This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Barrie Allen Skweres,
Martin County District Court
File No. K599801
Mike Hatch, Attorney General, Natalie E. Hudson, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Terry W. Viesselman, Martin County Attorney, 923 North State Street, Suite 103, Fairmont, MN 56301 (for respondent)
John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.
Appellant challenges his convictions of second-degree burglary, two counts of second-degree attempted burglary, and possession of burglary tools, on the grounds that the trial court erred by (1) allowing a police officer to testify concerning the out-of-court statements of some nearby roofers, and (2) denying his motion for a new trial when an officer testified that he knew the appellant because he had had “previous contact” with him and because two jurors knew that appellant had previously been “in trouble.” Because we conclude that it was harmless error for the trial court to admit the hearsay testimony and that the trial court did not abuse its discretion by denying appellant’s posttrial motion, we affirm.
Appellant Barrie Allen Skweres, Todd Meyer, and Barbara Malcolm were residents in the Friendship Village apartment complex in Fairmont. Appellant lived next door to Meyer and the three sometimes socialized together. On October 31, 1999, Meyer was going to be gone overnight, a fact known to both Malcolm and appellant. They also knew that Meyer sometimes kept money in one of his dresser drawers. Just days before Meyer made the trip on October 31, he loaned appellant $5 on one occasion and $20 another time. Appellant asked Meyer for another loan on October 31, but Meyer said no.
On November 1, 1999, Malcolm decided to walk to a nearby gas station to buy cigarettes. Knowing that Meyer was gone, she made a point of walking behind Meyer’s apartment. She saw nothing wrong.
On her way back, Malcolm again looked at Meyer’s unit. At that time, Meyer’s sliding-glass patio door was wide open and the curtains were shut. Malcolm walked closer and yelled, “What the--is going on.” Receiving no answer, Malcolm called again. Appellant then stepped out from behind the curtain, holding a severely bent screwdriver and some silver metal that was later determined to be part of the door’s lock. Appellant appeared to Malcolm to be nervous. Appellant asked Malcolm if she saw “them two kids running.” Malcolm said that she had not seen anyone in the area and asked appellant if he had called the police. He replied that he had not because his cell phone was not working.
Malcolm went to the apartment’s main office to call the police and appellant followed. When an employee at the office suggested that appellant make the call because he had arrived first at Meyer’s apartment, he did so. Malcolm and appellant then returned to Meyer’s apartment to wait for the police. Appellant again asked Malcolm if she had seen the two kids running away and she again said that she had not. When the police arrived and talked with appellant, he denied any involvement in the break-in and told Officer Greg Brolsma that he had seen two men and one woman running away from the apartment.
Following the investigation, appellant was charged with second-degree burglary under Minn. Stat. § 609.582, subd. 2(a) (1998); second-degree burglary with the use of tools under Minn. Stat. § 609.582, subd. 2(d) (1998); attempted second-degree burglary under Minn. Stat. §§ 609.582, subd. 2(a), 609.17 (1998); attempted second-degree burglary with the use of tools under Minn. Stat. §§ 609.582, subd. 2(d), 609.17; possession of burglary tools under Minn. Stat. § 609.59 (1998); and trespass under Minn. Stat. § 609.605, subd. 1(b)(4) (1998). The trespass charge was later dropped.
Officer Brolsma was called by respondent at trial. When asked if he knew appellant, Officer Brolsma stated, “Yeah, I knew who [he] was from previous contact.” Appellant did not object. In response to a later question on direct examination, Officer Brolsma testified that his partner had interviewed three roofers who were working in the area on the morning of the incident and that the roofers said that “they had not seen anybody run anywhere.” Appellant objected to the testimony as hearsay, but the court overruled the objection on the ground that the testimony was “general investigatory information.”
The jury convicted appellant of all charges. Before sentencing, appellant moved for a new trial based on two allegations of jury misconduct: (1) that two of the jurors knew appellant had been “in trouble” in the past, had not been forthcoming about their knowledge in voir dire, and had told the other jurors about appellant’s criminal history; and (2) that some jurors may have personally visited the crime area. The trial court conducted a Schwartz hearing and found that, if one or two jurors realized that they knew appellant had been in trouble in the past, it was not until they recognized appellant well into the trial, and, therefore, no one committed perjury during voir dire. The court further determined that whatever information those jurors had was not shared with the other jurors until after the panel had completed its deliberations and returned a verdict. With respect to the allegation that some jurors had acted contrary to the trial court’s instruction not to conduct any independent investigation, the court found that the conduct consisted of nothing more than driving by the apartment complex on the adjacent highway. As a result, the court concluded that there was no jury misconduct and denied appellant’s motion.
The court sentenced appellant to 23 months, but stayed execution of the sentence for 10 years. This appeal follows.
D E C I S I O N
Appellant first argues that the trial court committed reversible error by permitting Officer Brolsma to testify about the roofers’ statements because the testimony was hearsay and there was no showing of the declarants’ unavailability or the trustworthiness of the statement that might otherwise permit the statement to come in as an exception to the hearsay rule. Appellant asserts that this error impacted the verdict and that his conviction should, therefore, be reversed. Appellant also argues that his constitutional right to confront his accuser was violated.
This court will not reverse a trial court on evidentiary matters unless there is a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). When asked on direct examination if he interviewed anyone working nearby, Officer Brolsma testified that his partner, Officer Spee, spoke with some roofers in the area who said that they “had not seen anybody run anywhere.” Appellant objected to this as hearsay, but the court overruled his objection on the grounds that “[i]t’s general investigatory information.” Officer Spee was later asked the same question, without an objection, and he answered, “they [the roofers] stated they had been there and they hadn’t seen anyone.”
Appellant’s failure to object to Officer Spee’s testimony does not affect his ability to appeal from the trial court’s ruling related to Officer Brolsma’s testimony. But because he objected only on hearsay grounds, we do not consider his claim that his constitutional right to confront his accuser was violated. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that on appeal a party cannot raise a new theory regarding an issue raised below). Therefore, our inquiry is limited to whether Officer Brolsma’s statement violates the hearsay rule and if so, whether it requires reversal.
The hearsay rule generally bars an out-of-court statement that is offered for the truth of the matter asserted. Minn. R. Evid. 801, 802. But there are several exceptions to the rule, as well as a general catchall exception. Minn. R. Evid. 803, 804. To satisfy the catchall exception, the court must determine that the statements are marked with “circumstantial guarantees of trustworthiness” and are material, more probative than prejudicial, and serve the interests of justice. Minn. R. Evid. 803(24), 804(b)(5).
Here, the trial court allowed the officer to testify about the roofers’ statements because they were deemed to be “general investigatory information.” The trial court made no findings as to the statements’ trustworthiness. There seems to be no question that the testimony was hearsay. It was offered to prove the truth of the matter asserted, i.e., that there was no one running from Meyer’s apartment as appellant claimed, and, as impeachment of appellant’s inconsistent statements to Malcolm and the police. Although the officers recorded the names and addresses of the roofers, the state made no showing of their unavailability to testify at trial. Therefore, we conclude that the trial court erred by allowing this testimony into evidence.
But even if the trial court did err, we will not disturb the verdict unless there is a reasonable possibility that the error significantly affected the outcome. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). Thus, if the jury’s verdict was “surely unattributable” to the error, then it was not prejudicial and reversal is inappropriate. State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997) (quotation omitted).
The jury heard a great deal of testimony implicating appellant. There was evidence that appellant wanted an additional loan from Meyer, that appellant knew that Meyer was out of town, and that he knew where Meyer kept his money. Malcolm testified that, within a few minutes of the time that she initially walked by Meyer’s apartment, she found that the patio door had been opened, with no sign of anyone in the area. When Malcolm approached and yelled inside, appellant came out, acting nervous, and holding a severely bent screwdriver and part of the broken lock. Finally, the jury heard evidence of the inconsistent stories that appellant told Malcolm and the officers about the individuals he saw fleeing the area.
In light of the strong evidence implicating appellant, there is no reasonable possibility that Officer Brolsma’s hearsay testimony significantly affected the jury’s verdict. Therefore, although we conclude that the trial court erred by allowing Officer Brolsma to testify as to hearsay statements, the error was not so prejudicial as to warrant reversal.
Appellant next argues that the cumulative effect of Officer Brolsma’s “previous contact” statement and juror misconduct requires that he receive a new trial. See State v. Underwood, 281 N.W.2d 337, 344 (Minn. 1979) (stating that while one error may not compel a reversal, the cumulative effect of several errors may be sufficient).
A. Officer Brolsma’s Statement.
Appellant contends that it was error to allow Officer Brolsma to testify that he knew appellant from a “previous contact.” Although appellant did not object to this statement at trial, he argues that it violated his right to due process because of the inherent inference that appellant had committed other crimes and was, therefore, guilty of this charge. Appellant asserts that he did not object to the officer’s testimony because the “cat was out of the bag,” and he felt that there was little he could do to rectify the situation.
Generally, failure to object to evidence at trial precludes a party from challenging its admittance on appeal. Van Buren v. State, 556 N.W.2d 548, 551 (Minn. 1996). But this court has discretion to review such claims when (1) there is error, (2) it is plain, and (3) it affects substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). We will reverse only if the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” State v. Crowsbreast, 629 N.W.2d 433, 437 (Minn. 2001) (quotations omitted).
Officer Brolsma’s comment does not necessarily imply that his past contact with appellant occurred in a criminal context, particularly in light of the fact that Fairmont is a smaller community and the two might have met through their children’s schools, sports, or community activities.
We have held that it was not error for an officer to testify at trial that he knew a defendant if the comment was made in a passing manner that did not imply that the defendant was a criminal, and the evidence was so strong that the possibility of prejudice was slight. State v. Stanifer, 382 N.W.2d 213, 218 (Minn. App. 1986). Because the evidence against appellant in this case was strong, the potential for this isolated comment to have resulted in prejudice to appellant was small. Therefore, it was not error.
B. Juror Misconduct.
Appellant claims two instances of juror misconduct: (1) that one juror knew of his criminal “past” and relayed the information to the other jurors, thereby tainting the verdict, and (2) that some jurors visited the site of the burglary during the trial.
The trial court has broad discretion in its ruling on a motion for a new trial based on juror misconduct and this court will not reverse its decision absent an abuse of that discretion. State v. Landro, 504 N.W.2d 741, 745 (Minn. 1993).
At the Schwartz hearing, 11 of the 12 jurors testified. Of those, eight said that they heard references to the fact that appellant had been “in trouble” from two members of the panel after the verdict had been reached. One juror testified that she did not realize until well into the trial that she knew appellant’s ex-wife and that she only told the others after they reached a verdict. Another juror stated that she realized mid-trial that she knew appellant’s ex-wife, but that the other jurors were not informed of this until after the verdict.
Appellant argues that because “there is simply no way of determining how this affected [the jurors who knew that appellant had been in trouble],” the court abused its discretion in denying his motion for a new trial. We disagree.
When reviewing a trial court’s denial of a new-trial motion based on allegations of juror misconduct, this court looks at the following factors:
(1) the nature and source of the prejudicial matter; (2) the number of jurors exposed to the misconduct; (3) the weight of evidence; and (4) the likelihood that curative measures were effective in reducing the prejudice.
Landro, 504 N.W.2d at 745 (citation omitted). Two jurors testified in the Schwartz hearing that they realized mid-trial that they knew appellant through his ex‑wife and that they had nothing more than a general sense that appellant “had been in trouble before” or “had been in trouble with the law before.” One or both stated that the “trouble” was in relation to the dissolution/custody proceedings involving appellant and his ex-wife. It was not an instance where a juror had specific knowledge of a prior conviction. Further, there is no evidence from which to conclude that either juror was individually influenced by the realization or that either juror communicated any information to the other panel members until the deliberations were concluded. The trial court specifically found that the other jurors did not receive this information until after the panel reached a verdict and that there was “more than sufficient evidence to corroborate the jury’s verdict.” Based on our review of the record, we conclude that the trial court did not abuse its discretion in denying appellant’s posttrial motion.