This opinion will be unpublished and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

A03-2027

 

 

State of Minnesota,

Respondent,

 

vs.

 

David Borsgard,

Appellant.

 

 

Filed January 18, 2005

Affirmed

Parker, Judge*

 

Cottonwood County District Court

File No. K202176

 

Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134; and

 

L. Douglas Storey, Cottonwood County Attorney, 1044 Third Avenue, Windom, MN  56101 (for respondent)

 

John M. Stuart, State Public Defender, Robert J. Shainess, Richard D. Snyder, Theresa M. Weber, Special Assistant State Public Defenders, Fredrikson & Byron, P.A., 4000 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN  55402-1425 (for appellant)

 

            Considered and decided by Willis, Presiding Judge; Hudson, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

On April 1, 2002, confidential informant Kathleen Mann conducted a controlled buy of marijuana at the Prairie Wood Custom Framing and Refinishing store, which was operated by appellant David Lee Borsgard and his girlfriend, Stacy Martin.  Police officers followed Mann from a Minnesota Department of Transportation (DOT) building to the framing store.  While Mann was inside the store, officers monitored the conversation through an undercover listening device and identified the voices of Mann, Martin, and appellant.

            Jackson County Deputy Sheriff Timothy Cain testified that shortly after the buy, Mann and the officers returned to the DOT building.  In a car in the parking lot of the DOT, Mann gave a tape-recorded interview to Cain describing how the buy occurred.  Cain testified that Mann stated that she had given appellant the money, and appellant gave the money to Martin, who went to the back of the store and got the marijuana.

In this appeal from a conviction of fifth-degree controlled substance crime, appellant argues that the district court abused discretion and violated his right to confrontation by admitting evidence about Mann’s out-of-court statement.  Appellant argues that, although the informant testified at trial, her lack of memory prevented defense counsel from cross-examining her on the statement.  Appellant also argues that the statement was inadmissible hearsay.  We affirm.

D E C I S I O N

            1.         Appellant argues that Cain’s testimony about Mann’s out-of-court statement violated his right to confront the witnesses against him.  A criminal defendant is guaranteed the right to confront the witnesses testifying against him.   U.S. Const. amend. VI; Minn. Const. art. I, § 6.  The primary purpose of the Confrontation Clause is to require a declarant to testify and undergo cross-examination so that the jury may judge the witness’s credibility.  State v. Byers, 570 N.W.2d 487, 494 (Minn. 1997).  A Confrontation Clause analysis involves mixed questions of fact and law, but the ultimate question, whether admitted testimony violated a defendant’s Confrontation Clause rights, is subject to de novo review.  State v. King, 622 N.W.2d 800, 806 (Minn. 2001).

Appellant argues that Mann’s out-of-court statement was inadmissible under Crawford v. Washington, the recent Supreme Court decision rejecting the reliability analysis adopted in Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531 (1980).  Crawford v. Washington, 124 S. Ct. 1354, 1369-74 (2004).  The Crawford Court held, “Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.”  Id. at 1374.

But the Crawford Court also concluded, “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . . .  The Clause does not bar admission of a statement so long as the declarant is present to testify at trial to defend or explain it.”  Id. at 1369 n.9 (citation omitted); see also State v. Plantin, 682 N.W.2d 653, 660 n.2 (Minn. App. 2004) (stating Crawford did not apply to declarant’s out-of-court statement to police when declarant testified at trial), review denied (Minn. Sept. 29, 2004).

Citing California v. Green, 399 U.S. 149, 90 S. Ct. 1930 (1970), appellant argues that he was unable to cross-examine Mann because she did not recall making the statement.  After Green was decided, the Supreme Court concluded that a Confrontation Clause violation could not be based on a witness’s loss of memory:

[T]he Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . [T]hat opportunity is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief.   It is sufficient that the defendant has the opportunity to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even (what is often a prime objective of cross-examination . . .) the very fact that he has a bad memory.   If the ability to inquire into these matters suffices to establish the constitutionally requisite opportunity for cross-examination when a witness testifies as to his current belief, the basis for which he cannot recall, we see no reason why it should not suffice when the witness’ past belief is introduced and he is unable to recollect the reason for that past belief.

 

United States v. Owens, 484 U.S. 554, 559, 108 S. Ct. 838, 842 (1988) (quotation and citations omitted).

            Both Owens and Plantin, however, are distinguishable from this case because here, Mann did not recall making the statement.[1]  Appellant argues that there can be no opportunity for effective cross-examination when a declarant can remember neither the statement nor its underlying subject matter.  But the Owens court explained that “the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony.”  484 U.S. at 558, 108 S. Ct. at 842 (quotation omitted).

Mann did testify about the time period when she made the out-of-court statement.  She testified that she was using drugs and alcohol heavily and did not recall specific events that occurred during that time period.  Although Mann did not recall specific events, she did recall doing some work for law enforcement.  She testified that she was essentially blackmailed into doing so by threats to take away her children and totally disrupt her life and that she was very much afraid of the police chief.  These facts were relevant to the credibility of her statement to police and favored the defense because they gave the jury a reason to assign scant weight to Mann’s out-of-court statement.  We conclude that Mann was available for the constitutionally required opportunity for cross-examination, and that admission of her out-of-court statement, therefore, did not violate appellant’s right to confrontation.

2.         Appellant argues that Mann’s out-of-court statement was inadmissible hearsay.  Evidentiary rulings are within the district court’s discretion and will not be reversed on appeal absent an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).

Present-sense impression

Although the district court admitted Mann’s statement as a recorded recollection, this court may still affirm its admission if it is admissible under a different rule of evidence.  See State v. Copeland, 656 N.W.2d 599, 602 (Minn. App. 2003) (holding erroneous admission of evidence under rules to be harmless error when evidence was admissible under statute), review denied (Minn. Apr. 29, 2003).

The evidentiary rules provide that a statement is not hearsay if the declarant testifies and is subject to cross-examination about the statement, and the statement is one “describing or explaining an event . . . made while the declarant was perceiving the event . . . or immediately thereafter.”  Minn. R. Evid. 801(d)(1)(D).  “The subject matter of the statement must describe an event or condition at or near the time the declarant perceives the event or condition.”  Minn. R. Evid. 801(d)(1) 1989 cmt.

Appellant argues that Mann’s statement was not made immediately after the marijuana sale.  The record does not show exactly how much time elapsed between the marijuana sale and Mann’s statement.  The record does show that, before the sale, Mann arrived at the DOT building at 2:05 p.m., and she arrived at the framing shop at 2:27 p.m.  Before leaving for the framing shop, officers searched Mann and her car, equipped her with a body microphone, gave her money, and discussed with her how the transaction would occur.  Cain testified that after the sale, the officers and Mann returned to the DOT building, and the interview was conducted in a car in the parking lot.  This evidence supports an inference that Mann’s statement was given within a few minutes after the sale, a short enough time period to satisfy the requirement that a statement be given immediately after the event.  See State v. Pieschke, 295 N.W.2d 580, 583-84 (Minn. 1980) (holding that oral statements to police officers made within a few minutes of accident were properly admitted as present-sense impressions but that written statements made within an hour after the accident were not admissible as present-sense impressions).

Citing the definition of unavailable under Minn. R. Evid. 804(a)(3), appellant argues that Mann was not subject to cross-examination due to her memory loss.  But the Supreme Court in Owens determined that a witness can be “subject to cross-examination” under rule 801 despite being unavailable under rule 804(a).  Owens, 484 U.S. at 561-64, 108 S. Ct. at 844-45.  The court explained that “the two characterizations are made for two entirely different purposes and there is no requirement or expectation that they should coincide.”  Owens, 484 U.S. at 564, 108 S. Ct. at 845.  As we previously stated, Mann was available for cross-examination, and her testimony about the time period when she made the out-of-court statement and her lack of memory thereof was relevant to its credibility.

Residual exception

Minn. R. Evid. 803(24) creates a residual exception for a statement that is not admissible as a result of a specific exception to the hearsay rule.  The residual or catchall exception provides that a statement is “not excluded by the hearsay rule, even though the declarant is available as a witness” if the statement is

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.

 

Minn. R. Evid. 803(24).

            Minnesota’s appellate courts have applied the following test to determine the admissibility of a victim’s or accomplice’s statement under the residual exception:

[A] hearsay statement is admissible under Rule 803(24) when:  (1) there is no confrontation problem presented by the admission of the statement as substantive evidence because the declarant testifies, admits making the statement, and is available for cross-examination; (2) there is no dispute that the declarant made the statement or about what the statement contained; (3) the reliability of the statement is increased because it was made against the accomplice’s penal interest; and (4) the statement “is consistent with all the other evidence the state introduce[s], evidence which point[s] strongly toward” the guilt of the accused.

 

Plantin, 682 N.W.2d at 659 (quoting State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985)).

            Regarding the first three Ortlepp factors,Mann testified and was subject to cross-examination.  While she did not recall making the statement, she acknowledged working for police during the relevant time period and does not deny making the statement.  The statement was recorded and transcribed; the officer who testified about the statement was the same officer who conducted the interview, and he used a prepared transcript of the interview to refresh his recollection during his trial testimony.  Although the statement was not against Mann’s penal interest, the third factor may be satisfied “if the declarant is hostile to the state and supportive of the defendant.”  Plantin, 685 N.W.2d at 659.

Regarding the fourth Ortlepp factor, some of the officers monitoring the conversation in the framing shop during the controlled buy identified appellant’s voice.  Mann’s out-of-court statement is consistent with appellant being present in the store during the controlled buy and with her having marijuana after being in the store.

            Appellant argues that the residual exception’s notice requirement was not satisfied.  But the prosecutor was unaware prior to trial that Mann would declare she had no memory of the controlled buy and of giving her statement to police.  Appellant knew that Mann would be called as a witness, and the statement and its transcript presumably would have been available to appellant had he requested them.  See State v. Oliver, 502 N.W.2d 775, 778 (Minn. 1993) (stating that although there was not formal compliance with notice requirement, defense counsel had notice because of comments made in opening statement).

Mann’s out-of-court statement was admissible as a present-sense impression and under the residual exception to the hearsay rule.  The district court, therefore, did not err in admitting into evidence Deputy Sheriff Cain’s testimony about the statement.

Affirmed.



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

[1] Although Mann did not specifically testify that she did not recall making the statement, she testified generally that she had no recollection of the time period.