This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-95-2116

Michael Matthews, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed June 11, 1996

Affirmed

Klaphake, Judge

Randall, Judge (concurring specially)

Hennepin County District Court

File No. 92-08-1132

Mark D. Nyvold, 386 North Wabasha, Suite 654, St. Paul, MN 55102 (for Appellant)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

Appellant Michael Matthews challenges his conviction for two separate counts of attempted second-degree murder and other lesser offenses. He appeals from a postconviction order, claiming erroneous admission of hearsay statements, prosecutorial misconduct, ineffective assistance of counsel and improper imposition of a consecutive sentence. We affirm because we conclude the hearsay statements were admissible as substantive evidence, any prosecutorial misconduct did not play a substantial part in influencing the jury to convict, any deficiencies in defense counsel's representation would not have changed the outcome of the trial, and imposition of a consecutive sentence was warranted by the facts and not an abuse of the trial court's discretion.

D E C I S I O N

In the early morning hours of October 18, 1992, Regina Merchant and Thomas Kontos were sitting in Kontos's car in front of Merchant and appellant's home. Suddenly, someone opened the passenger door, first shot Merchant, then Kontos, and then fled. As a result of the shooting, appellant was charged with two counts of attempted second-degree murder and five different assault counts.

Hearsay Evidence

At appellant's trial, Regina Merchant, denying that appellant shot her, identified another person as the perpetrator. In response, the state attempted to impeach Regina by calling three witnesses to testify to statements she had made to them incriminating appellant. The witnesses included Kontos, Regina's sister Bernice, and the police officer who interviewed Regina three days after the shooting when she first regained consciousness. Bernice Merchant also testified at trial and attempted to recant her prior statements to police and her prior testimony in appellant's Rasmussen hearing. The state attempted to impeach Bernice with the hearsay statements after she denied that appellant admitted to shooting Regina and denied that Regina told her that appellant had shot her. The hearsay statements of Bernice and Regina established that appellant carried a gun on the day of the shooting, had assaulted Regina on numerous prior occasions, and had accidentally shot her on the night in question. Over defense counsel's objection, the trial court admitted Regina and Bernice's hearsay statements as substantive evidence under Minn. R. Evid. 803(24), the residual exception to the hearsay rule.

Under Rule 803(24), hearsay statements are admissible as substantive evidence, even though the declarant is available as a witness, if the statements have "circumstantial guarantees of trustworthiness equivalent" to other hearsay exceptions. State v. Ortlepp, 363 N.W.2d 39, 44 (Minn. 1985). In Minnesota, trustworthiness may be established by considering whether the declarant is available to testify, admits to making the statement, and disputes the contents of the statement. The court also considers whether the statement is against the declarant's penal interest and is consistent with other evidence. Oliver v. State, 502 N.W.2d 775, 778 (Minn. 1993); Ortlepp, 363 N.W.2d at 44.

We conclude that Bernice Merchant's hearsay statements were made with proper circumstantial guarantees of trustworthiness. At trial, she admitted making the prior statements. She did not dispute them, but merely attempted to retract them. Although the statements were not against her penal interest, they were consistent with the bulk of other testimony and provided compelling facts supporting appellant's conviction.

Regina Merchant's hearsay statements show fewer circumstantial guarantees of trustworthiness because she denied making them and they were not against her penal interest. We conclude, however, that they also met the standards of reliability established by our case law. Regina's statement to Kontos that she knew appellant would kill her if she testified is separately admissible as a spontaneous statement of her state of mind under Minn. R. Evid. 803(3). Her statements to Bernice inculpating appellant, made a few days after the crime, were consistent with Bernice and Kontos's testimony. Her statements to the police officer soon after she regained consciousness for the first time were also consistent with other testimony and sustained their own reliability because of the seriousness of her medical condition at the time. The fact that Regina made the statements to three separate individuals, including a police officer, her co-victim, and her sister, established their reliability for purposes of Rule 803(24).

Prosecutorial Misconduct

We find no abuse of discretion in the trial court's decision not to grant a new trial for prosecutorial misconduct. See State v. Wahlberg, 296 N.W.2d 408, 420 (Minn. 1980). Normally, failure to object to a prosecutor's improper statements results in defendant's waiver of that issue on appeal. State v. Ture, 353 N.W.2d 502, 516 (Minn. 1984). If the alleged misconduct is not egregious, the conviction will be affirmed unless "the misconduct likely played a substantial part in influencing the jury to convict." State v. Caron, 300 Minn. 123, 128, 218 N.W.2d 197, 200 (1974).

Here, the conduct appellant complains of was not objected to and occurred only during isolated instances of opening statements and closing argument. The statements referring to appellant as "dangerous" and as carrying a "big handgun" did not constitute misconduct because they were supported by evidence in the record. See State v. Salitros, 499 N.W.2d 815, 817 (Minn. 1993) (quoting ABA standard allowing prosecutor to argue all reasonable inferences from evidence in the record). The prosecutor's request to the jury that it "become involved in this case" and find appellant guilty could have impermissibly influenced the passions of the jury, but was sufficiently tempered by the trial court's corresponding cautionary instructions. See id.; State v. DeWald, 463 N.W.2d 741, 745 (Minn. 1990). The prosecutor's misquotes of two of Bernice's statements, while undesirable, were likewise diminished by the trial court's instructions and understandable in light of the numerous off-the-record discussions that the parties agreed took place during the trial. We conclude that any prosecutorial misconduct did not play a substantial part in influencing the jury to convict in this case.

Ineffective Assistance of Counsel

Appellant argues that his trial counsel was ineffective because he failed to (1) object to the prosecutor's alleged improper statements, (2) highlight the state's absence of gunshot residue testing, (3) advise appellant of his right to remove a judge, and (4) press for a ruling on appellant's attempt to waive his right to a jury trial. During the postconviction hearing on this issue, appellant's counsel testified that some of these claimed deficiencies were due to tactical considerations or appellant's own conduct at trial. See State v. Gobely, 366 N.W.2d 600, 603 (Minn. 1985) (disagreement over trial strategy does not constitute ineffective assistance of counsel), cert. denied 474 U.S. 922 (1985). While we do not condone counsel's failure to inform appellant of his right to remove a judge, we do not believe appellant has met the very strict standard of proof applicable to ineffective assistance of counsel claims--that but for his counsel's errors, the result of appellant's trial would have been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984); Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (applying Strickland to ineffective assistance of counsel claims raised in postconviction proceedings).

Consecutive Sentencing

Appellant also argues that the trial court abused its discretion by imposing a consecutive sentence of 213 months and 153 months because it unfairly exaggerated the criminality of his conduct. See State v. Norris, 428 N.W.2d 61, 71 (Minn. 1988) (consecutive sentence may not unfairly exaggerate criminality of conduct); State v. Allen, 482 N.W.2d 228, 231 (Minn. App. 1992) (decision to impose consecutive sentence discretionary), review denied (Minn. Apr. 13, 1992). In cases involving multiple victims, the trial court may impose one sentence per victim and run the sentences consecutively without departing from the sentencing guidelines. Minn. Sent. Guidelines II.F.2. The record indicates that appellant fired two separate close-range shots at the victims as they sat in Kontos's car. After he apparently mistakenly shot Regina, appellant shot Kontos as he tried to exit the car. Both victims were seriously injured. We observe no abuse of discretion in the trial court's imposition of a consecutive sentence.

Affirmed.

RANDALL, Judge (concurring specially).

I concur in the result. But I write separately to point out the inherent danger of allowing the state, as it did here, to play fast and loose with the "Dexter problem" as it concerns the witness Regina Merchant, the girlfriend of appellant.

The respective briefs summarize the "Dexter problem" correctly. It is a problem area of long standing, which the Minnesota Supreme Court has specifically addressed to point out its danger. The problem arises when a prosecutor, knowing that a witness will testify inconsistently with earlier statements the witness made (and thus not be a "prosecution witness"), calls the witness anyway, as the earlier statements incriminate the defendant, and then when the witness on the stand does not incriminate the defendant, the witness is impeached with the prior out-of-court hearsay statement. Our legal tradition of fair trials is built on emphasizing to the jury that evidence is only that which is both heard in court and admitted (not struck) by the trial judge. Civil and criminal JIGS and boilerplate hornbooks discuss, ad infinitum, the due process danger of hearsay testimony going to a jury unless it comes under a firmly-rooted exception. The danger, known as the "Dexter problem," is that a jury, even if properly instructed as to impeachment evidence, will misuse the impeachment evidence as substantive evidence of guilt. State v. Ortlepp, 363 N.W.2d 39, 42-43 (Minn. 1985); State v. Dexter 269 N.W. 2d 721, 721-22 (Minn. 1978). In Dexter, the supreme court ruled that the impeachment could not take place because the impeachment evidence was not independently admissible as substantive evidence. See Dexter, 269 N.W.2d at 722. Following Dexter, the Minnesota Supreme Court requires the state to demonstrate that when the "Dexter problem" is present, the impeachment evidence must be admissible as substantive evidence. Ortlepp, 363 N.W.2d at 43.

Here, the trial court allowed the "impeachment evidence" against Regina Merchant as substantive evidence, as the majority points out, under Minn. R. of Evid. 803 (24), the residual or catch-all exception to the hearsay rule. I can only note that the exceptions to the hearsay rule weaken the traditional prohibition against hearsay, and the "catch-all" rule in question is acknowledged to be the weakest possible link, resting on the bottom of the ocean. Minnesota's "catch-all" rule, not being a traditional firmly-rooted and trustworthy exception to the normal rule against hearsay, does not survive a direct attack under the Sixth Amendment right to confront and cross-examine your accusers unless it bears adequate "indicia of reliability." See Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S. Ct. 2531, 2539 (1980).

Thus, to insure that prosecutors will not continuously try to slip in impeachment evidence as substantive evidence when the person who is supposed to incriminate the defendant from the stand does not, trial courts are required to consider the following factors: (1) whether the declarant is available for cross-examination; (2) whether the declarant admitted making the statement; (3) whether there is a dispute over what the statement contained; (4) whether the statement is against the declarant's penal interest; and (5) whether the statement is consistent with other evidence introduced by the state. State v. Oliver, 502 N.W.2d 775, 778 (Minn. 1993); Ortlepp, 363 N.W.2d at 44.

Here, only the first factor was satisfied! The record shows that Regina Merchant flatly denied making the alleged hearsay statements that the police officers put into evidence wherein she incriminated appellant. The record shows there is a dispute over what the statements contained, as law enforcement said she said them, and Regina Merchant testified under oath she never did. The statements were not against Regina Merchant's penal interest. Her statements were not entirely consistent with other evidence introduced by the state. There were discrepancies. Thus, appellant suffered a classic denial of his right to confront and cross-examine Regina Merchant on her out-of-court statements. He had nothing to cross-examine. She denied making them.

The inherent danger is clear as a bell. Law enforcement can, with impunity, state that so and so, a companion, a spouse, a relative, a close friend, etc., told us out of court that "the defendant did it." Now, a law enforcement officer can go on the stand, and under oath tell the jury that so and so told me that so and so did it. The person quoted out of court can do nothing but helplessly deny that he ever made the statement. The practical and recognizable problem is as follows: The law enforcement officer taking the stand is invariably educated, has completed the requisite training course to be certified, is clean-cut, is respectable, is often a veteran and a family man, and comes across with the basic credibility that common-sense lay juries tend to give law enforcement officers. Then, the companion, friend, relative, etc., of the defendant, who is often of the same color as the defendant, from the same social and economic class, and may himself have a criminal record, testifies to the jury that the nice officer who just got off the stand told you that I said something and "I never did." Law enforcement wins most of those battles.

The Minnesota Supreme Court guidelines outlined in Ortlepp and Oliver take care of this problem. It should have been taken care of in this case. I can concur with Bernice Merchant's statements being admissible, but not Regina Merchant's statements. Regina's did not comport with four of the five requirements of Ortlepp and Oliver. Of those requirements, I conclude the most essential is that the declarant, who is being impeached, at least admits having made the prior statement.

I conclude the trial court erred as a matter of law in allowing the police officers to testify to the jury as substantive evidence what Regina Merchant was supposed to have told them about appellant, once it was clear that Regina Merchant denied making those alleged statements about appellant to the police.

Taking the trial as a whole, I concur in the result, but it is close to having been a trial so flawed that it should mandate a new one.