1eHALCR 15.4229 Filed in Fst Juda Distt Cour 1212872016 11:53:38 AM (Dakota County, MN STATE OF MINNESOTA DISTRICT COURT COUNTY OF DAKOTA FIRST JUDICIAL DISTRICT State of Minnesota, Plaintiff, MOTION FOR EVIDENTIARY v. HEARING ON WITNESS TAMPERING AND SUPPORTING MEMORANDUM Douglas Dahlen, Defendant. Court File No. I9HA-CR-15-4229 PLEASE TAKE NOTICE, that the above-named defendant, by and through her attorney, ‘Travis M. Keil and pursuant to the Minnesota Rules of Criminal Procedure, hereby moves the ‘court to conduct an evidentiary hearing on the issue of whether witness tampering has occurred in this case. This motion is based on all the files, records and proceedings herein, including the attached memorandum of law, affidavit and police reports INTRODUCTION Douglas Dahlen, with his wife Gina, own the “White Horse Ranch” in Herman, Minnesota. The Ranch is a non-profit, faith-based organization designed to provide a safe place for children, horses, and families to experience hope, healing and encouragement, Their mi ion is to invest in children and their families of all backgrounds; pairing a child and horse, along wit a mentor in @ safe environment. They have worked with well over 400 sexually, physically and ‘emotionally abused children since their inception in 2003. 119HA.0R 15-4228 Fed in Fist Judicial District Court ‘sorzsm20te 11:58:35 ald ‘Dakota County, MN In late April of 2013, Mr. and Ms. Dahlen agreed to provide a temporary place for two girls, SVR (6/24/98) and GIR (11/1/99), the biological daughters to Ms, Grazzini-Rucki, When the girls arrived, both were very emotional, crying and appeared scared. Both girls appeared extremely fearful to the Dahlens. In fact, the Dahlens had never seen two gitls so visibly and physically frightened. In essence, they were scared for their lives. After living there for a couple of days, the girls gradually became more comfortable and shared their fears about their father, David Rucki, and their concerns he would violate the restraining orders imposed on him. The two girls described in detail the family environment and the events leading to their parent's divorce. ‘They talked about a litany of circumstances within the family including: threats left on one of the girls voice mail by the father; sexually inappropriate behavior directed at them by their father; and having to call the police multiple times because of their father violating restraining orders. Consistently throughout their time with the Dahlens’ the girls expressed fear of returning home to their father, stating he “mentally hurt” them and “scared me out of my life,” even fearing he would kill them. Although the girls denied sexual abuse, the girls reported to Gina Dahlen that their father inappropriately touched their inner thigh area, and often made comments that made them feel uncomfortable. For example, they related comments from their father about the size of their breasts, which the girls felt were sexually inappropriate and made them feel ashamed. Additionally, the girls reported that the father had a habit of peeking in outside windows and ‘standing too close for comfort. The Dahlens’ themselves reported that their own observations were that when the girls spoke of their father and the idea of returning to him made them so scared they would physically become sick, cry and shake with obvious fear and panic.sHALCR 164228 Filed in First JucicialDistct Court 2282016 11:59:95 Alt ‘Dakota County, MN The impression the Dahlens hed of the girls, that they had endured emotional and psychological abuse, had witnessed physical violence against their mother, and would be subjected to physical or sexual abuse if returned to their father, has been corroborated by interviews conducted by child protective services (CPS) and two letter the girls had written during the initial custody case. During an interview with CPS in November 2015, SVR told them her father was “rough” with her and “shook” her. SVR said her father rubbed her inner thigh in a sexual manner. She told them he made comments on her “boobs” and how large they were. SVR reported that she witnessed her father chasing after her mother with a broken organ leg, and that he was physically abusive to her mom. In a letter, written to the judge during the custody battle, SVR wrote that she observed her dad physically attack her mother; that she watched her dad beat her mother. Conversely, once the girls were back in their father’s custody in June of 2016, SVR told police a very different story. SVR told police investigators that her father and aunt made her come in to “recant.” (Lakeville Police Dept. Statement, June 30, 2016, at 1.) When asked *[wJhen you say constantly living in it what does that mean? SVR responded, “{nJo one wants to let it down, it’s always being brought up, I never can get away from it. There is paperwork all over the house with it, [can’t get away from it.” (Id, at 21) When asked if she was forced to be there, SVR told Detective Kelli Coughlin that, “it’s definitely not on free will choice.” (Id) SVR stated that her dad and aunt Tammy “basically said I have to [come in for a statement], and that [ have to be here and I have to recant everything I said and . .. that’s the way it’s gonna be and they made me feel really guilty about not doing it, I started erying.” (/d) She minimized the physical abuse she had witnessed. (Jd. at 2.) She recounted that her father broke the organ leg, but was not 31OHACR5.4229 Filed in Fist Judea District Court “2225/2016 11:55:38 AML ‘Dakota County, MN encouraged to elaborate by detective Coughlin. (Id. at 3.) SVR did not mention that her father chased her mother around with the organ leg. This time, she told police her dad was never physical with her. That he only “grabbed” her leg, instead of the sexual rubbing she described previously. During the interview, SVR back-peddled on her prior claims of sexual advances, now saying her father only made “inappropriate comments.” SVR’s testimony in court was again different than her previously made statements. On the stand, SVR told the Court she was not told to “recant” and she had not been in her right state of mind when she made the statement to police. She also claimed to not remember the incident with the organ leg and said her dad never hit anyone. SVR further testified she never saw any abuse and perhaps her father only shoved her mother a few times. ARGUMENT PRIMA FACIE EVIDENCE OF WITNESS TAMPERING EXISTS IN THIS CASE IN VIOLATION OF MINN. STAT. § 609.498. Minnesota law prohibits tampering with a witness and provides criminal penalties when a person “by means of intimidation, intentionally influences or attempts to influence a person who is or may become a witness to testify falsely at any trial, proceeding, or inquiry authorized by law.” Minn. Stat. § 609.498 subd. 2a(a)(2). Persons are also prohibited from dissuading others from providing information to law enforcement concerning a crime or from influencing a person to provide false information concerning a crime to law enforcement authorities. Jd. subd. 2a(a)(3)- (4). Under this subdivision, proof of intimidation may be based on a specific act or on the totality of the circumstances. /d., subd. 2a(b). (See Warren Robinson’s Affidavit and police reports.T9HALCR154228 Fld in First Juaical Disvct Cour 1282016 11:55:35 ANd Dakota County, MN Witness tampering and intimidation can be overt or subtle, and includes emotional ‘manipulation. “Intimidation,” should be understood to include not only acts of force or coercion, but also subtle forms of psychological or emotional manipulation and a number of courts in the State have expressed this view. The Minnesota Supreme Court has recognized that even “general or specific threats of reprisal” would constitute witness intimidation. State v. Washington, 521 N.W.2d 35, 42 (Minn, 1994). The Court has also acknowledged that the mere presence of certain spectators in the courtroom can result in witness intimidation. State v. Bobo, 770 N.W.2d 129 (Minn. 2009). The concept of “psychological intimidation” is well known to the courts, typically in Miranda rights cases. See e.g. State v. Tibiatowski, 590 N.W.2d 305 (Minn. 2001); In re Welfare Of G.S.P., 610 N.W.2d 651 (Minn. App. 2000); State v. Jackson, 615 N.W.2d 391 (Minn. App. 2000). ‘The Minnesota Court of Appeals has, in the context Minn. R. Evid. 606(b), distinguished between “psychological intimidation” and express threats of violence. State v. Jackson, 615 N.W.2d 391, 396 (Minn. App. 2000). Intimidate can mean simply to “make timid.” State v. MeGinnis, July 11, 2016 WL 3659127 (Minn. App. unpublished) (quoting The American Heritage College Dictionary 712 (34 ed. 1999). In the Eight Circuit, exhortations to remain loyal to one’s people or family is sufficient to support a conviction for witness tampering. See United States v. Colhoff, 833 F.3d 980, 984 (8th Cir. 2016). ‘The Dahlens have consistently asserted that, based on their observations and what the girls told them, that the girls had been abused, had witnessed abuse, and would be subject to further abuse. Gina Dahlen informed detectives that “when the [girls] first got here they seemed hysterically afraid . . . of their father.” Upon further questioning, Detective Dronen further 5Tanicrneeeeg File in Fst Judicial Disct Court 12282016 17:55:95 ANd ‘Dakota County, MN mentioned that her husband, Doug had stated that “when [the girls} first got here they seemed extremely, extremely afraid.” Further confirming that this must have been the reason they stayed, the Detective asserted “that is what made you believe . .. they need a safe place to stay and that's why they stayed,” Again, Gina Dahlen reiterated that the girls were “deathly J mean tears scared fearful.” When the Dahlens pressed them one night that “something’s gotta change,” the girls started “sobbing, almost hyperventilating crying with the thought of going back,” There is no question the Dahlens permitted the girls to stay because they were “very scared for their own safety,” In interviewing Doug Dahlen, the Detective asked about when the girls first got there if they were afraid, to which Doug responded that they were: “Beyond afraid, they were terrified. I have never seen a kid so seared. Ican’t emphasize that to you. I have seen kids in really rough shape, Ihave never seen one that was truly afraid for their life until I saw them”. Doug Dahlen recalled a time when SVR was “curled up in the bathroom in the fetal position sobbing uncontrollably.” He further stated the girls did not like being hugged or touched, ‘especially by men. The girls complained of being “inappropriately touched” by a counselor, and some sexually inappropriate behavior by their father. Their fears were obvious and palpable. The safety of the girls was the Dablens’ biggest concern. Based on the obvious and overt fears ‘expressed by the girls, the Dahlens’ reasonably believed that it was necessary for the girls to stay at the White Horse Ranch to protect them from physical, or sexual assault or substantial emotional harm. After being returned to David Rucki’s custody, SVR told law enforcement that her father and aunt made her “recant.” She also told investigators that the court paperwork was “all over the 619HA.0R 15-4229 Fd in First Juda! Olsct Court Sarza2mi6 11/5938 ANd Dakota County, MN, house,” that the issue was constantly being brought up, and that she could not get away from it. Essentially, they drove SVR to the police station and coerced her into providing a statement whitewashed of the abuse she endured and witnessed. An observable difference in the statements SVR made to CPS, the police, and the Court has been identified. Because the witness told investigators that her father made her change her story and her story did in fact change from previous statements, itis apparent that witness tampering has occurred. Il. AN EVIDENTIARY HEARING IS NECESSARY TO RESOLVE WITNESS CREDIBILITY ISSUES REGARDING RECANTATION. ‘The Minnesota Supreme Court has recognized that “an evidentiary hearing is often necessary to resolve credibility determinations regarding a recanting witness's conflicting statements.” Ferguson v, State, 779 N.W.2d 335, 560 (Minn, 2010); see also Wilson v. State, 726 N.W.2d 103, 107 (Minn. 2007). “[A] court cannot be reasonably certain the recantation is genuine unless it contains ‘sufficient indicia of trustworthiness.’” Martin v. State, 825 N.W.2d 734, 740- 41 (Minn. 2013) (quoting Ferguson, 779 N.W.2d at 360). Granted, in the typical recantation case, you would have a witness whom helped convict a defendant and later changes their story. However, itis prudent and more efficient to resolve these issues now rather than later. Without an evidentiary hearing at this stage, the doubts regarding the trustworthiness of witness statements in this case would likely entitled the defendants to a new trial or at least a postconviction evidentiary hearing on the very same issue. See Martin, 825 N.W.2d at 740; Bobo v. State, 820 N.W.2d 511, 516 (Minn, 2012) (finding that any doubts about whether to conduct an evidentiary hearing on petition for postconviction relief should be resolved in favor of petitioner).19HA.CR15.4220 Fed in First JusiialDistct Court 222016 115535 Ad Dakota County, MN, Here, an evidentiary hearing is necessary to determine whether the witness's new story contait “sufficient indicia of trustworthiness,” in light of the previous inconsistent statements made by the witness and her statement to police that Da Rucki and Tammy Love made her “recant everything” while making her feel guilty to the point of crying. In fact, there are many good reasons that an evidentiary hearing is necessary. Law enforcement investigators in this case apparently avoided asking SVR questions which would develop responses favoring the affirmative defense. Anytime the possibility arose that David Rucki would be portrayed in a negative light, Detective Coughlin backed off. Additionally, other scenarios which could have influenced the witness’s testimony should be investigated. For example, isa felony to bribe, offer, give, or promise to give, directly or indirectly, any benefit, reward, or consideration, to a person who is or is about to become a witness in a judicial proceeding, with intent to influence the person’s testimony. Minn, Stat, § 609.42, subd. 1(3); State v. Wurdemann, 120 N.W.2d 317 (Minn. 1963); State v. Gustafson, 396 N.W.2d 583 (Minn. App. 1986). Likewise, threats to expose to disgrace or ridicule can constitute “coercion” under the witness tampering statute. Minn, Stat, §§ 609. 498, subd. 2(b); 609.27, subd. 1(4). An evidentiary hearing is necessary to determine whether intimidation, coercion, or bribery has occurred, and whether the State’s witnesses in this case are trustworthy. IIL. WITNESS TAMPERING IN THIS CASE WILL DIRECTLY IMPEDE THE DEFENDANT'S ABILITY TO PUT FORWARD AN EFFECTIVE AFFIRMATIVE DEFENSE. Minn, Stat. § 609.26, subd. 2 states: “[i]tis an affirmative defense if'a person charged {with deprivation of custodial rights] proves that ... the person reasonably believed the action taken was necessary to protect the child from physical or sexual assault or substantial emotional harm.” The 819HA.CR-15.4228 File in First Judie Distiet Court T22SA016 11:55:95 AML Dakota County, MN defense has the burden of production in raising this defense. State v. Cannady, 727 N.W.2d 403, 407 (Minn, 2007). “The right ofa defendant to present a complete defense is an essential principle of our criminal justice system and is guaranteed by the Due Process Clause of both the United States Constitution and the Minnesota Constitution.” State v. Beecroft, 813 N.W.2d 814 (Minn.2012); see also California v. Trombetta, 467 U.S. 479, 485, 104 §,Ct. 2528, 81 L.Ed.2d 413 (1984); State v. Richards, 495 N.W.2d 187, 191 (Minn.1992) (citing U.S. Const. amend. XIV; Minn, Const. art. 1, § VIl).The Dahlens reasonably believed that their actions of permitting the ‘two teenage girls to stay at the white horse ranch were necessary to protect them from physical or sexual assault or substantial emotional harm To allow the alleged victim in this case, David Rucki, to blatantly tamper with witnesses and deprive the defendants of their statutorily afforded affirmative defense, flies in the face of justice and makes a mockery of this Court. CONCLUSION Due to the above concems regarding the intimidation and coercion of the witnesses and the implications upon due process and the fundamental faimess of the impending trial, namely that the defendant has been deprived of his right to present a complete defense, the defendant seeks an evidentiary hearing on this matter. Dated: December 23, 2016 AsfTravis M, Keil ‘Travis M. Keil P.O. Box 44295 Eden Prairie, MN 55344 651.315.3097