This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
A07-884
State of Minnesota,
Appellant,
vs.
Dontae Donnell Farmer,
Respondent.
Filed February 5, 2008
Affirmed; motion denied
Peterson, Judge
Hennepin County District Court
File No. 06077002
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
MN 55101-2134; and
Steven M. Tallen, Tallen and Baertschi, 4560 IDS Center, 80 South Eighth Street,
Minneapolis, MN 55402 (for appellant)
John M. Stuart, State Public Defender, 2221 University Avenue Southeast, Suite 425,
Minneapolis, MN 55414; and
Leonardo Castro, Chief Fourth Judicial District Public Defender, James A. Kamin,
Assistant Public Defender, 317 Second Avenue South, Suite 200, Minneapolis, MN
55402 (for respondent)
Considered and decided by Willis, Presiding Judge; Peterson, Judge; and Wright,
Judge.
UNPUBLISHED OPINION
PETERSON, Judge
In this pretrial appeal, appellant argues that the suppression of a recording of a 911
call (1) had a critical impact on the proceeding because the victim failed to respond to a
subpoena; and (2) was clearly erroneous because the statements in the recording were not
testimonial and admitting the recording would not have violated the respondent‟s
Confrontation Clause rights. Because the state has failed to show that the district court
erred in determining that statements in the recording were inadmissible hearsay, we
affirm the pretrial ruling; we deny respondent‟s motion to strike.
FACTS
Deephaven police responded to a 911 call from E.N. reporting an assault by
respondent Dontae Donnell Farmer.
During the 911 call and in a statement to a
responding police officer, E.N. stated that Farmer pushed her against a wall, choked her,
and hit her in the face. E.N. later provided a witness statement, claiming that she had
started the fight with Farmer. She also wrote a letter to the city attorney, requesting that
Farmer not be prosecuted.
Farmer was charged with one count each of misdemeanor domestic assault and
disorderly conduct. The state subpoenaed E.N. to testify at trial, but she did not appear.
The case was continued until the next day, and a warrant was supposed to be issued for
E.N.‟s arrest, but due to technical difficulties, the warrant was not issued. E.N. did not
appear for trial the next day.
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The state was prepared to proceed to trial based on a tape recording of the 911 call
and the responding officers‟ testimony. Following a discussion in chambers, Farmer
moved that the tape recording of the 911 call be suppressed, arguing that statements in
the recording did not qualify as excited utterances and that admitting the recording
would violate the Confrontation Clause. The district court granted Farmer‟s motion.
This appeal followed.
DECISION
I.
When reviewing a pretrial appeal by the prosecution, “this court „will only reverse
the determination of the trial court if the state demonstrates clearly and unequivocally
that the trial court has erred in its judgment and that, unless reversed, the error will have a
critical impact on the outcome of the trial.‟” State v. Vonderharr, 733 N.W.2d 847, 850
(Minn. App. 2007) (quoting State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977)) (other
quotation omitted) (footnote omitted). A pretrial order that “significantly reduces the
likelihood of a successful prosecution” has a critical impact on the state‟s case. State v.
Scott, 584 N.W.2d 412, 416 (Minn. 1998).
Without E.N.‟s testimony, the state had the following evidence against Farmer:
the 911 tape, initial statements to responding officers, and later statements to police. The
initial and later statements to police would be inadmissible under Crawford. See State v.
Wright, 726 N.W.2d 464, 476 (Minn. 2007) (concluding that statements made to police
after emergency ended were testimonial). Thus, without the 911 tape, the prosecution
had insufficient evidence to proceed to trial. We find no authority supporting Farmer‟s
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position that the state had an affirmative obligation to do more than it did to effect
execution of the arrest warrant.
The state has satisfied its burden to show that
suppression of the 911 tape will have a critical impact on the outcome of the trial.
On appeal, the only issue regarding admissibility addressed by the state is whether
the district court erred in concluding that admitting the tape of the 911 call would violate
Farmer‟s rights under the Confrontation Clause as interpreted by the Supreme Court in
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).1 Even if we assume that
E.N.‟s statements to the 911 operator were nontestimonial under Crawford and admitting
the tape recording would not violate the Confrontation Clause, there remains the issue of
whether the statements in the recording were admissible under the Minnesota Rules of
Evidence. The admissibility of nontestimonial hearsay statements “depends on whether
the statements are admissible under Minnesota‟s evidence law.” State v. Warsame, 701
N.W.2d 305, 312 (Minn. App. 2005), vacated on other grounds, 126 S. Ct. 2983 (2006);
see State v. Bobadilla, 709 N.W.2d 243, 256 & n.8 (Minn. 2006) (quoting Crawford, 541
U.S. at 68, 124 S. Ct. at 1374 (stating that “[w]here nontestimonial hearsay is at issue, it
is wholly consistent with the Framers‟ design to afford the States flexibility in their
development of hearsay law”)) (addressing requirements for admissibility under statute
1
The state apparently assumed that nontestimonial statements are automatically
admissible at trial. In Wright, after concluding that statements to a 911 operator were
nontestimonial, the supreme court stated that the statements were admissible at trial.
Wright, 726 N.W.2d at 474. But because the supreme court granted Wright‟s petition for
review only on the Crawford issue, this statement does not mean that a nontestimonial
statement is automatically admissible without regard to the rules of evidence. Id. at 471.
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and rules of evidence after determining that statements were nontestimonial under
Crawford), cert. denied, 127 S. Ct. 382 (2006).
To prevail on appeal, the state has the burden of showing “clearly and
unequivocally that the trial court has erred in its judgment.” Vonderharr, 733 N.W.2d at
850. Because the state has made no showing that the district court erred in determining
that E.N.‟s statements to the 911 operator did not qualify as excited utterances and were
therefore inadmissible hearsay, the state has made an insufficient showing to obtain
reversal of the district court‟s decision.2
II.
Farmer moved to strike the state‟s supplemental brief, arguing that the brief does
not comply with this court‟s August 31, 2007 order and is more in the nature of a reply
brief, which is not authorized under Minn. R. Crim. P. 28.04, subd. 2(3). Although
2
It appears that before the suppression hearing, counsel discussed the admissibility of the
tape recording with the district court in chambers, the court made a ruling, and the parties
then attempted to present the issues on the record. The transcript of the hearing that
followed demonstrates that both a hearsay issue and a Confrontation Clause issue were
presented to the district court. The basis for the district court‟s ruling on the hearsay
issue is not entirely clear, but it appears that the district court concluded that the
statements that E.N. made during the 911 call did not qualify as excited utterances
because of the passage of time between the events that E.N. reported and the time she
made the call. Because the state has made no showing that the district court erred with
respect to the hearsay issue, the limited record does not prevent us from concluding that
the state failed to meet its burden of showing error. But because our review of this appeal
has highlighted the importance of a complete record, we remind counsel of the longestablished principle “that a party seeking review has a duty to see that the appellate court
is presented with a record which is sufficient to show the alleged errors and all matters
necessary to consider the questions presented.” State v. Carlson, 281 Minn. 564, 566,
161 N.W.2d 38, 40 (1968).
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Farmer‟s description of the state‟s supplemental brief is accurate, none of the information
in the supplemental brief affects this court‟s decision on the merits of this case. It is
unnecessary for this court to address the merits of a motion to strike portions of a brief
that we do not rely on in reaching our decision. Berge v. Comm’r of Pub. Safety, 588
N.W.2d 177, 180 (Minn. App. 1999). On this basis, we deny Farmer‟s motion.
Affirmed; motion to strike denied.
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