This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Dushawn Deon Wright,




Filed January 25, 2005


Parker, Judge*

Concurring specially, Minge, Judge


Ramsey County District Court

File No. KX-02-2259



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


Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, 50 W. Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)


John M. Stuart, State Public Defender, Jodie L. Carlson, Assistant State Public Defender, 2221 University Avenue S.W., Suite 425, Minneapolis, MN 55414 (for appellant)



            Considered and decided by Schumacher, Presiding Judge; Minge, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


            In the early morning of May 15, 2002, Dwan Mills was found dead inside his car on Dayton Avenue in Saint Paul.  While driving, Mills had been shot three times at close range, purportedly by appellant Dushawn Deon Wright.  Wright’s girlfriend, Crystal Williams, witnessed the shooting and eventually recounted the incident to police, who arrested Wright and charged him with three counts of second-degree murder pursuant to Minn. Stat. §§ 609.11 and 609.19 (2002).

            Prior to trial, the state sought to admit statements from Michael Tierney, who lived near the shooting.  According to the police officer who interviewed Tierney at the scene, Tierney heard gunshots and observed two vehicles leaving the area: a silver “Camaro-type” or Pontiac Firebird, with a low and rounded wing or spoiler on the back, and a white minivan with a rope running down the tailgate.  Tierney was unavailable to testify at trial because he was out of the country, so the state sought to admit his statements under Minn. R. Evid. 804(b)(5), also known as the hearsay “catch-all” rule.  The district court overruled Wright’s objection of his inability to confront and cross-examine Tierney, finding instead that the statements were trustworthy because they were in the nature of a firmly rooted hearsay exception, such as an excited utterance or present-sense impression.

            During jury selection, the state used a peremptory challenge against Jackie Pointer, an African-American male.  Wright’s attorney challenged the state’s peremptory challenge in a Batson hearing.  The district court denied the Batson challenge, finding no systematic exclusion of African-Americans.  Wright did not testify at trial and was found guilty by the jury on July 28, 2003.  On September 11, 2003, the district court sentenced Wright to 326 months in prison.  Wright appeals, claiming his right of confrontation was violated and because the district court denied his Batson challenge.  We affirm.


            1.  Tierney’s Statements

            Wright argues that the district court erred when it admitted Tierney’s statements, because pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004) and the Sixth Amendment’s Confrontation Clause, testimonial statements are inadmissible against a criminal defendant if the declarant is unavailable to testify and the defendant did not have a prior opportunity for cross-examination.  The Confrontation Clause provides that “[i]n 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 has replicated this federal right.  Minn. Const. art. I, § 6.

Before Crawford, when a hearsay declarant was not present for cross-examination at trial, “his statement is admissible only if it bears adequate ‘indicia of reliability.’  Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.”  Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539
(1980).  The district court used the Roberts standard to admit Tierney’s statements because: (1) the statements were given immediately after the shooting; (2) Tierney was an independent witness with no reason to lie; (3) Tierney never recanted his statements; and (4) the statements were in the nature of a firmly rooted hearsay exception, such as an excited utterance or present-sense impression.

            On March 8, 2004, as Wright’s appeal was pending, the United States Supreme Court abrogated Roberts as it related to testimonial hearsay statements.  Crawford, 124 S. Ct. at 1373-74.  After an exhaustive historical analysis of the Confrontation Clause and its precursors, the Court concluded that admission of testimonial evidence demands that the declarant be unavailable at trial and that the criminal defendant have a prior opportunity for cross-examination.  Id. at 1374.  Nontestimonial hearsay remains subject to each state’s rules of evidence and was not affected by CrawfordId.

            The Supreme Court linked the use of testimonial hearsay with its concern over common law criminal inquisitions, where justices of the peace would cross-examine witnesses and use the testimony at trial.  Id. at 1359, 1363.  The Court did not define testimonial hearsay; in lieu of a definition, the Court provided three categories of testimonial statements: (1) “ex parte in-court testimony or its functional equivalent,” such as affidavits and custodial examinations; (2) “extrajudicial statements,” such as depositions, prior testimony, or confessions; and (3) “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 (quotations omitted). 
As an offshoot of the final category, the Court added that “[s]tatements taken by police officers in the course of interrogations” are similarly testimonial.  Id.  These condemned functional equivalents of testimony all share the characteristic of formality, which is a characteristic lacking from Tierney’s brief summary of what he heard on the street below his house.

            Briefly stated, Tierney heard gunshots, looked out the window, saw two vehicles leaving the area, and called 911.  When the police converged on the scene, Tierney met an investigating officer, identified himself, and recounted what he heard and saw, specifically giving descriptions of the two vehicles.  Before encountering Tierney, the officer observed the victim in his car and concluded that the victim had been shot.  There is no indication in the record that Tierney knew what had happened to the victim, or if he knew there was a victim at all.  There is also no indication that Tierney was subjected to police interrogation, which is defined as “[t]o question formally.”  The American Heritage Dictionary 671 (2d College ed. 1991); see Crawford, 124 S. Ct. at 1365 n.4 (defining “interrogation” in a colloquial, not legal, sense).

            We have recently decided two cases applying the Crawford framework.  State v. Wright, 686 N.W.2d 295 (Minn. App. 2004), review granted (Minn. Nov. 23, 2004); State v. Courtney, 682 N.W.2d 185 (Minn. App. 2004), review granted (Minn. Sept. 29, 2004).  In Wright, the defendant threatened and assaulted his girlfriend and her sister with a gun.  Wright, 686 N.W.2d at 298-99.  The victims called 911 and relayed the events surrounding the assault; both victims were crying on the phone and were inaudible at
times.  Id. at 298.   Police officers were dispatched to the scene, and the victims, who were still “struggling for composure,” were interviewed by the police.  Id.  The victims did not respond to subpoenas and were thus unavailable to testify at trial.  Id. at 299.

            This court held that the victims’ statements during the 911 call were not testimonial.  Id. at 302 (noting that “there is a cloak of anonymity surrounding 911 calls that encourages citizens to make emergency calls and not fear repercussion.”).  Further, the victims’ excited utterances “moments after an assault simply do not qualify as knowing responses to structured questioning in an investigative environment in which the declarant reasonably expects that the responses will be used in later judicial proceedings.”  Id.  We did not determine whether the victims’ statements during the police-conducted interview were testimonial, because any error was harmless beyond a reasonable doubt.  Id. at 305.

            In Courtney, the district court admitted a videotaped interview of a six-year-old child who had witnessed a physical assault on her mother.  682 N.W.2d at 189-91.  The district court allowed the child’s statements because the child was unavailable at trial and the child-protection worker’s questions were not overly suggestive.  Id. at 196.  We reversed and found the child’s remarks to be testimonial because they were made for the purpose of developing a case against the defendant.  Id.  For example, at one point a police officer who was watching the interview halted the proceedings and directed the child-protection worker to have the child sketch the guns the child saw the defendant
allegedly use to threaten the mother.  Id.  We concluded that the defendant was entitled to a new trial because the district court’s error was not harmless.  Id. at 197.

            Looking to other jurisdictions, the Indiana Court of Appeals recently decided a case where a police officer took the statement of a domestic abuse victim.  Hammon v. State, 809 N.E.2d 945, 948-49 (Ind. Ct. App. 2004), review denied (Ind. Aug. 9, 2004).  The Indiana court determined as a preliminary matter that the victim’s statement was an excited utterance.  Id. at 950.  The court further determined that the statement was not testimonial in nature, chiefly because the Crawford court included police interrogation, and not mere police questioning, within the testimonial purview.  Id. at 952 (“We conclude this choice of words clearly indicates that police ‘interrogation’ is not the same as, and is much narrower than, police ‘questioning.’”).  In a passage that is especially relevant to the case at bar, the Indiana Court of Appeals concluded:

We thus hold that when police arrive at the scene of an incident in response to a request for assistance and begin informally questioning those nearby immediately thereafter in order to determine what has happened, statements given in response thereto are not “testimonial.”  Whatever else police “interrogation” might be, we do not believe that word applies to preliminary investigatory questions asked at the scene of a crime shortly after it has occurred.  Such interaction with witnesses on the scene does not fit within a lay conception of police “interrogation,” bolstered by television, as encompassing an “interview” in a room at the stationhouse.  It also does not bear the hallmarks of an improper “inquisitorial practice.”


Id.  While Hammon is not binding precedent on this court, it is persuasive because the facts are similar and the reasoning seems to us to be applicable.

            Turning to the facts of this case, Tierney took the initiative to make the 911 call and he volunteered his statements to the officer at the scene.  There is no indication in the record that Tierney was subjected to structured questioning by the officer, nor is there any indication that Tierney should have reasonably expected his statements to be used at Wright’s trial more than one year later.  See Wright, 686 N.W.2d at 302 (stating that excited utterances “do not qualify as knowing responses to structured questioning in an investigative environment in which the declarant reasonably expects that the responses will be used in later judicial proceedings.”); cf. Courtney, 682 N.W.2d at 196 (disallowing six-year-old child’s out-of-court statements because they were partially made to prepare a case against defendant).  At the time Tierney made the statements, he had not been notified that a crime had been committed, so it would have been objectively unreasonable to believe that his statements would be used at a later trial.  Tierney was also not subjected to formal police interrogation, which lends support to classifying his statements as nontestimonial.  Therefore, Tierney’s statements are not testimonial.

            Because Tierney’s statements are nontestimonial, whether it was error for the district court to admit the statements is based on hearsay law and precedent, specifically Minn. R. Evid. 804(b)(5) and Crawford, 124 S. Ct. at 1374.  The district court’s determination was essentially a ruling on the evidence.  “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 district court applied rule 804(b)(5)’s three-part test and found that Tierney’s statements met the threshold.[1]  Additionally, the district court found the statements were equivalent to an excited utterance or a present-sense impression, which further bolster their trustworthiness.  Based on this record and given our deferential standard of review, it was not an abuse of discretion for the district court to admit Tierney’s nontestimonial statements.

            Because Crawford is less than a year old, lower courts have understandably varied in their interpretations of the Supreme Court’s testimonial hearsay rule, especially as it regards statements made to authorities.  Compare People v. Caudillo, 19 Cal. Rptr. 3d 574, 590 (Cal. Ct. App. 2004) (holding that a 911 caller’s statements reporting shots fired were nontestimonial because the caller “was simply requesting help from the police by describing what she saw without thinking about whether her statements would be used at a later trial.”), and People v. Conyers, 777 N.Y.S.2d 274, 277 (N.Y. Sup. Ct. 2004) (holding that a caller’s statements were nontestimonial because her “intention in placing the 911 calls was to stop the assault in progress and not to consider the legal ramifications of herself as a witness in a future proceeding”), with People v. Cortes, 781 N.Y.S.2d 401, 415 (N.Y. Sup. Ct. 2004) (“[A]n objective reasonable person knows that when he or she reports a crime the statement will be used in an investigation and at proceedings relating to a prosecution.”).  We therefore hold that if the district court erred in admitting Tierney’s statements, the error was harmless beyond a reasonable doubt.

In a harmless error analysis, we determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.  State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994).  If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial.  Id.  In completing a harmless error analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury’s verdict, “and more specifically, whether the jury’s verdict is ‘surely unattributable’ to [the error].”  State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

Harmless error analysis applies to Confrontation Clause violations.  Id. at 809.  The United States Supreme Court stated that the analysis is whether, “assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.”  Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986).  The Court considered various factors in the analysis, such as, inter alia: (1) the importance of the witness’s testimony in the prosecution’s case; (2) the presence or absence of corroborating evidence from the testimony; and (3) the overall strength of the prosecution’s case.  Id.  “If the verdict actually rendered was surely unattributable to the error, the error is harmless beyond a reasonable doubt.”  State v. Jones, 556 N.W.2d 903, 910 (Minn. 1996).

            We conclude that the district court’s verdict was unattributable to the alleged error.  The state did not disproportionately rely on Tierney’s statements in its case; the principal witness for the state was Williams, who was driving a van only ten feet from Wright’s car when the shots were fired.  Williams heard the shots and saw sparks passing between the two cars.  She also testified that upon reuniting with Wright a few blocks from the incident, she told him: “I hope you didn’t shoot that boy.”  Wright responded, “I just scared him.”  Wright attempted to poke holes in Williams’s testimony by pointing out that Williams made inconsistent statements to the police and continued to carry on a sexual relationship with Wright after the shooting, but Williams testified that she never lied about the appearance of Wright’s car and her testimony regarding the shooting itself was never controverted.  After making inconsistent statements, Williams eventually told the police that Wright was the shooter.  In his opening and closing statements, the prosecutor mentioned Tierney’s identification statements only briefly, adding up to one page in the trial transcript.

The state also pointed out there was cumulative testimony and direct evidence that corroborated what Williams saw.  For example, a neighbor, after being awakened from the sound of Mills’s car crashing into a tree, noticed a hole in the driver-side door, about three inches beneath the window.  Police officers at the scene found shell casings in the street.  The county coroner later discovered that Mills had sustained three bullet wounds and died from internal bleeding.  Finally, there was evidence that Wright’s grandmother rented a beige Grand Am for Wright’s use during the week; Wright was identified driving that car during the shooting by various accomplices at trial, including Williams.

The state presented a strong case, so much so that Wright did not appeal the jury’s verdict on sufficiency of the evidence grounds.  The combination of the relatively light importance attached to Tierney’s testimony, the corroborative evidence surrounding the incident, and the strength of the state’s case compel us to conclude that admittance of Tierney’s hearsay statements, if done in error, was harmless beyond a reasonable doubt.

2.      Wright’s Batson Challenge

Wright next claims the state’s peremptory challenge against Pointer was impermissibly based on Pointer’s race, entitling Wright to a new trial.  We review a Batson challenge for clear error, and we affirm unless the record or the applicable law does not support the district court’s ruling.  State v. Reiners, 664 N.W.2d 826, 830-31, 834 n.3 (Minn. 2003).  The Equal Protection Clauses of the federal and state constitutions bar any party from exercising a peremptory strike on the basis of a prospective juror’s race.  Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986); State v. Taylor, 650 N.W.2d 190, 200 (Minn. 2002).  The existence of racial discrimination in a peremptory challenge “is a factual determination that is to be made by the district court and should be given great deference on review.”  Reiners, 664 N.W.2d at 830.

The Batson Court established a three-pronged test to determine if a peremptory strike was based on racial discrimination.  Batson, 476 U.S. at 96-98, 106 S. Ct. at 1723.  First, the opponent of the strike must make a prima facie showing that the peremptory was used to remove a member of a racial minority.  Reiners, 664 N.W.2d at 831.  If a prima facie showing is made, the proponent of the strike must offer a race-neutral explanation.  Id.  A prospective juror’s interaction with the criminal justice system has been recognized as a permissible race-neutral basis for a peremptory strike.  State v. James, 638 N.W.2d 205, 209-10 (Minn. App. 2002).  If a race-neutral explanation is given, the district court considers the parties’ arguments and decides whether the opponent of the strike has proved that purposeful racial discrimination has occurred.  Reiners, 664 N.W.2d at 831.

Discriminatory intent is not a presumed reason for a peremptory strike; discrimination must be inherent in the proponent’s “race-neutral” explanation for the strike.  State v. McDonough, 631 N.W.2d 373, 385 (Minn. 2001).  On the second prong, the district court is not required to decide whether the proponent’s explanation is “persuasive, or even plausible.”  Reiners, 664 N.W.2d at 832 (quoting Purkett v. Elem, 514 U.S. 765, 767-78, 115 S. Ct. 1769, 1771 (1995)).  For a Batson challenge to prevail, the challenger must meet the burden of proving purposeful discrimination.  McDonough, 631 N.W.2d at 385.

            Applying the Batson factors, we conclude that the state’s peremptory strike was not motivated by racial discrimination.  It is unclear whether Wright even carried his burden under the first prong to show a prima facie case of discrimination.  Pointer testified that long ago he had been convicted of a burglary in Omaha before a “bad jury.”  Specifically, Pointer found fault with the jury because it consisted of only white members, and because the jury was not paying attention to Pointer’s evidence and statements.  Wright thus assumes the state took Pointer’s race into account in making the peremptory strike by the mere fact that there were jurors who had been charged with or convicted of a crime who were not challenged by the state.  Even if Wright did carry his burden, the state gave a race-neutral reason for the strike—Pointer’s “raw deal” in his prior burglary trial—so the disposition of Batson’s first prong became moot.  State v. Gaitan, 536 N.W.2d 11, 15 (Minn. 1995).  Pointer’s prior experience with the criminal justice system is a valid reason to strike him as a juror.  On the third prong, Wright did not provide additional evidence showing that the state’s challenge was racially motivated, and the district court properly denied the Batson claim.

            In his brief, Wright argues that the state’s reasoning for excluding Pointer—that he had prior experience with the criminal justice system—would disproportionately exclude African-Americans from juries, because a “disproportionate number of people of color have been involved in the criminal justice system.”  But caselaw points out that a juror’s prior involvement with the criminal justice system is a legitimate reason to strike the juror, notwithstanding this potential disproportionality.  James, 638 N.W.2d at 209-10.  Wright fails to carry his burden to prove purposeful discrimination because he bases his argument on a mere inference of racial discrimination, which is refuted by the state’s compelling reason to strike.

            Finally, Wright argues that the state really thought that there were too many African-Americans already on the jury, and thus the purportedly race-neutral explanation was actually a façade.  Wright pounces on the state prosecutor’s comment that there were already five African-Americans seated on the jury at the time of the challenge.  But we do not weigh the prosecutor’s motives because we are reviewing a paper record.  In other words, “considerable deference must be given by a reviewing court to the trial court’s finding on the issue of intent because the finding typically will turn largely on an evaluation by the trial court of credibility.”  State v. Greenleaf, 591 N.W.2d 488, 500 (Minn. 1999).  Given that we are reviewing a factual determination by the district court, we will not reverse unless we find clear error.  Based on the evidence and given our deferential standard of review, the district court did not commit clear error in denying Wright’s Batson claim.

            After reviewing the record, the district court properly determined that Tierney’s statements were nontestimonial and did not violate Wright’s right to confrontation and cross-examination.  If the district court erred by admitting Tierney’s statements, the error was harmless beyond a reasonable doubt.  The district court also properly rejected Wright’s Batson claim.


MINGE, Judge (concurring specially)

            I concur in the disposition of this case and in that part of the opinion dealing with the Baston challenge.  However, I respectfully disagree with the majority’s determination that admission of Michael Tierney’s out-of-court statements did not violate the constitutional right of confrontation as recently defined by Crawford v. Washington, __ U.S. __, 124 S. Ct. 1354 (2004).  The statements by Tierney were testimonial.  Tierney was a law student.  He called 911 to report the shooting and describe the perpetrator’s vehicle.  His statements were an eyewitness account of the incident.  Tierney and the law enforcement officers should reasonably have expected that his accounts would be evidence at trial.  Unlike the situation in our recent case of State v. Wright, 686 N.W.2d 295, 302 (Minn. App. 2004), Tierney was not an agitated victim blurting out excited utterances.  The question is not whether a traditional hearsay exemption might apply to the introduction of these statements or whether the police were trying to build a case against the appellant at the time the statements were taken.  The question is whether the safeguard of the constitutional right to confrontation applies.  Confrontation is especially important for ambiguous, eyewitness accounts such as are present in this situation.  Under the circumstances, Tierney should have been available to answer for the inconsistencies in his statements.  Also, without his presence, the law enforcement officer should not have been allowed to testify as to his perception as to what Tierney intended to say about the features of the departing vehicle. 

            It is noteworthy that Tierney was only temporarily unavailable.  He was traveling in Europe as a student and was scheduled to return to Minnesota shortly after the scheduled trial date.  Before the trial started, the parties were aware of Tierney’s absence and appellant requested that the statements be excluded or the trial be delayed until his return.  If his testimony was important, a brief continuance would have allowed for his presence and accorded appellant full rights of confrontation.  In our earlier Wright case, the appellant had allegedly intimidated the witnesses to prevent them from testifying.  Id. at 299.  There is no hint of any such intimidation in this case.  Although intimidation was not the basis of that Wright decision, it is a distinguishing factor between the two cases that is not insignificant.

            I agree with the majority that the harmless error principle is recognized in the confrontation clause cases.  United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004); cf. Delaware v. Van Arsdall, 475 U.S. 673, 680-81, 106 S. Ct. 1431, 1436 (1986); State v. King, 622 N.W.2d 800, 809 (Minn. 2001).  Given the weight of the evidence of appellant’s guilt, I further agree that admission of Tierney’s statement was harmless error.  The record supports appellant’s conviction.  The ambiguous description of the perpetrator’s car by Tierney may actually have even helped appellant.  Thus, I join in the result, even though I would exclude Tierney’s statements.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1] Minn. R. Evid. 804(b)(5) excludes some statements from the definition of hearsay if the declarant is unavailable as a witness:


Other exceptions.  A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.