This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed August 21, 2007
Toussaint, Chief Judge
Lori Swanson, Attorney General, 1800
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh,
Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul,
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
On appeal from conviction of the third-degree assault of his estranged wife, appellant Angelo Mancini argues that the district court abused its discretion and violated his right to confrontation by admitting out-of-court statements of the victim, who was unavailable at trial due to an invocation of her Fifth Amendment privilege. Appellant argues that because the victim’s statements to the responding police officers, her friend, and the medical providers were testimonial in nature, the district court erred by admitting the statements. Appellant further contends that the doctrine of forfeiture by wrongdoing should be applied against the victim. We affirm.
Appellant argues that his rights
under the Confrontation Clause of the Sixth Amendment to the United States
Constitution were violated when the district court allowed the victim’s friend,
the responding officer, and medical personnel to testify as to the victim’s
statements concerning the circumstances of the assault and the identity of
appellant as her assailant, when the victim did not testify at trial. “This court reviews de novo the issue of
whether hearsay statements violate the Confrontation Clause.” State v. Ahmed, 708 N.W.2d 574, 580 (
The Confrontation Clause of the
Sixth Amendment to the United States Constitution guarantees that every
criminal defendant “shall enjoy the right . . . to be confronted with the
witnesses against him.” In Crawford
v. Washington, the Supreme Court interpreted this clause to bar the
admission of “testimonial statements” made by a declarant out of court, unless
the declarant is unavailable to testify at trial and the defendant has had a
prior opportunity for cross-examination.
of testimonial statements was revisited by the Supreme Court in Davis v.
Statements 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.
The Minnesota Supreme Court addressed
testimonial statements in State v. Wright,
726 N.W.2d 464 (
The nature of testimonial
statements was recently addressed by the Minnesota Supreme Court in State v. Warsame, __ N.W.2d __, __, 2007
WL 2127880, at *4-9 (Minn. July 26, 2007).
In Warsame, a police officer
responding to a 911 call encountered a woman walking in the middle of the
Statements to Police
Appellant argues that statements the victim made to police following the domestic disturbance were testimonial and, therefore, should not have been admitted at trial. Here, the record reflects that Officers Robert Buth and Trygve Sand were sent to an address to investigate a domestic disturbance. As the officers approached the address, they observed a black car pull over to the curb and the driver signal to the police. When the officers stopped, they noticed a significant amount of blood on the passenger’s face, and were informed by the driver that she was taking her passenger to the hospital. At that point, the officers and the victim got out of their vehicles and further investigation revealed that the passenger’s name was D.M. and that she was involved in the domestic disturbance that the officers had been dispatched to investigate. The officers proceeded to inquire into the circumstances of the domestic disturbance. D.M., who “was crying, mad, and upset,” informed the officers that she had been assaulted by appellant, her estranged husband. Over defense objection, Officer Buth testified at trial that he was told by D.M. that appellant punched and kicked her “a hundred times.”
Appellant argues that the
statements D.M. made to the responding officers were testimonial in nature
because the emergency had ceased and the primary purpose of the police
interrogation was to gather evidence to be used in a later prosecution. We agree.
At the time the officers questioned D.M., the domestic dispute was over
and D.M. was at least a block or two from the scene. Moreover, the record reflects that police
were aware that a male had complained that his wife was attacking him and that
the female had left the scene in a black sedan.
Thus, when the officers were flagged down by the driver, D.M.’s friend,
they questioned D.M. about the circumstances of the domestic disturbance. Although the factual circumstances here are
similar to Warsame, we note that Warsame is distinguishable. For example, the victim’s medical condition
in Warsame was more serious than
D.M.’s medical condition. Additionally,
the assailant in Warsame fled the
scene, while here, appellant waited at his home for law enforcement to
arrive. Finally, unlike Warsame, there was no third-party victim
in this case. We therefore conclude that
there was no ongoing emergency here, and the primary purpose of the inquiry was
to establish past events. Because the
emergency was no longer in progress when the officers were attempting to
determine “what happened” rather than “what is happening,” the statements D.M.
made to police were testimonial. See
Appellant argues that because D.M.’s statements to police
were testimonial, the district court erred in admitting the statements and the
error was not harmless beyond a reasonable doubt.
the guilty verdict actually rendered was “surely unattributable” to the error. When determining whether the jury’s verdict was surely unattributable to an error, we examine the record as a whole. In doing so, we consider the manner in which the evidence was presented, whether the evidence was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defense. Evidence of the defendant’s guilt is also a relevant consideration, but it is not the sole factor.
Here, there is no showing that the officer’s testimony was more persuasive than the other evidence. There were multiple witnesses who testified at trial that appellant assaulted his estranged wife, and appellant did not dispute this fact. The prosecutor did not emphasize the officer’s testimony, and the evidence was introduced in the logical flow of the officer’s testimony. Moreover, the prosecutor did not overemphasize the officer’s testimony in closing argument. Rather the statements were only briefly mentioned, and the prosecutor’s closing argument instead focused on attacking appellant’s claim that he acted in self defense. Finally, appellant effectively countered the inadmissible evidence by testifying at trial that he acted in self defense.
In addition to the factors set out in Courtney, the final factor in the harmless error analysis “is the strength of the ‘other evidence’ against [appellant].” Wright, 726 N.W.2d at 478. Here, the evidence against appellant was strong. D.M.’s friend and Dr. Towey both testified that they were told by the victim that appellant caused her injuries. Appellant did not refute the allegations that he caused D.M.’s injuries, but rather claimed that he was acting in self defense. There were photographs showing D.M.’s injuries and medical personnel testified at length describing the severity of D.M.’s injuries. This testimony and evidence was sufficient for a jury to reasonably conclude that appellant caused D.M.’s injuries and that if appellant was indeed acting in self defense, he did not use reasonable force. There was also evidence and testimony by the investigating officers that, if found credible, refuted appellant’s version of the events. Accordingly, we conclude that the erroneous admission of the testimonial statements was harmless beyond a reasonable doubt.
Statements to Friend
Appellant also contends that the statements D.M. made to
her friend, the driver, were testimonial.
We disagree. In Crawford, the Supreme Court stated that an
“accuser who makes a formal statement to government officers
bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not.” 541
Here, the record reflects that (1) D.M. made the statements to the driver shortly after the assault occurred; (2) D.M. was in a very emotional state and in a lot of pain; and (3) D.M. made the statements to her close friend. The statement was essentially an excited utterance to a friend, who was more concerned about the situation than whether the statement would be used at trial. See Ahmed,708 N.W.2d at 581. Therefore, the statements to D.M.’s friend are not testimonial. Although the statement is hearsay, it was properly admitted under Minn. R. Evid. 803(2).
Statements to Medical Personnel
Appellant further argues that the
statements D.M. made to medical personnel were testimonial. When statements are made to
nongovernmental questioners, the reviewing court “must determine whether the
questioner was acting in concert with or as an agent of the government.” State v. Scacchetti, 711 N.W.2d 508, 514 (
Scacchetti is analogous to the present case. The record reflects that Dr. Towey testified that for purposes of medical diagnosis or treatment, he asked D.M. what caused her injuries. According to Dr. Towey, D.M. stated that her injuries were caused when appellant punched and kicked her in the face. Dr. Towey is not a government agent nor was he acting in concert with a government agent. Moreover, Dr. Towey asked the questions in order to assess D.M.’s medical condition. Accordingly, D.M.’s statements to Dr. Towey were not testimonial, and the statements are admissible under Minn. R. Evid. 803(4).
final issue on appeal is whether the forfeiture by wrongdoing doctrine applies
to the state. Typically, a forfeiture by
wrongdoing issue is raised by the state.
Under this doctrine, a “defendant will be found to have forfeited
[his confrontation claim] if the state proves that the defendant engaged in
wrongful conduct, that he intended to procure the witness’s unavailability, and
that the wrongful conduct actually did procure the witness’s
unavailability.” Wright, 726 N.W.2d at 479.
“The state’s burden of proof on forfeiture is a preponderance of the
Here, appellant asserts that the forfeiture by wrongdoing rule should be applied against D.M. Appellant claims that he was deprived of his right to cross-examine D.M. about the assault because she asserted the Fifth Amendment and that the state, by refusing to grant her immunity, was complicit in hiding exculpatory evidence from the jury.
To support his claim, appellant
cites an American Bar Association standard that states: “The duty of the prosecutor is to seek
justice, not merely to convict.”
 In State v. Wright, 701 N.W.2d 802, 804
(Minn. 2005) (Wright I), the supreme
court held that a 911 call reporting an assault and a police interview with the
assault victims, conducted soon after the incident, were both nontestimonial. The defendant subsequently petitioned the
United States Supreme Court for a writ of certiorari. While the defendant’s petition was pending,
the Court decided