Anoka County District Court File No. K3-02-8193
Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge;
and Minge, Judge.
1. Evidence that appellant accelerated his car while a police officer was lying on the hood trying to stop him was sufficient to support appellant's conviction of first-degree assault—use of deadly force against a peace officer.
2. A hearsay statement offered under Minn. R. Evid. 804(b)(5) may be excluded if, as here, it lacks circumstantial guarantees of trustworthiness equivalent to traditional express hearsay exceptions.
3. It is not error for the district court to prohibit defense counsel from commenting on the state's failure to call witnesses on the state's witness list when those witnesses were available to both the state and the defense and the defense called the witnesses to testify.
The opinion of the court was delivered by: Gordon W. Shumaker, Judge
Appellant challenges his conviction of first-degree assault—use of deadly force against a peace officer, arguing that there is insufficient evidence to convict him of that crime; that an out-of-court statement made by an unavailable declarant should have been admissible under the hearsay exception in Minn. R. Evid. 804(b)(5); and that the district court erred in prohibiting defense counsel from commenting in closing argument on the state's decision not to call certain witnesses. Because there is sufficient evidence to support the conviction and the district court did not err in its rulings, we affirm.
Coon Rapids police officers Bradley Johnson and Daren Keasling went to appellant Jason Lee Bernardi's apartment in response to a report of domestic assault. When they arrived they could hear people shouting inside the apartment. Johnson knocked on the door and Bernardi's girlfriend, Marlena Cook, opened it. She was crying hysterically and stated that Bernardi had beaten her and had run out the patio door. Keasling pursued Bernardi while Johnson remained behind to speak with Cook.
Keasling saw Bernardi near a parked car and saw him open the door, get inside, and lock the doors. Johnson soon joined Keasling. The officers pounded on the car window and ordered Bernardi to unlock the doors and to get out of the car.
Bernardi ignored the officers and instead backed the car out of its parking space. Johnson moved to the front of the car and Bernardi began to drive toward him. Fearing for his life, Johnson drew his gun. As the car accelerated toward him, Johnson jumped onto the hood of the car and fired his gun several times into the windshield, seriously wounding Bernardi, who then lost control of the car. Just before the car collided with a parked car, Johnson jumped off. He sustained multiple injuries. Bernardi disagrees with these facts and claims that he never intended to run Johnson over and that he put his hands in the air to give himself up when Johnson shot him.
Bianca Dennie witnessed the incident. During an offer of proof, appellant's attorney claimed that Dennie stated to a defense investigator that
[s]he was in a position behind the vehicle as it traveled north in the parking lot, that the car began to roll forward, that the police officer jumped on the hood, that he was not in danger, [the car] was traveling approximately 15 miles an hour [when she] observed the driver raise his hands as if to ...