This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-98-575

State of Minnesota,
Respondent,

vs.

Daniel Curtis O'Connor,
Appellant.

Filed November 24, 1998
Affirmed

Thoreen, Judge*

Stearns County District Court
File No. TX972190

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Thomas J. Mayer, Sauk Centre City Attorney, 421 Sinclair Lewis Avenue, P.O. Box 226, Sauk Centre, MN 56378 (for respondent)

John M. Stuart, State Public Defender, Lawrence Hammerling, Deputy State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for appellant)

Considered and decided by Amundson, Presiding Judge, Foley, Judge,** and, Thoreen, Judge.

U N P U B L I S H E D   O P I N I O N

THOREEN, Judge

Daniel Curtis O'Connor was convicted of fifth-degree domestic assault after a court trial. On appeal from the judgment of conviction, O'Connor claims that the trial court denied him a fair trial by taking over the examination of a state witness to lay the foundation for the admissibility of hearsay.

FACTS

On February 5, 1997, at approximately 2:20 a.m., officer Deschene and deputy Dirkes responded to a 911 domestic assault call at O'Connor's house. The officers arrived at the house within a minute after receiving the call. Upon arriving, they found O'Connor on the couch and his wife Tracy, the victim, still on the phone to the 911 operator. O'Connor appeared to be intoxicated and had a fresh scratch on his left cheek. The victim was crying and "really excited." She had been drinking but did not appear to be intoxicated.

The victim told deputy Dirkes that O'Connor had kicked her and hit her on the face with his fists several times, following an argument about infidelity. Deputy Dirkes saw a "fresh mark" on the victim's face near her left eye. The mark was red and starting to swell up.

O'Connor was tried without a jury on November 19, 1997. The victim did not appear at trial. As a result, the state attempted to introduce the victim's version of events through officer Deschene's testimony. O'Connor's counsel objected on hearsay grounds. The court indicated that it would sustain the objection unless the state could show that the victim's statement was admissible under an exception to the hearsay rule. After the state attempted to introduce the statement under the business records exception, the following exchange took place:

THE COURT: * * * I think that exception [the business records exception] would not apply.

I think the focus needs to be whether or not you have got an excited utterance here. I am not trying to give legal advice. I think unless you got an excited utterance there isn't any other way that I heard yet you are going to be able to get [the victim's statements to officer Deschene] in.

* * * *

MR. MAYER: Your Honor,--I guess, Your Honor, I don't know that I can address this. This was taken--the statement was taken sometime later after the incident took place.

THE COURT: So that--yes, I don't know what time you took the statement, but if that's the case that would not be an excited utterance. The question would be did she say anything about this at the time they were at the scene and she was upset and crying.

MR. MAYER: This, Your Honor, is about some 20 minutes later.

* * * *

THE COURT: Did the person say anything as to how she got injured when she was upset and crying when you [officer Deschene] saw her?

THE WITNESS: Yes.

THE COURT: What did she say?

THE WITNESS: She said she was assaulted by her husband.

THE COURT: She was upset and crying at that time?

THE WITNESS: Yes.

MS. VARHELY: Objection, Your Honor, that is not in the report. * * *

THE COURT: Well, that is not--you can cross examine on that, but tell me--you have testified that when you were at the scene she was upset and crying, her left eye was puffy to the temple area?

THE WITNESS: Yes.

THE COURT: Did you talk to her then?

THE WITNESS: I talked to her shortly before I took the statement. * * *

MS. VARHELY: Then, Your Honor--

THE COURT: Well, when she was upset and crying, at that point did she say something to you?

THE WITNESS: Yes, she said she was hit by her husband.

THE COURT: Describe her demeanor at the time she said that?

THE WITNESS: She was upset and crying.

THE COURT: This was at the house?

THE WITNESS: Yes.

THE COURT: You got the call at 2:20?

THE WITNESS: Yes.

THE COURT: What time did you get to the house?

THE WITNESS: Within a minute. When I arrived I was talking to Dan O'Connor for about maybe 10 minutes or so while Deputy Dirkes was talking to Tracy in the house, and we were apart from each other.

THE COURT: All right, but after 10 minutes you talked to her yourself?

THE WITNESS: Yes.

THE COURT: Tell me again what she said at that point then?

THE WITNESS: She said she was slapped by or hit by her husband Dan.

THE COURT: I think that comes within the excited--

MS. VARHELY: I renew my objections, Your Honor.

The trial court denied O'Connor's counsel's objection.

O'Connor testified on his own behalf. He admitted arguing with his wife but denied hitting or kicking her. He also admitted that his wife was crying, excited, angry, and distraught. He claimed that the bruise on his wife's face resulted from a previous altercation with another person a few days earlier.

The court found appellant guilty of fifth-degree domestic assault. The court indicated that its finding was "based upon the excited utterance made to the officers at the scene." The court also noted that it had placed "special credence on the fact that * * * a 911 call [was] made" and the injury to the victim's left eye was fresh. This appeal followed.

D E C I S I O N

The Minnesota Rules of Evidence authorize the trial court to examine witnesses. Minn. R. Evid. 614(b). The examination of witnesses, however, is the more appropriate function of counsel. See State v. Sandquist, 146 Minn. 322, 324, 178 N.W. 883, 884 (1920). In a jury trial, the trial court's prerogative to examine witnesses should be exercised only under exceptional conditions and with great caution, particularly where the credibility of witnesses is at issue. See id.; State ex rel. Hastings v. Denny, 296 N.W.2d 378, 379 (Minn. 1980). The need for caution is based on the recognition that, because the trial judge commands the attention and respect of the jury, "[j]urors are prone to look for an indication as to which litigant ought to prevail in the attitude and remarks of the trial judge." I.J. Bartlett Co. v. Ness, 156 Minn. 407, 412, 195 N.W. 39, 41 (1923); accord Hansen v. St. Paul City Ry. Co., 231 Minn. 354, 361, 43 N.W.2d 260, 264-65 (1950).

In a court trial, on the other hand, "[i]f a trial court is doubtful about the testimony of any witness * * *, he may have not only the right but the duty to interrogate a witness." Olson v. Blue Cross & Blue Shield, 269 N.W.2d 697, 702 (Minn. 1978). Active interrogation by judges "[i]n a non-jury case, * * * although not always helpful, is rarely prejudicial." Jackson v. United States, 329 F.2d 893, 894 (D.C. Cir. 1964).

In the present case, the trial court exceeded its prerogative to interrogate witnesses by suggesting an exception to the hearsay rule that the prosecutor had not only failed to consider but also deemed inapplicable. It then took over the examination of officer Deschene to lay the foundation for the admission of the evidence on which it later based the conviction. Without a doubt, it would have been better practice for the trial judge to allow the prosecutor to interrogate the witness first.

The trial court's conduct, however, did not operate to deprive O'Connor of a fair trial and does not, therefore, require a new trial. Erroneous rulings and irregularities do not require a new trial "where no prejudice results, and it can be said, upon the whole record, that a fair trial was had and no injury resulted." State v. Hanson, 173 Minn. 158, 161, 217 N.W. 146, 147 (1927). In this case, no prejudice or injury resulted to O'Connor. First, this was a court trial; the court's conduct, therefore, had no impact on a jury. Cf. Denny, 296 N.W.2d at 379; Hansen, 231 Minn. at 360-61, 43 N.W.2d at 264-65; Hanson, 173 Minn. at 161, 217 N.W. at 147 (new trials required because of "recognized extraordinary prestige" of trial judge and resulting impact of his conduct on the jury). Second, the evidence the court elicited was admissible. No prejudice can be said to result to a party from the court's efforts to lay the predicate for the admission of admissible evidence. Here, the court's questioning did not go beyond what was necessary to establish foundation for the admission of the victim's statements and did not reflect bias or lack of impartiality on the court's part. The court's conduct, therefore, did not prejudice O'Connor. We therefore affirm his conviction.

Affirmed.

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

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