This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-01-564

 

State of Minnesota,

Respondent,

 

vs.

 

Jacob Henry Francis Bird,

Appellant.

 

Filed November 20, 2001

Affirmed

Kalitowski, Judge

 

Anoka County District Court

File No. K30010506

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Robert M.A. Johnson, Anoka County Attorney, M. Katherine Doty, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)

 

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant challenges his conviction of third-degree assault contending the district court erred by:  (1) admitting the victim’s hearsay statements to police under the excited- utterance exception; (2) admitting the victim’s hearsay statements to appellant under the catch-all exception; (3) admitting evidence that contained a reference to appellant’s pending felony charge; and (4) by ruling appellant’s prior burglary convictions could come in if appellant testified.  We affirm. 

D E C I S I O N

I.

Appellate courts largely defer to the district court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).  Appellant contends that the district court abused its discretion by admitting the victim’s hearsay statements to the police as excited utterances. We disagree.

The excited-utterance exception is based on the theory that when “the declarant ‘blurts out’ something, it is [more] apt to be true.”  State v. Willette, 421 N.W.2d 342, 349 (Minn. App. 1988), review denied (Minn. May 16, 1988).  Determining whether the declarant was under the necessary “aura of excitement to ensure the trustworthiness of the statement” is within the sound discretion of the trial court.  State v. Berrisford, 361 N.W.2d 846, 850 (Minn. 1985).

The evidence supports the finding that the statement at issue qualifies as an excited utterance.  The victim made the statement at the hospital about an hour after appellant hit her in the face.  When the police officer began interviewing the victim she was hysterical.  When he subsequently took her statement she was still crying and breathing heavily, and her mouth was bleeding.  We are mindful that courts must be especially careful in admitting statements by victims in response to police questioning.  But because the district court was in the best position to evaluate the facts, we conclude the district court did not abuse its discretion in finding the victim’s statements to the police qualified as excited utterances.

II.

            “Evidentiary rulings generally rest within the [district court’s] discretion and will not be reversed absent a clear abuse of discretion.”  State v. Shannon, 583 N.W.2d 579, 583 (Minn. 1998).  Minn. R. Evid. 804(b)(5) (2000), commonly referred to as the catch-all exception, provides that if the declarant is unavailable as a witness, the hearsay rule does not exclude “[a] statement not specifically covered by any of the forgoing exceptions but having equivalent circumstantial guarantees of trustworthiness * * * .”  Id.  A declarant is unavailable if she is “absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance * * * by process or other reasonable means.”  Id.  The state must show that a good-faith effort was made to procure the witness’s presence, which is a question of reasonableness.  Ohio v. Roberts, 448 U.S. 56, 74, 100 S. Ct. 2531, 2543 (1980).  

            Appellant contends the district court erred in determining that the victim was unavailable and in allowing her statements to appellant into evidence under the catch-all exception.  We disagree.  The state personally served the victim at her home with a subpoena to testify.  When she did not appear at trial, a warrant was issued for her arrest.  The state and the court took other actions to get the victim into court, but there was evidence indicating she deliberately avoided testifying at trial.  The district court is in the best position to determine whether a witness is unavailable, and on these facts we cannot say the court abused its discretion.  

Having first determined a witness is unavailable the court must determine whether a hearsay statement may be admitted without violating a criminal defendant’s Sixth Amendment rights.  To do this the state must prove “that the statement bears adequate ‘indicia of reliability’ for it to be admissible.”  State v. King, 622 N.W.2d 800, 807 (Minn. 2001).

            In determining whether a statement has particularized guarantees of trustworthiness, the court examines the totality of the circumstances that surround the making of the statement.  State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995).  Here, the victim made the statements to appellant during a taped phone conversation.  There is no evidence that the victim had any motive to make untrue statements during this conversation.  Moreover, during the course of the taped conversation appellant at no time questioned the accuracy of the victim’s statements.  We conclude the district court did not abuse its discretion in determining that these statements had an adequate indicia of reliability.

III.

            Appellant contends the district court committed reversible error in refusing to redact evidence of appellant’s criminal background from a letter introduced at trial.  We disagree.

            The district court has broad discretion in matters concerning the relevancy of evidence.  State v. Swain, 269 N.W.2d 707, 714 (Minn. 1978).  Evidence is relevant if it tends to prove or disprove a fact at issue in trial.  State v. Lee, 282 N.W.2d 896, 901 (Minn. 1979).

            Here, the letter, as a whole, is relevant to show that appellant assaulted the victim and asked her not to show up for trial so his case would be dismissed.  This evidence relates directly to the substantive issues of the case and appellant’s veracity.  The incidental reference in the letter to appellant’s pending felony charge was not relevant to the substantive issues of the case.  But appellant subsequently offered evidence that he was a convicted felon, so the reference to the pending felony was cumulative, not prejudicial, and not reversible error.  See State v. Garcia, 374 N.W.2d 477 (Minn. App. 1985), review denied (Minn. Nov. 1, 1985) (holding a letter written by defendant in which he referred to himself as a rapist was admissible because the jury had access to the whole letter, not just selected portions, and the contents of the letter were cumulative to the testimony).

IV.

            Appellant contends the district court erred when it ruled it would allow his prior burglary convictions in for impeachment purposes if appellant chose to testify.  The district court’s ruling on the impeachment of a witness by prior conviction is reviewed under a clear abuse of discretion standard.  State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998).  Evidence of prior convictions may be admissible to impeach a defendant’s testimony if the underlying offenses are less than ten years old, punishable by imprisonment in excess of one year, and the “court determines the probative value of admitting this evidence outweighs its prejudicial effect.”  Minn. R. Evid. 609 (a) (2000).

            Evidence of a prior conviction is probative of credibility and truthfulness.  State v. Brouillette, 286 N.W.2d 702, 708 (Minn. 1979).  The primary purpose behind allowing evidence of prior convictions is to assist the jury “to judge better the credibility of a witness by affording it the opportunity to view that person as a whole.”  State v. Lloyd, 345 N.W.2d 240, 247 (Minn. 1984).  Even though a prior crime does not involve dishonesty, it is still probative of credibility and truthfulness.  Brouillette, 286 N.W.2d at 708.  Moreover, Minn. R. Evid. 609 sanctions the use of felonies that are not directly related to truth or falsity for purposes of impeachment.

            The fact that appellant’s prior convictions were all for burglary, unlike the current charge of assault, also weighs in favor of the district court’s decision.  See State v. Bettin, 295 N.W.2d 542, 546 (Minn. 1980) (noting that if past crime is too similar to present crime the jury may use the evidence substantively rather than for impeachment).  In addition, we note that although appellant chose not to testify, the jury heard his alibi through the testimony of his friend.  See Lloyd, 345 N.W.2d at 246 (stating the jury heard defendant’s version of what happened from police officer testifying about defendant’s statement).  On these facts, we conclude the district court did not abuse its discretion.

Affirmed.