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State v. Lasnetski

May 17, 2005

STATE OF MINNESOTA, RESPONDENT,
v.
JEFFREY ALLEN LASNETSKI, APPELLANT.



Kandiyohi County District Court File No. K5-03-0088.

SYLLABUS BY THE COURT

1. Statements made to a police officer under exigent, life-or-death circumstances, do not constitute "testimonial" hearsay under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).

2. A defendant may waive his right to challenge the admission of his spouse's out-of-court statements on confrontation-clause grounds by calling his spouse to testify.

The opinion of the court was delivered by: Dietzen, Judge

Affirmed

Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

OPINION

Appellant challenges his conviction of first-degree assault, arguing that the district court erred in admitting testimonial hearsay in violation of the Confrontation Clause of the United States and Minnesota Constitutions. Appellant also argues that the district court improperly excluded character evidence and that he was deprived of a fair trial due to prosecutorial misconduct. Because we conclude that admission of the testimony did not violate the Confrontation Clause and objection to the testimony was otherwise waived by appellant, and that the district court did not abuse its discretion on the other issues, we affirm.

FACTS

In the late afternoon of January 17, 2003, appellant Jeffrey Allen Lasnetski called his estranged wife, Darla Lasnetski, and told her that he was going to commit suicide. After appellant's daughter called 911, the Kandiyohi County Sheriff's Department was dispatched to the Lasnetski residence. Deputy Greg Stehn arrived at the scene and observed appellant standing by a truck in the driveway pointing a shotgun at his own head. In an effort to not escalate the situation, Stehn backed the squad car out of the driveway. While doing so, he observed appellant raise the shotgun to his shoulder and point it at Stehn. A few seconds later, Stehn heard the shotgun fire. While the shot did not strike Stehn or his squad car, he assumed appellant was shooting at the car.

Shortly thereafter, numerous law enforcement personnel arrived at the scene, and a roadblock was established to block traffic from approaching the residence. Mrs. Lasnetski arrived at the residence shortly after the shot was fired and was intercepted by Deputy Shawn Kujawa at the roadblock. While Mrs. Lasnetski was in Kujawa's squad car discussing the situation, appellant called her on a cell phone. Mrs. Lasnetski spoke with appellant several times. During the conversations with appellant, Kujawa coached Mrs. Lasnetski on how to talk to appellant in order to keep him from committing suicide. Mrs. Lasnetski pleaded with appellant that he needed to surrender. Appellant responded that he shot at the deputy and that he would go to jail. Mrs. Lasnetski responded that no one was hurt and that everything would be okay. Appellant also told her that if the officers tried to approach the house, he would shoot them. Later, appellant stated that he would shoot at the officers in order to provoke them into shooting him.

Kujawa told Mrs. Lasnetski to keep appellant on the phone as long as possible. Eventually, appellant took an overdose of allergy medication and began coughing and vomiting. A flash-bang grenade was then detonated inside the residence, and law enforcement personnel entered to remove appellant.

Appellant was charged with first-and second-degree assault. Before trial, the state filed a motion to compel the testimony of Mrs. Lasnetski or, in the alternative, to allow Kujawa to testify as to Mrs. Lasnetski's out-of-court statements. The proposed testimony was that appellant told his wife, who in turn told Deputy Kujawa, that (1) appellant would not surrender because he shot at a deputy and was afraid he would be arrested for attempted murder; (2) if the officers tried to approach the house he would shoot them; and (3) he intended to go out of the house and start shooting in order to provoke law enforcement into shooting him because he wanted to die. The district court denied the state's motion to compel the testimony of Mrs. Lasnetski on the basis of the spousal privilege but permitted Kujawa to testify regarding Mrs. Lasnetski's phone conversations with appellant. The district court held that such testimony was admissible under the excited utterance exception to the hearsay rule and the residual exception for an unavailable declarant. See Minn. R. Evid. 803(2) (excited utterance); Minn. R. Evid. 804(b)(5) (residual exception).

During trial, Kujawa testified about his conversations with Mrs. Lasnetski in his squad car along the lines proposed in the state's pretrial motion. Appellant did not object during the trial to Kujawa's testimony. In appellant's case-in-chief appellant testified and called Mrs. Lasnetski to testify regarding her conversations with appellant in Kujawa's squad car. Appellant also moved to introduce evidence of his reputation or character for truthfulness. The district court did not allow the evidence, finding that reputation for truthfulness was not relevant to the charged offenses and that appellant's credibility had not been attacked. The jury found appellant guilty of first-degree assault. This appeal followed.

ISSUES

1. Did the district court err by allowing Kujawa to testify regarding Mrs. Lasnetski's phone ...


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