Minn. Stat. § 611A.038

State v. Jones · 2004 2 citations

VII. Finally, we address the district court's denial of Sandra Halverson's, the victim's sister, request for restitution. We address this issue because it is possible that it will recur as the result of a retrial. This appeal can be classified as a state appeal from a sentence in a first-degree murder case, over which we have inherent jurisdiction. See State v. Warren, 592 N.W.2d 440, 451 (Minn.1999). The district court determined that it did not have jurisdiction to award restitution because Minn. Stat. § 611A.01 does not include a murder victim's sister in the class of eligible victims. See Minn. Stat. § 611A.01 (2002). Issues involving the authority and jurisdiction of the district court are legal issues, which we review de novo. State v. Pflepsen, 590 N.W.2d 759, 763 (Minn.1999). Statutory construction is also a matter of law that we review de novo. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990). The restitution statute defines the "victim," or the party eligible to receive restitution, as "a natural person who incurs loss or harm as a result of a crime * * *. If the victim is a natural person and is deceased, `victim' means the deceased's surviving spouse or next of kin." Minn. Stat. § 611A.01(b) (2002). Here, the district court first determined that, in a homicide case, the victim is deceased; therefore, the restitution can be requested only by the surviving spouse or next of kin of the deceased victim. The state argues that a more general definition of victim, i.e., someone who "incurs a loss or harm," applies here and the district court erred in applying the "deceased" provision to limit the number of victims. The state asserts that the "if the victim * * * is deceased" provision is not meant to limit the number of victims eligible to receive restitution; rather, its purpose is to preserve restitution claims for crime victims who, for some reason unrelated to the crime, die before they are *24 able to collect restitution. While the state is correct that the plain meaning of the statute permits a victim's claim to be preserved even if she dies for reasons unrelated to the crime, this result does not explain how to define the "victim[s]" whose claims are preserved. Moreover, we conclude that the state's general definition is problematic. One problem with the state's expansive definition of "victim" is illustrated when we substitute the state's definition into the other uses of the word victim in the restitution statutory scheme. For example, Minn. Stat. § 611A.03, subd. 1 (2002), requires that the state "make a reasonable and good faith effort to inform the victim" of any plea agreements. The state's definition of victim would render this provision unduly burdensome because the "victim" would include not just the direct victim of the crime but also all those who have "incur[red] a loss," including, apparently, that victim's family members and perhaps friends. Every crime resonates within its community and may create innumerable victims, from the person against whom the crime was perpetrated to the unknown neighbor whose feelings of security are undermined. These persons may have incurred some identifiable loss, but certainly the legislature cannot have intended the absurd result of forcing the state to make all such victims aware of every plea agreement it enters into. The legislature must instead have envisioned that victim in Minn. Stat. § 611A.01(b) be defined as "a natural person who incurs loss or harm as a [direct] result of a crime." Accordingly, the court of appeals has adopted a similarly narrow interpretation of victim in the restitution context. "This court has explained that the definition of victim in the restitution statute is narrower than other statutory definitions of victim. `[W]hile restitution covers a broader range of damages, it is limited to a narrower range of crime victims.'" In re Welfare of J.A.D., 603 N.W.2d 844, 846 (Minn.App.1999) (quoting State v. Dendy, 520 N.W.2d 411, 413 (Minn.App.1994)). A narrow interpretation of the term victim is also consistent with other sections of the crime victims' rights statutory scheme to which the Minn. Stat. § 611A.01 definition for victim is to be applied. Minnesota Statutes § 611A.038 (2002) gives victims the right to submit impact statements at sentencing. It also provides that "[a] representative of the community affected by the crime may submit an impact statement in the same manner that a victim may[,] * * * [which] shall describe the adverse social or economic effects the offense has had on persons residing and businesses operating in the community." Minn. Stat. § 611A.038(b). If the term victim encompassed all those who suffered a loss or harm as a result of the crime instead of just the direct victim of the crime, this section would be redundant. Similarly, under Minn. Stat. § 611A.039 (2002), which establishes the right to notice of a final disposition of a criminal case, the state is required to give such notice in cases "in which there is an identifiable crime victim." It is not clear how such a victim would be "identifiable" unless it is because he or she was the direct victim of the crime. Finally, under Minn. Stat. § 611A.0395(a) (2002), the state is required to give the victim certain information in a notice of the defendant's appeal, including "a statement that the victim and the victim's family may attend the argument or hearing." If the term victim was intended to encompass the direct victim's family in its definition, the phrase "the victim and the victim's family" would be redundant. Support for our interpretation of victim under Minn. Stat. § 611A.01 can also be *25 found in the way the legislature used the term victim in describing a defendant's potential obligations when ordered to pay restitution. The statute includes the clause "payment of compensation to the victim or the victim's family." Minn. Stat. §§ 609.10, subd. 2(a)(1) (2002); 609.125, subd. 2(a)(1) (2002). Thus, in looking at both the statutory provisions addressing victims' rights and those defining restitution obligations, we conclude the better interpretation of the term "victim" is that of the direct victim of the crime. In this case, however, the victim died as a result of the crime, as is always the case in a murder, and the district court then correctly looked at the "If the victim * * * is deceased" provision and noted that "victim" now "means the deceased's surviving spouse or next of kin." Minn. Stat. § 611A.01(b). The state also argues that even if we adopt the district court's narrower interpretation of victim to mean "surviving spouse or next of kin," a sister qualifies as next of kin and should be able to request restitution. Here, the district court appears to have determined that when the decedent has both a surviving spouse and next of kin, the "or" means that the "next of kin" can only claim restitution if there is no "surviving spouse." The court offered no explanation for how it reached its determination, but it presumably read the disjunctive "or" to mean "surviving spouse or [if there is none] next of kin." Apparently relying on the fact that Linda Jensen had a surviving spouse, the court determined that her sister could not recover, even though her surviving spouse never sought restitution. We conclude that the district court's interpretation of the disjunctive "or" contradicts the plain language of the statute. We construe the language to mean that the surviving spouse and next of kin cannot both recover, but it does not mean that the next of kin should be precluded from recovering when the surviving spouse does not seek restitution. Accordingly, if Halverson qualifies as a "next of kin," she may be permitted to seek restitution because Jensen's surviving spouse apparently chose not to do so. To determine whether Halverson qualifies as "next of kin" under the statute requires that we define this term in the context of restitution. In support of its position that a victim's sister is entitled to restitution, the state cites to the wrongful death context, where "`next of kin' means blood relatives who are members of the class from which beneficiaries are chosen under the intestacy statute." Wynkoop v. Carpenter, 574 N.W.2d 422, 427 (Minn. 1998). The state argues this definition is appropriate for restitution as well because one of the claims that can support a wrongful death action is an intentional murder, the act for which Halverson is seeking compensation. It is not clear, however, that the class of persons who qualify as restitution victims and those persons who are potential plaintiffs in a wrongful death action are sufficiently similar to borrow the definition of next of kin from the wrongful death context. More specifically, the "next of kin" who are restitution "victim[s]" under the statute appear to be only the persons who step into the shoes of the deceased direct victim of the crime, while the "next of kin" who are potential plaintiffs in a wrongful death action are the indirect victims of the crime. As the district court noted, the wrongful death statute differs from the restitution statute because it allows recovery for an unlimited number of persons as long as they are members of the group of "spouse and next of kin." We conclude that the disjunctive use of the word "or" in the restitution statute suggests that only one *26 person or class of persons is meant to be able to apply for restitution, so the term "next of kin" should be so defined. Thus, the "next of kin" who can recover under the restitution statute are more narrowly defined than those next of kin who are potential plaintiffs in a wrongful death action. Using the common law definition of "next of kin"—the nearest living blood relation —accomplishes this result. See Watson v. St. Paul City Ry. Co., 70 Minn. 514, 517, 73 N.W. 400, 401 (1897). Hence, we conclude that the common law definition of "next of kin" is the appropriate definition to use in the restitution context. Therefore, we hold that in a murder case the "victim[s]" eligible to receive restitution include either the murder victim's surviving spouse or her nearest living blood relation. As Linda Jensen's sister, Halverson cannot take under this definition because the record indicates that Linda Jensen's children are still living and they are in the class of persons who are her nearest living blood relatives who would qualify for restitution as her next of kin. Accordingly, we hold that the district court did not err in denying Halverson's request for restitution. Reversed. HANSON, Justice (concurring). I concur in the result but write separately to express the view that the court's determination of some of the DNA issues is unnecessary and may have unintended ramifications for other cases. The issues concerning DNA evidence are raised in an unusual procedural posture because Jones' counsel, in the opening statement, admitted that the semen found in the vaginal swab from Linda Jensen was that of Jones. Later, Jones testified that he had been having an affair with Jensen and explained that the presence of his semen in Jensen was the result of consensual sex the afternoon before the murder. I would conclude that counsel's admission and Jones' affirmative testimony preclude his argument that any error in the admission of DNA evidence was prejudicial. It is true that a defendant's stipulation to the admissibility of evidence he was unsuccessful in suppressing does not generally constitute a waiver of the opportunity to argue that evidentiary issue on appeal. But Jones did not actually stipulate to the admissibility of the DNA evidence. Instead, he waived his Fifth Amendment right to not testify and provided affirmative testimony of a relationship with Jensen and a sexual episode that explained the presence of his semen. In so doing, Jones did not waive his right to argue that the DNA evidence should have been excluded, but he did waive his Fifth Amendment rights and his testimony rendered the DNA evidence moot. Jones may argue that he only waived his Fifth Amendment rights because of the court's ruling on the DNA evidence, but I am not aware of any case law that would allow a defendant, after a failed attempt to suppress evidence, to make a conditional waiver of his Fifth Amendment rights, testify to his version of the facts, and then seek to reinstate his Fifth Amendment rights if the attempt to suppress evidence is successful on appeal. Accordingly, I would not decide the specific challenges to the DNA evidence, but would reserve them for another day when we are presented with a better record, where defense counsel is motivated to cross-examine the state's expert witnesses with greater intensity, and where the admission of the DNA results had a significant effect on the jury's verdict. Two of the challenges to the DNA evidence are particularly troubling because of the poorly developed record before us. *27 First, the district court limited the Frye-Mack hearing to the second prong of foundational reliability, and the majority concurs in that limitation, because the first prong (general acceptance in the scientific community) was approved for PCR-STR testing in State v. Traylor, 656 N.W.2d 885, 891-93 (Minn.2003). But Traylor also discussed due process concerns that might prevent the admission of DNA evidence because of the refusal of the manufacturer of the DNA testing kits to provide access to the primer sequences and validation studies that underlie those kits. Id. at 898-900. In rejecting Traylor's constitutional argument, we relied on the existence of certain facts in the Traylor record that safeguarded against undue prejudice to Traylor. Id. at 900. For example, Traylor noted that samples of the questioned DNA remained after testing by the state that made it possible for Traylor to conduct independent tests to verify the accuracy of the state's results. Id. We said: "Finally, and importantly, there was a portion of the DNA sample at issue available for Traylor to perform his own tests, an opportunity Traylor did not pursue." Id. The record before us reveals that some of the vaginal sample taken from Linda Jensen was exhausted by testing in 1992 (using the Restricted Fragment Length Polymorphism method) and the balance of the sample appears to have been exhausted by PCR STR testing in 1999. Further, Traylor presented a situation where the PCR-STR testing consisted of two parts, the Profiler Plus kit and the Cofiler kit. Id. at 890. The Profiler Plus kit typically examines 10 loci and the Cofiler kit typically examines 3 additional loci. Here, the BCA could not get any interpretable results from the Cofiler kit, for reasons that are not fully explained in the record. Thus, the state's expert based his opinions on the results of 10 loci, not the 13 normally present in PCR-STR testing. Jones does not present a due process argument here. But, because we do not need to do so, I would not treat Traylor as having judicially precluded due process challenges for all PCR STR testing. Second, at least one significant issue was presented concerning the Frye-Mack second prong of foundational reliability, involving the use of a Bunsen burner to heat the smear slide to loosen the mounting media by which the cover slip was adhered. Jones argues that this procedure is not an approved protocol and its reliability has not been confirmed by validation studies. The BCA expert, James Iverson, testified only that he had successfully used this process one other time and did not address whether separate validation is required by DAB standards. Perhaps this issue was made moot by the ability of the BCA to present interpretable results at all 10 loci examined by the Profiler Plus kit. The testimony was that heat could only degrade the sample, not change it, and it could be argued that obtaining interpretable results at all 10 loci shows that the sample was not materially degraded. But we are left with the mystery of the Cofiler kit. Was the inability to get interpretable results from that kit due in some measure to degradation of the sample as the result of heat? Absent a clear answer to that question, I would not read this decision as approving the use of Bunsen burner heat to remove a cover slip from a slide or to extract a sample from a slide. Where greater degradation has been shown, as evidenced by the inability to produce interpretable results at a significant number of loci, some further validation of the process in a prong two Frye-Mack hearing may well be required. MEYER, J. (concurring). *28 I join in the concurrence of Justice Sam Hanson. PAGE, J. (concurring in part). I join in part the concurrence of Justice Sam Hanson. PAGE, Justice (concurring in part, dissenting in part). Except to the extent that I agree with Justice Hanson that we should not decide the specific challenges to the DNA evidence, leaving them for another day when we are presented with a better record, I concur in the result reached by the court in parts I and III through VI of the opinion. I respectfully dissent with respect to part VII. The court's reading of Minn. Stat. § 611A.01(b) is too narrow. "Restitution is primarily intended to compensate a crime victim for his or her loss by restoring the victim to his or her original financial condition." State v. Terpstra, 546 N.W.2d 280, 283 (Minn.1996). In other words, the restitution statute is a remedial statute. "It is elementary that remedial statutes must be liberally construed for the purpose of accomplishing their objects." State v. Indus. Tool & Die Works, 220 Minn. 591, 604, 21 N.W.2d 31, 38 (1945). Section 611A.01(b) provides that: "If the victim is a natural person and is deceased, `victim' means the deceased's surviving spouse or next of kin." The court reads the terms "surviving spouse" and "next of kin" as mutually exclusive.[1] Reading the statute in this manner, however, contradicts our canons of statutory construction, ignores reality, and produces absurd results. The construction of section 611A.01(b) that is most consistent with the object of compensating crime victims for their losses resulting from the crime is to read the word "or" between the terms "surviving spouse" and "next of kin" inclusively. This interpretation would allow the surviving spouse or any next of kin who has suffered any out-of-pocket loss as a result of the crime to receive restitution. It makes sense to read the statute in this manner because the deceased's spouse is not the only one who may suffer an out-of-pocket loss as a result of the crime. Any one or combination of the following persons may suffer such a loss: spouse, parent, child, or sibling. For example, if the deceased's spouse does not have the wherewithal to pay the deceased's final medical or funeral expenses, some of those expenses may be borne by the deceased's parents, siblings, or children. Although this example is hypothetical, the reality is that such an occurrence would not be at all unusual for the impoverished crime victim. Yet under the court's reading of the restitution statute, only the spouse would be entitled to restitution and only for that portion of the expenses he or she paid. Thus, if those expenses totaled $2,500 and the spouse contributed $500 and the deceased's parents, siblings, and children paid the remainder, the spouse would be entitled to restitution for his or her $500 and the remainder could not be recovered. This is an absurd result,[2] which I do not believe the legislature intended. It is even more absurd when the fact that the perpetrator of the crime is relieved of the obligation to provide full restitution is considered. *29 Clearly, the court's reading of Minn. Stat. § 611A.01(b) undermines the statute's remedial nature and frustrates its purpose. I also believe that the court's narrow definition of "next of kin" undermines the purpose of the restitution statute. Under the court's interpretation, if the deceased left a surviving spouse, children, and siblings, and the siblings paid for the deceased's funeral, the siblings would not be the deceased's nearest blood relatives and therefore would not be entitled to restitution even if the spouse did not seek restitution. Again, this strikes me as an absurd result made even more absurd by the fact that the person who caused the deceased's death would be freed from any obligation to pay restitution. Thus, I would apply the definition of "next of kin" utilized in wrongful death actions and allow "blood relatives who are members of the class from which beneficiaries are chosen under the intestacy statute" to seek restitution. Wynkoop v. Carpenter, 574 N.W.2d 422, 427 (Minn.1998). In that one of the purposes of allowing crime victims to receive restitution is to free the victim "from the burden of instituting a civil action based upon the same conduct," Terpstra, 546 N.W.2d at 283, it only seems logical to apply the definition of "next of kin" used in wrongful death actions. Accordingly, I would hold that Linda Jensen's sister, Sandra Halverson, is a member of the class of persons who are entitled to restitution under the statute.[3] NOTES [1] Jones initially requested a hearing on each prong of the Frye-Mack test, but the district court limited its inquiry to "the so-called `second prong' of the Frye test, that is, whether there was compliance by the testing laboratory with appropriate standards and controls and whether proper availability has been made of the testing data and results." The court declined to hear arguments on whether the PCR-STR testing method was generally accepted, agreeing with the state that the first prong was well established. [2] There was some discussion outside the presence of the jury about the gray hair, which was never tested. The court issued a cautionary instruction agreed to by both parties stating that the DNA testing method for testing the hair was unavailable and the hair was not tested for that reason. [3] It appears from the record that the district court did not base its decision to uphold the validity of the search warrant on Jones' refusal to voluntarily provide a DNA sample. We are, however, troubled by the inclusion of the following language in the affidavit submitted to the court in support of the request for a search warrant. The affidavit stated in part:

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the proposed sentence or disposition.” Minn. Stat. § 611A.038(a)(1), (3) (2014). In light

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