This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Douglas Jason Henricks,


Filed November 24, 1998


Willis, Judge

Olmsted County District Court

File No. TX984064

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

Terry L. Adkins, Rochester City Attorney, Thomas M. Canan, Assistant City Attorney, 201 Fourth Street S.E., Room 247, Rochester, MN 55904 (for appellant)

Gary A. Gittus, George F. Restovich & Associates, 117 East Center Street, Rochester, MN 55904 (for respondent)

Considered and decided by Willis, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.



The state appeals the pretrial suppression of the statements of the alleged victim of a domestic assault. We affirm.


On March 28, 1998, Rochester police officers responded to a police dispatcher's report of a 911 call from respondent's wife, who claimed that she was the victim of a domestic assault. The dispatcher told the officers that respondent Douglas Jason Henricks, the alleged perpetrator, had left the house. While one officer looked for respondent, a second officer proceeded to respondent's residence, where he was met by respondent's wife, who was very upset and crying. The officer noticed that both her arms were red from the elbows down, she had a half-inch scrape just below her left elbow, and her right hand was slightly swollen.

The officer tape-recorded a statement by respondent's wife in which she said that (1) earlier that evening, she and respondent were at a bar, and he made a comment that upset her; (2) he left the bar without her, and, when she returned home, she was locked out of the house; and (3) when respondent finally awoke to unlock the door, an argument ensued, during which respondent called her names such as "bitch," grabbed her, and threw her to the ground, and she landed on her right side with her right hand bent under her body.

After respondent had pleaded not guilty to fifth-degree assault, his wife wrote a letter to the state, requesting that the charge be dropped. She explained that she had not provided the police officers with the complete story of the incident, and she portrayed herself as the aggressor, thereby corroborating respondent's claim of self-defense. Respondent's wife also provided an affidavit in support of respondent's motion to dismiss, restating the contents of her letter.

The district court did not rule on respondent's motion but instead sua sponte ordered the suppression of the recordings of wife's 911 call and her statement to the police, concluding that they were hearsay not admissible under the excited-utterance exception. The state appeals.

I. Suppression of Statements as Hearsay

The state identifies the sole issue on appeal as whether the district court erred in suppressing wife's statements as hearsay not within the excited-utterance exception. The Minnesota Rules of Criminal Procedure provide that "[t]he prosecuting attorney may appeal as of right to the [c]ourt of [a]ppeals * * * in any case, from any pretrial order of the trial court." Minn. R. Crim. P. 28.04, subd. 1(1).

To prevail, the state must "clearly and unequivocally" demonstrate

that the trial court erred in its judgment and * * * that unless reversed, the error will have a critical impact on the outcome of the trial.

State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987) (citation omitted).

A. Critical Impact

The state must show that suppression of the evidence significantly reduces the likelihood of the state's success at trial. Id. at 551. Respondent and his wife were the only witnesses to the alleged incident. Since respondent's arrest, his wife has recanted, or to use respondent's term, she has "supplemented," the statements that are the basis of the state's case. Because respondent's wife also has stated that she is unwilling to testify against respondent, the state has met its burden of showing that the district court's pretrial suppression of wife's statements has a critical impact on the prosecution of the state's case against respondent.

B. Clear Error

The state also must show that the district court clearly erred in suppressing the evidence as inadmissible hearsay. Id. at 547.

Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted" and is not admissible unless it falls within one of the exceptions provided by the rules of evidence. Minn. R. Evid. 801(c), 802. The recordings the state seeks to introduce at trial are hearsay and therefore are inadmissible unless they are within an exception to the hearsay rule.

Here, the sole argument the state makes on appeal is that wife's statements are within the excited-utterance exception in Minn. R. Evid. 803(2), which allows the admission of a

statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Minn. R. Evid. 803(2).

For a statement to be an excited utterance within the meaning of the rule:

1. there must be a startling event or condition;

2. the statement must relate to the startling event or condition; and

3. the declarant must be under a sufficient aura of excitement caused by the event or condition to insure the trustworthiness of the statement.

Id. 1989 comm. cmt.; accord State v. Daniels, 380 N.W.2d 777, 782 (Minn. 1986) (quoting language of committee's comment).

The rationale for the excited-utterance exception is the belief that a sufficient level of excitement "eliminates the possibility of conscious fabrication" of a statement. Minn. R. Evid. 803(2) 1989 comm. cmt. Thus, the trial judge generally determines whether the declarant was under a sufficient aura of excitement at the time of the statement. Id. (citing Minn. R. Evid. 104(a)). Relevant factors include "the length of time elapsed, the nature of the event, the physical condition of the declarant, any possible motive to falsify, etc." Id.

The district court did not make findings on each of the three requirements described in the committee comment to rule 803(2) but did find that (1) respondent's wife was the alleged victim of the assault; (2) she admitted to drinking earlier that evening; and (3) she was upset with her husband. The court concluded that respondent's wife may have been angry but was not startled or excited as required by the rule so as to insure the trustworthiness of her two statements.

The state argues that the statements were close enough in time to the incident to show they were made under the requisite aura of excitement. But the district court did not base its decision on when the statements were made. While we might have arrived at a contrary conclusion, we conclude that the district court did not clearly err in ordering the suppression of the two statements as hearsay not within the excited-utterance exception.

II. Respondent's Motion to Dismiss

Respondent cross-appeals, claiming that the district court erred in failing to grant his motion to dismiss the charge against him. If the state appeals from a pretrial order, "the defendant may obtain review of any pretrial * * * order which will adversely affect the defendant." Minn. R. Crim. P. 28.04, subd. 3.

The district court did not rule on respondent's motion to dismiss; rather, it suppressed his wife's statements as hearsay. There is, therefore, no pretrial order adversely affecting respondent from which he may appeal.