This opinion will be unpublished and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

A03-1650

 

 

In the Matter of the Welfare of:  J. K. W., Child

 

 

Filed July 6, 2004

Reversed and remanded

Robert H. Schumacher, Judge

 

Stearns County District Court

File No. J80350751

 

 

John M. Stuart, State Public Defender, Ann B. McCaughan, Assistant Public Defender,  2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant J.K.W.)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Janelle P. Kendall, Stearns County Attorney, Janis L. Hovda, Assistant County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent state)

 

            Considered and decided by Klaphake, Presiding Judge; Schumacher, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant J.K.W. was adjudicated delinquent on one count of aiding and abetting terroristic threats.  J.K.W. argues the evidence is insufficient to sustain her adjudication and that she is entitled to a new trial because she was prejudiced by erroneous evidentiary rulings.  We reverse and remand.

FACTS

J.K.W. and N.G. are students at the Area Learning Center in St. Cloud.  In March 2003, N.G. placed a telephone call to the Area Learning Center using J.K.W.'s cell phone and left a voice-mail message that included a bomb threat.  J.K.W. was present when N.G. made the call.  The next morning, Area Learning Center staff listened to the message, interpreted the threat to be serious, and took measures to investigate and monitor the safety of students.

            Officer Nicholas Smith of the St. Cloud Police Department investigated the bomb threat.  During the investigation, J.K.W. went to Smith and reported that N.G. had used her cell phone.  J.K.W. told Smith that she thought N.G. had not actually placed the call and had pretended to leave the message.  Smith then talked to N.G.  Initially, N.G. denied any involvement.  Later, N.G. admitted to making the call, but said J.K.W. had encouraged her to do it.

            Smith suggested that N.G. tape record a telephone conversation with J.K.W. for the purpose of getting J.K.W. to admit her involvement.  Smith provided N.G. with a taping device and converter to use with her telephone.  The device did not work, and eventually N.G. returned it to Smith without making a recording.

             According to Smith's testimony, after returning the taping device he had provided, N.G. and her mother brought an audio tape to him that they professed was the recording of a conversation between J.K.W. and N.G. made using their own equipment.  Smith listened to the recording and recognized the voices of J.K.W. and N.G.

K.W., another Area Learning Center student and friend of N.G., testified to being present during the recorded, face-to-face conversation between J.K.W. and N.G.  K.W. testified that N.G. had a tape recorder in the front pocket of her sweatshirt and that N.G. turned on the recorder.  K.W. testified to her impression of the conversation, stating she felt it had revealed that J.K.W. "kind of pressured" N.G. into making the bomb threat.

The transcript of the recording shows that portions of the conversation were not recorded when the tape recorder was turned off and other portions of the conversation, although recorded, were inaudible.  In part, the transcript shows that N.G. said, "You shouldn't have let me do that Thursday. 'Cause this stuff is now going in to get set after court."  Later on, the transcript shows that J.K.W. said, "I didn't think you were going to get caught.  I never got caught.  I do it all the time."  Neither J.K.W. nor N.G. testified at trial.

After a trial before the district court, J.K.W. was adjudicated delinquent on one count of felony aiding and abetting terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2002) (terroristic threat), and Minn. Stat. § 609.05, subd. 1 (2002) (liability for crimes of another).

D E C I S I O N

1.         J.K.W. argues the recording and its transcript were inadmissible because they are hearsay.  Out-of-court statements offered as evidence for the truth of the matter contained in the statements are hearsay.  Minn. R. Evid. 801(c). Hearsay is generally considered unreliable, and therefore inadmissible, because the declarant is neither under oath nor subject to cross-examination.  Minn. R. Evid. 801 1989 comm. cmt.  "Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.  On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced."  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

The trial transcript shows that J.K.W.'s only objection at trial to the admission of this evidence was on the basis of "foundation," arguing the recording lacked authentication and a proper showing of chain of custody.  An objection must be specific as to the grounds for challenge to preserve the issue for appeal.  State v. Rodriguez, 505 N.W.2d 373, 376 (Minn. App. 1993), review denied (Minn. Oct. 19, 1993).  Nevertheless, if the admission constitutes plain error it may be reviewed on appeal.  State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002).  J.K.W. did not brief the "plain error" standard on appeal.  Issues not briefed on appeal are waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).

2.         J.K.W. argues the recording and its transcript were inadmissible because they were not authenticated and a proper chain of custody was not shown.  The admissibility of physical evidence depends on the authentication of the item of evidence so as to prove that the item offered is what its proponent claims.  Minn. R. Evid. 901(a).

Here, K.W. testified to her personal knowledge of the circumstances surrounding the recording of a conversation between N.G. and J.K.W., during which the girls discussed the bomb threat.  See Minn. R. Evid. 901(b)(1) (witness with knowledge may authenticate evidence).  Additionally, Smith recognized N.G.'s and J.K.W.'s voices on the recording.  See Minn. R. Evid. 901(b)(5) (evidence may be authenticated by witness's testimony that he or she recognizes speaker's voice). 

The purpose of establishing chain of custody is to ensure that evidence has not been contaminated or altered.  State v. Bellikka, 490 N.W.2d 660, 663 (Minn. App. 1992), review denied (Minn. Nov. 25, 1992).  "Admissibility should not depend on the prosecution negativing all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur."  State v. Johnson, 307 Minn. 501, 505, 239 N.W.2d 239, 242 (1976).

Here, Smith testified that the tape admitted into evidence was the tape provided to him by N.G. and her mother.  Although portions of the conversation were not recorded and other portions were inaudible, the district court compared the recording with K.W.'s testimony to determine whether the recording was trustworthy.  See In re Gonzalez, 456 N.W.2d 724, 728 (Minn. App. 1990) (noting when audiotape is partially inaudible or portion of conversation is not recorded, courts have applied broad general rule that recording is admissible unless inaudible or omitted portions are so substantial that recording as whole is rendered untrustworthy).

On this record, we conclude that the district court did not abuse its discretion in admitting the recording and its transcript with regard to the issues of authenticity and chain of custody.

3.         J.K.W. further contends that the district court's admission of the recording and its transcript violated her right to confront the witnesses against her under Crawford v. Washington, 124 S. Ct. 1354 (2004).  Although not raised below, this court may decide to hear a constitutional issue when the interest of justice requires.  Tischendorf v. Tischendorf, 321 N.W.2d 405, 410 (Minn. 1982); see also Minn. R. Civ. App. P. 103.04 ("The appellate courts may reverse, affirm or modify the judgment or order appealed from or take other action as the interest of justice may require.").

The Sixth Amendment to the United States Constitution provides:  "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."  U.S. Const. amend. VI.  The Minnesota Constitution affords the same fundamental right, and the analysis is the same under both provisions.  See Minn. Const. art. I, § 6; State v. Dukes, 544 N.W.2d 13, 19 (Minn. 1996).

In Crawford, the Supreme Court renounced the reasoning of its previous decision in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531 (1980), which allowed out-of-court statements to be admitted at trial upon a showing of some indicia of reliability.  Crawford, 124 S. Ct. at 1369-71.  In Crawford, the Court held that when "testimonial" evidence is at issue, the Confrontation Clause bars its admission unless (1) the hearsay declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant.  Id. at 1374.  Thus, individual states may no longer determine the admissibility of testimonial out-of-court statements based on reliability factors.  Id.

Testimonial evidence includes statements made during interrogations by law enforcement and "prior testimony at a preliminary hearing, before a grand jury, or at a former trial."  Id.  Testimonial evidence also includes "pretrial statements that declarants would reasonably expect to be used prosecutorially" and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."  Id. at 1364.

The rule set forth in Crawford does not apply when out-of-court statements are nontestimonial.  Id. at 1374.  And, when the declarant is cross-examined at trial, the Confrontation Clause places no constraint on the use of declarant's prior, testimonial statements.  Id. at 1369 n.9.

Here, a police officer encouraged N.G. to record a conversation with J.K.W. for the purpose of incriminating J.K.W.  Due to the police involvement in procuring the recording, we conclude that N.G.'s recorded statements were "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."  Id. at 1364.  Thus, N.G.'s recorded statements constitute "testimonial" evidence under Crawford and the Confrontation Clause bars their admission unless N.G. either appeared for cross-examination at trial or was unavailable at trial and J.K.W. had a prior opportunity to cross-examine her.  Id. at 1374.  But N.G. did not testify at trial, and J.K.W. did not have a prior opportunity to cross-examine her.  Thus, we conclude that the admission of N.G.'s recorded statements violated the Confrontation Clause.

Even though admission of N.G.'s out-of-court statement violates the Confrontation Clause, J.K.W.'s adjudication may stand if the error was harmless beyond a reasonable doubt.  State v. King, 622 N.W.2d 800, 809 (Minn. 2001).  Error is harmless if the verdict was surely unattributable to the error.  Id.

Without the recording, the only other evidence the court could have relied on in adjudicating J.K.W. was K.W.'s testimony regarding her "impression" from the conversation that J.K.W. "kind of pressured" N.G. into making the bomb threat.  On this record, we cannot conclude that the verdict was surely unattributable to the error of admitting N.G.'s recorded statements.  Accordingly, we hold that the district court's error in admitting N.G.'s out-of-court statements was not harmless and J.K.W. is entitled to a new trial.

            4.         J.K.W. argues the district court erred in admitting Officer Smith's testimony regarding N.G.'s disclosure to Smith that J.K.W. had encouraged and pressured her to make the bomb threat.  J.K.W. contends this out-of-court statement was inadmissible hearsay and its admission violated her rights to confront the witnesses against her.

During the direct examination of Smith, J.K.W. objected to testimony regarding what N.G. said to Smith, arguing such testimony amounted to hearsay.  The court allowed some "foundational questions and answers to background information" but beyond this sustained J.K.W.'s hearsay objection.  Prior to the contested testimony, the defense made the "same objection," and it was overruled.  After the contested testimony, J.K.W.'s counsel renewed the objection, and again it was overruled.

On this record, we conclude that the district court did not err in admitting Smith's testimony regarding what N.G. said to him.  We note that N.G.'s statement to Smith explains why he encouraged N.G. to tape record a conversation between N.G. and J.K.W.  Cf. State v. Ford, 322 N.W.2d 611, 615 (Minn. 1982) (stating district court is justified in allowing evidence that police received tip, when evidence is needed to explain police investigation so long as fact finder is instructed not to use tip's contents for substantive purposes).  Additionally, the Confrontation Clause is not implicated where out-of-court statements are offered for a non-hearsay purpose.  Tennessee v. Street, 471 U.S. 409, 413-14, 105 S. Ct. 2078, 2081-82.

            5.         J.K.W. argues the district court erred in admitting Smith's testimony regarding what K.W. said to him during the investigation.  J.K.W. contends K.W.'s out-of-court statements to Smith were inadmissible hearsay and their admission violated her right to confront the witnesses against her.

At trial, J.K.W. objected to Smith's testimony that he had talked to K.W. after receiving the tape recording and that K.W. told him she "could not recall any specific statements that [J.K.W.] had made incriminating herself, but that it was [K.W.'s] impression from the conversation that [J.K.W.] had full knowledge of the call being made prior to it being made."  Earlier at trial, K.W. testified to her impression that the recorded conversation revealed that J.K.W. "knew about what was going on," knew "it was on her phone," and  "kind of pressured [N.G.] into it."

Minn. R. Evid. 801(d)(1)(B) provides that an out-of-court statement is not hearsay if the statement is consistent with the declarant's testimony and helpful to the trier of fact in determining whether the declarant is credible.  Before such statements can be admitted, the declarant's credibility must be challenged.  State v. Manley, 664 N.W.2d 275, 288 (Minn. 2003).  Although K.W.'s credibility was not challenged, Smith's testimony was merely cumulative of K.W.'s previous testimony.

We conclude that if it was error, its admission was harmless.  See State v. Myers, 413 N.W.2d 122, 126 (Minn.App.1987) (noting police officer's testimony regarding statements witness made was "merely cumulative, and the error in its admission [was] harmless"), aff'd as modified, 416 N.W.2d 736 (Minn. 1987).  Moreover, because K.W. was available for cross examination, the requirements of the Confrontation Clause were satisfied.  See Crawford, 124 S. Ct. at 1369 n.9 (stating, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of [declarant's] prior testimonial statements.").

            6.         J.K.W. contends that there was insufficient evidence to support the adjudication.  Because we are reversing and remanding the matter for a new trial concluding N.G.'s recorded, out-of-court statements were inadmissible under the Confrontation Clause, we need not reach the issue of insufficient evidence.

            Reversed and remanded.