This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C2-99-28

State of Minnesota,
Respondent,

vs.

Kahlid Yusef Abdullah,
Appellant.

Filed January 11, 2000
Affirmed.
Crippen, Judge

Ramsey County District Court
File No. K792018

Mike Hatch, Minnesota Attorney General, Suite 300, 525 Park Street, St. Paul, MN 55103; and

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, Suite 600, 2829 University Avenue S.E., Minneapolis, MN 55414 (for appellant)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Davies, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant disputes the admissibility of a police investigator's testimony of a witness' description and identification of the clothing appellant wore near the scene of a burglary. We affirm.

FACTS

Appellant's sister refused to comply with a subpoena for her attendance at the trial of the case. The trial court permitted a police investigator to testify that appellant's sister told him, on the day after the burglary, that appellant was wearing "grayish pants and a white tee shirt" on the day of the burglary. The investigator testified appellant's sister then identified clothing found in her home, matching this description, as the clothes appellant had worn on that day. Numerous other witnesses reported the flight of a burglar to this home in the same neighborhood immediately after the burglary. One witness observed the fleeing burglar in tan or khaki pants with a white tee shirt. After police seized appellant and permitted other witnesses to observe him, these witnesses reported that appellant was the burglar but was no longer wearing the clothing he wore when he was first seen.

Appellant disputes the admissibility of the investigator's testimony of his sister's statement and identification, claiming that use of the testimony is not permitted by the rules of evidence and that it deprived him of his constitutional right to confront a material witness.

D E C I S I O N

A "determination that a statement meets the foundational requirements of a hearsay exception will not be found erroneous absent a clear showing of abuse of discretion." State v. Buggs, 581 N.W.2d 329, 334 (Minn. 1998). Where the declarant is unavailable as a witness, the hearsay rule permits admission of material evidence that is not covered by other specific exceptions if it has "equivalent circumstantial guarantees of trustworthiness," is more probative than other evidence which the proponent can procure, and admission of the evidence best serves the interests of justice and the general purpose of the rules of evidence. Minn. R. Evid. 804(b)(5).

The admission of hearsay evidence violates defendants' constitutional right to confront witnesses against them, unless the evidence falls within a "firmly rooted" exception to the hearsay rule, or is supported by "particularized guarantees of trustworthiness" and it is both necessary and reliable. State v. Aubid, 591 N.W.2d 472, 478-79 (Minn. 1999) (citation omitted). It is undisputed in the circumstances of this case that the evidence was necessary and could not be obtained by means other than through the officer's testimony. At issue is the question of whether the statement was sufficiently trustworthy for purposes of the applicable rule and appellant's right to confront the witness.

In judging the trustworthiness of a hearsay statement, the court will consider the context of the statement, the persons to whom the statement was made, potential motives of the declarant for deceit or poor memory, and the declarant's personal knowledge of the subject matter. See State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995).

It is significant, as appellant suggests, that the declarant's statement in this case was made on inquiry by the police. See State v. Hansen, 312 N.W.2d 96, 103 (Minn. 1981) (stating that "ex parte statements made during police questioning have traditionally been considered as inherently untrustworthy"). But we observe that there is no evidence in this case that the witness was given any promises or other police inducement to make the statement. There is no evidence that she had a motive for lying, or that she had any desire to inculpate her brother. There is nothing to suggest she had memory problems, nor is there evidence in the record contradicting her statements. It is evident that the witness had personal knowledge regarding the clothing her brother had worn when she saw him on the day of the burglary. Her statements were made to police on the following day. Under the circumstances, the court did not abuse its discretion in determining the statement was sufficiently trustworthy under either the evidence rule or the confrontation clause.

Moreover, there is merit in respondent's argument that any error the trial court may have committed in admitting the statement was harmless. That is, there is no "reasonable possibility that the verdict might have been more favorable to the defendant" had the evidence not been admitted. State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995) (citation omitted). There was a great deal of other evidence produced at trial that suggested appellant used the discarded clothing during the burglary. See, e.g., Idaho v. Wright, 497 U.S. 805, 823, 110 S. Ct. 3139, 3150-51 (1990) (suggesting that the presence of corroborating evidence may indicate "that any error in admitting the statement might be harmless"). There was also ample trial evidence to identify appellant as the burglar: one of the victims of the burglary discovered appellant during the burglary, the other victim nearly caught appellant as he was fleeing the scene, and more than one witness identified appellant as the burglar when the police escorted him out of his sister's house shortly after the burglary.

Affirmed.