This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1910

 

 

State of Minnesota,

Respondent,

 

vs.

 

Angelo Mancini,

Appellant.

 

 

Filed August 21, 2007

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. K0-04-3070

 

 

Lori Swanson, 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, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102  (for respondent)

 

Paul W. Rogosheske, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue West, Suite 100, South St. Paul, MN 55075 (for appellant)

 

 

            Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Lansing, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On appeal from conviction of the third-degree assault of his estranged wife, appellant Angelo Mancini argues that the district court abused its discretion and violated his right to confrontation by admitting out-of-court statements of the victim, who was unavailable at trial due to an invocation of her Fifth Amendment privilege.  Appellant argues that because the victim’s statements to the responding police officers, her friend, and the medical providers were testimonial in nature, the district court erred by admitting the statements.  Appellant further contends that the doctrine of forfeiture by wrongdoing should be applied against the victim.  We affirm. 

D E C I S I O N

            Appellant argues that his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated when the district court allowed the victim’s friend, the responding officer, and medical personnel to testify as to the victim’s statements concerning the circumstances of the assault and the identity of appellant as her assailant, when the victim did not testify at trial.  “This court reviews de novo the issue of whether hearsay statements violate the Confrontation Clause.”  State v. Ahmed, 708 N.W.2d 574, 580 (Minn. App. 2006).

            The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees that every criminal defendant “shall enjoy the right . . . to be confronted with the witnesses against him.”  In Crawford v. Washington, the Supreme Court interpreted this clause to bar the admission of “testimonial statements” made by a declarant out of court, unless the declarant is unavailable to testify at trial and the defendant has had a prior opportunity for cross-examination.  541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365 (2004).  The Court did not specifically identify which types of statements are “testimonial,” but defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.”  541 U.S. at 51, 124 S. Ct. at 1364.  Further, “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.”  Id.  The Court then listed three “formulations of this core class of ‘testimonial’ statements”:  (1) “ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;” (2) “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; and (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”  Id. at 51-52, 124 S. Ct. at 1364.

            The nature of testimonial statements was revisited by the Supreme Court in Davis v. Washington, 126 S. Ct. 2266 (2006).  In that case, the Supreme Courtconsolidated two state court cases and analyzed the nontestimonial/testimonial distinction as respectively applied to (1) statements made to a 911 operator; and (2) statements made to the police during an initial, on-scene investigation.  Id. at 2270-72 (setting forth relevant facts from consolidated cases, State v. Davis, 111 P.3d 844 (Wash. 2005), and Hammon v. State, 829 N.E.2d 444 (Ind. 2005)).  In addressing the nature of the statements at issue, the Court declared that:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.  They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

 

Id. at 2273-74 (emphases added).  The Court held that the domestic battery victim’s written statements in an affidavit given to the investigating police officer were testimonial because there “was no emergency in progress,” and that it was “entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct . . . .”  Id. at 2278.  Conversely, the Court held that the victim’s statements in response to the 911 operator’s interrogation were not testimonial because the circumstances objectively indicated that the “primary purpose [of the interrogation] was to enable police assistance to meet an ongoing emergency,” and that the victim “simply was not acting as a witness” and “was not testifying.”  Id. at 2277. 

            The Minnesota Supreme Court addressed testimonial statements in State v. Wright, 726 N.W.2d 464 (Minn. 2007) (Wright II).[1]  In that case, the supreme court reconsidered the nature of (1) the statements made by the alleged victims to a 911 operator; and (2) the statements the victims made to police officers during their field investigation.  Id. at 471-72.  In light of Davis, the supreme court held that the statements made to the 911 operator were not testimonial because the primary purpose of the call was to enable police assistance to meet an ongoing emergency, and no part of the 911 call was aimed at establishing events that may be relevant to later prosecution.  Id. at 474-75.  Conversely, the court held that the statements made to the police officers during their field investigation were testimonial because, at that time, the suspect was in custody, the emergency had ended, and the interview was conducted in order to establish events potentially relevant to future prosecution.  Id. at 476. 

            The nature of testimonial statements was recently addressed by the Minnesota Supreme Court in State v. Warsame, __ N.W.2d __, __, 2007 WL 2127880, at *4-9 (Minn. July 26, 2007).  In Warsame, a police officer responding to a 911 call encountered a woman walking in the middle of the street.  Id. at *1.  Before the officer was able to get out of the car or speak to the woman, the woman stated:  “My boyfriend just beat me up.”  Id.  The woman was visibly upset and had a very large bump the “size of a baseball” on her forehead.  Id.  The officer retrieved his emergency kit and began checking the victim’s head and neck area.  Id.  While the officer was administering first aid, the woman provided details of the assault, which included information that her boyfriend had cut her sister with a knife and subsequently fled the scene “in her vehicle with one of her sisters.”  Id. at *1-2.  The supreme court held that the victim’s statements to the responding officers were not testimonial because there were three ongoing emergencies while the victim was being interrogated:  (1) the victim’s medical condition; (2) the fact that the assailant had fled; and (3) the medical condition of the victim’s sister who had been cut by the knife.  Id. at *9. 

Statements to Police

            Appellant argues that statements the victim made to police following the domestic disturbance were testimonial and, therefore, should not have been admitted at trial.  Here, the record reflects that Officers Robert Buth and Trygve Sand were sent to an address to investigate a domestic disturbance.  As the officers approached the address, they observed a black car pull over to the curb and the driver signal to the police.  When the officers stopped, they noticed a significant amount of blood on the passenger’s face, and were informed by the driver that she was taking her passenger to the hospital.  At that point, the officers and the victim got out of their vehicles and further investigation revealed that the passenger’s name was D.M. and that she was involved in the domestic disturbance that the officers had been dispatched to investigate.  The officers proceeded to inquire into the circumstances of the domestic disturbance.  D.M., who “was crying, mad, and upset,” informed the officers that she had been assaulted by appellant, her estranged husband.  Over defense objection, Officer Buth testified at trial that he was told by D.M. that appellant punched and kicked her “a hundred times.”

            Appellant argues that the statements D.M. made to the responding officers were testimonial in nature because the emergency had ceased and the primary purpose of the police interrogation was to gather evidence to be used in a later prosecution.  We agree.  At the time the officers questioned D.M., the domestic dispute was over and D.M. was at least a block or two from the scene.  Moreover, the record reflects that police were aware that a male had complained that his wife was attacking him and that the female had left the scene in a black sedan.  Thus, when the officers were flagged down by the driver, D.M.’s friend, they questioned D.M. about the circumstances of the domestic disturbance.  Although the factual circumstances here are similar to Warsame, we note that Warsame is distinguishable.  For example, the victim’s medical condition in Warsame was more serious than D.M.’s medical condition.  Additionally, the assailant in Warsame fled the scene, while here, appellant waited at his home for law enforcement to arrive.  Finally, unlike Warsame, there was no third-party victim in this case.  We therefore conclude that there was no ongoing emergency here, and the primary purpose of the inquiry was to establish past events.  Because the emergency was no longer in progress when the officers were attempting to determine “what happened” rather than “what is happening,” the statements D.M. made to police were testimonial.  See Davis 126 S. Ct at 2278; see also Wright, 726 N.W.2d at 475.       

            Appellant argues that because D.M.’s statements to police were testimonial, the district court erred in admitting the statements and the error was not harmless beyond a reasonable doubt.  See State v. Courtney, 696 N.W.2d 73, 79-80 (Minn. 2005) (stating that “it is well settled that violations of the Confrontation Clause are subject to [a harmless error] analysis,” and new trial is not warranted if violation is harmless beyond reasonable doubt).  In order to deem a Confrontation Clause error harmless beyond a reasonable doubt, it must be determined that

the guilty verdict actually rendered was “surely unattributable” to the error.  When determining whether the jury’s verdict was surely unattributable to an error, we examine the record as a whole.  In doing so, we consider the manner in which the evidence was presented, whether the evidence was highly persuasive, whether it was used in closing argument, and whether it was effectively countered by the defense.  Evidence of the defendant’s guilt is also a relevant consideration, but it is not the sole factor.

 

Id. at 80; see State v. Al-Naseer, 690 N.W.2d 744, 748 (Minn. 2005) (noting that “overwhelming evidence of guilt” is often very important factor in harmless error analysis but stating that “court cannot focus on the evidence of guilt alone”).  

            Here, there is no showing that the officer’s testimony was more persuasive than the other evidence.  There were multiple witnesses who testified at trial that appellant assaulted his estranged wife, and appellant did not dispute this fact.  The prosecutor did not emphasize the officer’s testimony, and the evidence was introduced in the logical flow of the officer’s testimony.  Moreover, the prosecutor did not overemphasize the officer’s testimony in closing argument.  Rather the statements were only briefly mentioned, and the prosecutor’s closing argument instead focused on attacking appellant’s claim that he acted in self defense.  Finally, appellant effectively countered the inadmissible evidence by testifying at trial that he acted in self defense. 

            In addition to the factors set out in Courtney, the final factor in the harmless error analysis “is the strength of the ‘other evidence’ against [appellant].”  Wright, 726 N.W.2d at 478.  Here, the evidence against appellant was strong.  D.M.’s friend and Dr. Towey both testified that they were told by the victim that appellant caused her injuries.  Appellant did not refute the allegations that he caused D.M.’s injuries, but rather claimed that he was acting in self defense.  There were photographs showing D.M.’s injuries and medical personnel testified at length describing the severity of D.M.’s injuries.  This testimony and evidence was sufficient for a jury to reasonably conclude that appellant caused D.M.’s injuries and that if appellant was indeed acting in self defense, he did not use reasonable force.  There was also evidence and testimony by the investigating officers that, if found credible, refuted appellant’s version of the events.  Accordingly, we conclude that the erroneous admission of the testimonial statements was harmless beyond a reasonable doubt. 

Statements to Friend

            Appellant also contends that the statements D.M. made to her friend, the driver, were testimonial.  We disagree.  In Crawford, the Supreme Court stated that an “accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.”  541 U.S. at 51, 124 S. Ct. at 1364.  In Ahmed, this court held that the victim’s statement to the passenger in his vehicle identifying the defendant as the driver of the vehicle that chased and ultimately hit the victim’s vehicle did not constitute testimonial hearsay for Confrontation Clause purposes because the victim’s statement was “not ex parte in-court testimony or its functional equivalent or formalized testimonial materials,” and “[a] reasonable, objective witness in [the victim’s] position would not be thinking about the possibility of a later trial, but would be focused on avoiding the chasing vehicle.”  708 N.W.2d at 581. 

            Here, the record reflects that (1) D.M. made the statements to the driver shortly after the assault occurred; (2) D.M. was in a very emotional state and in a lot of pain; and (3) D.M. made the statements to her close friend.  The statement was essentially an excited utterance to a friend, who was more concerned about the situation than whether the statement would be used at trial.  See Ahmed,708 N.W.2d at 581.  Therefore, the statements to D.M.’s friend are not testimonial.  Although the statement is hearsay, it was properly admitted under Minn. R. Evid. 803(2).

Statements to Medical Personnel

            Appellant further argues that the statements D.M. made to medical personnel were testimonial.  When statements are made to nongovernmental questioners, the reviewing court “must determine whether the questioner was acting in concert with or as an agent of the government.”  State v. Scacchetti, 711 N.W.2d 508, 514 (Minn. 2006).  In Scacchetti, a three-and-one-half-year-old child’s mother noticed signs of abuse and took the child to Minneapolis Children’s Hospital, where the child’s examining doctor called a nurse practitioner.  Id. at 510-12.  The nurse practitioner examined the child for possible physical and sexual abuse.  Id. at 511.  During the examination, the child made statements indicating that the defendant had engaged in sexual contact with her.  Id. at 511-12.  After the child was found incompetent to testify, the nurse practitioner testified as to what the child told her during the exam.  Id. at 512.  Concluding that the nurse was not “acting in concert with or as an agent of the government” and that the nurse’s purpose in interviewing the child was to assess her medical condition, the supreme court held that the child’s statements to the nurse practitioner were not testimonial.  Id. at 514-15.

            Scacchetti is analogous to the present case.  The record reflects that Dr. Towey testified that for purposes of medical diagnosis or treatment, he asked D.M. what caused her injuries.  According to Dr. Towey, D.M. stated that her injuries were caused when appellant punched and kicked her in the face.  Dr. Towey is not a government agent nor was he acting in concert with a government agent.  Moreover, Dr. Towey asked the questions in order to assess D.M.’s medical condition.  Accordingly, D.M.’s statements to Dr. Towey were not testimonial, and the statements are admissible under Minn. R. Evid. 803(4). 

            The final issue on appeal is whether the forfeiture by wrongdoing doctrine applies to the state.  Typically, a forfeiture by wrongdoing issue is raised by the state.  Under this doctrine, a “defendant will be found to have forfeited [his confrontation claim] 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.”  Wright, 726 N.W.2d at 479.  “The state’s burden of proof on forfeiture is a preponderance of the evidence.”  Id. at 479 n.7.

            Here, appellant asserts that the forfeiture by wrongdoing rule should be applied against D.M.  Appellant claims that he was deprived of his right to cross-examine D.M. about the assault because she asserted the Fifth Amendment and that the state, by refusing to grant her immunity, was complicit in hiding exculpatory evidence from the jury. 

            To support his claim, appellant cites an American Bar Association standard that states:  “The duty of the prosecutor is to seek justice, not merely to convict.”  ABAStandards for Criminal Justice:  Prosecution & Defense Function, Standard 3-1.2(c) (3d ed. 1993).  But the reliance on this standard actually damages appellant’s argument that the state committed some type of wrongdoing by declining to grant D.M. immunity.  The record reflects that D.M. asserted her Fifth Amendment rights because she was concerned about charges stemming from the domestic dispute.  The state’s refusal to grant D.M. immunity demonstrates that it was interested in seeking the truth and to hold D.M. responsible for any wrongdoing she may have committed.  Moreover, the record reflects that the state attempted to compel D.M. to testify.  The state subpoenaed D.M. and when she declined to testify, the state questioned D.M. as to whether she had been threatened, intimidated, or coerced in any way by appellant or by anyone acting on appellant’s behalf.  When she declined to testify, the state decided not to grant her immunity.  Although appellant seems to claim otherwise, the state was under no obligation to grant D.M. immunity, nor was there any wrongdoing by the state in declining to grant D.M. immunity.  Accordingly, appellant’s forfeiture argument is without merit.

            Affirmed.