A04-845

State of Minnesota,

Respondent,

vs.

Maurice Bobby Madison,

Appellant.

Filed June 7, 2005

Affirmed

Willis, Judge

Stearns County District Court

File No. K8-03-4255

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, Administrative Center, Rm. 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

John M. Stuart, State Public Defender, Leslie Rosenberg, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of second-degree assault and seeks a new trial, arguing that the district court’s evidentiary errors violated his constitutional rights to present a defense and to confrontation. Because we determine that any errors made by the district court were harmless, we affirm.

FACTS

On September 17, 2003, appellant Maurice Madison went to a bar with a group of acquaintances, including Stacy Washington and other members of the Washington family. They stayed until closing, by which time most in the group, including Madison, were intoxicated. Stacy Washington convinced Madison to give Washington his car keys so that Madison would not drive while he was intoxicated. As the group stood outside the bar, Madison demanded that Washington return the car keys. When Washington refused, a scuffle ensued. Madison testified that some of the Washingtons then attacked him. He called 911. Other witnesses reported that Washington and Madison wrestled as Madison attempted to get back his keys. At some point, Madison pulled a large knife from his waistband. The state’s witnesses testified that Madison pulled the knife to threaten Washington when Washington refused to return Madison’s car keys. But Madison testified that he pulled out the knife in self-defense when he was attacked. The bar’s manager also called 911. Police arrived shortly, and Madison was arrested.

Madison was charged with second-degree assault, in violation of Minn. Stat. § 609.222, subd. 1 (2002). A jury found him guilty, and the district court sentenced him to 57 months in prison. This appeal follows.

D E C I S I O N

Madison argues that the district court made a number of evidentiary errors that violated his constitutional rights to present a defense and to confrontation. “Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the trial court abused its discretion and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).

Madison first argues that his constitutional right to present a defense was violated because the district court refused to allow two of his witnesses to testify. The state acknowledges that a defendant has a constitutional right to present witnesses on his own behalf. But it argues that, under Chambers v. Mississippi, a defendant must still “comply with established rules of procedure and evidence.” 410 U.S. 284, 302, 93 S. Ct. 1038, 1049 (1973). Therefore, the state argues that before Madison can claim a violation of his constitutional right to present a defense, he must show that the proposed evidence was admissible.

Madison sought to introduce the testimony of a pastor and a deacon at the church that Madison and the Washingtons attended. Both the pastor and the deacon were to testify that Madison and the Washingtons had problems before the incident outside the bar. Madison’s attorney explained to the district court that this testimony supported Madison’s self-defense argument. The proposed witnesses’ knowledge of the problems came from Madison’s description to them of his relationship with the Washingtons. The pastor would also have testified that he talked to Madison and the Washingtons regarding the alleged problems. The district court determined that the proposed testimony was hearsay and that no exceptions to the hearsay rule applied.

Hearsay “is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). The proposed testimony that Madison told the pastor and the deacon that he and the Washingtons were having problems would implicate the hearsay rule. Madison argued to the district court that the testimony was being offered to prove that Madison and the Washingtons had problems. We conclude, therefore, that the statements were being offered for the truth of the matter asserted and were hearsay.

Madison argues on appeal that the proposed testimony was offered as evidence of Madison’s “then existing mental or emotional condition as allowed under Minn. R. Evid. 803(3).” Madison explains that the statements would have shown that he feared the Washingtons before the incident at the bar. But the fact that Madison and the Washingtons were having problems does not show that he had reason to fear the Washingtons. At trial, Madison did not argue that the proposed witnesses would testify that Madison told them that he was afraid of the Washingtons. The proposed testimony of the pastor and the deacon would not have revealed Madison’s mental or emotional condition at the time of the incident outside the bar. The district court did not err by excluding the testimony that Madison had told the proposed witnesses that he and the Washingtons were having problems before the incident outside the bar.

But the pastor’s proposed testimony that he counseled Madison and the Washingtons regarding the alleged problems does not implicate the hearsay rule because his proposed testimony would describe his own actions, not Madison’s statements. It was error not to allow him to testify to the fact that he counseled Madison and the Washingtons. But an evidentiary error is harmless if this court is “satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.” State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted). If there is a reasonable possibility that the verdict might have been different if the evidence had been admitted, the error is prejudicial. Id. In completing a “harmless error impact” analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error “had on the jury’s verdict and more specifically, whether the jury’s verdict is ‘surely unattributable’ to the [error].” State v. King, 622 N.W.2d 800, 811 (Minn. 2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997)).

Here, the excluded evidence would have informed the jury that the pastor had counseled Madison and the Washingtons. The jury might infer that Madison and the Washingtons were having problems. But the fact that there were problems does not prove that Madison acted in self-defense when he brandished the knife. Further, the pastor’s proposed testimony explains nothing about the events on the night of the incident. We are satisfied beyond a reasonable doubt that had this testimony been admitted, a reasonable jury would have reached the same verdict that the jury did here. We conclude, therefore, that the error of excluding the pastor’s testimony was harmless.

II.

Second, Madison argues that the district court abused its discretion by prohibiting him from using juvenile adjudications to impeach two of the state’s witnesses. A district court’s ruling on the impeachment of a witness by a prior conviction is reviewed under a clear-abuse-of-discretion standard. State v. Ihnot, 575 N.W.2d 581, 584 (Minn. 1998). Under certain circumstances, a party may introduce evidence of a witness’s criminal conviction to impeach the witness’s testimony, but juvenile adjudications are inadmissible “unless permitted by statute or required by the state or federal constitution.” Minn. R. Evid. 609(a), (d).

Juvenile adjudications may not be used for the purpose of general impeachment of credibility. State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998) (citing State v. Schilling, 270 N.W.2d 769, 772 (Minn. 1978)). “In the absence of a specific challenge to a juvenile’s credibility demonstrating a clear motive to falsify testimony, the interest protected in Rule 609(d) should not be subordinated to the defendant’s right of confrontation.” Id.

Madison relies on Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105 (1974), to argue that his right to cross-examine the two witnesses in question was violated because he was not allowed to use their juvenile adjudications for impeachment purposes. But in Davis the witness was on probation as a result of a juvenile adjudication and had a clear motive to falsify his testimony and direct the blame elsewhere. 415 U.S. at 312-14, 319, 94 S. Ct. at 1108-09, 1112.

The instant case is distinguishable because Madison provided no reason, at trial or on appeal, for suspecting that either witness had an ulterior motive or a bias as a result of their juvenile adjudications that would undermine the credibility of his or her testimony. We conclude, therefore, that the district court did not abuse its discretion by prohibiting Madison from using juvenile adjudications for the purpose of impeaching the testimony of the witnesses in question.

III.

Madison next argues that the district court abused its discretion by allowing the tape of the bar manager’s 911 call to be replayed at the jury’s request after deliberations began. A district court has broad discretion to determine what evidence a jury may review after retiring for deliberation, and the district court’s determination is reviewed for an abuse of discretion. State v. Kraushaar, 470 NW.2d 509, 515 (Minn. 1991). This court has noted that when a district court grants a jury’s request to review evidence, “a defendant can hardly challenge the granting of such a request unless it unfairly highlights a portion of the evidence.” State v. Ross, 451 N.W.2d 231, 237 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).

Madison argues that the district court abused its discretion by allowing the tape of the bar manager’s 911 call to be replayed to the jury because the tape from Madison’s 911 call had not been found by the state and was not available at trial. He argues that replaying the tape of the bar manager’s call unfairly emphasized that evidence and that the jury’s request to listen to the tape a second time shows that the jury gave great weight to the call. But the jury also requested to look at Madison’s statement to the police, which suggests that the jury did not give undue weight to the 911 tape. We conclude that the district court did not abuse its discretion by allowing the tape of the 911 call to be replayed once to the jury in the courtroom after the jury had begun deliberating.

IV.

Finally, in his pro se brief, Madison argues that he is unlawfully imprisoned because he is innocent and because the state and the Stearns County Police Department “suppress[ed]” the tape of his 911 call. The state could not find the tape of Madison’s call, and the district court determined that there was no reason to believe “that the State has not made a diligent effort to find it.”

When potentially exculpatory evidence is destroyed or lost, to establish reversible error a defendant must establish that such destruction of evidence was intentional. State v. Heath, 685 N.W.2d 48, 55 (Minn. App. 2004), review denied (Minn. Nov. 16, 2004). Here, there is no evidence that the state intentionally lost or destroyed the tape of Madison’s 911 call. We conclude, therefore, that there is no reversible error.

Affirmed.