This opinion will be unpublished and

may not be cited except as provided by

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






State of Minnesota,





Randall Carroll Hongerholt,



Filed January 29, 2002

Affirmed; motion granted

Gordon W. Shumaker, Judge


Fillmore County District Court

File No. T3002608


Mike Hatch, Attorney General, 102 Capitol Building, Aurora Avenue, St. Paul, MN 55155; and


Eric V. Herendeen, Assistant Fillmore County Attorney, P.O. Box 307, Preston, MN 55965 (for respondent)


Daniel J. Moulton, Moulton Law Office, 976 14th Avenue S.W., Rochester, MN 55902 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant contends that the district court committed reversible error by excluding from evidence a hearsay statement that qualified for admission under the exceptions in Minn. R. Evid. 803(24) and 804(b)(3).  Because appellant failed to satisfy the requirements of either exception, we affirm.  We also grant respondent’s motion to strike references to alleged conversations that are not in the record.


            Appellant Randall Hongerholt was convicted of failure to yield the right-of-way.  On October 9, 2000, he drove his semi-tractor/trailer north along trunk highway 250 until he reached the intersection of highway 30.  The intersection is controlled by stop signs for highway 250 traffic.  Highway 30 is not controlled.

            Hongerholt stopped and claims he looked left and right for highway 30 traffic.  Because of a dip in the road on highway 30, there is a blind spot to the west.  When Hongerholt saw no approaching traffic from either direction, he continued to drive north across the intersection.  About five seconds after he started, a pickup truck driven by Gary Bollie collided with the left side of Hongerholt’s semi-tractor/trailer.

            Bollie, a resident of McAllen, Texas, allegedly told an ambulance driver who arrived on the scene that he had his cruise control set at 75 mph just before the collision.

            The state charged Hongerholt with failure to yield the right-of-way, and the district court found him guilty after a bench trial.

            Bollie did not appear for trial.  Hongerholt offered Bollie’s hearsay statement about his speed before the collision under Minn. R. Evid. 804(b)(3) and 803(24).  The court sustained the state’s objection, ruling that Hongerholt had not shown that Bollie was unavailable for trial, as required for admission under rule 804(b)(3), and that the circumstances did not meet the general hearsay exception under rule 803(24).

            Hongerholt appeals his conviction, alleging as prejudicial error the district court’s refusal to admit Bollie’s hearsay statement.  Respondent moves to strike references in appellant’s brief to conversations between appellant’s attorney and the prosecutor on the ground that the conversations are not part of the record.


            Appellate courts largely defer to the district court’s evidentiary rulings and will not reverse them absent a clear abuse of discretion.  State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

1.         Rule 804(b)(3) Hearsay Exception

            Hongerholt does not dispute the characterization of Bollie’s statement as hearsay.  Hearsay evidence is not admissible at trial unless it is allowed under an exception in a rule or a statute.  Minn. R. Evid. 802.

            The first exception under which Hongerholt offered Bollie’s statement is found in Minn. R. Evid. 804(b)(3), which allows hearsay statements that are against the declarant’s pecuniary, proprietary, or penal interests:

A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.


            Hongerholt argues that Bollie’s admission that he had his cruise control set at 75 mph, which presumably is in excess of the speed limit, is against Bollie’s interest because he could be cited for speeding; and also, by traveling at an excessive speed, he forfeited the right-of-way he otherwise would have.  See Minn. Stat. § 169.20, subd. 1(d) (2000) (“The driver of any vehicle traveling at an unlawful speed shall forfeit any right-of-way which the driver might otherwise have hereunder.”).

            Bollie’s alleged admission that he violated the speed law would expose him to criminal liability.  Furthermore, in an action for damages resulting from the collision, Bollie’s alleged admission could expose him to civil liability and thus would be contrary to his pecuniary interest.  We hold that Bollie’s statement satisfied the rule 804(b)(3) requirement of being against the declarant’s pecuniary and penal interest.

            However, it is not sufficient for admissibility that the statement merely be against the declarant’s interest.  There are other preconditions to admissibility.  First, a statement against penal interest must be corroborated:

A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.


Minn. R. Evid. 804(b)(3).

            The parties adduced accident-reconstruction testimony at trial that focused on both physical evidence, such as skid marks, distances, speeds, and travel times, and expert opinion.  From the expert testimony and physical evidence, a plausible argument might be made that Bollie was speeding just before the collision.  Thus, we hold that the precondition of corroboration was satisfied.

            The next precondition to admissibility of statements against either penal or pecuniary interest is that the declarant be “unavailable as a witness.”  Minn. R. Evid. 804(b).  A declarant may be unavailable if the proponent of his statement is unable to obtain his attendance or testimony for trial:

[The declarant] is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.


Minn. R. Evid. 804(a)(5).

            Hongerholt argues that his attorney discussed Bollie’s testimony with the prosecutor and “the prosecutor assured Defendant/Appellant’s attorney that Bollie was expected to testify at trial” and that Bollie had been subpoenaed.  Hongerholt’s attorney doubted that Bollie could be subpoenaed, but, allegedly relying on the prosecutor’s assurances, Hongerholt’s attorney took no further steps to secure Bollie’s testimony.  The record indicates that the prosecutor and Hongerholt’s attorney discussed Bollie’s testimony, but there is nothing in the record to support Hongerholt’s statement that the prosecutor made assurances that Bollie would appear.

            The “crucial factor is not the unavailability of the witness but rather the unavailability of the witness’s testimony.”  4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence, § 804(a)[01], at 804-41 (1994).  See Walden v. Sears, Roebuck & Co., 654 F.2d 443, 446 (5th Cir. 1981) (deposition of injured minor who suffered memory loss afterward should have been admitted because the crucial factor is the unavailability of declarant’s testimony, not the unavailability of the declarant personally).  “[A] witness will not be deemed unavailable if his testimony can be procured by reasonable means, e.g., by taking his deposition.”  Minn. R. Evid. 804(a) 1989 comm. cmt.  See also Minn. R. Crim. P. 21.06, subd. 1 (deposition, admissible under the rules of evidence, may be used at trial if party cannot procure attendance of witness by subpoena, court order, or other reasonable means).

It is not enough that a declarant’s testimony is unavailable, but rather the proponent must show a diligent, good-faith effort to obtain the testimony.  See State v. French, 400 N.W.2d 111, 116 (Minn. App. 1987) (deciding unavailability requirement not met because prosecutor made no good-faith effort to secure witness’s attendance at trial), review denied (Minn. Mar. 25, 1987).           

Despite his doubts as to the state’s ability to secure Bollie’s attendance through a subpoena, Hongerholt made no attempt to either verify that Bollie would appear for trial or to obtain his testimony in any other way.  Accordingly, the district court did not abuse its discretion in ruling that, because Hongerholt failed to show Bollie’s unavailability, Bollie’s hearsay statement against interest under Minn. R. Evid. 804(b)(3) was not admissible.

2.         Rule 803(24) Hearsay Exception

            The “catchall” or residual hearsay exceptions in Minn. R. Evid. 803(24) and 804(b)(5) presume that no express exception exists.  The residual exceptions promote “the continued development of exceptions to the hearsay rule” and define “ the common law power of the judge to fashion new exceptions to the hearsay doctrine.”  Minn. R. Evid. 803(24) 1989 comm. cmt.

            Because Hongerholt identified an express exception to the hearsay prohibition against the admissibility of Bollie’s statement, it is doubtful that he can now rely on a residual exception to secure admission of the statement.  But even if he is entitled to do so, rule 803(24) conditions the admissibility of Bollie’s statement on a showing that it has circumstantial guarantees of trustworthiness equivalent to the express exceptions in rule 803 and “the general purposes of these rules and the interests of justice will best be served.”  Minn. R. Evid. 803(24); Minn. R. Evid. 803(24) 1989 comm. cmt.

            Because statements against interest, and several other rule 804 exceptions, are not considered as inherently trustworthy as the exceptions specified in rule 803, it is unlikely that Bollie’s statement possesses circumstantial guarantees of trustworthiness equivalent to those of the other rule 803 categories.  See 4 Weinstein, supra § 804(a)[01], at 804-40.

            Additionally, it is doubtful that the purpose of the rules of evidence or the interests of justice would be served by allowing a hearsay statement that cannot meet the prerequisites of the exception in which it fits to be received nevertheless under a more general exception.  Thus, the district court did not abuse its discretion in rejecting the offer of Bollie’s statement under rule 803(24).

3.         Motion to Strike

Respondent has moved to strike references in appellant’s brief to conversations indicating that the prosecutor made assurances that Bollie would appear at trial.  The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  A reviewing court will strike documents from a party’s brief if they are not a part of the appellate record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).  A court may selectively disregard improper references to evidence outside the record without striking the entire brief.  AFSCME, Council No. 14 v. Scott County, 530 N.W.2d 218, 222-23 (Minn. App. 1995), review denied (Minn. May 16, June 14, 1995).

At trial, counsel for appellant stated:


I have been assured by [the prosecutor] that he was sent a subpoena to Texas which I indicated out of court that it was beyond the State lines and was beyond the hundred mile rule and [the prosecutor] indicated that perhaps the gentleman would show.


* * * *


            I guess, your Honor, it was my impression from talking to the State that they were trying * * * to get him up here themselves and they didn’t have him available obviously because he’s not here.


Respondent objects to statements in appellant’s brief that repeatedly assert that during phone conversations prior to trial the prosecutor assured appellant’s attorney that Bollie had been subpoenaed and was expected to testify at trial.  The statements made by appellant’s counsel in the record suggest that conversations between the two attorneys took place, but disclose only that the prosecutor told appellant’s attorney “that perhaps the [witness] would show.”  If there were any assurances by the prosecutor that Bollie would testify, such assurances are outside the record on appeal, and, therefore, references to them must be stricken.

Affirmed; motion granted.