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State v. Hallmark

Supreme Court of Minnesota

May 15, 2019

State of Minnesota, Respondent,
Marcus Allen Wayne Hallmark, Appellant.

          Hennepin County Office of Appellate Courts

          Keith Ellison, Attorney General, Saint Paul, Minnesota, and Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant Hennepin County Attorney, Minneapolis, Minnesota, for respondent.

          Cathryn Middlebrook, Chief Appellate Public Defender, Steven P. Russett, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.


         1. The district court did not abuse its discretion by admitting the recorded statement of an eyewitness under Minnesota Rule of Evidence 807, even after the witness partially recanted the statement at trial, because the statement possessed circumstantial guarantees of trustworthiness, was offered as evidence of a material fact, was more probative on proving premeditation than any other evidence reasonably procurable, and its admission served the interests of justice.

         2. The district court did not abuse its discretion by admitting the evidence of the contents of a backpack linking appellant to items that went missing along with the murder weapon because that evidence was relevant and its probative value was not substantially outweighed by its prejudicial effect.

         3. The district court erred by entering a conviction for both first-degree murder and second-degree murder because second-degree intentional murder is a lesser-included offense of first-degree premediated murder.

         4. None of appellant's pro se claims have merit.

         Affirmed in part, reversed in part, and remanded.


          THISSEN, Justice.

         Appellant Marcus Hallmark was found guilty by a Hennepin County jury of first-degree premeditated murder, Minn. Stat. § 609.185(a)(1) (2018), and second-degree intentional murder, Minn. Stat. § 609.19, subd. 1(1) (2018), for killing Thomas Russ at a park-and-ride facility in Minnetonka. The district court convicted Hallmark on both charges and sentenced him to life without the possibility of release. On direct appeal, Hallmark raises, through his attorney, three claims of alleged reversible error. He first argues that the district court abused its discretion by admitting, under Minnesota Rule of Evidence 807, the prior recorded statement of an eyewitness. He also asserts that the district court abused its discretion by admitting, under Minnesota Rule of Evidence 403, evidence from a backpack found after Russ was murdered. Finally, Hallmark asserts that the district court erred by convicting him of both first-degree and second-degree murder in violation of Minn. Stat. § 609.04 (2018). Hallmark asserts several other claims of error in a supplemental pro se brief.

         Because we hold that the district court did not abuse its discretion by admitting the challenged evidence, and because Hallmark's pro se claims lack merit, we affirm Hallmark's conviction for first-degree premeditated murder. But because the district court improperly entered a conviction on both first-degree and second-degree murder, we reverse Hallmark's conviction for second-degree intentional murder and remand this case to the district court to vacate that conviction.


         Late in the evening on March 3, 2017, Russ was shot and killed at a Metro Transit park-and-ride facility in Minnetonka. He was shot twice-once in the back of his head and once in the forehead from between a half inch and 2 feet away-and died at the scene.

         In the days before the shooting, Hallmark's mother, A.M., loaned Hallmark her vehicle to use while she was at the hospital assisting her daughter. Because one of the tires on the vehicle went flat, Hallmark left it at the Minnetonka park-and-ride on March 2. The next evening, March 3, A.M. left the hospital and returned home where she learned about the flat tire and the location of her vehicle. Because her sister drove the same type of vehicle and had the same spare tire, A.M. borrowed her sister's vehicle to go fix the flat tire. A.M.'s sister, Hallmark, and Russ (the boyfriend of A.M.'s daughter) went along to help. No fights or disputes occurred on the drive to the park-and-ride.

         A.M.'s sister drove her vehicle to the park-and-ride and parked a few spots away from A.M.'s vehicle inside the facility. A.M. did not see anyone else around at that time. A.M.'s sister, Hallmark, and Russ then left the vehicle and removed the spare tire from the trunk of A.M.'s sister's vehicle. A.M.'s sister then got back into the vehicle with A.M. Hallmark and Russ went over to A.M.'s vehicle to begin fixing the flat tire. According to A.M., Russ was doing most of the work fixing the tire, but Hallmark was helping by handing him tools. At no point were there any apparent issues or disputes between Hallmark and Russ.

         After Hallmark and Russ began changing the tire, A.M. testified that she heard a "loud noise" that caused her to look over at the tire-changing process. She saw Russ lying on the ground with Hallmark crouched down between the two vehicles. Hallmark later ran from the scene.

         A.M. and her sister left the park-and-ride and drove to nearby Ridgedale Mall. A.M. called 911. When asked by the 911 operator what happened at the park-and-ride, A.M. answered "My son shot 'em . . . [a]nd he ran." Also during the 911 call she stated that "my son, and my sister came up to get my . . . car-to fix a flat tire. My son . . . pulled out a [expletive] gun and shot this [expletive] guy that . . . we know . . . . His name is . . . [Russ] . . . Oh my [expletive] God, I can't believe my son shot 'em." Additionally, A.M. was heard speaking to some other individual near her during the 911 call. She said, "Yes, officer, my son shot somebody and ran. Some guy in the Transit Center down there."[1]

         Later, after police had arrived and escorted A.M. and her sister to the Minnetonka police station, A.M. gave a recorded statement to the police. She confirmed that while Hallmark and Russ were working on her vehicle at the park-and-ride, she "heard like this big loud noise like a boom or a pop or something and [she] thought the car or the jack fell on [Russ]." A.M. told police that, after hearing the noise, she looked over at Russ, who was lying on the ground on his back twitching. She stated:

And then all [of a] sudden Mark [Hallmark] just looked at me and gave me this look and I don't know that look, I've never seen that straight no smile no nothing, just these eyes just lookin' at me, not helping this man, laying there on the ground I didn't, kind of in a way I was scared you know because it's like why wouldn't my son help this guy . . . then all of a sudden he, he shot him in [the] head right in the middle of the head while he was laying on his back.

         A.M. described the second shot in detail. She said that Hallmark "bent down" and "put it . . . right at his forehead . . . just right up in the middle of the forehead and then he pulled the trigger, and that's when I knew, that's when I [saw] the black gun, that's when I knew what was going on . . . ." At the conclusion of her recorded statement, the police asked A.M. whether there was anything important that she had left out of her statement and whether the police had made any promises or threats to her in connection with giving her statement. She responded that she had told them everything and that they had not made any threats or promises to her regarding her statement. She also answered affirmatively when asked if everything she said was true, restated "to the best of [her] recollection." She was given the opportunity to read and sign the statement and fix any errors.

         A.M.'s trial testimony differed from the 911 call and her recorded statement.[2] A.M. testified that she heard only one gunshot, which she initially thought was a problem with the car, and that she did not see a gun. She testified: "I just know [Hallmark] was c[r]ouched down . . . I never heard, like I said, a second gunshot. I only heard one." When asked whether she recalled saying that she saw Hallmark place a black gun right in the middle of Russ's forehead and pull the trigger, A.M. responded by saying, "I don't recall saying that. I mean, no." Furthermore, during cross-examination by the defense, A.M. testified that she did not see who shot Russ, she was unsure of what the "loud noise" was, she did not know there were two shots, she "never saw a gun," and she "never saw [Hallmark] shoot a gun." She also testified that she was "assuming" when she told the 911 operator what happened because "everything was happening so fast and so quick, and everyone was scared." She further testified that she was in poor condition on the night of the murder because she had been up for three days helping her daughter and was taking medication that made her "very, very drowsy." On redirect examination, the State confronted A.M. with her prior statements. She admitted making the statements, but testified that after a year of it "going over and over in [her] head" there is "a lot now that I'm able to see things and look at things straight and put everything into perspective. I didn't see no gun in my son's hand." The district court thereafter admitted A.M.'s recorded statement to police under the residual hearsay exception set forth in Minn. R. Evid. 807.

         After the shooting, Hallmark fled the scene on foot. Following a coordinated effort, and with the assistance of a thermal camera affixed to a police helicopter, law enforcement located Hallmark in a marsh near the park-and-ride. Eventually, after being surrounded by police, Hallmark surrendered.

         Numerous pieces of physical evidence were collected from the scene of the shooting as well as from the marsh near the park-and-ride. The morning after the shooting, police found a Ruger .380-caliber handgun as well as a small-caliber handgun holster in the marsh.[3] While processing the scene of the shooting at the park-and-ride, police recovered two spent .380 Federal Auto ammunition cartridge cases near Russ's body. Additionally, police found an open safe in the backseat of A.M.'s vehicle. The safe contained numerous types of ammunition, including Federal Auto .380-caliber ammunition. It also contained a Macanudo cigar case, a cardboard box for a Ruger LCP handgun, along with the owner's manual, and an empty Berretta-brand gun case. A total of 13 usable fingerprints were lifted from various locations on or in the vehicle. Police later executed a warrant for a DNA sample from Hallmark for comparison to any DNA evidence found.

         The medical examiner testified at trial that Russ died from two gunshot wounds to the head. One shot entered the back of Russ's skull. The medical examiner could not determine the distance that bullet traveled. The other shot entered Russ's skull above his left eye, and, based on gunpowder burns on Russ's skin, traveled a distance from half an inch to about two feet. The medical examiner also recovered several bullet fragments from Russ's skull, which were passed on to the Hennepin County Crime Lab for further analysis.

         A Hennepin County crime lab technician testified that the fingerprints found on a cigar box and a Winchester ammunition box in A.M.'s vehicle were matched to Hallmark. There were no usable prints on the recovered Ruger firearm or its magazine.

         A firearms examiner also testified at trial. Her analysis focused on the two .380 Federal Auto cartridges recovered at the scene and the bullet fragments recovered from Russ's skull. She testified that both spent cartridges had been fired from the Ruger handgun recovered near the park-and-ride. The examiner also testified that at least two fragments recovered from Russ's skull had been fired by the same Ruger handgun.

         A Hennepin County DNA analyst also testified. She concluded that the DNA profile obtained from the Ruger firearm "was a mixture of at least four individuals" but that "the profile of the major contributor matche[d] the DNA profile from Marcus Hallmark." The analyst noted that because four or more DNA contributors were present, she had to seek special approval from a supervisor before she could interpret the DNA profile. Special approval is issued only when there is a "clear major DNA profile present." Because Hallmark's profile was a clear major profile, the approval was given by the lab's technical leader.

         A major point of contention during the trial centered on the State's intended use of evidence from a backpack which was found after the murder and indirectly connected the Ruger handgun to Hallmark. In a discussion outside the presence of the jury, the State informed the district court that the Ruger firearm and the contents of the backpack were purportedly "stolen from a police officer." The recovered backpack contained "the police officer's badge . . . [Hallmark's] identification [card], and a Ruger gunlock . . . inside a humidor. . . ." The humidor had Hallmark's fingerprints on its exterior surfaces. The State wanted to offer that evidence to link Hallmark to the Ruger firearm. The district court determined that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice under Minnesota Rule of Evidence 403.

         The jury found Hallmark guilty of both first-degree premeditated murder and second-degree intentional murder. At the sentencing hearing, the district court stated that "[Hallmark would] be sentenced only on murder in the first degree," which carries a sentence of life without the possibility of release. However, Hallmark's sentencing order shows a disposition of "convicted" for both first-degree and second-degree murder. Hallmark appealed directly to our court.


         Hallmark argues that the district court abused its discretion by admitting A.M.'s statement recorded at the police station under the residual hearsay exception contained in Minnesota Rule of Evidence 807 and by admitting the backpack evidence under Minnesota Rule of Evidence 403. He also asserts, through his attorney, that the district court erred by entering a conviction for both first-degree and second-degree murder. In a pro se supplemental brief, Hallmark raises several additional claims of error. We address each claim in turn.


         We first address Hallmark's claim that the district court abused its discretion by admitting A.M.'s recorded statement to police under Minnesota Rule of Evidence 807. "We review a district court's evidentiary rulings for an abuse of discretion." State v. Davis, 864 N.W.2d 171, 179 (Minn. 2015). "A district court abuses its discretion when its decision is based on an erroneous view of the law or is against logic and the facts in the record." State v. Guzman, 892 N.W.2d 801, 810 (Minn. 2017).


         Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Minn. R. Evid. 801(c). A hearsay statement "is not admissible except as provided" in the Minnesota Rules of Evidence or any other rules prescribed by our court or the Legislature. Minn. R. Evid. 802. There are several exemptions from and exceptions to the rule against hearsay. See, e.g., Minn. R. Evid. 801(d)(1)-(2), 803-804. If a statement is not covered under a specific hearsay exemption or exception, it still may be admitted under the "residual exception" found in Minnesota Rule of Evidence 807. That rule states in relevant part:

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

         Minn. R. Evid. 807.[4]

         The decision to admit hearsay statements under Rule 807 has two steps. First, the district court must "look at the totality of the circumstances to determine whether [the] hearsay statement has 'circumstantial guarantees of trustworthiness.'" Davis, 864 N.W.2d at 181 (quoting State v. Robinson, 718 N.W.2d 400, 408 (Minn. 2006)). Specifically, the district court must examine the circumstances actually surrounding the making of the statements. Id. (citing State v. Lanam, 459 N.W.2d 656, 661 (Minn. 1990)). We have instructed district courts to evaluate, among other things,

whether the statement was given voluntarily, under oath, and subject to cross-examination and penalty of perjury; the declarant's relationship to the parties; the declarant's motivation to make the statement; the declarant's personal knowledge; whether the declarant ever recanted the statement; the existence of corroborating evidence; and the character of the declarant for truthfulness and honesty.

State v. Griffin, 834 N.W.2d 688, 693 (Minn. 2013) (quoting State v. Davis, 820 N.W.2d 525, 537 (Minn. 2005)).

         The totality of the circumstances test used to evaluate trustworthiness under Rule 807 requires a careful balancing of all relevant circumstances surrounding the making of the statement. For example, in Griffin, we upheld the admission of hearsay under Rule 807 where the statement at issue was "volunteered 'without suggesting or leading questions' . . . [and] 'remained consistent throughout both of' the witness's 'versions of what happened'" and where "the witness 'had no motive to lie,' and the witness 'repeated consistent versions of her statement to two different [people] within a short period of time.'" Id. at 694-95 (quoting Robinson, 718 N.W.2d at 410). Additional circumstantial indicia of trustworthiness also attach to statements made based on a declarant's personal knowledge, especially where other evidence corroborates the statement. Id. at 695; see, e.g., State v. Her, 750 N.W.2d 258, 276 (Minn. 2008) (concluding that voluntary, specific statements made based on first-hand personal knowledge and corroborated by other physical evidence possessed indicia of trustworthiness), judgment vacated on other grounds, 555 U.S. 1092 (2009); State v. Langley, 354 N.W.2d 389, 398 (Minn. 1984) (same), abrogated on other grounds, State v. Her, 781 N.W.2d 869 (Minn. 2010).

         In State v. Ortlepp, we set out four other (albeit related) factors that, if present, contribute to the trustworthiness of a statement under the residual hearsay exception. 363 N.W.2d 39, 44 (Minn. 1985). We have held that the district court does not abuse its discretion by admitting the statement as trustworthy when (1) there is no Confrontation Clause issue because the declarant testifies, admits to making the prior statement, and is available for cross-examination by the defense counsel; (2) the statement is recorded, removing any real dispute about what the declarant said; (3) the statement is against the declarant's penal interest; and (4) the statement is consistent with the State's other evidence that "pointed strongly toward" the defendant's guilt. Id. We have since clarified that the Ortlepp factors are not exclusive and merely represent "an application of the totality of the circumstances approach to satisfy the equivalent circumstantial guarantees of trustworthiness element of" the residual hearsay exception. Robinson, 718 N.W.2d at 408 ("[T]he proper analysis under the residual exception is to use the 'totality of the circumstances' approach, looking to all relevant factors bearing on trustworthiness." (citation omitted) (internal quotation marks omitted)).

         Of course, other circumstances surrounding a statement may weaken the trustworthiness of the statement. A lack of trustworthiness may exist when the declarant has a strong motivation to bend the truth and implicate others. State v. Morales, 788 N.W.2d 737, 760 (Minn. 2010) (affirming a district court's ruling to not admit the recorded statements of a separately tried co-defendant under Rule 807 when the declarant had a strong motive to lie). Moreover, an extended gap in time between an event and a statement about the event detracts from a statement's trustworthiness. See State v. Hansen, 312 N.W.2d 96, 102 (Minn. 1981) (noting that a period of two weeks between an event and a statement about the event diminished trustworthiness), abrogation on other grounds recognized in State v. Bobadilla, 709 N.W.2d 243, 248 (Minn. 2006). Other factors that call into question the trustworthiness of a statement include making an unsworn statement during an investigation by state agents under circumstances that do not permit testing the statement via cross-examination, making a statement without first-hand knowledge, and making a statement in exchange for a financial reward. Id.

         Although prior sworn statements-made under oath and subject to cross-examination-are generally more reliable than unsworn statements, we have noted that a totality of the circumstances approach should be used in evaluating the trustworthiness of the statement regardless of whether the statement was sworn or unsworn. See State v. Stallings, 478 N.W.2d 491, 495 (Minn. 1991). And while recantation of a prior statement may detract from trustworthiness, a recanted statement may nevertheless possess sufficient circumstantial guarantees of trustworthiness under the residual hearsay exception where (1) other uncontradicted evidence discredits the declarant's recantation; (2) the declarant possesses a motive to falsely recant; (3) the declarant's recantation is itself inconsistent; and (4) the prior hearsay statements are "strongly corroborated" by evidence admitted at trial. Robinson, 718 N.W.2d at 410.

         The second step in evaluating a statement's admissibility under the residual hearsay exception requires the district court to determine whether the three enumerated requirements of Rule 807 are met. They require that (1) the statement is offered as evidence of a material fact; (2) the statement is "more probative on the point for which it [is] offered than any other evidence" procurable "through reasonable efforts" by the proponent; and (3) the general purpose behind the Minnesota Rules of Evidence and the interests of justice are served by the admission of the statement into evidence. See Griffin, 834 N.W.2d at 693-94 (citing Minn. R. Evid. 807). We have held that the offered evidence need not be "essential" to satisfy the second requirement of the rule. State v. DeRosier, 695 N.W.2d 97, 106 (Minn. 2005). Rather, the rule requires that the district court consider whether other admissible evidence on the same point could be obtained through reasonable efforts. Id. And we have noted that the Minnesota Rules of Evidence should be construed to secure fairness and "to promote the growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined." State v. Aubid, 591 N.W.2d 472, 479 (Minn. 1999) (quoting Minn. R. Evid. 102).

         Overall, evaluating the admissibility of a statement under Rule 807 requires a district court to carefully balance all of the relevant circumstances surrounding the making of the statement at issue, while also considering each of the three prongs set forth within the language of the rule. With these principles in mind, we turn to Hallmark's claim.


         The district court admitted A.M.'s recorded statement to police after A.M. had already testified, relying almost entirely on Ortlepp. The court found that A.M.'s recorded statement had sufficient guarantees of trustworthiness because A.M. "admitted making the prior statement[]," the statement "was made close in time to the events, which goes to its reliability," the statement was "against interest in the sense that [it] implicated her son in the commission of a crime," the statement was "corroborated by the 911 call from the same witness; by physical evidence at the scene; and by other evidence in the case that I understand is coming in . . . such as the defendant's DNA on the gun [and] the matching of the ballistics to the gun . . . ." The court therefore concluded, without discussing the three prongs of Rule 807 itself, that A.M.'s prior statement to police was admissible as substantive evidence.[5]

         Hallmark takes issue with the district court's apparent failure to evaluate more than just the Ortlepp factors. He asserts that other factors should have been evaluated under the totality of the circumstances test. We agree that the court appears to have based its holding almost entirely on the Ortlepp factors, which we have previously identified as a nonexhaustive list of considerations relevant to Rule 807. See Robinson, 718 N.W.2d at 409. We agree that the district court should have explicitly ...

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