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STATE OF MINNESOTA IN SUPREME COURT A04-1993 Court of Appeals Stephen Danforth, Appellant, v. State of Minnesota, Respondent. ________________________ Filed: February 26, 2009 Office of the Appellate Courts Anderson, G. Barry, J. Dissenting, Anderson, Paul H., and Page, JJ.

Lawrence Hammerling, Chief State Appellate Public Defender, Benjamin J. Butler, Assistant State Public Defender, St. Paul, Minnesota, for appellant. Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Patrick C. Diamond, Assistant County Attorney, Minneapolis, Minnesota, for respondent.

SYLLABUS 1. As a matter of Minnesota law, whether to retroactively apply a new rule of

federal constitutional criminal procedure to cases decided before the rules announcement is decided under the standard established in Teague v. Lane, 489 U.S. 288 (1989). 2. A new rule of federal constitutional criminal procedure is applied to cases

that have become final only when (1) the rule places certain specific conduct beyond the power of criminal law-making authorities to proscribe, or (2) when the rule is a 1

"watershed" rule of criminal procedure that is necessary to the fundamental fairness of the criminal proceeding. Affirmed.

OPINION ANDERSON, G. Barry, Justice. Appellant Stephen Danforth was charged with first-degree criminal sexual conduct involving a six-year-old boy, J.S. The boy was found incompetent to testify at trial, but the district court admitted into evidence a videotaped interview of J.S. conducted at a child advocacy center. The jury found Danforth guilty. The facts of this case are set forth at length in a decision by the court of appeals. State v. Danforth, 573 N.W.2d 369, 372 (Minn. App. 1997), rev. denied (Minn. Feb. 19, 1998). A recitation of the procedural events following Danforths conviction can be found in our previous opinion, Danforth v. State, 718 N.W.2d 451, 454-55 (Minn. 2006). In Danforth, we held that we were required to follow the standard for retroactivity of new rules of constitutional criminal procedure set by the United States Supreme Court in Teague v. Lane, 489 U.S. 288 (1989), and that Teague prohibited the retroactive application of the rule in Crawford v. Washington, 541 U.S. 36 (2004), to Danforths case. Danforth, 718 N.W.2d at 455, 46061. The U.S. Supreme Court granted Danforths writ of certiorari and reversed, holding that state courts, when reviewing state criminal convictions, are not bound by Teague and may choose the standard for deciding whether new rules of federal constitutional criminal

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procedure are retroactive. Danforth v. Minnesota, 552 U.S. ___, 128 S. Ct. 1029, 1046 (2008). We affirm. On August 23, 1995, in a videotaped interview at CornerHouse, a child advocacy center that often interviews children who are alleged victims of sexual abuse, J.S. indicated that he had been sexually abused by Danforth. Danforth was arrested and charged with first-degree criminal sexual conduct. At Danforths trial, the district court declared J.S. incompetent to testify, and admitted the videotape, finding that the videotape bore sufficient indicia of reliability in accordance with Minn. Stat.

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