Rice County District Court File No. 66-CR-11-2484
Lori Swanson, Attorney General, St. Paul, Minnesota; and G. Paul Beaumaster, Rice County Attorney, Terence Swihart, Assistant County Attorney, Faribault, Minnesota (for respondent)
David W. Merchant, Chief Appellate Public Defender, Richard Schmitz, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Connolly, Presiding Judge; Cleary, Judge; and Huspeni, Judge.[*]
On appeal from his conviction of felony domestic assault, appellant argues that the district court abused its discretion by (1) admitting the audio recording of a witness's statement to police as a recorded recollection, and (2) denying appellant's motion for a mistrial following a witness's testimony regarding evidence previously ruled to be inadmissible. Because the district court did not abuse its discretion in either decision, we affirm.
Appellant Michael Barta and M.M. were involved in a relationship throughout the summer of 2011. On the evening of July 23, M.M. was drinking at a bar in Faribault with three friends: T.K., K.D., and J.J. Although not on good terms, M.M. texted appellant and invited him to join her at the bar. Shortly after appellant arrived at the bar, he and M.M. got into an argument. When M.M. stood up to walk away, appellant allegedly hit her in the back of the head. Appellant immediately left the bar. Shortly thereafter, M.M. went home and called the police.
Respondent State of Minnesota charged appellant with one count of felony domestic assault in violation of Minn. Stat. § 609.2242, subd. 4 (2010) and one count of fifth-degree assault in violation of Minn. Stat. § 609.224, subd. 2(b) (2010).
While the case was pending, M.M. contacted the Rice County Attorney's Office and recanted her assault allegation against appellant. After her recantation, appellant was charged with burglary for allegedly breaking into M.M.'s house. M.M. then contacted the Rice County Attorney's Office to rescind her recantation. Prior to trial, appellant filed a motion in limine to preclude any testimony about other crimes allegedly committed by appellant. Appellant also requested that respondent be required to instruct its witnesses not to discuss evidence determined to be inadmissible. The district court granted both motions.
At trial, M.M. testified that she and appellant got into an argument at the bar and that, as she stood up to walk away, appellant "hit [her] in the back of the head." She also testified that she had never been hit in the head that hard before and that the assault caused her to become dizzy. On cross-examination, counsel for appellant questioned M.M. regarding her recantation and later rescission of that recantation. Specifically, counsel asked her whether she contacted the prosecutor on December 22 after breaking-up with appellant the week before Christmas. M.M. responded, "[t]hat was after the second—that is after he broke in my house." Appellant immediately moved for a mistrial, arguing that M.M.'s statement was an inadmissible reference to an alleged burglary committed by appellant. The district court denied appellant's motion for a mistrial but offered to give a curative instruction. After a brief recess, appellant declined the offer.
T.K. testified that she did not see the alleged assault but that she observed M.M. "crying and holding the back of her head" shortly after the incident. K.D. testified that she was intoxicated on the date of the incident and therefore unable to recall witnessing any physical contact between appellant and M.M. Respondent attempted to refresh K.D.'s recollection by playing an audio recording of her statement to the police on the night of the incident, but hearing the recording did not refresh her recollection. She could not even recall talking to the police officer on the date of the incident. Over appellant's hearsay objection, the court allowed the audio recording of the statement to be played for the jury as a recorded recollection under Minn. R. Evid. 803(5). In the recorded statement, K.D. told the police officer that she saw appellant "backhand" M.M., that M.M.'s "drink went over the bar, " and that she then chased appellant out of the bar.
A bartender testified that she was turned away and did not witness the alleged assault. The bartender testified, however, that M.M.'s drink hit her in the back of her legs and that appellant then "took off, " with a couple people, including K.D., going after him. The police officer, who interviewed M.M. at her house after the alleged assault and then T.K., K.D., and the bartender at the bar, testified that K.D. seemed to provide a coherent account of what happened. His conversation with her "seemed to flow much better than most of the other conversations" with other witnesses. Finally, J.J. ...