Hennepin County District Court File No. 27-CR-11-28801
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Eric J. Nelson, Christina M. Zauhar, Halberg Criminal Defense, Bloomington, Minnesota (for appellant)
Considered and decided by Ross, Presiding Judge; Chutich, Judge; and Kirk, Judge.
Appellant Amy Margaret Senser challenges her convictions for criminal vehicular homicide, contending that the state's evidence was insufficient to prove that she knew she had hit a person or a vehicle. She also asserts that the district court erred in interpreting a statute criminalizing failure to report an accident and in instructing the jury on the knowledge requirement underlying her two convictions. Finally, Senser claims that the district court abused its discretion by denying her change-of-venue and sequestration motions, suppressing evidence of the victim's toxicology results, preventing her from presenting a complete defense, admitting hearsay evidence, failing to disclose jury communications, and denying her motion for a Schwartz hearing.
Although the district court abused its discretion by admitting hearsay evidence and failing to disclose a communication from the jury, we conclude, after careful consideration of the entire record, that the errors had no effect on the jury's verdict and that Senser received a fair trial. Because the state presented more than sufficient evidence to demonstrate that Senser knew she hit a person or a vehicle, and because her arguments regarding statutory interpretation, jury instructions, and abuses of discretion are unavailing, we affirm.
At approximately 11:10 p.m. on August 23, 2011, Minnesota State Patrol officers responded to several calls about an accident on the Riverside Avenue exit ramp of westbound Interstate 94. Several people called 911 and reported seeing a car stopped on the ramp and a man lying on the roadway. When the officers arrived at the scene, they observed a Honda Accord with its hazard lights flashing and a body lying face down on the ramp approximately 40 feet in front of the car. The victim, later identified as A.P., had severe injuries to the right side of his body. The officers also observed a blue container that appeared to have been used as a gas can and concluded that the victim was refueling his car when he was struck by another car. The officers found multiple car parts scattered along the ramp that they identified as belonging to a Mercedes GLK300 or another Mercedes sport-utility vehicle (SUV).
The following evening, Senser's attorney called the state patrol and stated that he was releasing the Mercedes ML350 that was involved in the fatal accident. When officers arrived at Senser's home, they found the Mercedes parked inside the garage. The officers observed "[d]amage to the front passenger side of the vehicle" that included a broken headlight, broken fog light, a dented fender, and what "appeared to be blood on the front hood."
Over a week later, on September 2, 2011, Senser provided an unsolicited statement to the state patrol, which reads as follows: "I, Amy Senser was the driver of the vehicle in the accident in which [A. P.] lost his life."
Hennepin County charged Senser with criminal vehicular homicide—leaving the scene of an accident. See Minn. Stat. §§ 169.09, subd. 1, 609.21, subd. 1(7) (2010). The county later amended the complaint to include two additional charges of criminal vehicular homicide—failure to give notice and operating a vehicle in a grossly negligent manner. See Minn. Stat. §§ 169.09, subd. 6, 609.21, subd. 1(1), (7) (2010).
Senser unsuccessfully moved for dismissal, and the parties made a number of other pretrial motions as well. The district court granted the state's motion for an order precluding the introduction of A.P.'s toxicology report, denied Senser's motion to admit testimony of her chiropractors and physicians on her chronic headaches, denied Senser's motion for a jury instruction on good faith reliance on the advice of counsel, and denied her motion for a change of venue.
During a seven-day jury trial, the state called 24 witnesses. These witnesses included several people who called 911 after seeing A.P.'s body on the ramp, officers who responded to the 911 calls, police investigators, an accident reconstruction expert, Senser's husband Joseph Senser, and Senser's daughters and step-daughter. The defense theorized that Senser did not know that she struck A.P., but believed instead that she hit a construction cone or barrel on the exit ramp. The defense called a lighting and visibility expert and its own accident reconstruction expert. Amy Senser testified in her own defense.
The state first presented testimony from the three witnesses who called 911 the night A.P. died. All three testified that they used the Riverside exit ramp shortly after 11:00 p.m., observed the flashing lights on A.P.'s car, and saw A.P.'s body on the ramp. The state also called M.K., who was driving westbound on Interstate 94 about 30 minutes after the accident. She testified that she was driving behind an erratic driver of a Mercedes SUV. When the cars neared the Riverside exit, the Mercedes was in the right lane and appeared to be exiting, but switched abruptly to the left lane before the exit. The Mercedes then returned to the right lane and M.K. was able to pass it. As she passed, M.K. observed that the driver's-side window was open and the Mercedes's right headlight was not working. M.K. decided to call the state patrol tip line after she saw reports about the accident and learned that the state patrol was looking for a Mercedes SUV. Senser admitted at trial that she was probably the described driver.
Senser's daughters H.S. and M.S., along with their friend M.H., testified about that night. Earlier in the evening, Joseph Senser gave the girls a ride to a concert in St. Paul. Amy Senser planned to meet the girls at the concert to drive them home, but after the concert, Senser was not there. H.S. and M.H. repeatedly called Senser but the cell phone connection was inconsistent. Eventually M.H. got through to Senser, who said she was lost and that the girls should call Joseph Senser for a ride. When Joseph Senser picked them up, M.H. overheard him speaking with Senser on the phone and giving her directions. When they got back to the Senser home, they found Senser asleep or resting on the front porch. M.H. testified that the following morning the atmosphere in the house was very tense.
Joseph Senser testified and corroborated the account of the three girls about the evening's events. He further testified that he did not learn of the accident until the following morning when Senser told him "I think I hit a construction cone, construction barrel." Joseph Senser then went outside to inspect the Mercedes and, based on the damage, thought she may have hit a deer. Then he returned inside to watch the news and saw a report about a fatal accident on the Riverside exit ramp. Joseph Senser showed Amy Senser the report on their computer and asked her if she could have been the driver, but she denied it. Joseph Senser then called Senser's brother, a police officer, to ask for a referral to an attorney. At 10:30 a.m., Joseph Senser called an attorney to arrange a meeting and, after rearranging some items in the garage, he moved the Mercedes into it. The Sensers met with the attorney and arranged to have the attorney hand the Mercedes over to law enforcement. After the meeting, the Sensers and their two daughters, H.S. and M.S., went to Stillwater so they would not be home when the officers came for the vehicle.
Several expert witnesses testified about Amy and Joseph Senser's cell phone records from the night of the accident. Cell phone tower data demonstrated that Senser placed and received calls from 11:08 p.m. until 11:54 p.m. in the area of the accident. Senser's phone records also indicated that about 45 text messages from the night of August 23 through the morning of August 25 had been deleted and that text messages during that time period had also been deleted from Joseph Senser's phone.
The state called certified crash reconstructionist and State Patrol Trooper Paul Skogland. Trooper Skogland testified that A.P.'s car was parked approximately 247 feet up the 680-foot ramp and that, because of a small shoulder, the car intruded about two feet into the ramp's single lane. Skogland found no evidence of any skid marks at the accident scene.
Skogland opined that, when struck, A.P. was likely standing and 40% of his body was visible above the hood and illuminated by Senser's headlights. Skogland further opined that A.P.'s body wrapped around the fender of Senser's Mercedes. Skogland testified that the crash likely had two sounds associated with it, one when Senser hit A.P. and the second when A.P. hit and broke off his car's mirror. The sounds would have been much louder than if Senser had hit a construction cone or barrel, which are hollow and light-weight. He further opined that at the point of impact, the ramp was straight and nothing would have precluded Senser from seeing the Honda's hazard lights. He testified that A.P.'s car and body would also have been visible in Senser's rearview mirror from the top of the ramp after the impact.
Dr. Sarah Meyers, a medical examiner for Hennepin County, testified about the cause of A.P.'s death. She opined that A.P.'s cause of death was multiple blunt force injuries and hemorrhaging of the brain. Dr. Meyers stated that she could not say if A.P. was standing or crouching, but that he was hit on the right side of his body. To preserve the record, Dr. Meyers also testified—outside the presence of the jury—that A.P. had cocaine and its metabolite in his body, which was consistent with a person who had used cocaine "relatively recently prior to that individual passing away."
The state also called Sergeant Daniel Beasley who was involved in the investigation. Over the defense's hearsay objection, Sergeant Beasley read a small portion of his interview with M.R.S., a mentor to Joseph Senser, in which M.R.S. said that Joseph Senser told him that he and Amy Senser had seen blood on the Mercedes.
During the state's case, the district court admitted numerous photographs into evidence depicting the damage to the Mercedes, the orientation and condition of the exit ramp, and the severity of A.P.'s injuries. After the state rested, the district court denied Senser's motion for judgment of acquittal.
The defense called accident reconstructionist Daniel Lofgren who testified that A.P. was likely bent over next to his car when he was struck. Lofgren stated that A.P.'s body would have wrapped around Senser's SUV and had little to no involvement with the hood of her car. Lofgren further opined that any damage to Senser's Mercedes would not have been visible from the driver's seat and that she would not have been able to see the Honda's flashing lights in her rearview mirror from the top of the ramp. Lofgren admitted that accidents involving pedestrians create a loud sound that is audible up to 50 feet from the point of impact.
The defense also called Dr. Paul Olson, a visibility expert. Dr. Olson opined that the construction-related signs, barrels, and other "visual clutter" on the Riverside ramp would have made it difficult for a driver to see A.P. or his car on the dark ramp at night.
Senser testified that on the night of the accident, she drove to St. Paul after work to meet her daughters and their friends at the concert and give them a ride home. When she arrived at the concert, Senser developed a headache and decided to leave early and have Joseph Senser retrieve the girls. While driving home, Senser began to feel better and decided to return to the concert so Joseph Senser would not have to make the trip. Senser exited westbound Interstate 94 at the Riverside ramp to return to St. Paul. While exiting the freeway, she noticed the area was under construction and looked over her shoulder to see if there was an entrance ramp in the opposite direction. Senser heard a "clunk" and was "jolted back" and checked her rearview mirror to see what she had hit. She said that she did not see anything and assumed "that [she] hit a barrel that was at the top of the ramp." Senser admitted that her sunroof was probably open at the time of impact.
Because of construction, Senser testified that she was forced to turn right instead of left at the top of the ramp and she became lost. Senser said that she spent the next 40 minutes trying to get back to the freeway before eventually finding Snelling Avenue and returning to westbound Interstate 94. While driving home, Senser passed the Riverside exit accident scene and saw emergency vehicles, but did not associate them with her accident. Senser testified that she did not inspect her Mercedes SUV when she arrived home that night ...