John M. Stuart, State Public Defender, Mark F. Anderson, Assistant State Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

Appellant David Manuel Jones was convicted after a jury trial of gross misdemeanor theft, possession of stolen property, and fleeing police in a motor vehicle under Minn. Stat. §§ 609.487, 609.52 & 609.53 (1994). On appeal, he challenges the trial court's refusal to suppress a portion of a witness statement not disclosed until the morning of trial, the court's refusal to exclude use of the statement after the witness testified he had no recollection of the events, and the court's decision to admit impeachment evidence of Jones's 1992 conviction for third-degree assault. Because the trial court abused its discretion in concluding that the witness statement was admissible as an exception to the hearsay rule and because the trial court failed to give a limiting instruction either when Jones's prior conviction was admitted or at the end of trial, we reverse and remand for a new trial.

The trial court ruled the statement admissible as a statement against the witness's own penal interest under Minn. R. Evid. 804(b)(3). Only "self-inculpatory" portions of a statement are admissible under this rule. See State v. Dukes, 544 N.W.2d 13, 18-19 (Minn. 1996) (citing Williamson v. United States, 512 U.S. 594, 114 S. Ct. 2431 (1994)); State v. Ford, 539 N.W.2d 214, 227 (Minn. 1995) (same), cert. denied, 116 S. Ct. 1362 (1996). Under Williamson, a trial court must separate inculpatory from noninculpatory (or exculpatory) portions of a statement. 512 U.S. at ___, 114 S. Ct. at 2436-37. That the witness in this case was present at the crime scene is not self-inculpatory; one may simply be a witness or even the victim of a crime. Viewed alone, the witness's acknowledgement that he was a passenger in the fleeing vehicle is either neutral or even irrelevant, because his presence had no bearing on whether Jones committed the crime. Thus, the statement was not admissible under rule 804(b)(3).

The trial court also ruled that the statement was admissible under the catchall provision of Minn. R. Evid. 804(b)(5). This rule requires that the statement meet the prerequisites for reliability and trustworthiness. See State v. Grube, 531 N.W.2d 484, 489 (Minn. 1995) (citing State v. Roby, 463 N.W.2d 506, 509 (Minn, 1990)). The statement has some indicia of reliability: it was tape recorded by a police officer within two hours after the chase, and the witness, who had personal knowledge of the events, stated several times that Jones had taken over driving during the chase. An unsigned ex parte statement given to police during questioning, however, is inherently untrustworthy. See State v. Hansen, 312 N.W.2d 96, 103 (Minn. 1981). Moreover, the witness clearly had problems with his memory: he testified that he blacked out due to drinking that night, that he had no memory of the night, and that he did not recall being taken into custody or giving a statement to the police. Cf. State v. Schilling, 474 N.W.2d 203, 204-05 (Minn. App. 1991) (intoxication renders statement unreliable). The witness also had a motive for lying: the statement was given after the witness was found leaning against a car that police had been chasing and that had a stolen transmission in the trunk. Under these circumstances, the statement is not sufficiently reliable to be admissible under rule 804(b)(5).

In addition to the two rules cited by the trial court, the state argues that the statement was admissible as a recorded recollection under Minn. R. Evid. 803(5). See State v. Zeimet, 348 N.W.2d 338, 341 (Minn. 1984). Because the witness never signed the transcripts and claimed insufficient memory to recall anything about giving the statement, the statement was never verified as having been given freely and truthfully. See Minn. R. Evid. 803(5). In addition, rule 803(5) provides that a recorded recollection "may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party." Thus, rule 803(5) does not provide a basis for admission of the transcripts of the statement.

When some factors favor admissibility and some weigh against it, we generally conclude that a trial court properly exercised its discretion in allowing evidence of a defendant's prior conviction. See State v. Walker, 310 N.W.2d 89, 91 (Minn. 1981). Nevertheless, the trial court in this case failed to give any cautionary instructions against using the testimony of Jones's prior conviction as substantive evidence. See State v. Bissell, 368 N.W.2d 281, 283 (Minn. 1985) (trial court should sua sponte give cautionary instruction). While no objection was made and this apparent error was not raised as an issue on appeal, the absence of this cautionary instruction substantially increased the possibility that Jones was unduly prejudiced by admission of this prior conviction.

The court's failure to give this cautionary instruction may not provide an independent basis for reversal in this case. Given the combined effect of this error and the erroneous and repeated admission[2] of the witness statement, however, we conclude that Jones did not receive a fair trial. Cf. Van Buren v. State, ___ N.W.2d ___, ___ (Minn. Dec. 5, 1996) (notwithstanding defense counsel's failure to object at trial, reviewing court will consider plain error affecting substantial rights if error had effect of denying defendant fair trial). As it is impossible to separate the prejudicial effect of these errors on the jury's decision to convict appellant of the various charges, we conclude that a new trial is warranted on all charges.

Reversed and remanded for a new trial.

[ ]¹ In 1992, third-degree assault was punishable by up to five years imprisonment under Minn. Stat. § 609.223, subd. 1 (1992). Although Jones's conviction was reduced to a misdemeanor pursuant to a stay of imposition, the original crime was a felony and therefore is subject to the balancing test of rule 609(a)(1). See State v. Skramstad, 433 N.W.2d 449, 453 (Minn. App. 1988) ("The rule addresses the maximum sentence possible at the time of conviction, not the sentence which was actually given nor any subsequent alteration of the defendant's record."), review denied (Minn. Mar. 13, 1989).

[ ]²In addition to admission of the transcripts themselves as trial court exhibits, the prosecutor questioned the witness extensively about the statement and its contents, and the police officer who took the statement testified as to what the witness had said. Under these circumstances, there is a clear danger that the jury placed undue emphasis on the statement.