Houston County District Court. File Nos. KX-01-568; K1-01-569.
Considered and decided by Hudson, Presiding Judge, Randall Judge, and
1. The Confrontation Clause bars admission of a testimonial statement unless (1) the hearsay declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine the declarant, regardless of whether such statements are deemed reliable under Ohio v. Roberts,
The opinion of the court was delivered by: Randall, Judge
This is a consolidated appeal from convictions and sentences for two second-degree assaults arising out of separate incidents. On appeal from his conviction and sentence for the assault against his former girlfriend, Courtney argues that the district court abused its discretion by (1) admitting the hearsay statements of his former girlfriend and her six-year-old daughter, (2) denying his request for a continuance where his newly retained attorney had only a day to prepare for trial, and (3) granting the state's challenge for cause of a juror who indicated skepticism of police without allowing the defense to rehabilitate the juror.
On appeal from his conviction and sentence for assaulting a police officer, Courtney argues that the district court abused its discretion in admitting as Spreigl evidence Courtney's prior assault against his former girlfriend. Courtney argues that he was not given timely notice of the offered Spreigl incident, the incidents were too dissimilar to be relevant, and its admission was far more prejudicial than probative.
In both files, Courtney argues that the district court erred in calculating his criminal-history score and by imposing a five-year mandatory minimum sentence under Minn. Stat. § 609.11.
Courtney was charged with second-degree assault, two counts of domestic assault,*fn2 terroristic threats, and fourth-degree criminal damage to property for alleged incidents occurring during September 19-21, 2001.
On September 21, 2001, at approximately 10:40 a.m., Caledonia Police Chief Duane St. Mary responded to a report of an alleged domestic incident at S.B.'s apartment located in Caledonia. Chief St. Mary testified that S.B.'s face was "terribly swollen" and that she had a "humongous black eye." He also testified that S.B. had red marks on the left side of her neck, her upper right cheek looked swollen, and she had a broken blood vessel in her right eye.*fn3
Chief St. Mary testified that in a tape-recorded interview S.B. told him that Courtney, the father of two of S.B.'s children, had assaulted her. S.B.'s tape-recorded statement was played for the jury during Chief St. Mary's testimony. Chief St. Mary testified that Courtney hit her like a man, "beat her face in," and choked her. S.B. told Chief St. Mary that the incident started on Wednesday, September 19, 2001, after she received a phone call from Courtney stating that he wanted to visit their children. She told Chief St. Mary that while Courtney was at the apartment, she received a phone call from a male and Courtney became upset and wanted to know the identity of the male caller. S.B. told Chief St. Mary that she did not know who the caller was, but that Courtney insisted she tell him or he would choke it out of her.
Chief St. Mary testified that S.B. told him that Courtney began hitting her in the living room/kitchen area, took her into the bedroom, and threw her on the bed. When S.B. tried to get away, Courtney grabbed her by the hair, and started choking and hitting her again. S.B. told Chief St. Mary that, as Courtney was hitting her, blood splattered all over. Chief St. Mary testified that he saw what appeared to be blood splatters on the bedroom walls, but did not observe any blood on the bedroom carpet or in the living room.*fn4 He stated that S.B. told him that she attempted to defend herself with a knife, but Courtney took it away and held it to her throat demanding that S.B. tell him the identity of the caller. S.B. told Chief St. Mary that she was afraid Courtney would kill her. S.B. later gave Chief St. Mary the knife allegedly used during the incident, and the knife was admitted into evidence. Chief St. Mary testified that S.B. told him the children were in the bedroom upstairs during the incident.
S.B. told Chief St. Mary that the following day, Thursday, September 20, Courtney took her to the bathroom of her apartment and choked her again demanding she tell him the identity of the male caller. S.B. stated that after about a minute or so she passed out because she could not breathe. She also stated that she thought she had hit her head on the corner of bathtub, and that she woke up with her head in the toilet. S.B. told Chief St. Mary that she gave Courtney the phone number of the man who had called and that Courtney quit choking her. She also told him that the children were in the living room during this incident.
Chief St. Mary testified that S.B. told him that on the morning of Friday, September 21, Courtney broke her two telephones, and took her money and a three-carat gold diamond ankle bracelet. Chief St. Mary observed the broken telephones when he interviewed S.B. at her apartment. S.B. told Chief St. Mary that Courtney damaged the phones so she could not call anyone. S.B. also stated that she had spent time in women's shelters in Red Wing and Rochester because she was "running" from Courtney.
Chief St. Mary also testified that on October 8, 2001, he arranged for S.G., S.B.'s daughter, to be interviewed by Child Protection Worker Kristi Peterson of the Winona County Human Services Department. Chief St. Mary monitored the interview from another room via closed circuit TV. The interview was videotaped, but a transcript of the interview was not prepared until after trial. A transcript was later prepared and delivered to this court for purposes of this appeal.
During the interview, S.G. told Peterson that Courtney "broke Mama's phones" and "beat [S.B.] up." She stated that she did not see Courtney break the phones, but she saw her mother's swollen eye. S.G. also stated that while she was upstairs she heard "breaking" and her "mom crying." S.G. told Peterson that the next night Courtney and S.B. were in the downstairs bathroom. She stated that she heard Courtney hitting S.B. in the bathroom more than one time. S.G. stated that she saw S.B. crying on the steps, and Courtney telling S.B. to look for the number of the male caller. Peterson asked S.G. if Courtney had said various swear words, and S.G. told her that she heard only "f--k you." S.G. also told Peterson that she was not afraid of Courtney and did not witness Courtney hurting her mother. S.G. then said that Courtney had possessed two guns and that she saw Courtney threaten her mother with them. S.G. also stated that she used to live in another town "where shelters" were located. She told Peterson that Courtney stayed at her house for two days. S.G. indicated that Courtney helped her get ready for school the morning that he left.
Over defense counsel's objection, the videotaped interview was admitted as evidence. The videotape was played for the jury during Peterson's testimony. The district court sustained defense counsel's foundation objections regarding S.G.'s statements about Courtney breaking her mother's phones, beating up or assaulting S.B., and her statements about the firearms. The court instructed the jury to disregard those statements. The district court also admitted, over defense counsel's objection, two drawings made by S.G. during the interview. The first drawing was done by Peterson and depicts the members of S.G.'s family. The second drawing was done by S.G. and depicts two guns S.G. said Courtney had allegedly used to threaten her mother.
Dr. Alan Fleischmann, a Caledonia physician, testified that he treated S.B. on September 22, 2001. Dr. Fleischmann testified that S.B. told him that on September 19 and 20, 2001, Courtney had beaten her. S.B. told Dr. Fleischmann that Courtney had punched her in the face and chest, and "throttled her twice." She also told Dr. Fleischmann that she thought she was going to die. Dr. Fleischmann testified that S.B. had a two-centimeter bruise on the back of her head, a left black eye, and a right black eye that was fading. Fleischmann also stated that S.B. had hemorrhages under her eyelids, a tender jaw, swollen cheeks, and finger marks on the left side of her neck. Dr. Fleischmann testified that she also had pain and tenderness in her chest. After observing S.B.'s injuries, Dr. Fleischmann concluded that her injuries were consistent with what S.B. told him had happened.
At trial, S.B. recanted her pretrial statements and testified for the defense. Her testimony conflicted with what she previously told Chief St. Mary. S.B. testified that, at the time of the incident, Courtney was living in her apartment but was rarely there. S.B. also testified that she and Courtney were in a relationship at the time of the incident, and that on September 19, 2001, Courtney came to visit her. She stated that she knew Courtney was coming to visit, he had a key to the apartment, and he let himself in because she was at a class that afternoon. S.B. testified that she first saw Courtney when she came home at about 2:30 or 3:00 p.m. that afternoon.
S.B. testified that Courtney's cell phone rang numerous times and she answered it. After hearing a female on the other end, she became angry. S.B. stated that Courtney started laughing at her and she became angrier. S.B. testified that she ripped the buttons off his shirt. S.B. also testified that Courtney kept brushing off her questions so she got a knife and started threatening him. She testified that the knife was a "little bigger" than the one in evidence. S.B. stated that she held the knife in a position so that she could stab Courtney with it. S.B. testified that she "jabbed" at Courtney with the knife. She stated that Courtney grabbed a stool about three feet long and told her that if she did not put the knife down he would hit her with the stool. She also stated that Courtney swung the stool back and forth several times at her trying to get her to drop the knife.
According to S.B., after she was hit in the head numerous times with the stool, she dropped the knife and was not hit anymore. S.B. testified that Courtney hit her with the stool on the upper part of her body. When asked how she received the marks on her neck and face, S.B. testified that she could not recall exactly where she was getting hit during the incident. S.B. stated that Courtney put the knife in the sink and the rest of the day they made up. The episode lasted a little more than an hour and the children were upstairs the entire time. S.B. testified that Courtney never choked her or pulled her hair, and did not have any further physical contact with her the next day. She also noted that Courtney left for the Twin Cities the next day, on September 20, 2001.
S.B. testified that she called the police on September 21, 2003, and told Chief St. Mary that Courtney had choked her and done other things to her only because she was angry about the woman who called Courtney and because Courtney had left her. S.B. testified that the statement she gave to Chief St. Mary was untruthful. S.B. stated that she lied when she told Chief St. Mary that Courtney pulled a knife on her, choked her, and threatened her with the knife. S.B. also stated that she broke the telephones in her apartment because she got angry when Courtney left. She testified that she had the diamond bracelet she told the police Courtney had taken. S.B. also testified that she lied to Chief St. Mary because she "was mad at [Courtney]" and "didn't care what happened."
S.B. testified that she spent time at women's shelters in Rochester and Red Wing because she and Courtney were separated at the time and she had no place to live. She stated that she was not hiding from Courtney and that he visited her at the women's shelters. S.B. testified that she lied when she told Chief St. Mary that she was going to the shelters to get away from Courtney. S.B. also testified that she did not recall what she told Dr. Fleischmann about the bruise on her face. S.B. stated that she filed an order for protection on September 21, 2003, but later asked to have it dismissed.
Deputy Linda Coffield testified that around midnight November 14-15, 2001, she took a statement from S.B. Coffield stated that S.B. said she had lied in her previous statement to Chief St. Mary in September.
Courtney took the stand and his testimony was consistent with S.B.'s. The jury found Courtney guilty of second-degree assault, two counts of domestic assault, terroristic threats, and fourth-degree criminal damage.
Assault of Officer Stemper
Courtney was charged with second-degree assault, possession of a firearm with a removed serial number, possession of a pistol after having been convicted of a felony, and fifth-degree possession of marijuana for incidents that occurred on November 14, 2001. The state later dismissed the possession of a pistol and controlled substance charges.
Officer James Stemper testified that on November 14, 2001, he received a phone call from S.B.'s mother. She told him she was concerned for S.B.'s safety because there had been a physical altercation between S.B. and Courtney. S.B.'s mother said there was a protective order or harassment order against Courtney in Houston County. Officer Stemper researched the protective order and then, at approximately 11:30 p.m., went to S.B.'s apartment to make a welfare check and possible order-for-protection violation. Officer Heath Dienger and Deputy Linda Coffield accompanied Stemper to S.B.'s apartment.
Stemper and Dienger knocked on the apartment door and were met by Sherry Pitts. Stemper recognized Pitts as someone that he knew occupied another apartment in the building. Stemper said he would like to speak with Pitts and Pitts let both Stemper and Dienger into the apartment. Upon entering, Stemper saw S.B. sitting in a chair. Stemper asked S.B. if he could speak with her and S.B. nodded in apparent agreement.
Stemper then asked S.B. if he could speak with Courtney, and S.B. said, "Sure, he's in another apartment." Pitts said Courtney was in her apartment and left through the rear door of the apartment leading into the common hallway to get him. Courtney opened the rear door of S.B.'s apartment and Stemper asked him to step inside to talk. Courtney told Stemper, "Yeah, just a second," shut the door, and took off running down the hallway. Stemper pursued Courtney out the same door and could see Courtney about half way down the hallway. Stemper saw Courtney reach with his right hand underneath the lightweight jacket he was wearing, pull from the small of his back a stainless steel-colored semiautomatic handgun, and hold it by the handle. Stemper yelled "gun" to his back up officers, told Courtney to get down repeatedly, and continued to pursue Courtney by running down the hallway toward the garage door while drawing his own weapon. Stemper testified that he saw Courtney run to the end of hall, slip and end up on one knee, and then start to open the door to the attached garage with his left hand.
Stemper testified that he saw Courtney opening the door with his left hand while he was on one knee, and then swing his right arm and the gun up towards Stemper. Stemper stated that the gun was pointed directly at him. Stemper testified that any bullet would have fired directly at him and would have hit four or five feet ahead of him. Once Courtney got into the garage, Courtney hit the ground as Stemper ordered and the gun slid out of Courtney's hand. Stemper kicked the gun under a car in the garage and handcuffed Courtney. Stemper estimated the incident lasted about two and a half seconds.
Officers Dienger and Coffield did not see Courtney point the gun at Officer Stemper. Dienger testified that he heard Stemper yell "gun," but by the time he got halfway down the hallway Courtney was going through the garage door. Coffield testified that she was stationed in the garage area behind a parked car. She testified that she saw Courtney coming through the garage door and heard Stemper yelling, "gun." Officers also found that the pistol had one bullet in the chamber and ten in its magazine. Officers found $1,473.24 in the right front pocket of Courtney's pants and a small amount of marijuana in Courtney's left front pants pocket.
Courtney did not testify in this trial. The state introduced as Spreigl Courtney's previous assault against S.B. Courtney was found guilty of second-degree assault and possession of a firearm without a serial number.
On May 23, 2003, Courtney appeared for sentencing in both files. The state introduced Courtney's three prior Missouri offenses as felony convictions for purposes of calculating his criminal history score. The probation officer calculated that Courtney had three-point-five criminal history points, which was rounded down to three. Accordingly, Courtney was sentenced to 39 months in prison for the assault against S.B. Courtney received an additional one-point-five points for his conviction for the assault against S.B. However, Courtney was not sentenced based on his criminal history score. Courtney was sentenced to a mandatory minimum of 60 months in prison for the assault against Officer Stemper. The court determined that Courtney's prior Missouri conviction for unlawful possession of a firearm constituted a qualifying offense under Minn. Stat. § 609.11, making his conviction for assault against Officer Stemper a second offense. This sentence was to be served consecutively with the 39-month sentence.
1. Did the district court abuse its discretion by admitting the hearsay statements of S.B. and her daughter S.G.?
2. Did the district court abuse its discretion by admitting evidence of Courtney's assault against S.B. as Spreigl evidence in the trial ...