This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



David Manuel Jones,


Filed January 28, 1997

Reversed and remanded

Klaphake, Judge

Cass County District Court

File No. K4-96-35

Hubert H. Humphrey, III, Attorney General, Michael J. Weber, Assistant Attorney General,1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; Earl Maus, Cass County Attorney, Cass County Courthouse, P.O. Box 3000, Walker, MN 56484 (for Respondent)

John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.



Appellant David Manuel Jones was convicted after a jury trial of gross misdemeanor theft, possession of stolen property, and fleeing police in a motor vehicle under Minn. Stat. §§ 609.487, 609.52 & 609.53 (1994). On appeal, he challenges the trial court's refusal to suppress a portion of a witness statement not disclosed until the morning of trial, the court's refusal to exclude use of the statement after the witness testified he had no recollection of the events, and the court's decision to admit impeachment evidence of Jones's 1992 conviction for third-degree assault. Because the trial court abused its discretion in concluding that the witness statement was admissible as an exception to the hearsay rule and because the trial court failed to give a limiting instruction either when Jones's prior conviction was admitted or at the end of trial, we reverse and remand for a new trial.



Jones challenges the trial court's refusal to impose discovery sanctions when the first portion of a transcribed witness statement was not disclosed by the state until the morning of trial. Nevertheless, it is undisputed that (1) this late disclosure was inadvertent, and the state provided Jones with the first part of the transcript as soon as the prosecutor received it from the police; (2) Jones was not surprised or otherwise prejudiced by the contents of the first part of the transcript because he had already received a number of other documents well in advance of trial that referred to the statement and the witness's assertion that Jones had, at some point, driven the fleeing vehicle; and (3) Jones never requested a continuance. Under these circumstances, the trial court did not abuse its discretion in refusing to impose discovery sanctions. See State v. Pietraszewski, 283 N.W.2d 887, 891 (Minn. 1979) (no abuse of discretion in allowing testimony of two witnesses when prosecution's nondisclosure inadvertent and defense failed to request continuance); Wedan v. State, 409 N.W.2d 266, 269 (Minn. App. 1987) (although prosecution failed to disclose therapist's notes until day of trial, trial court did not abuse discretion in refusing to suppress therapist's testimony when prosecutor disclosed report as soon as it was received and defense counsel aware of contents of report about four weeks prior to trial), review denied (Minn. Sept. 23, 1987).


Jones challenges the trial court's subsequent decision to admit both transcripts of the statement, after the witness testified at trial that he had no recollection of the events. Any error in admission of this evidence was undisputedly prejudicial because the statement was the only evidence to establish that Jones had driven the fleeing vehicle; while other witnesses placed Jones in the front passenger seat of the vehicle, only this particular witness, who was in the back seat of the vehicle, claimed that at some point during the high speed chase, Jones had changed places with the driver of the vehicle.

The trial court ruled the statement admissible as a statement against the witness's own penal interest under Minn. R. Evid. 804(b)(3). Only "self-inculpatory" portions of a statement are admissible under this rule. See State v. Dukes, 544 N.W.2d 13, 18-19 (Minn. 1996) (citing Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431 (1994)); State v. Ford, 539 N.W.2d 214, 227 (Minn. 1995) (same), cert. denied, 116 S. Ct. 1362 (1996). Under Williamson, a trial court must separate inculpatory from noninculpatory (or exculpatory) portions of a statement. 512 U.S. at ___, 114 S. Ct. at 2436-37. That the witness in this case was present at the crime scene is not self-inculpatory; one may simply be a witness or even the victim of a crime. Viewed alone, the witness's acknowledgement that he was a passenger in the fleeing vehicle is either neutral or even irrelevant, because his presence had no bearing on whether Jones committed the crime. Thus, the statement was not admissible under rule 804(b)(3).

The trial court also ruled that the statement was admissible under the catchall provision of Minn. R. Evid. 804(b)(5). This rule requires that the statement meet the prerequisites for reliability and trustworthiness. See State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995) (citing State v. Roby, 463 N.W.2d 506, 509 (Minn, 1990)). The statement has some indicia of reliability: it was tape recorded by a police officer within two hours after the chase, and the witness, who had personal knowledge of the events, stated several times that Jones had taken over driving during the chase. An unsigned ex parte statement given to police during questioning, however, is inherently untrustworthy. See State v. Hansen, 312 N.W.2d 96, 103 (Minn. 1981). Moreover, the witness clearly had problems with his memory: he testified that he blacked out due to drinking that night, that he had no memory of the night, and that he did not recall being taken into custody or giving a statement to the police. Cf. State v. Schilling, 474 N.W.2d 203, 204-05 (Minn. App. 1991) (intoxication renders statement unreliable). The witness also had a motive for lying: the statement was given after the witness was found leaning against a car that police had been chasing and that had a stolen transmission in the trunk. Under these circumstances, the statement is not sufficiently reliable to be admissible under rule 804(b)(5).

In addition to the two rules cited by the trial court, the state argues that the statement was admissible as a recorded recollection under Minn. R. Evid. 803(5). See State v. Zeimet, 348 N.W.2d 338, 341 (Minn. 1984). Because the witness never signed the transcripts and claimed insufficient memory to recall anything about giving the statement, the statement was never verified as having been given freely and truthfully. See Minn. R. Evid. 803(5). In addition, rule 803(5) provides that a recorded recollection "may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." Thus, rule 803(5) does not provide a basis for admission of the transcripts of the statement.


The trial court ruled that Jones's 1992 conviction for third-degree assault was admissible for impeachment purposes. Under Minn. R. Evid. 609(a)(1), a witness's credibility may be attacked with a prior conviction if the crime was punishable by imprisonment in excess of one year[1], and the court determines that the probative value of admitting the evidence outweighs its prejudicial effect. See State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978) (factors to consider in determining admissibility of prior conviction).

When some factors favor admissibility and some weigh against it, we generally conclude that a trial court properly exercised its discretion in allowing evidence of a defendant's prior conviction. See State v. Walker, 310 N.W.2d 89, 91 (Minn. 1981). Nevertheless, the trial court in this case failed to give any cautionary instructions against using the testimony of Jones's prior conviction as substantive evidence. See State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985) (trial court should sua sponte give cautionary instruction). While no objection was made and this apparent error was not raised as an issue on appeal, the absence of this cautionary instruction substantially increased the possibility that Jones was unduly prejudiced by admission of this prior conviction.

The court's failure to give this cautionary instruction may not provide an independent basis for reversal in this case. Given the combined effect of this error and the erroneous and repeated admission[2] of the witness statement, however, we conclude that Jones did not receive a fair trial. Cf. Van Buren v. State, ___ N.W.2d ___, ___ (Minn. Dec. 5, 1996) (notwithstanding defense counsel's failure to object at trial, reviewing court will consider plain error affecting substantial rights if error had effect of denying defendant fair trial). As it is impossible to separate the prejudicial effect of these errors on the jury's decision to convict appellant of the various charges, we conclude that a new trial is warranted on all charges.

Reversed and remanded for a new trial.

[ ]1 In 1992, third-degree assault was punishable by up to five years imprisonment under Minn. Stat. § 609.223, subd. 1 (1992). Although Jones's conviction was reduced to a misdemeanor pursuant to a stay of imposition, the original crime was a felony and therefore is subject to the balancing test of rule 609(a)(1). See State v. Skramstad, 433 N.W.2d 449, 453 (Minn. App. 1988) ("The rule addresses the maximum sentence possible at the time of conviction, not the sentence which was actually given nor any subsequent alteration of the defendant's record."), review denied (Minn. Mar. 13, 1989).

[ ]2In addition to admission of the transcripts themselves as trial court exhibits, the prosecutor questioned the witness extensively about the statement and its contents, and the police officer who took the statement testified as to what the witness had said. Under these circumstances, there is a clear danger that the jury placed undue emphasis on the statement.