This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Edward Charles Pirsig,
Filed January 20, 2004
Robert H. Schumacher, Judge
Brian D. Roverud, Faribault County Attorney, 125 North Main, Post Office Box 5, Blue Earth, MN 56013 (for appellant/respondent state)
John M. Stuart, State Public Defender, Davi E. Axelson, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant/respondent Pirsig)
Considered and decided by Schumacher, Presiding Judge; Randall, Judge; and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
In this consolidated appeal, Edward Charles Pirsig challenges his theft convictions, arguing that (1) his Confrontation Clause rights were violated when his son David Pirsig's pretrial statement was admitted into evidence at their joint trial, (2) it was plain error to admit into evidence a hearsay statement made by David Pirsig, (3) there is insufficient evidence to support his convictions, and (4) the district court miscalculated his sentence. In a pro se brief, Pirsig also argues that the county attorney violated the Minnesota Rules of Professional Conduct and challenges the impaneling of an alternate juror. The state argues that the district court abused its discretion by imposing a downward dispositional departure. The district court erred by admitting David Pirsig's pretrial statement into evidence without redacting references to Edward Pirsig. We reverse and remand.
In 1995, Pirsig and his son ceased their own farming operations because of financial problems. They then entered into a seven-year custom-farming agreement with Paul and Charles More. Under the agreement, David Pirsig would continue to farm and to use his own equipment, but, because of his financial status, the Mores paid the upfront costs of land rental and crop inputs and paid David Pirsig by acreage and crop. Under the contracts, David Pirsig was required to cultivate the land and to plant, harvest, dry, store, and deliver the grain crop.
In 1996, the Mores installed a grain monitor in the combine used to harvest the grain under the custom-farming agreement. The grain monitor uses a global positioning system (GPS) to collect data on specific field locations and crop yields for those locations. The data collected from the GPS monitor can be downloaded onto a Geographic Information System (GIS) software application. The GIS takes the location data from the GPS and overlays it onto a map that identifies certain correlations such as soil types, combine swath width, and crop yields for a particular field location.
In 1997, the Mores learned that they were short approximately 12,000 bushels of grain from the 1996 crop. Based on information from David Pirsig, they initially believed the shortage was caused by grain damage and was within an acceptable 10% margin of error based on a large grain yield. But the Mores also noticed lower-than-expected yields from their crops in 1997 and 1998, and they eventually began to suspect that the Pirsigs were stealing their grain.
The Mores collected the data from the combine's grain monitor and had it analyzed. The analysis showed that the monitor had been shut off at various times during combine use across various fields. The analysis also revealed that the swath-width setting on the monitor, registering the width of the stroke of the combine's cutting blade, had been changed at various times without a corresponding change to the actual width of the combine blade. The changed settings resulted in an alteration of the crop-yield data.
David Pirsig sold grain under the name of D&D Farms to Midwest Soya in 1996, 1997, and 1998. Because Edward and David Pirsig had indicated on financial statements that they had no private grain to sell during those years, the state came to believe the Pirsigs stole from the Mores the grain sold to Midwest Soya. Edward and David Pirsig were charged with multiple counts of theft and conspiracy to commit theft. The complaint was amended, adjusting three counts tp theft of grain, valued at over $35,000, by swindle.
Edward and David Pirsig were jointly tried. Neither defendant took the stand, but part of David's contested omnibus hearing testimony was admitted into evidence over the objection of Edward's attorney. A jury found David Pirsig guilty of two counts of theft of grain by swindle, over $35, 000; 25 counts of theft of corporate property; and two counts of theft. David Pirsig appealed, and this court affirmed his conviction. See State v. Pirsig, 670 N.W.2d 610 (Minn. App. 2003). Edward Pirsig was convicted of two counts of theft of grain by swindle, over $35,000; 25 counts of theft by corporate property; and 2 counts of theft. He was sentenced to 39 months in prison. The court stayed execution of his sentence and placed him on probation. This consolidated appeal followed.
The Minnesota and federal constitutions both give a defendant in a criminal prosecution the right "to be confronted with the witnesses against him." Minn. Const. art. I, § 6; U.S. Const. amend. VI. The primary right guaranteed by the Confrontation Clause of the United States Constitution is the opportunity to cross-examine and impeach witnesses. State v. Pride, 528 N.W.2d 862, 865 (Minn. 1995). A defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. Bruton v. United States, 391 U.S. 123, 137 88 S. Ct. 1620, 1628 (1968). Whether the admission of evidence violates a defendant's right to confrontation is an issue we review de novo. State v. King, 622 N.W.2d 800, 806 (Minn. 2001). The admission of a hearsay statement of a nontestifying codefendant that incriminates the defendant may be harmless error. See State v. Blue, 327 N.W.2d 7, 11 (Minn. 1982); see also State v. Christian, 657 N.W.2d 186, 194 (Minn. 2003) (discussing harmless error in terms of prejudice from joinder).
Edward Pirsig argues that his right to confrontation was violated when David Pirsig's omnibus hearing testimony was improperly admitted into evidence without a proper limiting instruction at their joint trial because the testimony was, as to him, inadmissable hearsay that implicated him in the grain theft.
Hearsay is evidence of a declarant's out-of-court statement offered to prove the truth of what is asserted in the statement. Minn. R. Evid. 801(c). A codefendant's confession inculpating the accused is inadmissible against the accused as hearsay. State v. Gruber, 264 N.W.2d 812, 817 (Minn. 1978). In a joint trial, the court may alleviate the prejudice to the defendant from admission of his codefendant's prior statement by redacting references to the defendant. Minn. R. Crim. P. 17.03, subd. 3(2)(b). But that was not done here.
It is well settled that when evidence is admissible as to one codefendant and inadmissible hearsay as to the other, the jury should be cautioned to consider only the evidence properly admissible against each defendant. State v. Strimling, 265 N.W.2d 423, 432 (Minn. 1978).
At trial, the state requested permission to offer a portion of David Pirsig's omnibus hearing testimony into evidence. In this testimony, David Pirsig denied stealing grain from the Mores. Rather, he stated that the grain he sold to Midwest Soya from 1996 to 1998 was left over from the 1995 harvest and that he and Edward Pirsig owned the grain. His testimony further revealed that (1) he deposited the proceeds he received for the grain into a bank account under the name of D&D Farms, (2) he and Edward Pirsig have a joint interest in D&D Farms, (3) Edward Pirsig knew he sold grain to Midwest Soya under the name of D&D Farms, (4) Edward Pirsig helped him deliver the grain to Midwest Soya, (5) Edward Pirsig knew the sale proceeds were deposited into D&D Farms's bank account, and (6) he split the grain proceeds with Edward Pirsig.
Edward Pirsig's attorney objected to introducing this testimony, and David Pirsig's attorney advised the court that Edward Pirsig should be "entitled to a cautionary instruction that any of [David's] testimony could not be used against [Edward]." The court allowed the state to read the testimony into evidence, but prior to its admission the court gave the jury a cautionary instruction that stated only that the jury could not "use solely accomplice testimony, that is . . . one defendant's testimony against another one unless that testimony is corroborated by other evidence that tends to convict the defendant independently of the crimes."
Although David Pirsig, in his omnibus hearing testimony, did not confess to the theft, he did detail Edward Pirsig's role in the sale of the grain the state alleged was stolen. This testimony tended to inculpate Edward Pirsig. The court's instruction, instead of forbidding the use of David Pirsig's hearsay statement against Edward Pirsig, permitted that use, as long as there was corroborating evidence. We conclude this instruction was inadequate to protect Edward Pirsig from the danger the jury would improperly use David Pirsig's hearsay testimony against him.
The violation of a defendant's right to confrontation may be harmless error if the improperly admitted hearsay was cumulative to other evidence or the other evidence against the defendant was overwhelming. State v. DeVerney, 592 N.W.2d 837, 842-43 (Minn. 1999) (cumulative); Gruber, 264 N.W.2d. at 818 (overwhelming). But other than David Pirsig's omnibus hearing testimony, there is little evidence in the record connecting Edward Pirsig to the grain theft, and that evidence bore on issues other than the sale of the allegedly stolen grain.
The record contains evidence that David and Edward Pirsig farmed for many years, that Edward Pirsig signed the custom-farming agreement with the Mores, that he and David Pirsig had similar debts, that financial statements showed he had no private grain to sell in 1996 through 1998, that he told the combine operator to widen the swath-widths during harvest, and that he received checks from David Pirsig for substantial amounts of money. This circumstantial evidence, however, focuses on issues other than the sale of stolen grain to Midwest Soya and does not overwhelmingly show that Edward Pirsig knew about or participated in the grain theft. We also note that the prosecutor in closing argument cited David Pirsig's hearsay statement as evidence against Edward Pirsig, thereby encouraging a use of the evidence that the jury should have been expressly cautioned against.
The admission of David Pirsig's omnibus hearing testimony violated Edward Pirsig's Confrontation Clause rights, and the admission of this testimony was not harmless error. Accordingly, we decline to consider the additional issues Pirsig raised on appeal. Because we reverse the conviction, we need not address the state's challenge to the sentence.
Reversed and remanded.
 Initially, David and Edward Pirsig agreed to joint representation. They were jointly represented at the contested omnibus hearing. Prior to trial, however, Edward Pirsig obtained his own attorney.