This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Darryl Fitzgerald Turner,
Filed November 1, 2005
Ramsey County District Court
File No. K3-03-4347
Mike Hatch, Attorney General,
1800 Bremer Tower, 445 Minnesota Street, St. Paul,
John M. Stuart, State Public
Defender, Michael F. Cromett, Assistant Public Defender,
††††††††††† Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Willis, Judge.
U N P U B L I S H E D†† O P I N I O N
In this appeal from convictions of first-degree burglary and first-degree aggravated robbery, appellant argues that (1) the prosecutor committed prejudicial misconduct in his opening statement and (2) the district court erroneously admitted the victimís hearsay statements made to a police officer and to another witness.† Because we determine that any prosecutorial misconduct in the opening statement does not require reversal of appellantís conviction and that the district courtís error in admitting certain statements did not significantly affect the verdict, we affirm.
††††††††††† Appellant Darryl Fitzgerald Turner was arrested and charged with first-degree burglary, in violation of Minn. Stat. ß 609.582, subd. 1(c) (2002), and first-degree aggravated robbery, in violation of Minn. Stat. ß 609.245, subd. 1 (2002), for breaking into the apartment where his former girlfriend, J.J., was babysitting and then injuring J.J. and taking her money.
While incarcerated and awaiting trial, Turner violated a no-contact order and twice talked to J.J. on the telephone.† During those calls, Turner told J.J. not to get caught, not to answer the door, and to ďget lostĒ for two weeks.† The state attempted to subpoena J.J. to testify at Turnerís trial but was unable to serve her, and J.J. did not testify in the stateís case.† She did, however, appear at trial and testify for the defense that she lied when she reported the events leading to the burglary and robbery charges.†
At trial, over Turnerís objections, three witnesses testified regarding statements that J.J. made on the night of the alleged robbery and burglary: a friend of J.J.ís, the tenant of the apartment where J.J. was babysitting, and the responding police officer.† The statements made to J.J.ís friend were admitted under the excited-utterance exception to the hearsay rule, and the statements made to the apartmentís tenant and to the police officer were admitted under the catch-all exception to the hearsay rule.
The jury convicted Turner of both charges, and this appeal follows.†
D E C I S I O N
first argues that the prosecutor committed serious misconduct during his opening
statement.† Prosecutorial misconduct
requires the reversal of a defendantís conviction only ďwhen the misconduct,
considered in the context of the trial as a whole, was so serious and
prejudicial that the defendantís constitutional right to a fair trial was
impaired.Ē† State v. Johnson, 616 N.W.2d 720, 727-28 (
Turner failed to object at trial to the prosecutorís statements, he failed to
preserve the issue for appellate review, and we need not consider Turnerís
allegations of prosecutorial misconduct.†
an opening statement, a prosecutor may outline the facts that he expects to
prove to aid the jury in following the testimony.† Tucker
v. State, 309
Here, Turner asserts that the prosecutorís repeated references to ďviolence, intimidation, and manipulationĒ were arguments improper for an opening statement.† He also claims that the prosecutor interjected ďissues broader than guilt or innocenceĒ by stating that ďour system of justice doesnít stand for intimidation and manipulation.Ē† While the prosecutorís comments were perhaps ill-advised, looking at the record as a whole, we conclude that these statements were not so prejudicial as to deny Turner a fair trial, and the statements do not require us to reverse his conviction.†
Turner next argues that the district court erroneously admitted the hearsay statements that J.J. made to the apartmentís tenant and to the police officer.† Turner first argues that the district court erred by finding that Turner waived his right to confrontation because his wrongdoing procured J.J.ís absence from the trial.† He also argues that the district court erred by admitting these statements under the catch-all exception to the hearsay rule.
court will not reverse a district courtís evidentiary rulings unless the
district court clearly abused its discretion.†
State v. Amos, 658 N.W.2d 201,
Forfeiture by Wrongdoing
Before trial, the district court ruled that J.J. was unavailable to testify for the state because of Turnerís wrongdoing.† Therefore, the district court ruled that it would admit J.J.ís hearsay statements made to the apartmentís tenant and to the police officer.† Turner argues that J.J.ís statement to the police officer was testimonial and that its admission violated his right to confrontation as described in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
a witness is unavailable to testify because of the defendantís wrongdoing, other
competent evidence may be introduced to take the place of the witnessís
testimony.† State v. Black, 291 N.W.2d 208, 214 (
State v. Wright, 701 N.W.2d 802, 814-15
(Minn. 2005). †A defendant who wrongfully
procures the unavailability of a witness cannot then assert that his
constitutional rights have been violated by the admission of substitute
evidence. †State v. Fields, 679 N.W.2d 341, 347 (
Here, the district court found that Turner wrongfully contacted J.J. and attempted to coerce or influence her not to cooperate with the state and to make herself unavailable for trial.† It determined that J.J. was unavailable to the state because of Turnerís wrongdoing.† Turner violated a no-contact order by calling J.J.† He told her not to get caught, not to answer the door, and to ďget lostĒ for two weeks.† The state was unable to serve J.J. with a subpoena and was not, therefore, able to call her to testify.†
We conclude that the district court did not abuse its discretion by determining that Turnerís conduct was wrongful and prevented J.J. from testifying in the stateís case and that Turner, therefore, waived his right to complain that his constitutional rights were violated by the admission of J.J.ís statements to the apartmentís tenant and to the police officer.†
any event, Turner called J.J. to testify on his behalf.† In State
v. Lasnetski,this court
determined that the defendant waived his right to confrontation and was
ďafforded the opportunity to confront the declarantĒ when he called his wife to
testify on his behalf after statements that she made to a police officer were
offered as admissible hearsay evidence.† 696
N.W.2d 387, 394 (
Here, J.J. testified on Turnerís behalf about the statements that she made to her friend, to the apartmentís tenant, and to the police officer regarding the alleged burglary and robbery.† Turner therefore had the opportunity to confront J.J. regarding these statements.† Consequently, we need not address Turnerís argument that J.J.ís statement to the police officer was testimonial.
Although we conclude that Turner waived his right to confront J.J. regarding her statements to the police officer and the apartmentís tenant, we nevertheless must determine whether these statements were properly admitted under the catch-all exception to the hearsay rule.†
is a statement, other than one made by the declarant while testifying at the
trial . . ., offered in evidence to prove the truth of the matter
(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.
At trial, J.J.ís friend testified that J.J. told her that Turner kicked in the door and beat her up, that he dragged her into the living room, punched her, took ten dollars from her, and left.† This statement was admitted under the excited-utterance exception to the hearsay rule, and Turner does not challenge on appeal the admission of this statement.† J.J.ís statements to the apartmentís tenant and to the police officer were similar to her statement to her friend.
The district court found that J.J. was unavailable to the state as a witness and that the statements being admitted under the catch-all exception to the hearsay rule were trustworthy.† But the district court did not make explicit findings regarding whether the statements were being offered as evidence of material fact, whether the statements were more probative on the point for which they were offered than any other evidence, or whether the admission of these statements would serve the interests of justice and the purpose of the rules of evidence.† Further, Turner objected to the testimony, and the basis for the district courtís admission of these statements under the catch-all exception to the hearsay rule is not obvious. †Therefore, the district courtís findings do not support admitting the statements under the catch-all exception to the hearsay rule.†
an error was committed in admitting evidence, this court determines whether
there is a reasonable possibility that the evidence significantly affected the
verdict.† State v. Bolte, 530 N.W.2d 191, 198 (
J.J.ís statements to the apartmentís tenant and to the police officer were corroborated by the testimony of her friend, which is not challenged on appeal, and by pictures shown to the jury.† Further, J.J. ultimately testified for Turner and provided an explanation for the statements that she made.† We therefore conclude that the admission of J.J.ís statements to the apartmentís tenant and to the police officer did not significantly affect the verdict.
 The district court prohibited any reference before the jury regarding the no-contact order or Turnerís violation of the no-contact order.