This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Ramsey County District Court
File No. K8-04-4516
John M. Stuart, State Public Defender, Michael F. Cromett, Assistant
State Public Defender,
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Manuel J. Cervantes, St. Paul City Attorney, Cheri M. Sisk, Assistant City Attorney, 500 City Hall and Court House, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Ross, Judge.
Appellant challenges his conviction of fifth-degree domestic assault, arguing that (1) the victim’s out-of-court statements were admitted in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution and the rules of evidence, (2) the evidence was insufficient to sustain the verdict, and (3) the prosecutor committed prejudicial misconduct. We affirm.
On December 3, 2004, during a routine patrol in St. Paul, two police officers heard a woman screaming and then heard a male voice yell, “Shut up, b—” and “I’m going to f—ing hit you.” After identifying the car from which the noise was emanating, one of the officers approached and opened the car’s door. Appellant Hua Ly was in the driver’s seat and a woman later identified as Edith Lee was in the passenger’s seat. Lee, with whom Ly has a child in common, was crying and bleeding from her mouth.
The officers took Ly into custody. As they handcuffed Ly, Lee, who was still crying, ran over to them. She screamed at the officers that Ly “didn’t do this” to her, someone named “Johnny” had hit her. After Ly was handcuffed and seated in the patrol car, the officers spoke with Lee, who was still distraught. Lee said that she and Ly had been drinking with friends in an apartment across the street. She also stated that she was afraid of the “ACK,” the Asian Crypt Killers gang. An officer then returned to the squad car to speak to Ly, who stated that Lee was “hitting me all over so I punched her in the face.” When the officer advised Lee of Ly’s statement, she denied that Ly had punched her in the face but stated that he had punched her in the arm on another occasion. The officers investigated the nearby apartment where Lee and Ly indicated they had been drinking with friends. But they found no one named Johnny there.
During an interview at the police station a few hours after his arrest, Ly said that Lee had started a fight with him because she was jealous. When she began punching him, he pushed her and caused her to fall to the ground. Ly admitted that his hand may have hit Lee’s face when he pushed her. Although he named two other individuals who witnessed the encounter, Ly never mentioned anyone named Johnny.
Ly was charged with fifth-degree domestic assault, a violation of Minn. Stat. § 609.2242, subd. 2 (2004), and obstructing legal process, a violation of Minn. Stat. § 609.50, subd. 1 (2004). The matter proceeded to a jury trial, during which the officers on the scene testified about their observations and, over Ly’s objection, about the out-of-court statements made by Lee. Because she could not be located, Lee did not testify at trial.
Ly also did not testify. But his tape-recorded interview by police was played for the jury. At Ly’s request, the jurors were instructed on self-defense. Ly was convicted of the charged offenses, and this appeal followed.
D E C I S I O N
Ly challenges only his conviction
of fifth-degree domestic assault. In
doing so, he argues that admission of Lee’s statements to police both violated
the Confrontation Clause of the Sixth Amendment to the United States
Constitution and was erroneous under the Minnesota Rules of Evidence. When an evidentiary ruling presents a
constitutional issue, we conduct a de novo review. State
v. King, 622 N.W.2d 800, 806 (
The Confrontation Clause of
the Sixth Amendment to the United States Constitution prohibits the use in a
criminal prosecution of a testimonial out-of-court statement that was not
subject to cross-examination if the declarant is not available to testify at
trial. Crawford v.
the United States Supreme Court compared the testimonial nature of statements
made during a 911 call and those made during an on-the-scene interview. The
The Davis court clarifies that
[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Here, three statements were admitted in evidence over Ly’s objection: (1) Lee’s statement that “[Ly] didn’t do this, it was Johnny;” (2) Lee’s statement that she was afraid of the ACK gang; and (3) Lee’s statement that Ly had not punched her in the face but had punched her in the arm on an earlier occasion. We examine each statement individually because the changing nature of the interaction between a police officer and a declarant may affect whether a statement is testimonial.
Although the officers initiated the contact on the scene by investigating the screaming coming from the car, Lee’s first statement was unsolicited. As the officers attempted to arrest Ly, Lee, who was “hysterical,” “extremely distraught,” and crying and shaking, yelled to the officers, “[Ly] didn’t do this, it was Johnny.” These circumstances do not suggest that the officers were acting to elicit a statement for trial. The officers, responding to an emergency situation, were not engaged in formal questioning when Lee made her first statement. In light of Lee’s emotional state and the officers’ need to gain control over “a threatening situation,” Lee’s first statement is not testimonial.
When Lee made her second
statement relating her fear of the ACK gang, she was describing her version of
events. But Lee was still distraught,
and the officers were still attempting to assess the situation and determine
with whom they were dealing—possibly a gang, someone named Johnny, or other individuals
in a nearby apartment. Under
Lee’s third statement—that
Ly had not hit her in the face but had injured her arm on an earlier occasion—was
made after Ly was in custody and had briefly been questioned by police about
his version of events. Lee’s statement was
made in response to an officer’s statement that Ly had admitted punching Lee. Because Lee and Ly were separated and the
police were attempting to elicit information from Lee, Lee’s third statement shares
certain characteristics with the testimonial statement obtained during the on-the-scene
interview in Davis. See id.
at ___, 126 S. Ct. at ____ (noting that declarant giving information on the scene
Because we conclude that, under the circumstances in which they were made, Lee’s three statements were not testimonial, the statements were not admitted in violation of the Confrontation Clause.
We next address whether the
district court committed an evidentiary error, as opposed to a constitutional
error, when it admitted Lee’s statements.
Evidentiary rulings are within the discretion of the district court and
will not be reversed absent a clear abuse of that discretion. Amos, 658 N.W.2d at 203. A
defendant who claims that the district court erred in admitting evidence
has the burden of proving the error and the resulting prejudice.
The district court admitted Lee’s statements as excited utterances under Minn. R. Evid. 803(2). Notwithstanding the characterization of the statements in the district court, we examine each statement individually to determine whether it was improperly admitted. See State v. Hogetvedt, 623 N.W.2d 909, 913 (Minn. App. 2001) (declining to adopt district court’s and parties’ characterization of evidence and determining evidence to be admissible under another rule), review denied (Minn. May 29, 2001). Our review establishes that Lee’s first and third statements are not hearsay; thus, the excited-utterance exception is inapplicable. And her second statement is admissible as the declarant’s then-existing state of mind under Minn. R. Evid. 803(3).
Hearsay is an out-of-court
statement admitted in evidence to prove the truth of the matter asserted.
Ly asserts that these
statements, if not offered for the truth of the matter asserted, are
Because Lee’s first and
third statements were admissible as nonhearsay and were relevant to show her
state of mind, that the district court construed them as excited utterances was
harmless error. See
Lee’s statement that she was
afraid of the ACK also was admitted in evidence through the police officers’ testimony. The prosecutor argued in his closing that
“[Lee] was deathly afraid. She mentioned
the ACK.” Thus, the statement, offered
to prove the truth of the matter asserted, is hearsay. Although not an excited utterance, this
statement is admissible under Minn. R. Evid. 803(3) as a statement of Lee’s
then-existing mental, emotional, or physical condition. “[H]earsay statements probative of the
declarant’s state of mind or emotion are not made inadmissible by the hearsay
Ly next argues that the
mostly circumstantial evidence presented was insufficient to support his
conviction of fifth-degree domestic assault.
We review a claim of insufficient evidence to determine whether the jury
reasonably could find the defendant guilty of the offense, based on the facts
in the record and the legitimate inferences that can be drawn from those
facts. State v. Chambers, 589 N.W.2d 466, 477 (
Fifth-degree domestic assault is defined as the intentional infliction of bodily harm against a family or household member. Minn. Stat. § 609.2242, subds. 1, 2 (2004). A family or household member includes “persons who have a child in common regardless of whether they have been married or have lived together at any time.” Minn. Stat. § 518B.01, subd. 2(b)(5) (2004).
Our review of the trial testimony establishes that police officers heard a male voice threaten to “f—ing hit you” coming from a car in which they found Ly and Lee. Lee was crying and had fresh blood running from her mouth. Ly admitted to the officers that he punched Lee in the face because “she was hitting [him] all over.” And Ly and Lee have a child in common. From this evidence, combined with Lee’s properly admitted statements blaming “Johnny” and the fact that Ly never mentioned anyone named Johnny, the jury reasonably could conclude, based on direct and circumstantial evidence, that Ly was guilty of fifth-degree domestic assault.
Ly also maintains that the
prosecutor impermissibly (1) speculated about events occurring at the time of
the offense, and (2) commented on the credibility of witnesses. Whether prosecutorial misconduct is harmless
depends on the seriousness of the misconduct, if any. State v. Powers, 654 N.W.2d 667, 678 (
Ly objected to the following statements made by the prosecutor during closing argument:
So why would Edith Lee say Johnny did it? . . .
. . . .
What is the truth behind that lie? The truth is that Edith Lee was terrified of the defendant. That Edith Lee was so afraid that she would not cooperate with the police. That Edith Lee was so afraid that she was going to identify somebody else because the defendant was right there. . . . Sooner or later she will have to get back with Mr. Ly, down the road. Think about it. What might have happened if she had accused Mr. Ly right at the scene in front of him in the presence of the officers. She was deathly afraid. She mentioned the ACK. That is the truth behind her lie.
The record does not support
a finding of misconduct. This aspect of
the prosecutor’s closing argument did not fabricate unsupported details. It simply presented the state’s theory of the
case. Lee also objects to the
prosecutor’s statement that, “The defendant didn’t have a chance to get his
story straight with Edith Lee.” But arguing
that Ly and Lee were lying when the evidence comprised several contradictory
statements and suggesting that Lee was afraid when the evidence established
that the police officers found her crying and bleeding does not constitute
unsupported speculation or improper comments on the credibility of
witnesses. C.f. State v. Ture, 353 N.W.2d 502, 516 (
Because Ly has failed to demonstrate any error that entitles him to reversal of his conviction of fifth-degree domestic assault, we affirm.