STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Scott Bradley Knutson,
Filed June 29, 1999
Dakota County District Court
File No. K5-97-2652
Mike Hatch, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Michael E. Molenda, Apple Valley City Attorney, Christopher A. Grove, Assistant City Attorney, 600 Midway National Bank Building, 7300 W. 147th Street, Apple Valley, MN 55124 (for respondent)
John M. Stuart, State Public Defender, Jack M. Stuart, Assistant Public Defender, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)
Considered and decided by Harten, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant challenges his conviction of fifth-degree assault on the ground of insufficient evidence, claiming that the victim's recantation of taped evidence precluded admission of that evidence. Because we see no abuse of discretion in the admission of the evidence, we affirm.
A 911 dispatcher received a call from Bobbie Jo Knutson, wife of appellant Scott Knutson. Their conversation was recorded. Bobbie Jo Knutson said,
I need a police officer to come. My husband just lost it and just broke my jaw bone again * * * I want him caught. He's gonna get away again. I'm sick of this.
In response to questions, she said that appellant had hit her and that she did not need an ambulance. Later, she said that appellant was gone and the dispatcher should "forget it." Two police officers were nevertheless dispatched to the Knutson home.
Appellant was charged with fifth-degree assault. At trial, the police officers testified that when they arrived at her home Bobbie Jo Knutson was crying, that her speech was broken, that there were light scratches on her face, that her manner and behavior were consistent with a recent assault, and that she said appellant had assaulted her. One officer testified that Bobbie Jo Knutson later telephoned with information on appellant's location to aid in his arrest.
Bobbie Jo Knutson then testified on behalf of appellant. Over appellant's objection, the jury heard the tape of her conversation with the dispatcher, which the judge admitted as an "excited utterance." Bobbie Jo Knutson testified that she recanted what she had told the dispatcher and the officers who came to the house, that appellant had not assaulted her, and that she had tried to stop the proceedings.
After the jury found appellant guilty of assault, he was sentenced to one year's imprisonment. He argues that the evidence was insufficient because the tape of his wife's conversation with the 911 dispatcher was less reliable than her testimony recanting it.
The tape of the 911 conversation was admitted under Minn. R. Evid. 803 (2), providing that a declarant's "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is admissible even though the declarant is available as a witness. The reliability of such a hearsay statement can be inferred if the statement falls within a firmly rooted hearsay exception, such as the excited utterance exception. See State v. Daniels, 380 N.W.2d 777, 785 (Minn. 1986) (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539 (1980)).
Appellant relies on State v. Edwards, 485 N.W.2d 911 (Minn. 1992) to argue that the tape was not reliable because his wife recanted it in her testimony. But appellant's reliance is misplaced for two reasons. First, Edwards is distinguishable on its facts: it involved the admissibility of statements made in a 911 phone call and to officers by a child later declared incompetent to testify. Id. at 912-13. Second, Edwards held that the statements were admissible because the child had no apparent motive to fabricate and the statements were internally consistent. Id. at 916.
Bobbie Jo Knutson's statements to the dispatcher and to the police officers were also internally consistent, and appellant offers no support for his view that she had a motive to fabricate because of her desire to "shift the balance of power in the marital relationship" by having appellant arrested. Moreover, victims of spousal abuse are acknowledged to have a tendency to recant evidence of their abuse. See generally State v. Grecinger, 569 N.W.2d 189, 194-95 (Minn. 1997) (upholding the admissibility of expert testimony on battered women syndrome to explain victim's failure to pursue prosecution); see also State v. Stallings, 474 N.W.2d 645, 650 (Minn. App. 1991) (subsequent recantation "does not negate the presumed reliability of the excited utterance"), rev'd on other grounds, 478 N.W.2d 491 (Minn. 1991).
The court did not abuse its discretion in admitting the tape of the 911 phone call, notwithstanding appellant's wife's recantation.