STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Stephron L. Washington,
Filed December 19, 2006
Hennepin County District Court
File No. 05024767
Mike Hatch, Attorney General, 1800 Bremer Tower, 445
Minnesota Street, St. Paul, MN 55101; and
Jay M. Heffern, Minneapolis City Attorney, Deborah
Styles-Brown, Assistant City Attorney, 333 South Seventh Street, Suite 300,
Minneapolis, MN 55402 (for respondent)
Leonardo Castro, Chief Fourth District Public
Defender, Barbara S. Isaacman, Assistant Public Defender, 317 Second Avenue
South, Suite 200, Minneapolis, MN 55401 (for appellant)
and decided by Lansing, Presiding Judge; Kalitowski, Judge; and Dietzen, Judge.
S Y L L A B U S
An assault victim’s statements to a 911
operator and to police in an onsite
interview were nontestimonial because they were made under circumstances
objectively indicating that the primary purpose was to enable police to assist
in an ongoing emergency, and, therefore, the district court’s admission of these
statements into evidence did not deny defendant the constitutional right to
confront witnesses against him.
O P I N I O N
Following a jury trial, Stephron Washington was convicted
of two counts of fifth-degree domestic assault.
appeal focuses on three main issues.
First, he argues that testimonial hearsay was admitted in violation of
his Confrontation Clause rights. Second,
he argues that the prosecutor committed prejudicial misconduct. Third, he argues that the district court
erred by allowing the jury to have access to a 911 tape during deliberations. Washington
also challenges four evidentiary rulings, the sufficiency of the evidence, and
F A C T S
midnight, on April 12, 2005, an unidentified woman called 911 and asked to have
police sent to her apartment. She told
the 911 operator that she had been assaulted by her son’s father. Based on what the caller was saying and the sounds
in the background, the 911 operator believed that the caller was being assaulted
again during the call. The caller
identified her assailant as Stephron Washington. Midway through the two-minute call, the caller
said that Washington
“ran out the back door.” She described Washington and the car
he would likely be driving.
five minutes after the 911 call, police arrived at the apartment building from
which the calls were made and located the caller, LR. LR confirmed that she was the woman who had
called 911. She appeared upset, and the
officers asked if she was injured. She
told them that Washington
had bitten her arm and had hit her with a board. The board was a piece of the apartment’s
doorframe that had been broken off and had a nail sticking out of it. Officers observed a bite mark on LR’s arm and
a scratch from the nail. The officers believed
they could recognize Washington
from prior contacts, but they were unable to locate him. About a half-block from LR’s apartment, they
found a Jeep Wagoneer that was registered to Washington.
Washington was detained
on April 21, 2005. The next day LR
recanted and denied that Washington
had assaulted her. Although she
maintained contact with the prosecutor’s office and called on the day of trial
to say she was on her way to court to testify, she did not appear.
a pretrial hearing, the district court concluded that LR’s statements in the
911 tape and during the onsite interview were nontestimonial. The district court noted that LR had just
been assaulted during the 911 call and that police had not located Washington during the
onsite interview. The district court
therefore rejected Washington’s
Confrontation Clause argument and permitted the state to introduce LR’s
statements. The state also indicated
that the police officers would testify that they had met Washington and could identify him. Washington
did not object.
trial, the state played the 911 tape and the officers testified to LR’s
statements. A defense investigator
testified that LR had denied that Washington
assaulted her. Washington testified in his own defense and
acknowledged being at the apartment on April 12, 2005, but denied assaulting
LR. The state introduced Washington’s prior
convictions for impeachment purposes.
jury found Washington
guilty of two counts of domestic assault and found him not guilty of
fourth-degree criminal damage to property.
received concurrent sentences of ninety days in the workhouse with sixty-one
days stayed for one year and jail credit of twenty-nine days.
I S S U E S
statements to the 911 operator and the police officers made under circumstances
objectively indicating that the primary purpose was to enable police to meet an
prosecutor engage in prejudicial prosecutorial misconduct?
Was the 911
recording improperly allowed in the jury room?
Did the district
court abuse its discretion in its evidentiary rulings?
Was the evidence
sufficient to permit the jury to find Washington
guilty of domestic assault?
Did the district
court properly sentence Washington?
A N A L Y S I S
the state and federal constitutions, a criminal defendant has “the right to be
confronted with the witnesses against him.”
Const. amend. VI; Minn. Const. art. I,
§ 6. The Confrontation Clause
covers not just witnesses who testify at trial but also the admission of
hearsay statements that are testimonial in nature. Crawford
v. Washington, 541 U.S. 36, 50-51, 124 S. Ct.
1354, 1364 (2004). Testimonial
statements of witnesses absent from trial are inadmissible unless the declarant
is unavailable and the defendant had a prior opportunity to cross-examine. Id. at 68, 124 S. Ct.
at 1374; State v. Wright, 701 N.W.2d
802, 809 (Minn. 2005), vacated, 126 S. Ct. 2979 (2006).
the United States
nor the Minnesota Supreme Court has comprehensively defined “testimonial.” The “critical determinative factor in
assessing whether a statement is testimonial is whether it was prepared for
litigation.” State v. Caulfield, 722 N.W.2d 304, 309 (Minn.
2006). But statements are nontestimonial
“when made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.” Davis v. Washington, 126 S. Ct.
2266, 2273 (2006). Statements made to
enable police to meet an ongoing emergency “need not be limited to the
complainant’s predicament or the location where she is questioned by
police.” State v. Warsame, 723 N.W.2d 637, 641 (Minn.
App. 2006). If statements include both
testimonial and nontestimonial material, only the testimonial material must be
excluded. Davis, 126 S. Ct.
the U.S. Supreme Court considered the admissibility of hearsay evidence of police
interviews in two separate cases: a 911
call and an onsite interview of a 911 caller.
126 S. Ct. at 2277-78. The Court concluded that, in the 911-call
case, the caller was requesting help against a genuine physical threat and that
the 911 operator requested information that was necessary for the police to
resolve the emergency. Id.at 2276. Consequently, the Court determined that the
exchange between the caller and the 911 operator was nontestimonial. Id. at 2277. In the onsite-interview case, the interview occurred
at some time after the reported events, and centered on the victim’s deliberate
recounting of how the events began and progressed. Id. at
2278. During the questioning the police
kept the alleged assailant in another room.
Id. At the conclusion of the interview, the
police had the complainant fill out and sign a “battery affidavit.” Id. at 2279. The Court reasoned that the primary purpose
of the onsite interview, unlike the 911 call, was “to establish or prove past
events potentially relevant to later criminal prosecution.” Id. at 2274. The Court therefore held that the onsite
interview was testimonial. Id.at 2278.
Clause challenge in this case similarly involves a 911 recording and an onsite
interview. Applying the Davisstandard, we conclude that statements
admitted from LR’s 911 call and the onsite interview were nontestimonial.
standard, Washington’s challenge to the
transcript of the 911 call is easily resolved because the statements were made
under circumstances that are nearly identical to the circumstances of Davis. The caller reports that her “son’s dad just
jumped on me in the hallway” and the record suggests that she was assaulted a
second time during the call
itself. The operator obtained a
description of the assault and of the assailant. Although the operator requested more detail
about that assailant than was requested in Davis,
the questions sought and obtained descriptive information necessary for the
police to identify the suspect and resolve the ongoing emergency. Therefore, as in Davis,
the 911 conversation was made under circumstances objectively indicating that
the primary purpose of the interrogation was to enable police to meet an
ongoing emergency, and the 911 recording was nontestimonial.
Washington’s challenge to the admissibility of statements
obtained from the onsite interview is less easily resolved because the factual
circumstances of the onsite interview in this case do not parallel the factual
circumstances of Davis.
The officers testified that when they arrived at the apartment they saw
that the doorframe was broken and pieces of it were on the floor inside the
apartment. LR identified herself as the
person who had called 911 and told them that Washington had kicked in the door, struck
her with part of the broken doorframe, and had bitten her. The officers asked questions to determine the
extent of her injuries and then asked questions about the vehicle that Washington would likely
be driving if he had left the area. LR
told them that she did not need an ambulance and that she did not want to be
transported to a shelter facility, but she requested that officers watch her
when she left the apartment to make sure that she was not assaulted again.
waiting for LR to get her things together to leave the apartment, the officers checked
the immediate area around the apartments to make sure that Washington was not there and then checked
the surrounding streets for white vehicles the size of a Jeep Cherokee. They found an unoccupied white Jeep Wagoneer
that was registered to Washington
within one block of the apartment.
The limited statements to which the
police testified at trial centered on observing the damage to LR’s doorframe,
evaluating the extent of LR’s injuries, obtaining information that could help determine
whereabouts, and providing for LR’s safety.
Unlike the circumstances of the onsite interview in Davis,
the assailant was still at large and posed an ongoing threat. Davis recognizes
that, in domestic assaults, officers who are called to investigate need to
obtain information to assess the situation, ensure their own safety, and
evaluate the possible danger to the complainant. Id. at
2279. These “exigencies may often mean
that ‘initial inquiries’ produce nontestimonial statements.” Id. LR’s statements from the onsite interview
that were admitted into evidence conveyed information that allowed the officers
to reasonably respond to the emergent situation. The circumstances objectively indicate that the
primary purpose of the interrogation was not to establish or prove past events
potentially relevant to later criminal prosecution, but to enable police
assistance to meet an ongoing emergency.
Hence, the statements were nontestimonial and were properly admitted.
For these reasons we conclude that, under
the Davis analysis, the victim’s statements in
both the 911 call and the onsite interview were nontestimonial. We can find no basis for concluding that the
Minnesota Constitution provides any additional protection. We therefore conclude that Washington was not denied his right to
confront the witnesses against him.
The overarching problem presented by
prosecutorial misconduct is that it may deny the defendant’s right to a fair
trial. State v. Ramey, 721 N.W.2d 294, 300 (Minn.
2006). We will reverse a conviction if
prosecutorial error, considered in light of the whole trial, impaired the
defendant’s right to a fair trial. State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006).
the defendant objects to the prosecutorial misconduct, a new trial will be
granted unless the misconduct was harmless beyond a reasonable doubt. State
v. Mayhorn, 720 N.W.2d 776, 785 (Minn.
2006). Prosecutorial misconduct is
harmless beyond a reasonable doubt if the verdict rendered was surely
unattributable to the error. Id.
the defendant failed to object to the prosecutorial misconduct, a new trial
will be granted only if the misconduct was plain error. Ramey,
721 N.W.2d at 299. The plain-error
doctrine has three components: (1)
error, (2) that is plain, and (3) that affects substantial rights. Id. at 298. An error is plain if it is clear or obvious
under current law. Johnson v. United States,
520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997).
An error would be clear or obvious if it contravenes caselaw, a rule, or
a standard of conduct. Ramey, 721 N.W.2dat 302. A prosecutor’s
misconduct affects substantial rights if there is a reasonable likelihood that
it would have had a significant effect on the verdict of the jury. Id. The state bears the burden of showing that
error does not affect substantial rights.
The state must therefore show that there was no reasonable likelihood that the misconduct wouldhave had a significant effect on the
the defendant establishes that the prosecutor’s actions constitute plain error,
and the state is unable to meet the burden of showing that there is no
reasonable likelihood of a significant effect, the appellate courts then assess
whether the error should be addressed to “ensure fairness and the integrity of
the judicial proceedings.” Id.;
Mayhorn, 720 N.W.2d at 785.
his brief, Washington
alleges a wide range of prosecutorial misconduct, primarily in closing
argument. We have carefully reviewed the
record as it relates to these allegations, and we conclude that Washington has failed to
identify any prosecutorial misconduct.
establishes that it is error for a prosecutor to disparage the defense or the
defendant. State v. Bailey, 677 N.W.2d 380, 403 (Minn.
2004); State v. Griese, 565 N.W.2d
419, 427 (Minn. 1997). It is also error for the prosecutor to give
his or her own opinion about the credibility of a witness. Mayhorn,
720 N.W.2d at 791.
Washington contends that
he was denied a fair trial by the prosecutor’s plain error of calling him a
liar in closing argument when referring to his prior conviction for providing
false information to a police officer.
recognize that, in some cases, it is misconduct to suggest that the witness was
lying because it injects into the trial the prosecutor’s own opinion on the
credibility of a witness. In Mayhorn, the prosecutor suggested that a
witness was lying and also stated that Mayhorn “admits that he is a habitual
at 788-89. The Minnesota Supreme Court
concluded that it was prosecutorial misconduct to provide a personal assessment
of the witness’s credibility. Id.
at 791. But we do not interpret that
holding to apply in all circumstances in which a prosecutor suggests that a
witness or a defendant is a liar. In
this case, unlike in Mayhorn, Washington’s
prior conviction for providing false information had been admitted for
impeachment purposes. The prosecutor’s
statement therefore had a clear basis in the record. In arguing credibility, the prosecutor could
properly point out to the jury that a person who has lied in the past is more
likely to lie again. Under these
circumstances, the prosecutor did not commit misconduct.
prosecutor may also commit misconduct by giving personal assessments of the
evidence. State v. Porter, 526 N.W.2d 359, 364 (Minn.
1995). In some cases, the use of the
first-person pronoun “I” during closing arguments can improperly interject
personal opinion into an argument. Ture v. State, 681 N.W.2d 9, 20 (Minn. 2004). In
this case, however, the prosecutor’s use of the first-person statements did not
interject personal opinion. Although the
prosecutor’s closing argument contains a number of first-person statements,
these statements are not directed to an evaluation of the validity of the
evidence. The use of the first-person
statements is more attributable to an awkward construction than to an attempt
to gain unfair advantage or improperly use the weight of public office.
prosecutor may not speculate about events that occurred either at the time of
the alleged crime or thereafter, absent a factual basis in the record. State
v. Bradford, 618 N.W.2d 782, 799 (Minn.
2000). In closing argument, the
prosecutor acknowledged that there was no evidence that LR’s account of the
events changed because of Washington’s
actions. Although the prosecutor may
have suggested that Washington’s conversations
with LR affected her recantation, this was a legitimate inference from the
evidence that LR’s account of the events changed after Washington talked to her. The prosecutor may comment on reasonable
inferences that can be drawn from the record.
State v. Ashby, 567 N.W.2d 21,
28 (Minn. 1997).
addition, we note that Washington’s
defense was that LR did not testify because her initial statements to the
police were false. A prosecutor can
properly anticipate the defense’s theory of the case and point out that the
defense’s theory cannot explain certain facts.
State v. Whittaker, 568 N.W.2d
440, 451 (Minn. 1997). By emphasizing that Washington had talked to LR since the
incident, the prosecutor properly responded to, and pointed out, weaknesses in
the defense’s theory.
Washington points to
three statements by the prosecutor that he claims mischaracterize the evidence
or make arguments unsupported by the record.
In fact, each of these statements has clear support in the record. First, the prosecutor said, “[Y]ou’ve heard
it from this defendant. So no one is
disputing that something occurred on this date.” This statement was properly based on Washington’s testimony
that he went to LR’s apartment on April 11.
Second, the prosecutor said LR was “crying, upset while the officers
were there talking with her.” This
statement is supported by the police testimony that “she was upset, she was
crying.” Third, the prosecutor asked,
“Didn’t he admit today that he had spoken to her several times since April
12th?” This statement is supported by Washington’s response
when the prosecutor asked if he had communicated with LR more than once since
April 12. Washington answered that he had.
Washington argues that
it was misconduct for the prosecutor to replay the 911 tape during closing
arguments. He provides essentially no
argument why this was misconduct. Instead,
he cites two cases, not involving prosecutorial misconduct, in which tapes were
replayed during jury deliberations. The
argument replicates his objection to the jury having access to the tapes in the
jury room, which we address in the next section of this opinion.
Washington does not
point to any particular incidents in which the prosecutor injected emotion into
the case. Instead, he simply states, “As
the excerpts from her closing clearly demonstrate, the prosecutor encouraged
sympathy for LR in multiple ways.” In
fact, we can find no evidence that the prosecutor encouraged sympathy for LR in
any improper way.
Washington also argues
that the prosecutor committed misconduct by improperly indoctrinating the jury
during voir dire. Washington made a number of objections to
the prosecutor’s questions and made a motion for a mistrial based on the
questions. Although Washington objects to a long list of the
prosecutor’s questions, we can find no evidence of error. The prosecutor’s questions were uniformly
directed at the legitimate purpose of identifying bias. She could legitimately ask questions about how
jurors would view a victim’s refusal to testify. See Minn. R. Crim. P. 26.02, subd. 4(1) (providing that “voir
dire examination shall be conducted for the purpose of discovering bases for
challenge for cause and for the purpose of gaining knowledge to enable an
informed exercise of peremptory challenges”). We therefore conclude that the record reflects
no error in voir dire.
misconduct argument is that the district court erred by not making a verbatim
record of the jury voir dire. Under
Minn. R. Crim. P. 26.02, subd. 4(1), a “verbatim record of the voir dire
examination shall be made at the request of either party.” There is no evidence that a record was
requested before voir dire began. Hence,
the district court did not err by not providing for a verbatim record of the
Mayhorn and Ramey, the defendant must still demonstrate prosecutorial
misconduct by establishing error that is obvious under current law. Washington
has failed to meet this threshold in any of his allegations. We therefore conclude that Washington was not denied his right to a
fair trial by prosecutorial misconduct and that a new trial is not required.
Minn. R. Crim. P. 26.03, subd. 19(1), the district court “shall permit the
jury, upon retiring for deliberation, to take to the jury room exhibits which
have been received in evidence, or copies thereof, except depositions and may permit
a copy of the instructions to be taken to the jury room.” Despite the “shall” language, district courts
must exercise caution and discretion when deciding whether an exhibit can be
brought into the jury room. State v. Kraushaar, 470 N.W.2d 509, 515
Washington argues that the jury should not have been permitted access to
the tape in the jury room because (1) the tape was a deposition, (2) having the
tape in the jury room denied Washington effective assistance of counsel, and
(3) having the tape in the jury room was unduly prejudicial. We disagree.
the tape was not a deposition under Minn. R. Crim. P. 26.03, subd. 19(1). A “deposition” under the rule is either a
deposition taken to preserve testimony or a comparable document. Id. In this case, the primary purpose of the 911
call was to obtain police assistance, not to preserve testimony. And the 911 call was obviously not a planned
statement in the manner of a deposition. Therefore, the 911 recording is insufficiently
akin to a deposition to be barred by rule 26.03.
having the tape in the jury room did not deny Washington effective assistance of
counsel. If a court brings the jury into
the courtroom and replays a recording, the defendant may have a right to be
present and a right to effective assistance of counsel. United States v. Felix-Rodriguez, 22 F.3d 964, 967
(9th Cir. 1994); United States v. Kupau, 781 F.2d 740, 743 (9th Cir.
1986). The jury was not brought into the
courtroom, and the defendant does not have a right to be present during the
actual jury deliberations.
permitting the jury to review the tape was not unduly prejudicial. In some cases, it might be unduly prejudicial
to permit a jury to review a tape on its own because it could result in an
improper focus on one aspect of the evidence.
See, e.g., United States v. Binder, 769 F.2d 595, 600-01 (9th Cir. 1985); Kraushaar, 470 N.W.2d at 517
(Tomljanovich, J., dissenting). But
allowing a tape in the jury room will not result in undue prejudice in every
case. See Binder, 769 F.2d at 600 (analysis depends on “facts and
circumstances of the case”).
911 recording in this case was made shortly after the first assault, and the
tape apparently recorded a second assault in progress. The recording was therefore highly probative of
whether LR was actually assaulted. On
this record we cannot conclude that the jury’s access to the tape resulted in
undue prejudice or that the district court abused its discretion by allowing
the jury to have access to the tape during their deliberations.
rulings rest within the sound discretion of the district court. State
v. Moua, 678 N.W.2d 29, 37 (Minn.
2004). We will not reverse a district
court’s evidentiary ruling unless it is a clear abuse of discretion resulting
in prejudice. Johnson v. Washington County, 518 N.W.2d 594, 601 (Minn.
Washington raises four challenges
to the district court’s evidentiary rulings.
We conclude, however, that the district court did not abuse its
there was adequate foundation to admit the 911 tape. Under Minn. R. Evid 901(a), the “requirement
of authentication or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to support a finding that the matter in
question is what its proponent claims.”
state claimed that the tape was a recording of LR speaking. The police arrived at the apartment within
five minutes of the 911 call. They spoke
to LR and she acknowledged calling 911.
She described the same assault.
This was sufficient evidence to find that the 911 caller was LR. There was thus adequate foundation for the
we disagree that the 911 operator provided improper opinion testimony that
requires a new trial. The 911 operator
testified that she believed the caller was being assaulted and also testified
to her understanding of the recording. The
911 operator’s testimony was “rationally based” on her perceptions and was
helpful to the jury. Therefore, her
opinions were admissible under Minn. R. Evid. 701. In addition, we note that Washington failed to object to this
testimony. The failure to object
generally constitutes waiver of an evidentiary issue on appeal. State
v. Vick, 632 N.W.2d 676, 684 (Minn. 2001).
we reject Washington’s argument that the officers’
references to having previously met him were irrelevant and unfairly
prejudicial. The state had to prove that
the defendant was the person who committed the crime. The officers’ familiarity with Washington was relevant
because it allowed them to identify the defendant as the person who LR reported
was at the apartment. Because LR did not
testify, the officers were the witnesses who identified Washington.
At the pretrial hearing, Washington
was informed about this testimony and he did not object. The district court therefore did not abuse
its discretion by permitting the testimony.
Washington’s fourth evidentiary
challenge is to the state’s use, for impeachment purposes, of his prior
convictions for receiving stolen property and providing false information to
police. Because Washington did not object and has not
demonstrated plain error, he has failed to preserve this issue for appeal. Vick,
632 N.W.2d at 684. In addition, we note
that the convictions were first introduced by Washington’s attorney. The state thus had a right to respond, and
the prosecutor could ask about the convictions.
State v. Gutierrez, 667 N.W.2d
426, 435-36 (Minn. 2003). We therefore can find no abuse of discretion.
considering a claim of insufficient evidence, this court reviews the record to
determine whether the evidence, when viewed in the light most favorable to the
conviction, was sufficient to allow the jurors to reach the verdict which they
v. Fields, 679 N.W.2d 341, 348 (Minn.
2004). The reviewing court must assume
the jury believed the state’s witnesses and disbelieved any evidence to the
contrary. State v. Taylor, 650 N.W.2d 190, 206
Washington argues that
there was insufficient evidence to convict him because LR changed her
story. Although LR initially stated that
she had been assaulted, she later denied being assaulted and she refused to
testify. A reasonable jury, however,
could conclude that LR was telling the truth at first and was not telling the
truth later. Therefore, based on LR’s
initial statements and strong circumstantial evidence that supported the
initial statements, the evidence was sufficient to convict Washington.
Washington argues that
“because both convictions were based on the same behavior . . . the
sentences should have merged into one conviction.” Washington’s
contention may have some merit, but his
brief provides neither argument nor authority for his position. The issue is therefore waived. See State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002) (finding waiver of issues not supported by
argument or authority).
about jail credit is similarly waived. The
record contains no information on the jail credit that Washington should receive. If Washington’s
jail-credit issue cannot be resolved administratively through the jail, he may
file a motion to correct his sentence under Minn. R. Crim. P. 27.03, subd.
9. See State v. Stutelberg, 435 N.W.2d 632, 634 (Minn. App. 1989) (permitting sentencing challenges under rule
27.03 despite previous, unsuccessful challenges).
D E C I S I O N
Washington was not
denied his right to confront witnesses against him when the district court
admitted LR’s statements into evidence.
In addition, we conclude that Washington
has failed to provide threshold evidence of plain error in the form of prosecutorial
misconduct, the 911 recording was properly allowed in the jury room, the
district court did not abuse its discretion when making evidentiary rulings,
there was sufficient evidence to convict Washington,
sentencing arguments are waived.