Stearns County District Court. File No. KX-02-861.
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.
Although the district court arguably infringed on defendant's constitutional right to the free exercise of religion by ordering him to wear his cross inside his shirt during trial, the violation was not an error affecting a fundamental trial right that warrants a new trial.
The opinion of the court was delivered by: Willis, Judge
Appellant challenges his conviction of first-degree assault, arguing that (1) the district court violated his constitutional right to the free exercise of religion by ordering him to "tuck [his cross] inside [his] sweater" during trial, (2) the district court abused its discretion by allowing the state to introduce a statement of appellant's alleged accomplice as substantive evidence under the catchall exception to the hearsay rule, and (3) the prosecutor committed prejudicial misconduct in his closing argument by inflaming the jury's passions and by shifting the burden of proof to the defense.
We conclude that, although the district court's order regarding appellant's cross arguably infringed on appellant's constitutional right to the free exercise of religion, it was not in this context an error affecting a fundamental trial right that warrants a new trial. Further, we conclude that the district court did not abuse its discretion by admitting the accomplice's statement under the catchall exception and that the prosecutor did not commit misconduct that warrants reversal of appellant's conviction. We affirm.
On the evening of February 5, 2002, the St. Cloud police received a call from a homeowner reporting a suspicious person outside his home. When Officer Aaron Dix arrived at the home, he found Michael Krzmarzick outside the home, bleeding profusely from his head. Krzmarzick was taken to a local hospital where it was determined that he had a depressed skull fracture that required surgery. At the hospital, Krzmarzick told the medical staff that he had been assaulted; a member of the medical staff called the St. Cloud police, and Officer Jason Burke was sent to the hospital to investigate. Krzmarzick told Officer Burke that earlier in the evening, (1) he had biked to a local store, where he saw a woman whom he had met before but whose name he could not recall, (2) the woman was with a man, and they offered to give Krzmarzick a ride, (3) before they all left, the man placed Krzmarzick's bicycle in the back of the couple's pickup truck, and (4) when the vehicle stopped, all three got out, and the man hit Krzmarzick over the head. Medical personnel told Officer Burke that they believed Krzmarzick's injury was caused by being hit with an object that would cause a blunt-force injury, such as a hammer.
At approximately 2:20 a.m. on February 6, 2002, approximately 30 miles outside St. Cloud, Paynesville police officer Joseph Schmitz stopped a pickup truck for erratic driving. Velma Shavers was the driver, and appellant Dennis Edward Tate was the passenger. Officer Schmitz brought Shavers back to his squad car to check her license and to question her; while he was investigating, he received a call telling him that an assault had recently occurred in St. Cloud and that the vehicle and the people that he had just stopped matched the descriptions of those involved. After being informed that the victim had been assaulted with a "rounded item," Officer Schmitz returned to the vehicle and asked Tate, the owner of the truck, if he could "look around" the vehicle; Tate consented. In the back of the truck, Officer Schmitz found a chrome tire wrench and a tire jack. Tate and Shavers were transported to the Stearns County jail on charges unrelated to this case.
Officer Gerald Lehner interviewed Shavers and Tate at the jail. In a tape-recorded statement, Shavers told Officer Lehner that she and Tate had given Krzmarzick a ride and that, after they stopped at a cemetery, they had taken money from Krzmarzick; Shavers stated that she had asked Krzmarzick where his money was and that Tate had taken $46 out of Krzmarzick's pocket. She stated that Tate hit Krzmarzick in the head with a "silver" tire iron, and she and Tate left Krzmarzick at the cemetery. She then described a house in St. Cloud where she and Tate had left Krzmarzick's bicycle. Officer Lehner then spoke with Tate, who denied (1) being at the store, (2) seeing Krzmarzick and giving him a ride, and (3) having anything to do with the assault and the robbery.
After the interviews, Officer Lehner drove to the house that Shavers had described and found Krzmarzick's bicycle there. Officer Lehner also confiscated the clothing that Tate was wearing at the time of his arrest; a forensic scientist at the Minnesota Bureau of Criminal Apprehension compared blood spots on Tate's shirt with samples of both Tate's and Krzmarzick's blood and determined that the blood on the shirt matched Krzmarzick's DNA profile. As the investigation continued, the officers obtained videotape from security cameras outside the store where Krzmarzick said that he had gone before the assault. The videotape showed Tate placing Krzmarzick's bicycle in the bed of the pickup truck before he, Shavers, and Krzmarzick drove off together.
Before trial, Shavers told a defense investigator that she had lied in her statement to Officer Lehner. At trial, the state moved for admission of Shavers's tape-recorded statement to Officer Lehner as substantive evidence under Minnesota Rule of Evidence 803(24). After Shavers told the district court that she would be invoking her Fifth Amendment privilege against self-incrimination, the state sought an order giving Shavers use immunity to compel her testimony; the district court granted Shavers use immunity and ordered her to testify. Shavers testified that (1) she had lied about some of the information in her earlier statement to Officer Lehner, (2) she and Tate had not stolen money from Krzmarzick, and (3) Tate had not assaulted Krzmarzick. Tate also testified that, although he and Shavers had given Krzmarzick a ride, they had not taken any money from him, and Tate had not assaulted him.
Krzmarzick testified that (1) when he was at the store, Shavers and Tate offered to give him a ride to a friend's apartment, (2) Tate drove them to a secluded area, (3) Tate came toward him with a "silver" tire iron and hit him on the head, and (4) Shavers and Tate both went through his pockets and took approximately $40 from him.
The jury found Tate guilty of first-degree assault, in violation of Minn. Stat. § 609.221, subd. 1 (2000); first-degree aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (2000); and second-degree assault, in violation of Minn. Stat. ...