor disclosures by the prosecution provided sufficient detail of the charges to enable the defense to disclose possible defenses. The guardians appointed for the alleged child victims and child witness were at the omnibus hearing and testified for purposes of creating a record. Diane Johnson is the guardian for ten year olds V.K. and S.K., the alleged child victims. She testified that prior to the omnibus hearing, neither defense counsel contacted her about interviewing the children. Immediately preceding the hearing, however, defense counsel had approached her and asked how she would have responded had such a request been made. Repeating her answer on the stand, she said she would not permit an interview of either child unless she felt it was in the child’s best interest. Paul Thomsen is the guardian appointed for 14 year old J.M., a potential witness in this case. Thomsen testified that he also uses the best interest of the child standard in evaluating requests to interview J.M. Specifically, Thomsen said he would require authorization from J.M.’s psychologist and psychiatrist before subjecting J.M. to any court related activity. At oral argument, Thomsen admitted he had granted some of the County’s requests to interview J.M. He stated he had also denied some of the County’s interview requests and stated a written stipulation permitted the guardian’s presence during investigative work done by the County Attorney’s office. He claimed to have granted a request from the defense to interview J.M. but acknowledged he reserved the right to terminate the interview. On February 3, 1983, the trial court issued an order quashing the subpoenas served on the children and certifying the question to this court. The trial court’s order did not decide whether the omnibus hearing should be closed to the public. The court stated that by quashing the subpoenas, the closure issue became moot. ISSUE Certified Question: Whether the defendants had the right to subpoena alleged victims and call them as their witnesses in support of their motion to dismiss the complaints due to lack of probable cause. ANALYSIS In order to address the question at issue, it is necessary to place the case in its proper context. This is not an appeal of a determination that probable cause to proceed with prosecution exists or does not exist. No probable cause determination has been made. Similarly, this court is not asked to determine whether the defense has triggered the substantial admissible evidence rule of State v. Florence, 306 Minn. 442, 444 , 239 N.W.2d 892, 895 (1976). The defendants have not yet offered any evidence in support of their motion to dismiss for lack of probable cause. The question to be decided by this court is whether these defendants can call the alleged child vie- *483 tims in an effort to obtain information that may aid defendants in offering evidence to exonerate themselves. A motion to dismiss for lack of probable cause is authorized by Rule 11.03 of the. Minnesota Rules of Criminal Procedure. The rule provides: The court shall hear and determine all motions made by the defendant or prosecution, including a motion that there is an insufficient showing of probable cause to believe that the defendant committed the offense charged in the complaint, and receive such evidence as may be offered in support or opposition. Each party may cross-examine any witnesses produced by the other. A finding by the court of probable cause shall be based upon the entire record including reliable hearsay in whole or in part. Evidence considered on the issue of probable cause shall be subject to the requirements of Rule 18.06, subd. 1. Rule 11.03 Minn.R.Crim.P. Amplifying the rule, the comment to Rule 11 states: In State v. Florence, 306 Minn. 442 , 239 N.W.2d 892 (1976), the Supreme Court discussed the type of evidence that may be presented and considered on a motion to dismiss the complaint for lack of probable cause. Nothing in that case or in the rule prohibits a defendant from calling any witness to testify for the purpose of showing an absence of probable cause. Comment, Rule 11 Minn.R.Crim.P. (emphasis added). The benchmark case for omnibus hearing procedures in Minnesota is State v. Florence. In Florence , the Minnesota Supreme Court outlined the purpose of an omnibus hearing as follows: The object or purpose of the preliminary investigation is to prevent the hasty, malicious, improvident and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in a public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based. State v. Florence, 306 Minn, at 447, n. 4, 239 N.W.2d at 897 , n. 4 (quoting Thies v. State, 178 Wis. 98, 103 , 189 N.W. 539, 541 (1922)). The Florence court also made it clear that discovery is not a basic function of an omnibus hearing. The court stated: [t]he preliminary hearing does not present an ideal opportunity for discovery. It is designed for another purpose; namely, that of determining whether there is probable cause to justify further proceedings against an arrested person. Thus, the degree of discovery obtained in a preliminary hearing will vary depending upon how much evidence the presiding judicial officer thinks is necessary to establish probable cause in a particular case. This may be quite a bit, or it may be very little, but in either event it need not be all the evidence within the possession of the Government that should be subject to discovery The Committee accordingly concluded ‘that discovery procedure should remain separate and distinct from the preliminary examination _’ (Italics supplied.) In adopting Rule 11.03 in its present form, the Minnesota Supreme Court shared this conviction that the probable cause hearing should not be used as a substitute for disclosure and discovery and that the legitimate concern of the defendant to know the case against him before trial should be dealt with by other means. Id. 306 Minn, at 450, 239 N.W.2d at 898 (footnote omitted) (quoting Coleman v. Burnett, 155 U.S.App.D.C. 302 , 477 F.2d 1187, 1199 (1973)). Subsequent to Florence , however, the court made it clear that defendants have some right of confrontation at the omnibus hearing. In State v. Koonsman, 281 *484 N.W.2d 487 (Minn.1979), the defendant sought reversal of his kidnapping and criminal sexual conduct convictions because he was not afforded the opportunity to examine the alleged victims concerning their out of court identification of him. In rejecting Koonsman’s claim, the court included the following discussion of the rights of confrontation and compulsory process. The objectives of the confrontation clause and the compulsory-process clause are to assist the defendant in securing the presence of witnesses and to enable the defendant to examine witnesses whose statements are used against him at trial. Westen, Confrontation and Compulsory Process, 91 Harv.L.Rev. 567, 616. Stated differently, confrontation and compulsory process “work in tandem toward a common goal of assisting the defendant in producing and examining witnesses at trial.” Ibid., p. 622. In any event, even if it could be said that the prosecutor breached some duty to call the victims, defendant should not be able to claim that the interests served by confrontation and compulsory process were not served in this case because he had the right to call the victims at the hearing. Id. at 490 . 1 We find criminal defendants also have a right to call alleged victims as witnesses at their probable cause hearing. This right is not absolute, 2 however, and the trial court will be afforded broad discretion in determining whether due process requires permitting the defendant to call these witnesses. Among the facts relevant to the trial court’s determination are: (1) the specificity of the criminal complaint; (2) the existence of a written statement or a full transcription of a verbal statement from the alleged victim(s); (3) the specificity and consistency of any police reports; and (4) the availability and opportunity to meet with the alleged victim prior to the omnibus hearing. Consideration of these facts in the present case results in the conclusion defendants must be afforded the right to call the alleged victims to the stand. The complaints charge criminal sexual conduct. While one incident is alleged to have occurred on or about September 1983, the other allegedly occurred during the months of June through August 1983. 3 No written statements were made by the alleged victims nor were any verbal statements recorded and transcribed. The only information available for preparation of their defense is the generalized complaint and contradictory and summary police reports. This is insufficient to meet the “broad discovery permitted under the rules” which was assumed by the Florence court in concluding discovery was not a basic purpose of the omnibus hearing. State v. Florence, 306 Minn, at 452, 239 N.W.2d at 899 . In holding these circumstances entitle defendants to call the alleged victims to the stand, we are not unmindful of the concern over attempts to intimidate these young, vulnerable witnesses. We would expect the defense attorney to confine himself to specific questions of who, what, when, where, and how and to do so in a gentle, gracious manner and to drop a topic if the child’s honest answer appears to be “I don’t remember”, or “I don’t know.” The defense is entitled to question on that much. Should the questioning become ha *485 rassing or otherwise improper, however, the trial court should take control pursuant to Rule 611 of the Minnesota Rules of Evidence. DECISION The question certified to us was: Whether the defendants had the right to subpoena alleged victims and call them as their witnesses in support of their motion to dismiss the complaints due to lack of probable cause. We answer the question as follows: While the right is not absolute, under the particular circumstances of this case the defendants are entitled to subpoena the alleged child victims as witnesses at defendants’ omnibus hearing. The scope of the examination should be limited to questions addressing whether the alleged victims have any additional knowledge of the criminal conduct charged. Control of the questioning is within the discretion of the trial court. The issue of closure was not certified and therefore is not properly before this court. Remanded for further proceedings. . Koonsman may be distinguished from the present case since a different procedural rule, Rule 11.02 of the Minnesota Rules of Criminal Procedure, technically governs pretrial challenges of evidence. The court made no attempt, however, to differentiate Rule 11.02 from the other provisions of Rule 11, all of which govern omnibus hearing procedures in felony and gross misdemeanor cases. . See generally State v. Mitake, 64 Hawaii 217 , 638 P.2d 324 (1981). .In stating the generality of the complaint is a factor to be considered, we are drawing a distinction between the determination of whether a defendant is entitled to examine alleged victims in a pretrial proceeding and a post conviction challenge of the specificity of the complaint. With respect to the latter, see State v. Becker, No. C4-83-887, slip op. at 5-7, 351 N.W.2d 923 at 926-927 (Minn. July 13, 1984) and cases cited therein.