This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Edward James Brown,


Filed May 12, 1998


Toussaint, Chief Judge

Hennepin County District Court

File No. 96060242

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

Michael O. Freeman, Hennepin County Attorney, Beverly Jean Benson, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

John M. Stuart, Minnesota State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55415 (for appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Foley, Judge.**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.


TOUSSAINT, Chief Judge

Appellant Edward J. Brown appeals his conviction of second-degree felony murder, arguing he was denied a fair trial because the trial court abused its discretion in failing to admit hearsay evidence that a third party could have committed the crime for which he was convicted. Because the trial court judge properly excluded the hearsay evidence and because there was sufficient evidence to support the conviction, we affirm.


Rulings on evidentiary matters lie within the trial court's discretion and should not be reversed absent an abuse of that discretion. State v. Olkon, 299 N.W.2d 89, 101, 102 (Minn. 1980). However, whether to admit hearsay evidence is a question of law. State v. Larson, 472 N.W.2d 120, 126 n.2 (Minn. 1991)(quoting State v. Dana, 422 N.W.2d 246, 249 (Minn. 1988)), cert denied 505 U.S. 1225, 112 S.Ct. 3043 (1992).

Brown argues that the trial court abused its discretion in failing to allow the

testimony of Brenda Swenson. Swenson was the girlfriend of Manual Red Wing, a man known to frequent a local White Castle restaurant. Swenson told police that Red Wing admitted to her that he may have "severely beaten or killed a black guy" behind the White Castle restaurant. Brown contends, therefore, that this statement by Swenson evidences that a third party, namely Red Wing, could have committed the murder and should have been presented to the jury.

A statement that was against the declarant's interest when made may be admitted if the declarant is unavailable as a witness. Minn. R. Evid. 804(b)(3). This rule, however, requires corroborating evidence clearly indicating trustworthiness for statements "tending to expose the declarant to criminal liability and offered to exculpate the accused." Id. See also State v. Higginbotham, 298 Minn. 1, 5, 212 N.W.2d 881, 883 (1973)(requiring "independent corroborating evidence that bespeaks reliability" in these circumstances). Reliability must be determined from the totality of the circumstances surrounding the making of the statement, and not from other corroborating evidence. Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 3149 (1990). Relevant factors in determining reliability include: (1) the context of the statements and the persons to whom they were made; (2) whether declarant had a motive for lying or problems with memory; and (3) whether declarant had personal knowledge of the identity and role of the participants in the crime. State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995), citing State v. Roby, 463 N.W.2d 506, 509 (Minn. 1990).

Concluding that the hearsay statements should be surpressed, the trial court noted that Swenson's credibility was questionable. The trial judge observed in great detail that: (1) Swenson's mental capacity had been affected by her chronic alcoholism shown by the fact that she could not recall whether or not she was married to Red Wing or how much she had to drink on the night that Red Wing allegedly confessed to beating a man near the White Castle restaurant; and (2) there were numerous inconsistencies between Swenson's statement to police and Red Wing's statements to police. The trial court then concluded that based on the totality of the circumstances, Swenson's hearsay statements were not "trustworthy" and should not be admitted.

The record reveals that (1) neither party contends that Red Wing is an unavailable witness as required for the hearsay exception under Minn. R. Evid. 804(b)(3); there is no evidence to show that Swenson would have a motive for lying; (3) the trial court determined that chronic alcoholism affected Swenson's mental capacity, thereby impairing the credibility of her statements; (4) Swenson admits that she was inebriated on the night that Red Wing allegedly confessed to beating a man near the White Castle restaurant; (5) Swenson's description of Red Wing's clothing on the evening in question does not match the description of the alleged assailant given by another witness; (6) Swenson's statements were not made under oath. See Grube, 531 N.W2d at 490 (affirming the admission of hearsay statements based, in part, on the fact that the statements were made under oath); (7) the record reveals that Red Wing did not confess to killing anyone; and (8) Red Wing allegedly told Swenson that he had "severely beaten a black guy" behind the White Castle restaurant and may have left him for dead; whereas (9) the victim is a white male. Thus, we conclude there was substantial evidence on the record to support the trial court's exclusion of Swenson's testimony as inadmissible hearsay.