A06-92

In the Matter of the Welfare of:

L.J.L.

Filed December 19, 2006

Affirmed

Willis, Judge

Hennepin County District Court

File No. 221130/J9-05-054590

Leonardo Castro, Fourth District Public Defender, Matthew M. Jaimet, Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN 55401 (for appellant)

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

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.

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

WILLIS, Judge

Appellant L.J.L. appeals from an order of the juvenile division of the district court adjudicating him delinquent as an extended-jurisdiction juvenile and imposing both a juvenile and an adult sentence. Appellant argues that the district court abused its discretion when it denied his motion to cross-examine the state’s juvenile eyewitness regarding the witness’s probationary status and when it admitted a surveillance videotape into evidence without requiring the state to adequately authenticate the videotape. We find that the district court did not abuse its discretion when it denied appellant’s motion to cross-examine the juvenile witness and that although admission of the videotape was an abuse of discretion, the error was not prejudicial, and we affirm.

FACTS

On March 23, 2005, several gunshots were fired near the corner of 24th Street and Nicollet Avenue in Minneapolis. A Metro Transit bus was struck by one of the shots. Police arrived at the scene and interviewed 15-year-old J.T., who had witnessed the shooting and provided the names “Lance,” later identified as appellant L.J.L., and “Martez,” who is L.J.L.’s cousin. J.T. identified L.J.L. as the shooter. L.J.L. was arrested in connection with the shooting and charged in a delinquency petition with three felony offenses: illegal possession of a pistol, Minn. Stat. § 624.713, subd. 1(a) (2004); shooting at an occupied public-transit vehicle, Minn. Stat. § 609.855, subd. 5 (2004); and damage to property in the first degree, Minn. Stat. § 609.595, subd. 1(1) (2004).

Before testimony at trial began, L.J.L. moved the district court at a Rasmussen hearing to allow cross-examination of J.T., the state’s only eyewitness, regarding J.T.’s probationary status. After giving defense counsel an opportunity to voir dire J.T. regarding his juvenile record and probationary status to ensure that J.T. had not been promised anything in exchange for his identification of L.J.L. or his testimony, the district court denied the motion. At trial, J.T. testified that he had seen L.J.L. with several friends at the scene of the shooting and that L.J.L. was wearing a “white jacket with like a wolf on it, like a little Tasmanian devil or something.” When shown a white jacket with a depiction of Wile E. Coyote on the back, J.T. confirmed that it was the same jacket, and the jacket was entered into evidence. J.T. then testified that he saw L.J.L. pull out a gun that day and fire approximately six shots. He further testified that he was later shown a lineup from which he identified L.J.L. as the shooter and L.J.L.’s cousin as having been present at the scene.

Minneapolis police officers Jason Hurley and Adam Chard also testified. Officers Hurley and Chard were the first to arrive at the scene of the shooting. Both spoke to J.T. at the scene, and Officer Chard went into Hark’s Market, a store near the corner of 24th Street and Nicollet Avenue. The state offered into evidence a surveillance videotape from Hark’s Market after Officer Hurley testified that the videotape had been handled using standard property-inventory procedure. Defense counsel objected on the grounds that the state had established no foundation for the videotape because it had failed to offer a witness to testify that the videotape provides a “fair and accurate depiction of the scene . . . at [that] time.” The district court overruled defense counsel’s objection and admitted the videotape into evidence.

Investigator Michael LaVine of the Metro Transit police testified that he obtained a search warrant and went to the residence address that L.J.L. had given when he was arrested, which was the home of L.J.L.’s cousin and his aunt. Investigator LaVine seized the white Wile E. Coyote jacket, and then, after reviewing the Hark’s Market surveillance videotape, he returned to the house and seized a second jacket, “a white team jacket . . . without a hood.” This second jacket (the ABA jacket) also was entered into evidence at trial. Finally, the jury heard a taped statement given by L.J.L.’s cousin in which he testified that both the ABA jacket and the Wile E. Coyote jacket were his, that he was probably in Hark’s Market on the day of the shooting, and that he was probably wearing the Wile E. Coyote jacket.

The jury found L.J.L. guilty on all three counts. The district court adjudicated L.J.L. delinquent and imposed both a juvenile and an adult sentence. This appeal follows.

D E C I S I O N

“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) (citations omitted). If the district court has erred in admitting evidence, the reviewing court determines whether there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict. State v. Post, 512 N.W.2d 99, 102 n.2 (Minn. 1994). If there is a reasonable possibility that the verdict might have been more favorable to the defendant without the evidence, then the error is prejudicial. Id.

L.J.L. argues that it was an abuse of discretion and a Confrontation Clause violation for the district court to deny his motion to cross-examine 15-year-old J.T. regarding his probationary status. “Based on concerns about such things as harassment, decision making on an improper basis, confusion of the issues, and cross-examination that is repetitive or only marginally relevant, the [district] court possesses wide latitude to impose reasonable limits on cross-examination of a prosecution witness.” State v. Tran, 712 N.W.2d 540, 550 (Minn. 2006) (quotation omitted). The scope of cross-examination is left largely to the district court’s discretion and will not be reversed absent a clear abuse of that discretion. State v. Parker, 585 N.W.2d 398, 406 (Minn. 1998). But the district court’s discretion to control the scope of cross-examination is limited by the Confrontation Clause of the Sixth Amendment, which guarantees a criminal defendant the right to confront and cross-examine witnesses. Davis v. Alaska, 415 U.S. 308, 315 (1974); Tran, 712 N.W.2d at 550-51.

L.J.L. asserts that he did not seek to impeach J.T. under Minnesota Rules of Evidence 609, which governs general impeachment by evidence of conviction of a crime and limits impeachment that uses evidence of juvenile adjudications. Rule 609(d) allows evidence of juvenile adjudications only when “permitted by statute or required by the state or federal constitution.” L.J.L. contends that he sought instead to impeach J.T. specifically for bias or interest under rule 616, “to show the jurors that it was in [J.T.’s] self interest to cooperate with the police and the prosecution throughout his involvement in the case.”

At the Rasmussen hearing, L.J.L. argued that because J.T. was on probation and in jeopardy of having his probation revoked when the police approached him on the day of the shooting, J.T. may have been motivated by self-interest to assist the police in their investigation and prosecution. L.J.L. further argued that when specific impeachment going to bias or interest under rule 616, as opposed to general impeachment under rule 609, is involved, Davis demands that L.J.L.’s right to confrontation override J.T.’s and the state’s interests in keeping juvenile adjudications confidential.

The state argued at the Rasmussen hearing that even if L.J.L. characterized the purpose of his proposed cross-examination as impeachment under rule 616, L.J.L. in fact sought to attack J.T.’s credibility under rule 609 and that the attack was impermissible because evidence of juvenile adjudications is specifically inadmissible under rule 609(d) unless constitutionally required. And the “constitutionally required” exception invokes Davis, the state argued, which only allowed cross-examination regarding a juvenile’s record because that juvenile was also a potential suspect in the crime, which gave him significant motivation to lie and implicate someone else. The state distinguished the facts of the present case from those in Davis, emphasizing that J.T. was not a suspect in the shooting and that he had very little motivation to lie to protect his probationary status. The state argued further that rule 616 does not apply to the evidence at issue, noting that the sole example of bias provided in the comment to the rule is evidence that a witness is being paid by a party, and urged that rule 616 should not operate to circumvent the prohibition of rule 609(d).

In the district court’s provisional ruling at the Rasmussen hearing, which it adopted and finalized during trial after giving defense counsel an opportunity to voir dire J.T., the district court denied L.J.L.’s motion to cross-examine J.T. regarding his probationary status. The court adopted the state’s interpretation of Davisand declined to apply rule 616:

Rule 616 talks about bias, prejudice or interest of the witness for or against any party to the case. That’s not what you’re talking about. You’re talking about an interest in his own welfare, not against a party in the case. And so this is not a 616 issue. . . .

You verbalize no -- even a scintilla of evidence that any negotiations or promises were made by the police to J.T. to secure his cooperation in identifying your client or anybody in connection with this offense.

On appeal, L.J.L. dismisses Davisas inapposite, arguing that the issue is “whether the appellant sought general credibility impeachment by establishing the mere fact of the prior convictions under rule 609 of the Minnesota Rules of Evidence or whether appellant sought to impeach pursuant to rule 616 to establish bias, motive, or interest on the part of the witness.” L.J.L. further argues that “the Confrontation Clause contemplates a cross-examination of the witness in which the defendant has the opportunity to reveal a prototypical form of bias on the part of the witness.” The state argues that, as the district court stated, there exists not “a scintilla of evidence” to support L.J.L.’s theory that J.T.’s self-interest motivated him to identify L.J.L. or to testify. The state further asserts that the issue is governed by Davisand by Minnesota cases adopting and interpreting Davis that require a specific basis for a challenge to a witness’s credibility, such as a “causal nexus to believe that the witness may actually be involved in the crime in some way.”

This court has determined that evidence of the probationary status of a witness in a criminal trial is subject to rule 616, and the district court mischaracterized the limits of rule 616 when it deemed the rule inapplicable to evidence of J.T.’s probationary status. See State v. Johnson, 699 N.W.2d 335, 339 (Minn. App. 2005) (citing rule 616 in upholding a district-court decision allowing cross-examination of a witness regarding his probationary status “to show that he had a motive to lie”), review denied (Minn. Sept. 28, 2005). And this court has not limited “bias” to cases in which a witness may be inclined to slant his testimony because of his relationship to one of the parties. Rather, “‘[s]elf interest’ is generally recognized as a source of partiality that may be used, along with bias directed at a party, to impeach the witness.” State v. Whittle, 685 N.W.2d 461, 465 (Minn. App. 2004), review denied (Minn. Oct. 19, 2004).

But characterizing evidence of J.T.’s probationary status as evidence of bias under rule 616, as L.J.L. urges, does not change our analysis. Under either rule 616 or the exception in rule 609(d) that allows admission of evidence of juvenile adjudications when constitutionally required, L.J.L.’s confrontation right is implicated, and we apply Davis. L.J.L. does not attempt to compare the facts of the present case to those in Davis,or to argue for an extension of Davis,but instead claims that Davisis inapposite.

L.J.L. relies instead on three “bias” cases, none of which is persuasive. In Delaware v. Van Arsdall, the United States Supreme Court found a Confrontation Clause violation on very different facts—the state in that case conceded that it had dropped a criminal charge against the witness in exchange for the witness’s agreement to speak with the prosecutor about the defendant’s alleged crime, and the defendant was not permitted to question the witness about that agreement. 475 U.S. 673, 676, 679 (1986). And L.J.L. quotes language from State v. Lanz-Terry, 535 N.W.2d 635 (Minn. 1995), and State v. Whittle, 685 N.W.2d 461. But the courts in Lanz-Terry and in Whittle each held that the district court did not abuse its discretion by preventing cross-examination of a witness regarding facts that a party sought to use to establish bias. 535 N.W.2d at 641-42; 685 N.W.2d at 465. Neither Lanz-Terry nor Whittle supports L.J.L.’s argument.

And although the district court may have wrongly concluded that rule 616 does not apply here, the court also based its decision on Davis, which prompted the correct analysis, so failing to apply rule 616 was harmless error. In Davis, the trial court prevented the defendant from cross-examining a witness regarding the fact that, at the time of the crime and his identification of the defendant, he was on probation as a result of a juvenile-delinquency adjudication. 415 U.S. at 311. The defendant sought to introduce the juvenile adjudication not as general impeachment evidence but as evidence of bias, just as L.J.L. attempts to do here. The Supreme Court noted defense counsel’s argument that “[n]ot only might [the witness] have made a hasty and faulty identification of [the defendant] to shift suspicion away from himself as one who robbed the Polar Bar, but [the witness] might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation.” Id. The Supreme Court held that the trial court’s limitation of cross-examination violated the defendant’s right to confrontation and that that right was superior to the state’s and the witness’s interests in the confidentiality of juvenile adjudications. Id.at 318-19. Minnesota courts have adopted Davis when applying the Minnesota Rules of Evidence to specific-impeachment evidence. See State v. Spann, 574 N.W.2d 47, 52 (Minn. 1998) (applying Davis to rule 609(d)); State v. Schilling, 270 N.W.2d 769, 771-73 (Minn. 1978) (same).

Davisapplies here, but its facts are distinguishable, and L.J.L. does not attempt to argue otherwise on appeal. The concern in Daviswas that the witness may have identified the defendant in order to avoid implication as a suspect in the same crime. Nothing here suggests that J.T. had any reason to fear that he was a suspect in the shooting. The district court determined that there was no evidence of bias or self-interest on J.T.’s part. L.J.L.’s right to confrontation, as described in Davis, was not violated, and the district court did not abuse its discretion in limiting L.J.L.’s cross-examination of J.T.

II.

L.J.L. next argues that the surveillance videotape from Hark’s Market was admitted without proper foundation testimony as to “either the accuracy of its content or the reliability of the process used to produce it.” A videotape is classified as a photograph for the purpose of proving its content. Minn. R. Evid. 1001(2). To be admissible, a photograph must be authenticated, which, under Minnesota Rules of Evidence 901, is accomplished if the evidence is “sufficient to support a finding that the matter in question is what its proponent claims.” Minn. R. Evid. 901(a). Rule 901(b) provides examples of authentication methods “[b]y way of illustration only, and not by way of limitation.”

L.J.L. argues that In re Welfare of S.A.M., 570 N.W.2d 162 (Minn. App. 1997), describes the two exclusive methods by which a proponent can authenticate a videotape and that the district court required neither in the present case. L.J.L. dismisses the state’s theory that “surveillance videos speak for themselves” as having no support in the Minnesota Rules of Evidence or caselaw.

S.A.M. involved the admissibility of a surveillance videotape from a city bus. 570 N.W.2d at 163. The state was unable to authenticate the videotape by providing a witness with personal knowledge that the “matter is what it is claimed to be,” which the S.A.M. court called the “pictorial witness theory,” and which, before S.A.M., was the only method of videotape authentication recognized by Minnesota courts. Id. at 164. The S.A.M. court explained that rule 901(b)(9) provides an alternative authentication method, the “silent witness theory,” under which a proponent offers evidence of the reliability of the process by which the videotape (or other image) was made. Id.at 165. In S.A.M., the state offered the testimony of a video technician, who explained how the video was made, stated that the video produced an accurate result, and provided some evidence on the chain of custody. Id.at 166. The S.A.M. court concluded that “[t]he videotape was properly admitted because it was authenticated according to a method listed in 901(b) and consistent with the broad guideline for authentication set out in rule 901(a): that is, evidence was produced showing that the tape is what its proponent claimed.” Id.at 166-67.

The state contends that the two authentication methods described in S.A.M. are nonexclusive. The state argues that the videotape was “self-authenticating” because it was date-and-time coded and property-inventoried according to standard procedure, and the state notes that the district court concluded that the videotape was the “best evidence” of what it would show. The state’s characterization of the videotape as “self-authenticating” is misplaced. Minnesota Rules of Evidence 902 provides a list of self-authenticating documents for which extrinsic evidence of authenticity is not a condition precedent to admissibility, and the type of evidence at issue here is not on that list.

The state cites two cases from other jurisdictions in support of its argument. In State v. Early, 674 P.2d 179 (Wash. Ct. App. 1983), the Washington court of appeals concluded that a surveillance videotape was properly admitted because it was “properly authenticated by the testimony of the officer who took it into possession. There is no issue as to ‘when, where, and under what circumstances the [video tape] was taken, . . .’ or that the tape actually portrayed what it purported to portray.” Id.at 183 (quoting State v. Tatum, 360 P.2d 754, 756 (Wash. 1961), and citing Toftoy v. Ocean Shores Props., Inc., 431 P.2d 212 (Wash. 1967); Kelley v. Great N. Ry., 371 P.2d 528 (Wash. 1962); State v. Newman, 484 P.2d 473 (Wash. Ct. App. 1971)) (alterations in original). It is unclear from the Early opinion exactly what testimony was offered to authenticate the videotape, although the opinion refers only to testimony of the officer who took the videotape into possession. But in each of the cases that the Early court cited in support of its holding, the proponent of the evidence offered the testimony of a witness to provide foundation for the evidence. And Early’s quote from State v. Tatum is taken out of context. Tatum required that a witness provide “an indication as to when, where, and under what circumstances” the videotape was taken. 360 P.2d at 756. Even if Early affirmed admission of a surveillance videotape authenticated only by the officer who took it into custody, which is not entirely clear from the opinion, its authority for doing so lacks support.

And the facts of United States v. Rembert, 863 F.2d 1023 (D.C. Cir. 1988), are distinguishable from those here. In Rembert, the “internal indicia of date, place, and event depicted in the evidence itself” were “coupled with” the fact that the authenticating witness explained how the cameras worked, where they were located, how often they photographed, and that the date and time at which the pictures were made were imprinted on the resulting photographs. Id.at 1026, 1028. Here, there was no such testimony. And importantly, neither Early nor Rembert is binding on this court.

When it overruled defense counsel’s objection and admitted the videotape, the district court stated:

I’m going to overrule the objection. I’m going to let the tape in and if I’ve erred, then I’ve erred. But it seems to me that tapes of this kind are made . . . where people otherwise might not have the opportunity to see what’s being surveyed. And it’s the best evidence of what it’s going to show.

The district court’s apparent reliance on the best-evidence rule was inappropriate, because the rule is inapplicable here. If the state had offered only the testimony of a person who viewed the videotape, rather than the videotape itself, to describe the content of the videotape, the best-evidence rule would have been implicated and required admission of the videotape itself. Minn. R. Evid. 1001, 1002. But the best-evidence rule was not implicated here because the videotape itself was offered into evidence. And it seems that the district court declined to require a “pictorial witness” with personal knowledge because the purpose of surveillance cameras is to capture what live witnesses do not see, but this does not excuse the state from providing “silent-witness” testimony about the reliability of the process that created the videotape.

The district court abused its discretion when it failed to require the state to authenticate the surveillance videotape using at least one of the two methods described in S.A.M. There was no evidence on which the district court could have based a determination required by rule 901(a) that the “matter in question is what its proponent claims.” But this abuse of discretion mandates reversal only if the admission of the videotape was prejudicial to L.J.L., that is, only if “there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict.” Post, 512 N.W.2d at 102 n.2. We conclude that there was no such prejudice here.

L.J.L. argues that the district court’s wrongful admission of the videotape was prejudicial because the videotape corroborated J.T.’s identification testimony by placing at the scene of the shooting the two jackets taken from L.J.L.’s home. L.J.L. points out that J.T. did not identify the jacket as a Wile E. Coyote jacket until after he was shown both jackets by police—before that, J.T. had just referred to it as a “white hoodie”—so J.T.’s identification of the jacket was less credible before the jury was shown the jackets and the videotape, which allowed the jurors independently to place the jackets at the scene. L.J.L. further argues that only the videotape placed the ABA jacket at the scene, which created the possible inference that L.J.L. and his cousin switched jackets, placing L.J.L. in the Wile E. Coyote jacket on the day of the shooting. Without the videotape, L.J.L. asserts, only one jacket would have been identified, and the statement of L.J.L.’s cousin that the cousin always wore the Wile E. Coyote jacket would have cast doubt on the identification of L.J.L. as the shooter.

The state argues that any error in the admission of the videotape was harmless beyond a reasonable doubt. The state points out that the videotape is of extremely poor quality—it is “barely audible, blurry, and full of static disturbances,” and although it is “barely possible to get a fleeting glimpse” of individuals wearing white jackets, it is impossible to identify those individuals. Therefore, the state argues, the videotape could not have contributed to L.J.L.’s conviction. The state also notes that L.J.L. actually used the videotape to his advantage when he argued during his closing argument that L.J.L.’s cousin could have been the shooter given the cousin’s testimony that he would have been wearing the Wile E. Coyote jacket on the day of the shooting.

Without having viewed the videotape, Investigator LaVine obtained a warrant based on J.T.’s statement and recovered the Wile E. Coyote jacket from L.J.L.’s home. J.T. identified the Wile E. Coyote jacket as the jacket that the shooter wore, and J.T. unwaveringly identified L.J.L. as the shooter and as the one wearing the Wile E. Coyote jacket. The presence of the Wile E. Coyote jacket at the scene was significant, but J.T.’s testimony established this fact; it was not meaningfully bolstered by the evidence on the videotape. Even if the image of the jacket on the videotape corroborated J.T.’s testimony that the Wile E. Coyote jacket was at the scene, the jury must have believed J.T.’s testimony standing alone to identify L.J.L. as the shooter and return a guilty verdict. And it is unlikely that the presence of the ABA jacket at the scene, a fact that the videotape did bolster, significantly affected the jury’s verdict. With or without the videotape, the jury believed that L.J.L. was wearing his cousin’s Wile E. Coyote jacket at the time of the shooting and that L.J.L. was the shooter. It was of little consequence what his cousin was wearing.

Although the district court abused its discretion when it admitted the videotape without requiring the state to sufficiently authenticate the evidence, the error was not prejudicial.

Affirmed.