This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




State of Minnesota,



James Brian Patton,


Filed June 17, 1997


Willis, Judge

Dissenting, Randall, Judge

Washington County District Court

File No. KX962316

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

Richard M. Arney, Washington County Attorney, Peter J. Orput, Assistant County Attorney, 14900 61st St. N., Stillwater, MN 55082 (for Respondent)

Jerry Strauss, Marc S. Berris, Strauss & Associates, 250 Second Avenue South, Suite 228, Minneapolis, MN 55401-2169 (for Appellant)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Mulally, Judge.[*]



Appellant James Brian Patton contends the admission of hearsay statements made by a declarant who did not testify at trial violated his constitutional right to confront witnesses against him because the state did not show that the declarant was unavailable to testify. We affirm.


On May 11, 1996, Patricia Blaschka reported to the police that her boyfriend, James Patton, entered her apartment without permission, punched her in the face and body, and left with her keys and telephone. Officers at the scene observed that Blaschka had blood around her mouth and in her hair, two black eyes, and other bruises, scrapes, and swelling on her face. The police took Blaschka to the hospital for treatment.

Patton was charged with one count of first-degree burglary and one count of third-degree assault. Blaschka did not respond to letters from the county attorney's office regarding prosecution of charges against Patton, and Gwendolyn Johnson, a victim witness advocate, testified that Blaschka was hesitant to testify against him. Blaschka did not appear for her appointment with the county attorney, and her telephone was disconnected when Ms. Johnson later tried to call her.

Officer Paul Johnson testified that he attempted to serve a subpoena on Blaschka on October 2, 1996, to secure her presence at the October 7, 1996 trial. Officer Johnson testified that a man, who did not open the door, told him that Blaschka was not there. Officer Johnson stuffed the subpoena for Blaschka between the door and the doorjamb and told the man inside that he was doing so. Another officer knocked on Blaschka's apartment door twice on the day of the trial and left when nobody answered. Blaschka did not appear for trial.

The district court ruled that Blaschka was unavailable for trial for the purpose of admitting her out-of-court statements. In light of that ruling, Patton and the state agreed to submit the count of third-degree assault for a court trial on stipulated facts. The district court found Patton guilty of third-degree assault, in violation of Minn. Stat. § 609.223, subd. 1 (1996), and this appeal followed.


Patton argues that the district court's admission of Blaschka's hearsay statements violated his constitutional right to confront witnesses against him. See U.S. Const. amend. VI; Minn. Const. art. I, § 6. Evidentiary rulings generally rest within the district court's discretion, and a reviewing court will not reverse absent a clear abuse of discretion. State v. Washington, 521 N.W.2d 35, 41 (Minn. 1994).

The United States Supreme Court has established a two-part test to determine whether evidence admitted at trial violates a defendant's right to confrontation:

[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980); see also State v. Hansen, 312 N.W.2d 96, 102 (Minn. 1981) (adopting federal test for determining whether admission of out-of-court statements when hearsay declarant does not testify violates the Confrontation Clause). "A demonstration of unavailability, however, is not always required." Roberts, 448 U.S. at 65 n.7, 100 S. Ct. 2539 n.7 (citing Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 220 (1970), where court found no right of confrontation violation because there was no real possibility that cross-examination of declarant could have shown that hearsay statement was unreliable).

Patton contends the district court abused its discretion in determining that Blaschka was unavailable to testify because the state did not make a good-faith effort to secure Blaschka's testimony. We disagree. In Minnesota, a declarant is unavailable where he or she

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance * * * by process or other reasonable means.

Minn. R. Evid. 804(a)(5).

Patton notes that the state did not effect actual service of process on Blaschka because service of a subpoena must be made by delivering a copy to the person named in the subpoena or by "leaving a copy at the person's usual place of abode with some person of suitable age and discretion then residing therein." Minn. R. Crim. P. 22.03. The test, however, for determining the availability of a declarant focuses on the state's efforts to procure the declarant's attendance at trial, rather than whether the state met the requirements for service of process. The United States Supreme Court has stated that a declarant is "unavailable" for the purpose of the exception to the confrontation requirement if "the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber v. Page, 390 U.S. 719, 724-25, 88 S. Ct. 1318, 1322 (1968). We conclude that the state made a good-faith effort to secure Blaschka's presence at trial because (1) a witness advocate attempted to maintain contact with Blaschka prior to trial, (2) Officer Johnson attempted to serve a subpoena on Blaschka, and (3) another officer went to Blaschka's apartment twice on the day of the trial.

The state contends that Blaschka's statements to officers and medical personnel are admissible as excited utterances and statements for the purpose of diagnosis or treatment. See Minn. R. Evid. 803 (providing hearsay exceptions where availability of declarant is immaterial); see also State v. Richards, 552 N.W.2d 197, 209 (Minn. 1996) (holding victim's statements to counselor that she was afraid of defendant and he beat her were admissible under medical exception); State v. Berry, 309 N.W.2d 777, 783 (Minn. 1981) (concluding that declarant's statements to police when they arrived at declarant's home to investigate a death were excited utterances). We agree. Patton's right to confrontation was not violated, because Blaschka was unavailable to testify and the reliability of her statements to police and medical personnel can be inferred from the fact that those statements fall within firmly rooted hearsay exceptions. See Roberts, 448 U.S. at 66, 100 S. Ct. at 2539.


RANDALL, Judge (dissenting).

I respectfully dissent. The key ruling in this case, the only real issue, is whether Blaschka "was unavailable for trial" for the purpose of admitting her out-of-court hearsay statements as part of the state's case-in-chief against appellant.

I disagree with the respondent's argument, which the majority adopts, that the state made a "good faith effort" to obtain Blaschka's presence at trial. I disagree that the witness advocate made any serious attempt to maintain contact with Blaschka prior to trial. Blaschka was not answering letters and then her telephone was disconnected. There is nothing in the record indicating that someone went to her last known place of residence and/or employment prior to trial and attempted personally to see if she was even getting the messages. Even if Blaschka was, and was not answering them, the reluctance of a witness to appear is the problem of the party calling the witness, not the other party. Here, Blaschka was the state's witness, not the defendant's. There is nothing in the record showing that Blaschka was threatened, intimidated, or coerced. A witness advocate attempted to infer that, but if there was any evidence in the record, obviously the state would have had a separate and distinct crime to charge against appellant, and certainly would not have been hesitant to do so.

I disagree that Officer Johnson "attempted to serve a subpoena on Blaschka." The majority sets out the facts accurately. Any officer or process server with the most minimal training knows that you cannot serve anyone civilly or criminally by stuffing a subpoena through a door, and talking to an unknown person inside. In addition to not knowing that person's name, the officer knew the "voice" was not the person he wanted to serve (it was a man's voice and officer Johnson knew Blaschka was a woman). From a legal standpoint, this isn't even close to attempting service of process. Minn. R. Crim. P. 22.03. It is difficult to call the state's attempt "in good faith" because an officer went to Blaschka's apartment twice on the first day of a short trial. Good faith would better have entailed going to her apartment several days before the trial, particularly since on the day of the trial they knew without question that she had previously failed to respond to written messages and telephone calls. Thus, the state had full warning to be prepared for her possible absence.

In a criminal case, where penal statutes are construed strictly in favor of the defendant and against the state, see State v. Reha, 483 N.W.2d 688, 694 (Minn. 1992) (noting strict construction of penal statutes), I conclude the record here does not show that the state proved "unavailability."

Finding the state failed to meet the first prong of unavailability, I do not discuss the second prong, which is whether the classic hearsay in this case was reliable.

I dissent and would have reversed the conviction.

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