Minnesota Supreme Court upholds Swift County conviction challenged over evidence gathered without defense counsel present

Tom Cherveny, West Central Tribune, Willmar, Minn.
·2 min read

Apr. 2—ST. PAUL — The Minnesota Supreme Court has upheld the conviction of a Swift County defendant for criminal sexual conduct in the fourth degree.

Two of the chief justices filed a dissenting opinion in the decision released March 31.

The court upheld the verdict of a Swift County jury in convicting Raciel Zalva Zaldivar-Proenza in August 2018. He was sentenced to serve 78 months in prison.

Zaldivar-Proenza was charged for allegedly entering a home on May 18, 2018, and entering the bedroom where two women slept. According to the court, one woman woke up and told him to leave, then went back to sleep. The other woman awoke to find him touching her bare buttocks with his hands and that her leggings and underwear were pulled down. She pushed him away and scratched his arm, breaking her fingernail doing so.

The Swift County Sheriff's Office was called, and Zaldivar-Proenza was charged with criminal sexual conduct and made a court appearance two days after the alleged incident.

The Swift County Attorney's Office filed a motion to have photographs taken of the scratches. The District Court judge expressed some concerns since the defendant did not have counsel at that time. The judge allowed the photographs to be taken after hearing the prosecution's concerns about how long the scratches would appear on the body. The defendant maintained that the scratches were the result of work he performed to remove barbed wire fencing.

Zaldivar-Proenza appealed his conviction, arguing that his right to legal counsel was denied because he did not have counsel when the photographs were allowed.

In its ruling affirming the conviction, the court pointed out that there is a constitutional right to counsel not only at trial but also at "critical stages" before trial, such as when line-ups are used to identify suspects.

The court determined that taking the photographs did not constitute a "critical stage" in this case. The taking of photographs was not a trial-like confrontation, the court ruled in the majority opinion.

"He had the opportunity to move to suppress the photographs before trial and to mount a defense during the trial," Justice Anne McKeig wrote for the majority.

In the dissent by Justices Natalie Hudson and Lorrie Gildea, Hudson wrote that in this situation the District Court should have waited until the public defender's office was contacted and an attorney made available to the defendant, who spoke minimal English.

The photographs of the scratches were shown to the jury during trial and played a decisive role for the jury in determining whose story was more credible and ultimately rendering a guilty verdict against the defendant, according to Justice Hudson.

"Accordingly, I would hold that the denial of Zaldivar-Proenza's right to counsel during the preliminary hearing was not harmless error."