Clay County District Court File No. 14CR122590.
Lori A. Swanson, Attorney General, St. Paul, Minnesota; and Brian J. Melton, Clay County Attorney, Lori H. Conroy, Assistant County Attorney, Moorhead, Minnesota (for respondent).
Christopher J. Cadem, Cadem Law Group, P.L.L.C., Fergus Fall, Minnesota (for appellant).
Considered and decided by Stoneburner, Presiding Judge; Ross, Judge; and Hooten, Judge.
Appellant challenges his convictions of three counts of felony domestic assault in violation of Minn. Stat. § 609.2242, subd. 4 (2010), alleging that procedural and substantive errors require reversal and remand for a new trial. Appellant also challenges his sentence on procedural grounds and argues that, if he is not granted a new trial, his sentence should be reversed and the matter remanded for resentencing. We affirm.
In July 2012, appellant Alberto Betancourt Jr. was living in a mobile home owned by his mother at a mobile-home park in Glyndon. Late one evening, a fight broke out in the mobile home among Betancourt, his pregnant sister, A.S., A.S.'s husband, D.S., and Betancourt's 18-year-old brother, M.B. D.S. ran next door to the residence of C.G. and asked C.G. to call 911 because there were "people flipping out at his house." D.S. left C.G.'s residence while C.G. was making the call.
Glyndon Police Officer Jason Lien responded to the call. D.S. answered the door and said that the fight was over and that the officer could enter. Officer Lien saw injuries on the left side of D.S.'s face. He saw another man, later identified as M.B., on the couch with significant facial injuries. Officer Lien applied first aid to M.B. and called for an ambulance. Officer Lien also saw that A.S. had a golf-ball-sized lump over her left eye that was black and blue. Officer Lien observed that all of the injuries were recent. He photographed the facial injuries and also photographed what he opined were defensive injuries on D.S.'s hands.
Officer Lien learned from the victims that everyone involved in the altercation lived in the mobile home. Betancourt had come home with a woman and argued with A.S. Betancourt hit A.S. D.S. intervened to protect her. D.S. and Betancourt then exchanged blows. M.B. became involved, and Betancourt struck him several times in the face. D.S. pulled Betancourt off of M.B. D.S. and Betancourt again exchanged blows until D.S. told Betancourt to leave because the police were being called. Betancourt left with the woman, who was not identified in these proceedings.
After the police left the mobile home, D.S. again went to C.G.'s residence and told him that Betancourt had left in a black Kia automobile. D.S. asked C.G. to call the police again if the black Kia returned to the mobile home. Officer Lien and other officers returned to the mobile home after C.G.'s second call. The officers found Betancourt in the mobile home. Betancourt was arrested and charged with three counts of felony domestic assault.
While he was in jail awaiting trial, Betancourt made numerous telephone calls to one individual. All of the telephone calls were recorded pursuant to jail policy. The state obtained recordings of all of the conversations, which were in Spanish.
The state contacted Pedro Rodriguez to translate the conversations. Rodriguez had worked as a jailer for 17 ½ years, during which time he had acted as a translator for the Clay County Sheriff's Department as needed. Rodriguez, who is not a court-certified interpreter, listened to two compact discs, one containing recordings of 28 conversations and the other containing recordings of eight conversations between Betancourt and a woman. The recordings were never transcribed, but Rodriguez made notes about the contents of the telephone calls. Over Betancourt's objection to lack of foundation, the district court allowed Rodriguez to testify from his notes, at a pretrial Crawford hearing and at trial, about the identity of the speakers and the content of the conversations. Rodriguez's notes were not offered into evidence.
Rodriguez testified that he identified Betancourt's voice from his own knowledge of Betancourt. He identified the woman in the recordings as Betancourt's mother, based on Betancourt's addressing her as his mother during the conversations. Rodriguez testified that, in several of the conversations, Betancourt asked his mother to get the victims to recant and say that he never hurt them. He also asked her to get witnesses to testify in his favor, and he and his mother discussed delaying the trial.
The state served D.S., A.S., and M.B. with subpoenas for Betancourt's trial by leaving the documents with A.M., an adult, at the mobile home where the fight occurred. None of the victims appeared for trial. The district court issued arrest warrants, and law-enforcement officers attempted unsuccessfully to locate the victims to bring them to court.
The district court conducted a Crawford hearing to determine whether Betancourt had forfeited his confrontation rights by procuring the unavailability of the witnesses. The state offered evidence to establish that the witnesses had been served with subpoenas and that the state had acted with diligence to procure their attendance. To support its argument that Betancourt's wrongful conduct had procured the unavailability of the witnesses, the state offered Rodriguez's testimony about Betancourt's telephone conversations with his mother and evidence of statements that D.S. made to his probation officer and a representative of the county attorney's office's victim-services program that family members pressured him not to cooperate with the prosecution. The district court held that Betancourt had forfeited his Sixth Amendment right to confront these witnesses by procuring their unavailability for trial and granted the state's request to admit the statements of A.S. and D.S. recorded by Officer Lien at the mobile home on the night of the incident.
Prior to trial, Betancourt moved in limine to prevent the state from impeaching him with two prior felony domestic-assault convictions in the event that he testified. The district court reserved ruling until the second day of trial, when, based on its analysis of relevant factors, the district court denied the motion and held that ...