In the Matter of the Death of William Gast, Sr., also known as "Blue" Gast, in Crow Wing County, Minnesota, on February 24, 1992.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-97-1814

State of Minnesota,
Respondent,

vs.

Terry A. Turner,
Appellant.

Filed July 21, 1998
Affirmed
Willis, Judge

Hennepin County District Court
File No. 97006710

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Diane Odeen, Certified Student Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Bradford Colbert, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Terry Turner appeals his conviction of aggravated robbery on the ground that the district court's evidentiary rulings deprived him of his right to present a defense. We affirm.

FACTS

In the late afternoon of January 19, 1997, appellant Terry Turner was at a White Castle restaurant in north Minneapolis at which he had formerly been employed. He was accompanied by his 17-year-old cousin, D.D. Ernestino Rivera, a 72-year-old retiree and a regular customer at the restaurant, arrived at approximately 4:30 p.m. Rivera, who was known by restaurant staff to carry large amounts of cash, left the restaurant just after Turner and D.D. did. The three passed behind a snowbank, out of view of the restaurant's 16 security cameras.

Shortly thereafter, Turner and D.D. walked away and Rivera returned to the restaurant, saying that he had just been robbed and that, although he did not know the robbers, one of them was a former employee. White Castle staff called 911 and Rivera, who apparently has a somewhat limited command of English, described the robbery and the suspects to the operator. When police arrived, Rivera told them that one of the robbers was the son of a White Castle employee named Renee. D.D.'s mother, Renee Davis, worked at White Castle at the time.

When asked how much money had been stolen, Rivera gave amounts ranging from $70 to $175. Rivera also said that his keys were stolen, and the state introduced into evidence Rivera's check with the memorandum note "locks," which he said was for replacing the locks on his home, and a check to a locksmith, which he said was for changing the locks on his car.

Rivera identified the robbers from still photos made from the security cameras and a White Castle manager identified one of the men pictured as Turner. Turner was arrested and charged with first-degree aggravated robbery.

In his opening statement, Turner's counsel argued that Rivera had fabricated the robbery story because he wanted revenge against Davis, who owed him money, and because he wanted to collect the money through a false claim for restitution. It appears from the record that Davis owed Rivera approximately $150. The district court sustained the state's hearsay objection when Turner's mother attempted to testify that Davis, who according to defense counsel was not in the state, had said she owed Rivera money. The district court ruled sua sponte that no reference to restitution would be allowed because the issue related to the punishment that could be imposed for the crime.

The jury found Turner guilty. Turner was sentenced to 48 months in prison and restitution was ordered. He now appeals the district court's rulings on the hearsay and restitution evidence issues, and we affirm.

D E C I S I O N

A district court's evidentiary rulings are generally upheld absent an abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). A defendant has a fundamental constitutional right to present a defense, but the exercise of this right is subject to established rules of procedure and evidence. State v. Richards, 495 N.W.2d 187, 195 (Minn. 1992). Even if a defendant is deprived of this right, we will not reverse if we determine that the error was harmless beyond a reasonable doubt. Kelly, 435 N.W.2d at 813.

I. Evidence of Debt

Turner attempted to introduce, as a statement against interest under Minn. R. Evid. 804(b)(3), evidence that Davis had told Turner's mother that she owed Rivera money. Hearsay subject to the exceptions in rule 804(b) is admissible only if the declarant is unavailable; a declarant is unavailable if she "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance * * * or testimony[] by process or other reasonable means." Minn. R. Evid. 804(a)(5). The district court sustained the state's objection to the evidence on two grounds: (1) that it was not aware of any attempts to procure Davis's attendance or testimony and (2) that because of the small amount of money involved, Davis's statement was not sufficiently contrary to her pecuniary interest to qualify as a hearsay exception. We agree with the district court that Turner failed to demonstrate Davis's unavailability and therefore do not address the second ground for excluding the evidence.

When the state is the proponent of hearsay evidence, "[a]bsence from the state alone is insufficient to establish a witness's unavailability." State v. Smith,563 N.W.2d 771, 775 (Minn. App. 1997). The state must show that it made "diligent and reasonable" efforts to procure the witness's testimony. Id.1   There is no caselaw regarding the amount of effort required to procure the testimony of an out-of-state witness where a criminal defendant is the proponent of the hearsay. But Turner's counsel stated only that Davis was outside of the jurisdiction and that there was "no way I can get her here." Turner's counsel made no showing of any effort to procure Davis's testimony, and we therefore conclude that the district court did not abuse its discretion in determining that Turner had not established Davis's unavailability.

II. Evidence of Claim for Restitution

The district court excluded evidence that Rivera had filed a claim for restitution on the ground that reference to "punishment that may or may not occur if the defendant is found guilty is totally improper and not allowed." We need not decide here whether this ruling was correct because we conclude that if it was error, it was harmless beyond a reasonable doubt.

The exclusion of evidence is harmless error when the reviewing court is

satisfied beyond a reasonable doubt that if the evidence had been admitted and the damaging potential of the evidence fully realized, an average jury (i.e., a reasonable jury) would have reached the same verdict.

State v. Post,512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted). Whether a Confrontation Clause error is harmless in a particular case depends on factors including the importance to the state's case of the testimony sought to be impeached,

whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and * * * the overall strength of the [state]'s case.

State v. Pride,528 N.W.2d 862, 867 (Minn. 1995) (quoting Delaware v. Van Arsdall,475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986)).

Here, Rivera's testimony was central to the state's case and the exclusion of the restitution evidence significantly impacted the scope of cross-examination permitted. But the security videotapes and the transcript of Rivera's contemporaneous 911 call corroborate his account in many pertinent respects. For example, the videotape shows Turner and D.D. passing around the snowbank in different directions, which is consistent with Rivera's account that Turner pointed a gun at his chest while D.D. approached him from behind, and Rivera's account of the robbery in the 911 call immediately following the incident was consistent with his trial testimony. We recognize that the videotape evidence is not inconsistent with Turner's proffered theory and that Rivera's testimony contained some inconsistencies. But imperfections in the state's case do not preclude a finding of harmless error if the evidence as a whole is sufficiently strong. See State v. Glaze, 452 N.W.2d 655, 661 (Minn. 1990) (finding it "extremely doubtful" that admission of evidence of violence by another man toward murder victim would have changed verdict in view of defendant's confession to serial killings and corroborating circumstantial evidence, despite circumstantial evidence of other man's presence at murder scene). In particular, we are satisfied beyond a reasonable doubt that an average jury would not believe that Rivera would feign the loss of his keys, change his locks (or fabricate evidence of having done so), and falsely accuse Turner of a felony solely to further a false claim for restitution to collect a debt of approximately $150 owed Rivera by Turner's aunt. In view of the overall strength of the state's case, we conclude that any error in the exclusion of the evidence of Rivera's claim for restitution was harmless.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

1 Turner cites Johnson v. Sleizer, 268 Minn. 421, 424, 129 N.W.2d 761, 764 (1964), for the proposition that unavailability is proven where the declarant is outside the court's jurisdiction. But in Johnson, the supreme court concluded that unavailability had been proven in part because the proponent of the evidence had made "diligent" efforts to procure the testimony, although the court did not detail the nature of the efforts.