County District Court File No. 50-CR-15-3
Swanson, Attorney General, St. Paul, Minnesota; and
Kristen Nelsen, Mower County Attorney, Megan A. Burroughs,
Assistant County Attorney, Austin, Minnesota (for respondent)
Charles F. Clippert, Assistant Public Defender, St. Paul,
Minnesota (for appellant)
Considered and decided by Reyes, Presiding Judge; T. Smith,
Judge; and J. Smith, Judge. [*]
witness who is present at trial but who invokes the Fifth
Amendment privilege, whether validly or not, is unavailable
and cannot be considered subject to cross-examination for
confrontation clause purposes, thereby precluding admission
of the witness's out-of-court testimonial statement.
Daniel Irlas argues that the admission of his co-defendant
Ernesto Salinas's guilty-plea transcript at
appellant's criminal trial violated his right under the
Confrontation Clause because Salinas was unavailable, and
appellant was not afforded the opportunity to cross-examine
him. Because we conclude that (1) Salinas was unavailable at
trial, (2) the admission of his guilty-plea transcript
violated appellant's right under the Confrontation Clause
to confront witnesses against him, and (3) the admission
constitutes reversible error, we reverse and remand.
early morning hours of December 26, 2014, appellant and
appellant's cousins, Salinas and W.B., drove to
P.P.'s apartment. Prior to this, P.P. and Salinas were
involved in an altercation in which P.P. struck Salinas with
a pipe wrench. During this time, P.P. was smoking
methamphetamine with a number of other individuals inside his
apartment when W.B. knocked on the door to P.P.'s
apartment. P.P. answered the door, and W.B. asked for someone
unknown to P.P. P.P. asked the other individuals in the
apartment if they knew the person, but no one did. P.P. went
back to tell W.B. this, when he saw appellant and Salinas
running towards him. P.P. had a pipe wrench by the door, and
as they approached, he picked it up and swung the wrench in
their direction. All three individuals then entered the house
at which point appellant wrestled the wrench out of
P.P.'s hands and repeatedly punched P.P. in the face.
While appellant and P.P were fighting on the ground, W.B. hit
P.P. in the stomach twice. During this altercation, Salinas
ran to P.P.'s bedroom and removed some of his personal
belongings. Salinas then came back out, grabbed the wrench,
and hit P.P. approximately three times in the head with it.
Afterward, all three individuals ran out of the apartment.
suffered injuries to his diaphragm, a stab wound to his
stomach, and a stab wound near his heart. During the fight,
P.P. did not realize he had been stabbed and did not know who
stabbed him; however, P.P. testified that the altercation was
mainly between him and appellant.
Salinas, and W.B. were eventually arrested, and each was
separately charged. Appellant was charged with the following:
(1) second-degree attempted murder in violation of Minn.
Stat. § 609.19, subd. 2(1) (2014); (2) first-degree
burglary in violation of Minn. Stat. § 609.582, subd.
1(b) (2014); (3) first-degree burglary in violation of Minn.
Stat. § 609.582, subd. 1(c); (4) second-degree assault
in violation of Minn. Stat. § 609.222, subd. 2 (2014);
and (5) fifth-degree assault in violation of Minn. Stat.
§ 609.224, subd. 4(b) (2014).
to trial, Salinas entered a guilty plea to first-degree
burglary and second-degree assault with the understanding
that he would testify at appellant's trial. Testimony by
Salinas during his guilty plea implicated appellant and W.B.
as participating in the assault. Specifically, Salinas
admitted that he went to P.P.'s house with appellant and
W.B. in retaliation for P.P. striking Salinas with a wrench
earlier that night. Salinas testified that he had stabbed
P.P. with a knife and that appellant took part in assaulting
appellant's and W.B.'s joint trial, the state
proceeded under a theory that Salinas had stabbed P.P., but
appellant and W.B. each participated in the attack, and aided
and abetted Salinas in stabbing P.P. Salinas took the stand
and answered some preliminary questions, including the fact
that he had pleaded guilty and admitted involvement in the
attack. However, when the state asked him more specific