Opinion
A19-1045
06-15-2020
State of Minnesota, Respondent, v. Dylan Roger Sutter, Appellant.
Keith Ellison, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney, Rochester, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public Defender, St. Paul, Minnesota (for appellant)
This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (2018). Affirmed
Rodenberg, Judge Olmsted County District Court
File No. 55-CR-18-4935 Keith Ellison, Attorney General, St. Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Assistant County Attorney, Rochester, Minnesota (for respondent) Cathryn Middlebrook, Chief Appellate Public Defender, John Donovan, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant Dylan Sutter was convicted of theft and unlawful possession of a firearm and argues on direct appeal that (1) the district court violated his Confrontation Clause rights by admitting a co-conspirator's statement to police, (2) the district court erred by admitting a co-conspirator's phone call, (3) the cumulative effect of the district court's errors deprived him of a fair trial, and (4) the evidence of unlawful possession of a firearm is insufficient because the juvenile adjudication to which he stipulated is not a conviction for a "crime of violence." We affirm.
FACTS
On July 14, 2018, D.B. and appellant were working at a restaurant owned by A.F. D.B. had recently bought a gun, which he brought to work in his backpack that day. D.B. placed his backpack on a hook in the back hallway of the restaurant. D.B.'s backpack was zipped, but was not locked.
The restaurant has two entrances—a public entrance at the front and another entrance in the back hallway that is accessible only to employees. On July 14, A.F. left the back door unlocked and D.B. said that he locked it.
D.B. left the restaurant to make a delivery around 1:00 p.m. and returned to the restaurant around 1:20 p.m. When D.B. was gone, appellant and A.F. were the only employees at the restaurant. A.F. let appellant leave his shift early.
After appellant left, D.B. went to his backpack to get his wallet and the gun. He discovered that the gun was missing and he called the police to report that fact. An officer responded to the call and took statements from D.B. and A.F.
Appellant returned to the restaurant to work a second shift on July 14 around 4:30 p.m. When appellant returned to the restaurant, D.B. called the police. One officer met with D.B. and swabbed D.B.'s backpack for DNA. A second officer met with A.F. and searched her purse and car. A police officer also met with appellant's friend Ron Burks. Burks told the officer that he and some friends picked up appellant from the restaurant around 2:00 p.m. and went to a friend's house to play videogames. He said that appellant drove himself back to the restaurant in Burks's car. When the officer told Burks that appellant had told police that the two of them had also gone to a carwash and picked up Burks's mom from the airport, Burks agreed that those events also happened. Burks denied knowing anything about the missing gun.
A third officer interviewed appellant. Appellant told the officer that he left his first shift at the restaurant around 1:30 p.m. When the officer asked appellant if he went home after work, appellant responded, "yeah." Appellant said that he went to Burks's house after work, went to a carwash, and then picked up Burks's mom from the airport. Appellant told the officer that, after dropping Burks's mom off, he and Burks drove around for a bit and that Burks drove appellant back to the restaurant for his second shift. After being confronted with Burks's statement, appellant urged the officer to check the security camera at the restaurant. Police tried to do that, but the security cameras at the restaurant were not working on July 14. Appellant was arrested.
After his arrest, appellant tried to call both Burks and another friend, but neither of them answered. Appellant then called his mother. At the end of the call, appellant asked his mother to tell Burks that appellant left his wallet at home. The officer listening to the call thought that this seemed odd.
Officers believed that the missing gun was at appellant's house and went there to attempt to retrieve it. Upon arrival, officers spoke with appellant's grandmother who said that Burks and another man had come by appellant's house earlier. Appellant's grandmother said that Burks went inside the house for a few minutes and then left. Because officers believed that Burks had taken the missing gun from appellant's house, they never searched the home.
The next day, D.M., an inmate unrelated to the investigation of appellant, called Burks from jail. During the call with D.M., Burks said that he had to move appellant's "b-tch." Later that day, appellant called Burks from jail. Burks asked appellant if his "b-tch" had everything with her and appellant replied that she was alone. Officers formed a belief that "b-tch" referred to the gun, and that the "b-tch" being alone meant that the gun had no holster or additional magazines.
A month later, officers investigated a drive-by shooting that had happened on August 14. Burks was with T.M. and two others in one of the cars involved in the drive-by shooting. Police impounded and searched the car that Burks was in. During the search of the car, officers found a gun under the floor mat on the passenger side. The serial number on the gun matched that of the gun stolen from D.B.
Officers also seized T.M.'s cellphone, searched the contents of it, and found a video of T.M. in the car holding D.B.'s missing gun. The video was taken on July 23, 2018—nine days after D.B.'s gun went missing from the restaurant.
The state initially charged appellant with theft of the gun and later amended the complaint to add a charge of appellant being an ineligible person in possession of a firearm. Later still, the state added a charge of aiding and abetting the theft of a firearm.
At a motion hearing on the day before trial, the parties argued the admissibility of Burks's statement to the officer on the day the gun was stolen. The state argued that Burks's statement was admissible as a nonhearsay statement to show Burks's consciousness of his own guilt for stealing the gun, Burks's consciousness of appellant's guilt, and as an attempt by Burks to conceal both his and appellant's involvement in the theft of the gun. The state argued that admission of the statement did not implicate the Confrontation Clause because the statements were made to further the conspiracy, not to make accusations against appellant. The state also argued that Burks's phone call with D.M. was admissible as a nonhearsay statement of a co-conspirator to provide context and to show that the conspiracy had not yet ended.
Appellant opposed the admission of both statements. Appellant argued that Burks's statement to the officer was inadmissible hearsay and that admission of it would be in violation of his rights under the Confrontation Clause. Appellant contended that neither statement could be admitted as nonhearsay statements by a co-conspirator because the evidence did not establish that a conspiracy existed.
The district court found that Burks's statement to the officer and his phone call with D.M. were admissible. The district court determined that Burks's statement to the officer was testimonial, but not subject to the Confrontation Clause because it was a statement of a co-conspirator. It also concluded that Burks's statement was not offered for the truth of the matter asserted, but rather to assess the credibility of the conspirators. The district court further determined that Burks's statement to the officer was not hearsay because it was a statement of a co-conspirator. The district court determined that the recording of Burks's phone call with D.M. was also admissible as a statement of a co-conspirator.
At trial, the jury heard evidence of appellant's statement to police, Burks's statement to police, and recordings of three phone calls. Appellant stipulated that he was ineligible to possess a firearm because of an earlier juvenile-delinquency adjudication for simple robbery. The state discussed Burks's statement to the officer and the phone call with D.M. during its closing.
The jury found appellant guilty of theft and unlawful possession of a firearm. The district court denied a motion by appellant for judgment of acquittal notwithstanding the verdict. The district court sentenced appellant to concurrent prison sentences of 60 months for unlawful possession of a firearm and 27 months for theft.
This appeal followed.
DECISION
I. The district court did not err in admitting Burks's statement to police.
Appellant argues that his Confrontation Clause rights were violated by the district court having admitted at trial Burks's statement to police. Appellant agrees with the district court's determination that Burks's statement was testimonial, but disagrees that the statement was not offered for the truth of the matter asserted. The state argues that the district court properly admitted Burks's statement to police, but contends that his statement was not testimonial.
The district court admitted Burks's statements as a testimonial statement made by a co-conspirator. The district court determined that Burks's statement was not subject to the Confrontation Clause because it was not being offered for the truth of what Burks told police, but rather to "allow the jurors to assess the credibility of the witnesses." Appellant did not object to the admission of the statement at trial, but did argue against its admission at the motion hearing the day before trial. Appellant's objection at the pretrial motion hearing preserved this issue for appeal. See Minn. R. Evid. 103(a) (stating that "[o]nce the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection . . . to preserve a claim of error").
"In order to admit out-of-court statements as co-conspirator nonhearsay, two things must be shown. First, the statements must satisfy the requirements of Minn. R. Evid. 801(d)(2)(E). Second, the introduction of the statements must not violate the Confrontation Clause of the Sixth Amendment." State v. Larson, 788 N.W.2d 25, 36 (Minn. 2010) (citing U.S. Const. amend. VI). "Whether the admission of evidence violates a criminal defendant's Confrontation Clause rights is a question of law that [appellate courts] review de novo." Hawes v. State, 826 N.W.2d 775, 786 (Minn. 2013).
Appellant does not challenge on appeal the district court's determination that the requirements of Minn. R. Evid. 801(d)(2)(E) are met. Appellant argues only that the admission of Burks's statement to police is barred by the Confrontation Clause.
The Confrontation Clause affords a criminal defendant "the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; see also Minn. Const. art. I, § 6. "A successful Confrontation Clause claim has three prerequisites: the statement in question was testimonial, the statement was admitted for the truth of the matter asserted, and the defendant was unable to cross-examine the declarant." Andersen v. State, 830 N.W.2d 1, 9 (Minn. 2013) (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004)). "The threshold question for a Crawford analysis is whether the statements at issue are testimonial." State v. Vang, 774 N.W.2d 566, 577 (Minn. 2009). "If statements include both testimonial and nontestimonial material, only the testimonial material must be excluded." State v. Washington, 725 N.W.2d 125, 131 (Minn. App. 2006) (citing Davis v. Washington, 547 U.S. 813, 829, 126 S. Ct. 2266, 2277 (2006)).
The Supreme Court in Crawford defined "testimonial" as, "at a minimum [applying] to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford, 541 U.S. at 68, 124 S. Ct. at 1374.
In Davis, the Supreme Court clarified when a statement is deemed to be testimonial:
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.547 U.S. at 822, 126 S. Ct. at 2273-74.
In State v. Warsame, the Minnesota Supreme Court referenced the "four objective factors that indicated the [person]'s statements were made to meet an ongoing emergency" that the Supreme Court put forth in Davis:
(1) the [person] described events as they actually happened and not past events; (2) any "reasonable listener" would conclude that the victim was facing an ongoing emergency; (3) the questions asked and answers given were necessary to resolve a present emergency, rather than only to learn what had happened in the past; and (4) there was a low level of formality
in the interview because the victim's answers were frantic and her environment was not tranquil or safe.735 N.W.2d 684, 690 (Minn. 2007).
Burks made the challenged statement to police concerning his interactions with appellant earlier that day. The officer asked Burks about the inconsistencies between his and appellant's statements. The officer also asked Burks about the missing gun:
SERGEANT: So is the gun at your mom's house?
BURKS: What gun?
SERGEANT: I know you know about it.
BURKS: What?
SERGEANT: We need to find the gun.
BURKS: A gun?
SERGEANT: Okay? Yeah.
BURKS: That was stolen?
SERGEANT: Yes, [Burks].
BURKS: From here?
SERGEANT: And we need to find it because I don't want to be knocking down your momma's door if we don't have to.
BURKS: Oh, absolutely not.
SERGEANT: You know what I'm saying?
BURKS: You don't have to, no.
SERGEANT: Okay, so where's the gun?
BURKS: I don't know.
SERGEANT: It's—it's time to be honest, [Burks]. 'Cause we got people lined up ready to go knock down doors if we need to.
BURKS: That's fine.
The district court's determination that Burks was appellant's co-conspirator is supported by the record. Because of his role as appellant's co-conspirator, all of Burks's statements to the officer are nonhearsay under Minn. R. Evid. 801(d)(2)(E) if the statements were made in furtherance of the conspiracy. The record supports the district court's conclusion that they were so made.
In State v. Brist, the Minnesota Supreme Court held that the United States Supreme Court's decision in Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775 (1987), concerning the continuing vitality of rule 801(d)(2)(E), survived the Supreme Court's decision in Crawford. 812 N.W.2d 51, 56-58 (Minn. 2012). Justice Stras rightly noted in Brist that the Supreme Court's reasoning in Bourjaily is inconsistent with Crawford. Brist, 812 N.W.2d at 56-57. And Crawford was decided after Bourjaily. But, Justice Stras also rightly noted in Brist that "only the Supreme Court may overrule one of its own decisions." Id. at 56. And the Minnesota Supreme Court noted that, in Giles v. California, 544 U.S. 353, 374 n.6, 128 S. Ct. 2678, 2691 (2008), "a plurality of the Court unambiguously endorsed the continuing vitality of Bourjaily." Therefore, and applying the never-overruled holding in Bourjaily, the Minnesota Supreme Court held that the co-conspirator exception under rule 801(d)(2)(E) does not offend the Confrontation Clause. And, just as the Minnesota Supreme Court has not the authority to overrule a decision of the United States Supreme Court, so we are similarly powerless to overrule or disregard binding authority of the Minnesota Supreme Court. State v. Curtis, 921 N.W.2d 342, 346 (Minn. 2018).
Bourjaily considered the federal rule and we are here concerned with Minn. R. Evid. 801(d)(2)(E). The rules are identical for all practical purposes, and the Crawford line of cases derive from federal Constitutional law, as enunciated by the United States Supreme Court. Crawford, 541 U.S. at 57-69, 124 S. Ct. at 1367-74.
Applying Brist, as we must, we are constrained to conclude that Crawford does not apply to Burks's statement to the officer on the day of the theft, and those statements are admissible under Minn. R. Evid. 801(d)(2)(E). Therefore, the district court did not err in admitting Burks's statement to police.
It is worth noting that, even if Crawford did apply to Burks's statement to police, the majority of his statement that was admitted at trial was not testimonial because he also made his statement during the course of an ongoing emergency—the search for a stolen firearm from a public restaurant. Burks spoke with the officer while D.B.'s gun was still missing, and the questions that the officer asked Burks seem to us to have been intended to get information that could help police find the missing gun. As to the portions of Burks's statement to the officer that would fall outside of the emergency exception to Crawford, admission of any such evidence would also be harmless beyond a reasonable doubt.
II. The district court did not abuse its discretion in admitting Burks's phone call with D.M.
Appellant argues that the district court erred by admitting Burks's phone call with D.M. because the phone call "did not fall within the purview of [the statement of a co-conspirator] hearsay exemption . . . because the statement was not made in furtherance of the conspiracy." Appellant contends that this error was not harmless and that he is entitled to a new trial.
The district court found Burks's phone call with D.M. to be "evidence of co-conspirator being offered against the other" co-conspirator. It admitted the recording of the call on this basis.
"We review a district court's evidentiary rulings for abuse of discretion." State v. Kendell, 723 N.W.2d 597, 612 (Minn. 2006). "A district court abuses its discretion when it erroneously or illogically construes the law or the facts to reach its decision." Browder v. State, 899 N.W.2d 525, 528 (Minn. App. 2017). "On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced." State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).
Minnesota Rule of Evidence 801(d)(2)(E) provides that a statement by a party-opponent is not hearsay if "[t]he statement is offered against a party and is . . . a statement by a coconspirator of the party." A co-conspirator's statement may be admitted when there is "a showing, by a preponderance of the evidence, (i) that there was a conspiracy involving both the declarant and the party against whom the statement is offered, and (ii) that the statement was made in the course of and in furtherance of the conspiracy." Minn. R. Evid. 801(d)(2).
"Statements made within a few days of the crime to a person believed to be a reliable ally for the purpose of constructing alibis for the conspirators are properly admitted under the Rule." State v. Flores, 595 N.W.2d 860, 866 (Minn. 1999). "The phrase 'in furtherance of' is to be broadly construed." Id. "[S]tatements made during the concealment phase of a conspiracy may be admissible under the co-conspirator exemption." State v. Willis, 559 N.W.2d 693, 699 (Minn. 1997). "The proper approach is to analyze the facts of the case to determine if in fact there was an agreement to conceal, to determine the closeness in time of the concealment to the commission of the principal crime, and to determine the reliability of these statements." State v. Davis, 301 N.W.2d 556, 559 (Minn. 1981).
D.M. called Burks from jail the day after the gun went missing from the restaurant. Burks started the conversation by stating that "Shorty got locked up." Burks and D.M. continued talking about appellant being charged with "stolen property" and about how the police had no evidence that appellant took the gun. D.M. eventually asks Burks, "what happened?" Burks replied, "You know I had to move [appellant]'s b-tch." The end of the conversation is difficult to understand because of the quality of the recording, but D.M. seems to tell Burks to talk to someone before stating, "I was gonna ask him what the f-ck was going on."
The district court determined that the phone conversation between Burks and D.M. was a conversation involving a co-conspirator. Under Flores, we construe alibi discussions to be statements made during the concealment phase of a conspiracy. 595 N.W.2d at 866. Therefore, Minn. R. Evid. 801(d)(2)(E) applies to Burks's statements during the recorded call with D.M. and his statements during the call are nonhearsay. Admission of Burks's statements during the call with D.M. at trial does not violate the Confrontation Clause for the same reasons discussed above.
But, D.M. was not claimed to be a co-conspirator. Therefore, rule 801(d)(2)(E) does not render D.M.'s statements during the call as nonhearsay.
Nevertheless, and assuming that D.M.'s statements in the recorded phone call were improperly admitted, those statements were of little value to advancing the state's case, and admission of them was harmless beyond a reasonable doubt. The significance of the recording to the state's case was in what Burks said, not in what D.M. said in response to Burks. And in the overall context of the trial, D.M.'s statements in his phone call to Burks added nothing of significance to the elements of any charged offense.
Appellant also makes a cumulative-effect argument, but the only statement that we could regard as erroneously admitted is that of D.M. on the phone, which we conclude was harmless beyond a reasonable doubt. There is no other error to cumulate and this argument therefore fails.
III. The evidence is sufficient to convict appellant of being an ineligible person in possession of a firearm.
Appellant argues that the evidence admitted at trial is insufficient to support his conviction for being an ineligible person in possession of a firearm. Appellant contends that juvenile adjudications are not included in the statutory definition of "crime of violence" and that he is therefore not ineligible to possess a firearm.
We begin our analysis of this issue by noting that appellant stipulated to his ineligibility to the district court based on his earlier adjudication of delinquency for robbery, which appellant stipulated was a crime of violence. Both the district court and the prosecutor questioned appellant about the stipulation and the earlier delinquency adjudication. Appellant agreed on the record that, "even though it is a juvenile adjudication," he understood that the adjudication rendered him "ineligible to possess a firearm moving forward."
Appellant's argument on appeal was not only not raised below, but was knowingly and expressly waived; nevertheless, State v. Vasko requires that we determine if the evidence is sufficient to prove the elements of a crime in cases where the issue was not raised below. 889 N.W.2d 551, 555-56 (Minn. 2017). In this case, the evidence is sufficient.
"The question of whether a defendant's conduct is prohibited by the statute he is charged under is an issue of statutory interpretation that this court reviews de novo." State v. Olson, 887 N.W.2d 692, 697 (Minn. App. 2016) (quotation and citation omitted).
Under Minn. Stat. § 624.713, subd. 1(2) (2016), "a person who has been convicted of, or adjudicated delinquent or convicted as an extended jurisdiction juvenile for committing . . . a crime of violence" is ineligible to possess a firearm. A "crime of violence" means a felony conviction for one of the offenses enumerated in Minn. Stat. § 624.712, subd. 5 (2016). A felony conviction for simple robbery is a crime of violence. Id. Appellant's delinquency adjudication for simple robbery is a crime of violence under Minn. Stat. § 624.712, subd. 5, and renders him ineligible to possess a firearm under Minn. Stat. § 624.713, subd. 1(2).
In State v. Grillo, we affirmed a conviction for being an ineligible person in possession of a firearm that was predicated upon a juvenile adjudication for felony theft of a motor vehicle. 661 N.W.2d 641, 643 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).
In State v. McFee, the supreme court stated that "the legislature has now provided for use of juvenile adjudications as predicate offenses and as enhancements in a variety of criminal contexts." 721 N.W.2d 607, 614 (Minn. 2006). As an example of this, the supreme court cited to Minn. Stat. § 624.713, subd. 1(b) (2004), which makes people "adjudicated delinquent for a crime of violence ineligible to possess a firearm." Id.
Since McFee was decided, Minn. Stat. § 624.713 has been renumbered, but has remained substantively the same. Compare Minn. Stat. § 624.713, subd. 1(b) (2004), with Minn. Stat. § 624.713, subd. 1(2) (2016).
Recently, in Roberts v. State, we held that "in the context of the statutory scheme, the definition of 'crime of violence' contained within Minn. Stat. § 624.712, subd. 5, unambiguously includes juvenile adjudications for the listed offenses, and that Minn. Stat. § 624.713, subd. 1(2), therefore prohibits persons who have been adjudicated delinquent of a 'crime of violence' from possessing firearms." 933 N.W.2d 418, 423 (Minn. App. 2019), review granted (Minn. Oct. 29, 2019). In Roberts, we explained,
that statute specifically contemplates an individual being adjudicated delinquent of a "crime of violence," as laid out in Minn. Stat. § 624.712, subd. 5. Therefore, the only reasonable way to interpret the term "convictions" in the definition of "crime of violence" is that it is not limited to criminal convictions only, but refers to the elements of the offenses codified in the statutes listed within subdivision 5.Id. at 422.
Our decision in Roberts resolves this question. The supreme court has granted a petition for review in Roberts, but we are obliged to follow our own case law unless and until the supreme court reverses us.
Affirmed.