IN COURT OF APPEALS
Jeffrey Allen Lasnetski,
Filed May 17, 2005
Kandiyohi County District Court
File No. K5-03-0088
Boyd A. Beccue, Kandiyohi County Attorney, 415 Southwest Sixth Street, P.O. Box 1126, Willmar, MN 56201; and
Mike Hatch, Attorney General, Kimberly Ross Parker,
Assistant Attorney General,
Bruce M. Rivers, Rivers & Associates, P.A., 280B
Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.
S Y L L A B U S
1. Statements made to a police officer
under exigent, life-or-death circumstances, do not constitute “testimonial”
hearsay under Crawford v. Washington, 541
2. A defendant may waive his right to challenge the admission of his spouse’s out-of-court statements on confrontation-clause grounds by calling his spouse to testify.
challenges his conviction of first-degree assault, arguing that the district
court erred in admitting testimonial
hearsay in violation of the Confrontation Clause of the
In the late afternoon of January 17, 2003, appellant Jeffrey Allen Lasnetski called his estranged wife, Darla Lasnetski, and told her that he was going to commit suicide. After appellant’s daughter called 911, the Kandiyohi County Sheriff’s Department was dispatched to the Lasnetski residence. Deputy Greg Stehn arrived at the scene and observed appellant standing by a truck in the driveway pointing a shotgun at his own head. In an effort to not escalate the situation, Stehn backed the squad car out of the driveway. While doing so, he observed appellant raise the shotgun to his shoulder and point it at Stehn. A few seconds later, Stehn heard the shotgun fire. While the shot did not strike Stehn or his squad car, he assumed appellant was shooting at the car.
Shortly thereafter, numerous law enforcement personnel arrived at the scene, and a roadblock was established to block traffic from approaching the residence. Mrs. Lasnetski arrived at the residence shortly after the shot was fired and was intercepted by Deputy Shawn Kujawa at the roadblock. While Mrs. Lasnetski was in Kujawa’s squad car discussing the situation, appellant called her on a cell phone. Mrs. Lasnetski spoke with appellant several times. During the conversations with appellant, Kujawa coached Mrs. Lasnetski on how to talk to appellant in order to keep him from committing suicide. Mrs. Lasnetski pleaded with appellant that he needed to surrender. Appellant responded that he shot at the deputy and that he would go to jail. Mrs. Lasnetski responded that no one was hurt and that everything would be okay. Appellant also told her that if the officers tried to approach the house, he would shoot them. Later, appellant stated that he would shoot at the officers in order to provoke them into shooting him.
Kujawa told Mrs. Lasnetski to keep appellant on the phone as long as possible. Eventually, appellant took an overdose of allergy medication and began coughing and vomiting. A flash-bang grenade was then detonated inside the residence, and law enforcement personnel entered to remove appellant.
was charged with first- and second-degree assault. Before trial, the state filed a motion to
compel the testimony of Mrs. Lasnetski or, in the alternative, to allow Kujawa
to testify as to Mrs. Lasnetski’s out-of-court statements. The proposed testimony was that appellant
told his wife, who in turn told Deputy Kujawa, that (1) appellant would not
surrender because he shot at a deputy and was afraid he would be arrested for
attempted murder; (2) if the officers tried to approach the house he would
shoot them; and (3) he intended to go out of the house and start shooting in
order to provoke law enforcement into shooting him because he wanted to
die. The district court denied the
state’s motion to compel the testimony of Mrs. Lasnetski on the basis of the
spousal privilege but permitted Kujawa to testify regarding Mrs. Lasnetski’s
phone conversations with appellant. The district
court held that such testimony was admissible under the excited utterance
exception to the hearsay rule and the residual exception for an unavailable
During trial, Kujawa testified about his conversations with Mrs. Lasnetski in his squad car along the lines proposed in the state’s pretrial motion. Appellant did not object during the trial to Kujawa’s testimony. In appellant’s case-in-chief appellant testified and called Mrs. Lasnetski to testify regarding her conversations with appellant in Kujawa’s squad car. Appellant also moved to introduce evidence of his reputation or character for truthfulness. The district court did not allow the evidence, finding that reputation for truthfulness was not relevant to the charged offenses and that appellant’s credibility had not been attacked. The jury found appellant guilty of first-degree assault. This appeal followed.
1. Did the district court err by allowing Kujawa to testify regarding Mrs. Lasnetski’s phone conversations with appellant?
2. Did the district court err by excluding character evidence offered by appellant?
3. Was appellant denied a fair trial due to alleged prosecutorial misconduct?
Appellant contends that the out-of-court statements of Mrs. Lasnetski admitted into evidence through Kujawa’s testimony should have been excluded because they constituted testimonial hearsay and violated appellant’s rights to confrontation under the state and federal constitutions. The state argues that the evidence did not constitute testimonial hearsay and that appellant had otherwise waived his rights under the Confrontation Clause.
The evidentiary rulings
of a district court lie within its sound judgment and will not be reversed
absent an abuse of discretion. State
v. Amos, 658 N.W.2d 201, 203 (
In the recent case of Crawford
v. Washington, 541
Based on our review of Crawford, Mrs. Lasnetski’s statements to Kujawa contemporaneously repeating what appellant allegedly stated to her do not constitute “testimonial” hearsay. First, the testimony clearly is not ex parte in-court testimony, its functional equivalent, or extrajudicial statements contained in formalized testimonial materials that would qualify under either of the Court’s first or second formulations of “core” testimonial hearsay.
Second, the statements were not made under circumstances that would lead an objective witness reasonably to believe that the statements would be available for use at a later trial. Here, Mrs. Lasnetski was not in custody and was not the subject of a Miranda-warned interrogation. Her statements were not the product of any police interrogation of her or of appellant. Instead, Mrs. Lasnetski was on her cell phone in the squad car with Kujawa for the sole purpose of persuading appellant not to take his life but to surrender. Under these exigent circumstances, an objective witness would not contemplate that what was expressed to Kujawa would be used at a later trial. Given the stress of the moment, a reasonable, objective witness would not even contemplate the possibility of a later trial, but would be solely engaged in preventing a suicide. To hold otherwise would be to construe Crawford as holding that every exigent statement made to law enforcement personnel is “testimonial.”
Our facts are more analogous to a 911 call in
State v. Wright, 686 N.W.2d 295 (
The state argues that,
even if Mrs. Lasnetski’s statements to Deputy Kujawa were testimonial under Crawford,
appellant waived his rights under both the Confrontation Clause and the
spousal-immunity privilege by calling his wife to testify at trial. We agree.
A defendant may intelligently waive a fundamental constitutional
protection. State v. Blom, 682 N.W.2d
578, 617 (
waiver “is an intentional relinquishment of a known right or privilege, and its
validity depends . . . upon the particular facts and circumstances surrounding
the case.” Blom, 682 N.W.2d at
617 (quoting State v. Richards, 456 N.W.2d 260, 264 (
We recently considered this issue in State v.
Courtney, 682 N.W.2d 185 (Minn. App. 2004), rev’d on other grounds, ___ N.W.2d ___ (
Appellant argues that he was forced to call Mrs. Lasnetski to testify because the district court’s erroneous pretrial ruling allowed Kujawa’s testimony but barred Mrs. Lasnetski from testifying because of the spousal privilege. Essentially, appellant argues that his waiver was not voluntary. We reject that argument. Appellant had the choice of not calling Mrs. Lasnetski to testify and asserting his constitutional rights in an appeal of any conviction. Instead, appellant made a trial strategy decision that he would waive his constitutional rights and let the jury decide. Because appellant chose to call Mrs. Lasnetski to testify, we conclude that the waiver of his Confrontation Clause and spousal-privilege rights was voluntary.
We also agree with the state’s argument that Mrs.
Lasnetski’s repetition to Kujawa of statements made by appellant waived the
spousal privilege as to those statements. See Minn. Stat. § 595.02, subd. 1(a)
(2002) (“A husband cannot be examined for or against his wife without her
consent, nor a wife for or against her husband without his consent”). The spousal privilege is intended to protect
spouses from testifying against each other, not to prevent a third party
testifying to a conversation held between the husband and wife. State v. Schifsky, 243
Finally, the state argues that (1) the statements
made by appellant to Mrs. Lasnetski are excluded from the definition of hearsay
as admissions by a party-opponent and that (2) the statements made by Mrs.
Lasnetski to Kujawa are admissible as an excited utterance, or under the residual
exception to the hearsay rule. We agree. Hearsay included within hearsay is not
excluded from evidence if each part of the combined hearsay statements qualifies
as an exception or is otherwise excluded from the hearsay rule.
district court admitted Mrs. Lasnetski’s statements to Kujawa as excited
Appellant contends the
district court erred in refusing to allow him to present witnesses to testify
about his character for truthfulness. At
a pretrial hearing, appellant’s counsel made a motion requesting that character
evidence pertaining to appellant’s truthfulness or honesty be admitted at trial. The district court held that appellant had a
right to present general character evidence—subject to rebuttal by the state—but
could not present character evidence of truthfulness or honesty, because such
evidence was not a pertinent trait of the offense charged. See
“Evidentiary rulings rest within the sound
discretion of the [district] court and will not be reversed absent a clear
abuse of discretion.” Amos, 658
N.W.2d at 203. Appellant carries the
burden of establishing that the district court abused its discretion and that
the error was prejudicial.
Appellant next argues that the state deprived
him of his right to a fair trial by engaging in prejudicial misconduct. A defendant alleging prosecutorial misconduct
generally will not be granted a new trial if the misconduct was harmless beyond
a reasonable doubt. State v. Atkins,
543 N.W.2d 642, 648 (
Essentially, appellant asserts two instances of prosecutorial misconduct. First, appellant argues that the prosecutor’s questioning of appellant and Mrs. Lasnetski regarding their “severe marital problems” constitutes misconduct. Prior to trial, appellant made a motion in limine, which the district court granted, to exclude all references to an alleged extra-marital affair of Mrs. Lasnetski. During the state’s case no reference was made to the alleged extra-marital affair. But appellant’s counsel opened the door to questioning by asking appellant and Mrs. Lasnetski about marital difficulties between the two that resulted in their separation and appellant’s depression. On cross-examination, the prosecutor questioned the witnesses regarding the marital difficulties and a rumor about their relationship but made no reference to the alleged extra-marital affair.
When appellant’s counsel raised the marital relations issue in his direct examination of appellant and Mrs. Lasnetski, the prosecutor was free to address the same issue on cross-examination of those witnesses. See State v. Patterson, 493 N.W.2d 577, 580 (Minn. App. 1992) (“[T]he Defendant opened the door himself by his own statement. It would have been unfair to the State’s case to let that testimony that he offered, that he volunteered as a matter of fact, go unanswered[.]”). Accordingly, we conclude that the prosecutor’s questioning of appellant and Mrs. Lasnetski did not constitute prosecutorial misconduct.
Next, appellant argues that the prosecutor committed misconduct four times during closing argument. First, the prosecutor stated: “You’ve heard a lot of stuff here in the last, third day coming up here now which probably isn’t very important. . . . I believe a lot of it was really hiding the ball.” The state contends that these statements related to the importance of the evidence presented by appellant and were not the prosecutor’s personal opinions concerning the merits of the case or the credibility of the witnesses.
argument, the prosecutor is afforded considerable latitude and the law does not
require that a colorless argument be made.
State v. Smith, 541 N.W.2d 584, 589 (
appellant argues that the prosecutor committed misconduct by misstating the
burden of proof.
I’m before you here now in my closing arguments to explain to you what the final charges are in this matter, what the elements of those charges are, and what I believe the facts are with regard to those elements of those crimes to assist you in determining guilt or innocence of the defendant, Jeffrey Lasnetski.
The state argues that the burden of proof was not misstated, but that even if it was, the district court’s jury instructions were sufficient to express the proper burden. We agree. By noting the jury would be “determining guilt or innocence,” the prosecutor was not implying that there was no burden of proof as to those alternatives.
A prosecutor’s misstatement of the burden of proof will not require reversal if the district court fully instructed the jury on the correct burden of proof. State v. Trimble, 371 N.W.2d 921, 926-27 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). Here, because the district court accurately and sufficiently instructed the jury on the burden of proof, we conclude that any misstatement by the prosecutor was not prejudicial.
Third, appellant challenges the prosecutor’s comments that much of the evidence presented was meant to “hid[e] the ball,” and that the jury should not be misled by appellant’s counsel’s stories and arguments. Appellant asserts that these comments constitute disparagement of appellant’s counsel and question his trustworthiness.
The prosecutor’s comments, however, do not rise to the level of disparaging appellant’s counsel. See State v. Brown, 368 N.W.2d 12, 13 (Minn. App. 1985) (holding that prosecutor’s characterization of defense counsel’s argument as a “smoke screen” or “non-issue” was not improper), review denied (Minn. July 11, 1985). Instead, the prosecutor’s comments were an attempt to counter specific statements or arguments previously made by appellant’s counsel. We have reviewed the record and find no credible evidence that the prosecutor challenged the trustworthiness of appellant’s counsel, suggested that counsel was trying to mislead the jury, or disparaged counsel.
Fourth, appellant argues that the prosecutor minimized the importance of the trial by stating: “I know this has taken a long time already and I do also know that this is New Year’s Eve and you perhaps have some other things on your mind here as well.” Appellant argues that this statement improperly invited the jury to dispose of the case as quickly as possible. But appellant fails to provide any legal support for this claim. The prosecutor’s statement could also be interpreted as a gesture of appreciation, acknowledging that the jury’s service was being performed over the holidays and during a time when the jurors might have other things occurring in their lives. Therefore, we conclude that this comment did not constitute misconduct.
Appellant asserts other claims of prosecutorial misconduct, for example, that the prosecutor improperly advised the jury regarding issues of intent and mental capacity, as well as arguing that appellant would state whatever was necessary to be found not guilty. We have carefully reviewed appellant’s claims of prosecutorial misconduct during closing argument and conclude that none of the claims rise to the level of plain error.
Because we conclude that Mrs. Lasnetski’s excited utterances were not “testimonial” hearsay under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), it was not error for the district court to admit those statements. Additionally, when appellant called Mrs. Lasnetski to testify, he waived his right to challenge the admission of her out-of-court statements under the Sixth Amendment’s Confrontation Clause. The district court also did not abuse its discretion by excluding appellant’s offered character testimony regarding truthfulness because the testimony was not pertinent to the charged crimes and the prosecutor did not attack appellant’s propensity for truthfulness. Finally, under the plain-error rule, appellant failed to establish prosecutorial misconduct that deprived him of a fair trial.
The district court also determined that Kujawa could testify to Mrs. Lasnetski’s
statements based on the “catch-all” exception to the hearsay rule.