A04-1799

State of Minnesota,

Respondent,

vs.

Darryl Fitzgerald Turner,

Appellant.

Filed November 1, 2005

Affirmed

Willis, Judge

Ramsey County District Court

File No. K3-03-4347

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

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Willis, Judge.

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

WILLIS, Judge

In this appeal from convictions of first-degree burglary and first-degree aggravated robbery, appellant argues that (1) the prosecutor committed prejudicial misconduct in his opening statement and (2) the district court erroneously admitted the victim’s hearsay statements made to a police officer and to another witness. Because we determine that any prosecutorial misconduct in the opening statement does not require reversal of appellant’s conviction and that the district court’s error in admitting certain statements did not significantly affect the verdict, we affirm.

FACTS

Appellant Darryl Fitzgerald Turner was arrested and charged with first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1(c) (2002), and first-degree aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (2002), for breaking into the apartment where his former girlfriend, J.J., was babysitting and then injuring J.J. and taking her money.

While incarcerated and awaiting trial, Turner violated a no-contact order and twice talked to J.J. on the telephone. During those calls, Turner told J.J. not to get caught, not to answer the door, and to “get lost” for two weeks. The state attempted to subpoena J.J. to testify at Turner’s trial but was unable to serve her, and J.J. did not testify in the state’s case. She did, however, appear at trial and testify for the defense that she lied when she reported the events leading to the burglary and robbery charges.

At trial, over Turner’s objections, three witnesses testified regarding statements that J.J. made on the night of the alleged robbery and burglary: a friend of J.J.’s, the tenant of the apartment where J.J. was babysitting, and the responding police officer. The statements made to J.J.’s friend were admitted under the excited-utterance exception to the hearsay rule, and the statements made to the apartment’s tenant and to the police officer were admitted under the catch-all exception to the hearsay rule.

The jury convicted Turner of both charges, and this appeal follows.

D E C I S I O N

Turner first argues that the prosecutor committed serious misconduct during his opening statement. Prosecutorial misconduct requires the reversal of a defendant’s conviction only “when the misconduct, considered in the context of the trial as a whole, was so serious and prejudicial that the defendant’s constitutional right to a fair trial was impaired.” State v. Johnson, 616 N.W.2d 720, 727-28 (Minn. 2000). But a defendant who fails to object to the prosecutor’s statement or to seek a cautionary instruction ordinarily waives the right to have the issue considered on appeal. State v. Parker, 353 N.W.2d 122, 127 (Minn. 1984).

Because Turner failed to object at trial to the prosecutor’s statements, he failed to preserve the issue for appellate review, and we need not consider Turner’s allegations of prosecutorial misconduct. See State v. Steward,645 N.W.2d 115, 124 (Minn. 2002). But we may still grant relief if we conclude that the prosecutor’s conduct was so prejudicial that Turner’s right to a fair trial was denied. See State v. Bolstad, 686 N.W.2d 531, 542 (Minn. 2004).

In an opening statement, a prosecutor may outline the facts that he expects to prove to aid the jury in following the testimony. Tucker v. State, 309 Minn. 482, 486, 245 N.W.2d 199, 202 (1976). While a prosecutor is not required to make a colorless presentation, it is improper to make arguments in opening statements. Bolstad, 686 N.W.2d at 544; State v. Gates, 615 N.W.2d 331, 341 (Minn. 2000).

Here, Turner asserts that the prosecutor’s repeated references to “violence, intimidation, and manipulation” were arguments improper for an opening statement. He also claims that the prosecutor interjected “issues broader than guilt or innocence” by stating that “our system of justice doesn’t stand for intimidation and manipulation.” While the prosecutor’s comments were perhaps ill-advised, looking at the record as a whole, we conclude that these statements were not so prejudicial as to deny Turner a fair trial, and the statements do not require us to reverse his conviction.

II.

Turner next argues that the district court erroneously admitted the hearsay statements that J.J. made to the apartment’s tenant and to the police officer. Turner first argues that the district court erred by finding that Turner waived his right to confrontation because his wrongdoing procured J.J.’s absence from the trial. He also argues that the district court erred by admitting these statements under the catch-all exception to the hearsay rule.

This court will not reverse a district court’s evidentiary rulings unless the district court clearly abused its discretion. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). A district court’s findings, including a finding that the defendant procured a witness’s unavailability, will not be reversed unless those findings are clearly erroneous. State v. Byers, 570 N.W.2d 487, 491, 494 (Minn. 1997). But “the surrounding circumstances relevant to a Sixth Amendment evaluation are reviewed de novo.” State v. DeRosier, 695 N.W.2d 97, 104 (Minn. 2005).

Forfeiture by Wrongdoing

Before trial, the district court ruled that J.J. was unavailable to testify for the state because of Turner’s wrongdoing. Therefore, the district court ruled that it would admit J.J.’s hearsay statements made to the apartment’s tenant and to the police officer. Turner argues that J.J.’s statement to the police officer was testimonial and that its admission violated his right to confrontation as described in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).

If a witness is unavailable to testify because of the defendant’s wrongdoing, other competent evidence may be introduced to take the place of the witness’s testimony. State v. Black, 291 N.W.2d 208, 214 (Minn. 1980), abrogation on other grounds recognized by State v. Jones, 556 N.W.2d 903, 909 n.4 (Minn. 1996).

In Minnesota, a defendant will be found to have forfeited by his own wrongdoing his right to confront a witness against him if the state proves that the defendant engaged in wrongful conduct, that he intended to procure the witness’s unavailability, and that the wrongful conduct actually did procure the witness’s unavailability.

State v. Wright, 701 N.W.2d 802, 814-15 (Minn. 2005). A defendant who wrongfully procures the unavailability of a witness cannot then assert that his constitutional rights have been violated by the admission of substitute evidence. State v. Fields, 679 N.W.2d 341, 347 (Minn. 2004). Crawford also recognizes the continuing validity of the rule of forfeiture by wrongdoing. 541 U.S. at 62, 124 S. Ct. at 1370 (noting that “the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds”).

Here, the district court found that Turner wrongfully contacted J.J. and attempted to coerce or influence her not to cooperate with the state and to make herself unavailable for trial. It determined that J.J. was unavailable to the state because of Turner’s wrongdoing. Turner violated a no-contact order by calling J.J.[1] He told her not to get caught, not to answer the door, and to “get lost” for two weeks. The state was unable to serve J.J. with a subpoena and was not, therefore, able to call her to testify.

We conclude that the district court did not abuse its discretion by determining that Turner’s conduct was wrongful and prevented J.J. from testifying in the state’s case and that Turner, therefore, waived his right to complain that his constitutional rights were violated by the admission of J.J.’s statements to the apartment’s tenant and to the police officer.

In any event, Turner called J.J. to testify on his behalf. In State v. Lasnetski,this court determined that the defendant waived his right to confrontation and was “afforded the opportunity to confront the declarant” when he called his wife to testify on his behalf after statements that she made to a police officer were offered as admissible hearsay evidence. 696 N.W.2d 387, 394 (Minn. App. 2005).

Here, J.J. testified on Turner’s behalf about the statements that she made to her friend, to the apartment’s tenant, and to the police officer regarding the alleged burglary and robbery. Turner therefore had the opportunity to confront J.J. regarding these statements. Consequently, we need not address Turner’s argument that J.J.’s statement to the police officer was testimonial.

Hearsay Exception

Although we conclude that Turner waived his right to confront J.J. regarding her statements to the police officer and the apartment’s tenant, we nevertheless must determine whether these statements were properly admitted under the catch-all exception to the hearsay rule.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial . . ., offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 801(c). Generally, hearsay is not admissible. Minn. R. Evid. 802. But a statement that is not covered by other hearsay exceptions and has an equivalent circumstantial guarantee of trustworthiness may be admissible if the district court determines that

(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

Minn. R. Evid. 804(b)(5). When determining the admissibility of a declarant’s statement under this so-called catch-all exception, a district court “should make findings explicitly on the record unless there is a waiver, explicitly or by silence, or the basis of the ruling is obvious.” DeRosier, 695 N.W.2d at 105 (quotation omitted).

At trial, J.J.’s friend testified that J.J. told her that Turner kicked in the door and beat her up, that he dragged her into the living room, punched her, took ten dollars from her, and left. This statement was admitted under the excited-utterance exception to the hearsay rule, and Turner does not challenge on appeal the admission of this statement. J.J.’s statements to the apartment’s tenant and to the police officer were similar to her statement to her friend.

The district court found that J.J. was unavailable to the state as a witness and that the statements being admitted under the catch-all exception to the hearsay rule were trustworthy. But the district court did not make explicit findings regarding whether the statements were being offered as evidence of material fact, whether the statements were more probative on the point for which they were offered than any other evidence, or whether the admission of these statements would serve the interests of justice and the purpose of the rules of evidence. Further, Turner objected to the testimony, and the basis for the district court’s admission of these statements under the catch-all exception to the hearsay rule is not obvious. Therefore, the district court’s findings do not support admitting the statements under the catch-all exception to the hearsay rule.

If an error was committed in admitting evidence, this court determines whether there is a reasonable possibility that the evidence significantly affected the verdict. State v. Bolte, 530 N.W.2d 191, 198 (Minn. 1995). But if an evidentiary ruling involves constitutional error, we must look to the basis on which the jury rested the verdict and require a new trial unless the error is harmless beyond a reasonable doubt. DeRosier, 695 N.W.2d at 106. Because we conclude above that Turner’s constitutional right to confrontation was not violated here, we must determine whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.

J.J.’s statements to the apartment’s tenant and to the police officer were corroborated by the testimony of her friend, which is not challenged on appeal, and by pictures shown to the jury. Further, J.J. ultimately testified for Turner and provided an explanation for the statements that she made. We therefore conclude that the admission of J.J.’s statements to the apartment’s tenant and to the police officer did not significantly affect the verdict.

Affirmed.

[1] The district court prohibited any reference before the jury regarding the no-contact order or Turner’s violation of the no-contact order.