A05-1233

Jeremiah Robert Hedberg, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed May 30, 2006

Affirmed

Hudson, Judge

St. Louis County District Court

File No. K0-02-600731

John M. Stuart, State Public Defender, Steven P. Russett, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, Minnesota 55414 (for appellant)

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, #501, Duluth, Minnesota 55802 (for respondent)

Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

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

HUDSON, Judge

On appeal from an order denying his postconviction petition, appellant argues that the postconviction court erred in allowing the state to impeach a witness with the witness’s prior statement to police implicating appellant, because the prosecutor had reason to know that the witness would not testify consistently with that statement. Appellant also argues that he is entitled to a new trial because his attorney stipulated that appellant was ineligible to possess a firearm—an element of the offense—without obtaining appellant’s personal waiver of his right to a jury trial on that element. We affirm.

FACTS

Following an altercation and a shooting on June 27, 2002, the state charged appellant with one count of possession of a firearm by a felon in violation of Minn. Stat. ง 624.713, subd. 1(b) (2000), and one count of reckless discharge of a firearm within a municipality in violation of Minn. Stat ง 609.66, subd. 1a(a)(3) (2000). The state later amended the complaint to include two counts of assault in the second degree pursuant to Minn. Stat. งง 609.222, subd. 1, 609.11 (2000).

The parties appeared for a jury trial in June 2003. Trial testimony established the existence of a party in the early morning of June 27 at 5816 Elinore Street in Duluth, Minnesota (the residence). The testimony was also consistent that Ryan Johander, Justin Farmer, Tara Mooney, and Amanda Radtke were some of the teenagers in attendance.

On that morning, Kyle Johnson and Aaron Woodall walked into the residence intending to confront some teenagers who had harassed Johnson. Woodall head-butted Johander and struck Justin Farmer. Then, Woodall felt a shot and saw that his legs were bleeding. Woodall attempted to walk to a friend’s house, but he collapsed on the street median. After a neighbor called 911, several officers responded to the scene. Officers found Woodall lying near the median curb and observed a trail of blood leading from the residence to the street median. Officers recovered bullet fragments from the front porch of the residence but did not recover the firearm. Officers also recovered appellant’s driver’s license from the residence but did not find any of appellant’s fingerprints.

The parties presented conflicting testimony with respect to appellant’s presence at the party and his role in the shooting. Woodall testified that he did not know who shot him, but he acknowledged that he initially told police that he believed Johander was the shooter. Johnson identified appellant as the shooter, stating that it was hard to forget the face of someone who shoots you, but acknowledged that he initially told police that he would not be able to recognize the shooter. Johander also identified appellant as the shooter, but he acknowledged that he initially told police a different version of events. Mooney testified that she had not seen appellant at the party but, when impeached by the prosecutor, admitted that she gave a prior police statement in which she stated that she saw appellant at the party with a gun. Radtke testified on behalf of the defense, stating that appellant was not at the party and that she did not witness the shooting. But Radtke also testified to being good friends with appellant and acknowledged giving police a contradictory statement when first interviewed.

The trial testimony from neighbors who were home the morning of the shooting was also contradictory. Gina Penttinen, a neighbor who lives diagonally across the intersection from the residence, testified that she witnessed the shooting and identified appellant as the shooter. Penttinen knew appellant from socializing with this group of teenagers in the past, but testified that she did not originally identify appellant to the police because she was afraid of him. Officers prepared a photo line-up for Penttinen about a month after the shooting. Prior to viewing the line-up, officers told Penttinen that they believed appellant was the shooter. Penttinen identified appellant from the line-up as the shooter. Cynthia Radtke, a neighbor who lived next door to the residence, testified on behalf of the defense. She stated that she heard seven or eight shots that morning and then saw a blond-haired man standing in front of her window with a gun in his hand. Radtke testified that she knows appellant through her friendship with appellant’s mother and that the individual at her window was not appellant.

The jury found appellant guilty of one count of second-degree assault (the assault of Woodall), felon in possession, and reckless discharge. The district court sentenced appellant to two 60-month sentences to be served concurrently to each other, but consecutively to a prior sentence for assault.

Appellant did not pursue a direct appeal of his conviction, but filed a petition for postconviction relief. Appellant argued that the district court erred in admitting Mooney’s prior police statement as impeachment evidence, in addition to eliciting the same statement from the investigating officer as substantive evidence. Appellant further argued that the district court erred in failing to procure appellant’s express waiver of his right to have the jury consider evidence of his prior offense used to enhance his current charge. Appellant did not request an evidentiary hearing.

The postconviction court denied appellant’s petition for relief, and this appeal follows.

D E C I S I O N

Appellant challenges the postconviction court’s conclusion that the district court did not err in permitting the state to impeach Mooney with her prior inconsistent statement. A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that warrant a reopening of the case. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). On appeal, this court reviews the postconviction court’s decision under an abuse-of-discretion standard, and “the scope of review is limited to determining whether there is sufficient evidence in the record to sustain the postconviction court’s findings.” Id.

“Evidentiary rulings rest within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). When a defendant does not object to the admission of evidence, this court reviews the admission under the plain-error standard. Minn. R. Crim. P. 31.02; State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002). “The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights.” Strommen, 648 N.W.2d at 686. If the defendant meets these three prongs, this court may correct the error “only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 686 (quotations omitted).

At trial, Mooney testified that she had not seen appellant at the party, but, when impeached by the prosecutor, admitted that she previously told the police that she saw appellant at the party with a gun. Appellant argues that he is entitled to a new trial because it was improper for the district court to allow the prosecutor to call Mooney as a witness at trial solely for the purpose of impeaching her with her prior statement. Minn. R. Evid. 607 provides that the “credibility of a witness may be attacked by any party, including the party calling the witness.” But “a problem arises when a prosecutor calls a witness who has given a prior statement implicating the defendant, but that witness has since retracted the statement and signified an intent to testify in defendant’s favor if called by the prosecutor.” State v. Ortlepp, 363 N.W.2d 39, 42–43 (Minn. 1985). Under these circumstances, if the prosecutor is allowed to call the witness and impeach her with her prior inconsistent statement, “there is a large risk that the jury, even if properly instructed, will consider the prior statement as substantive evidence.” Id. (characterizing this problem as the “Dexter problem,” in reference to the supreme court’s discussion of the problem in State v. Dexter, 269 N.W.2d 721 (Minn. 1978)). Accordingly, the state may not “expose the jury to hearsay under the guise of impeachment when the sole purpose in calling the witness is to introduce the witness’[s] prior statement.” State v. Thames, 599 N.W.2d 122, 125 (Minn. 1999) (citation omitted).

Here, the record contains a brief discussion among the district court, the prosecutor, and appellant’s attorney regarding the prosecutor’s purpose for calling Mooney:

Prosecutor: “[J]ust another housekeeping matter, Your Honor. Yesterday we did have a little in-chambers discussion before the testimony of Tara Mooney. I should just put that on the record that I brought to the attention of the Court and counsel that I had met with her briefly in my office. She was reluctant to testify, wanted to say that she was threatened and forced to say different things by police officers. And I told her in my office that I believed that when she took the stand she would tell the truth. And the defense stated at that time they understood. And the decision was made at that time — or at least the position was there that if I had to treat her as a hostile witness, I would be entitled to, and I believe that was done.

Is that correct Counsel?

Appellant’s attorney: That’s accurate.

While there is some suggestion in this limited record that the prosecutor knew Mooney would be uncooperative, the record also suggests that the prosecutor assumed Mooney would testify under oath consistently with her prior statement because, as the prosecutor characterized it, Mooney’s prior statement was the truth. The prosecutor’s advance request for permission to treat Mooney as a hostile witness can also be viewed as a precautionary measure in case Mooney did not conform to the prosecutor’s expectations. See State v. Anderson, 298 N.W.2d 63, 65 (Minn. 1980) (holding that a prosecutor did not misuse the rules of evidence by impeaching a state witness with a prior inconsistent statement given to the police, in part, because it “appear[ed] that the prosecutor was not sure the witness would deny defendant’s guilt when she took the stand”). Further, while the prosecutor did not ask Mooney directly whether she recalled seeing appellant at the residence with a gun, the prosecutor did specifically ask Mooney if there was a gun at the party. The prosecutor impeached Mooney with her prior statement about appellant possessing a gun only after Mooney denied seeing a gun in her testimony at trial.

Accordingly, there is sufficient evidence in the record to support the postconviction court’s findings and conclusion that the district court did not commit plain error in failing to preempt the prosecutor’s impeachment. In addition, appellant’s argument is not compelling because he has not demonstrated that the introduction of the statement affected the jury’s verdict. To satisfy the third prong of the plain-error test, appellant bears a heavy burden to show that the alleged error was prejudicial and affected the outcome of the case. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998).

Excluding Mooney, the state put forth three witnesses who identified appellant as the shooter. While the witnesses’ inconsistencies reduced the probative value of their testimony, appellant must demonstrate that a reasonable juror would not have convicted him despite their testimony. The only witness who attended the party and testified that appellant was not at the party was Amanda Radtke. But Radtke is appellant’s friend. Further, Radtke claimed to have missed the shooting entirely—despite being at the party—and admitted giving a contradictory statement to the police when first interviewed.

Furthermore, Mooney’s subsequent testimony describing the circumstances under which she gave her statement reduced the statement’s probative value. Mooney testified that she was coerced into making that statement by the officers who arrested and detained her. And Mooney recanted her prior statement at trial.

Because appellant has not shown that the jury verdict was attributable to the alleged error, the alleged error did not affect appellant’s substantial rights. Further, the district court did not commit plain error affecting appellant’s substantial rights in failing to exclude the hearsay testimony of the officer who took Mooney’s prior statement. This officer testified to the statement’s contents as substantive evidence. As noted above, introduction of the statement did not affect appellant’s substantial rights.

Appellant also argues that he is entitled to a new trial because the district court committed prejudicial error in accepting appellant’s counsel’s stipulation to appellant’s prior offense to enhance his current charge without appellant’s written or oral waiver of his right to a jury trial. Whether a defendant’s waiver satisfied constitutional requirements is an issue this court reviews de novo. State v. Tlapa, 642 N.W.2d 72, 74 (Minn. App. 2002), review denied (Minn. May 308, 2002).

The United States and Minnesota constitutions guarantee a criminal defendant the right to a jury trial. U.S. Const. Amend. VI; Minn. Const. art. I, ง 6. This constitutional right includes the right to a jury determination of each element of the charged offense. State v. Bluhm, 457 N.W.2d 256, 260 (Minn. App. 1990), aff’d in part, rev’d in part on other grounds, 460 N.W.2d 22 (Minn. 1990). A defendant may agree to stipulate at trial to an element of the offense by waiving this right, but the defendant’s waiver must be made personally either in writing or orally on the record. Minn. R. Crim. P. 26.01, subd. 3; State v. Wright, 679 N.W.2d 186, 191 (Minn. App. 2004), review denied (Minn. June 29, 2004). When the prior conviction is uncontroverted, a defendant’s waiver is considered beneficial because it removes unduly prejudicial evidence from the jury’s consideration. See State v. Berkelman, 355 N.W.2d 394, 397 (Minn. 1984).

Respondent concedes that, under State v. Wright, the district court erred by failing to secure appellant’s oral or written waiver before permitting the stipulation at trial of an element of the charged offense. When a district court erroneously accepts a stipulation without a valid waiver of the right to a jury trial, this court considers the error under the harmless-error test to determine whether it was prejudicial to the defendant. Wright, 679 N.W.2d at 191. An error is harmless beyond a reasonable doubt if the verdict was “surely unattributable to the error.” Id. (quotation omitted).

Here, without the stipulation, the state would have presented evidence to demonstrate that appellant was previously convicted of a crime of violence. Appellant does not contest the validity of his prior conviction and does not argue on appeal that he would have preferred to have this evidence in front of the jury. By accepting the stipulation, the district court sought to treat appellant’s prior conviction in a way that would minimize prejudice to appellant. Applying the harmless-error test, the verdict was surely unattributable to the error. See State v. Hinton, 702 N.W.2d 278, 282 (Minn. App. 2005) (concluding that a district court’s error in failing to secure a valid waiver prior to accepting a stipulation of prior convictions was harmless when the record of the prior convictions was accurate), review denied (Minn. Oct. 26, 2005).

Affirmed.