Dakota County District Court File No. 19HA-CR-11-4114.
Lori Swanson, Attorney General, St. Paul, Minnesota; and James C. Backstrom, Dakota County Attorney, Scott A. Hersey, Heather Pipenhagen, Assistant County Attorneys, Hastings, Minnesota (for respondent).
Cathryn Middlebrook, Interim Chief Appellate Public Defender, Jessica Merz Godes, Assistant Public Defender, St. Paul, Minnesota (for appellant).
Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Ross, Judge.
Natalie E. Hudson Judge
On appeal from his convictions of attempted second-degree intentional murder, first-degree assault, and second-degree assault, appellant argues that: (1) his Sixth Amendment right to confront witnesses was violated by the admission of hearsay statements of non-testifying declarants; (2) the district court erred by admitting a recorded phone call that was not properly authenticated and also contained inadmissible hearsay; and (3) there was insufficient evidence to support his convictions. Because the admission of hearsay statements violated appellant's Sixth Amendment rights, we reverse appellant's convictions and remand for a new trial.
At 2:15 a.m. on November 16, 2011, police received a call about a shooting at the Cherokee Tavern in West St. Paul. Upon arriving, police discovered that the victim, J.J., had been taken to the hospital with a gunshot wound to the chest. The shooter was identified as an Asian male, whereabouts unknown.
Appellant Stanaley Yoeun, his brother R.Y., D.D., and B.A. were all at the Cherokee on the evening of November 15 into the early morning of November 16. B.B. was the bartender working that evening and S.O., a server at the bar, was there celebrating her birthday. Shortly before 2:00 a.m., B.B. used the women's restroom and heard a struggle in the adjoining men's restroom. J.J. testified that he was in the restroom and another male, the shooter, wanted to fight him. J.J. claimed he defended himself, knocking the shooter to the floor and causing the shooter to bleed from the face or head. J.J. and the shooter were seen exiting the bathroom together, still involved in a struggle. B.B. and S.O. told the men to leave. As B.B. was attempting to lock up the bar, another male handed the shooter a gun. The shooter then turned around and shot J.J. in the chest. B.B. testified that the shooter also pointed the gun toward her for a few seconds, approximately two feet from her face, before he exited the bar. Months after the shooting, a gun was found in a yard about a mile and a half from the bar, but no fingerprints or DNA were found on the gun, and it was not conclusively linked to the shooting or to appellant.
There was some confusion over the height of the shooter. In the original 911 call, B.B. identified the shooter as an Asian male, approximately 5'4" tall. However, B.B. later told police that she had been serving the shooter alcohol all evening, and that he was probably around 5'7" or 5'8", with a faint mustache. In an interview with a police investigator on December 1, 2011, J.J. said that the shooter was not short, and that he was taller than the investigator, who was 5'5", but shorter than his own height of 6'2".
The police began to focus on appellant after an investigator spoke with the victim's mother, E.J., by phone the evening of November 16. E.J. put A.A. on the phone with the investigator. A.A. told the investigator that she was the victim's current girlfriend and that she used to date appellant, "the male who shot" the victim. The investigator Curtis then requested photographic line-ups that included both appellant and his brother, R.Y. Line-up one contained a photo of appellant in the fifth position. Lineup two contained a photo of R.Y. in the first position. The line-ups were shown to B.B. and S.O. B.B. was not able to identify anyone in either line-up. S.O. identified appellant but noted she was only 50% sure he was the shooter.
At approximately 5:30 p.m. on November 17, police arrived at appellant's home to try to speak with him. Appellant did not answer the door, and officers began communicating with him by telephone. When told that a SWAT team would be sent into the apartment if he did not come out, appellant responded that he did not care if he died, and that if the police came in, he knew what he had to do. After requesting and receiving an opportunity to speak with his attorney, appellant came out of the apartment peacefully around 8:30 p.m., and was arrested. At the police station, appellant was observed to be approximately 5'10", with a red mark on his forehead that appeared to be recent, and a sparse mustache.
Around 7:20 p.m. on November 17, A.A. informed the investigator by phone that appellant had called her while the police were outside his residence. A.A.'s aunt had recorded the conversation on her cell phone. The police created a duplicate of that recording, which ...