State of Minnesota, Respondent, vs. Antonio Rae Rodriguez, Appellant.

State of Minnesota, Respondent, vs. Antonio Rae Rodriguez, Appellant. A05-1583, Court of Appeals Unpublished, October 3, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1583

 

 

State of Minnesota,

Respondent,

 

vs.

 

Antonio Rae Rodriguez,

Appellant.

 

 

Filed October 3, 2006

Reversed and remanded
Klaphake, Judge

 

Stearns County District Court

File No. K5-03-728

 

Mike Hatch, Attorney General, Kelly O'Neill Moller, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Janelle Kendall, Stearns County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN  56303-4773 (for respondent)

 

John M. Stuart, State Public Defender, Lydia Villalva Lijó, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Antonio Rae Rodriguez challenges his conviction for first-degree controlled substance crime, Minn. Stat. § 152.021, subd. 1(1) (2002), arguing that the district court violated his Sixth Amendment right to confront witnesses against him by admitting hearsay statements made by the informant, who did not testify.

            Because the admission of the hearsay testimony constituted plain error, we reverse and remand for a new trial.

D E C I S I O N

            This court reviews violations of a defendant's Sixth Amendment confrontation rights de novo.  State v. Fields, 679 N.W.2d 341, 345 (Minn. 2004).  We review the district court's evidentiary rulings are reviewed for an abuse of discretion.  State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003).  Because appellant failed to object during trial to the admission of the evidence in question, review must be under the plain error standard.  See State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998).  This standard requires that the error be plain and affect the substantial rights of the complaining party before a reviewing court will reverse.  Id.

            "‘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).  Courts limit the use of hearsay testimony because it deprives a defendant of his constitutional right to confront the witnesses against him.  State v. Litzau, 650 N.W.2d 177, 183 (Minn. 2002); see U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.").

            "Where testimonial evidence is at issue . . . the Sixth Amendment demands what the common law required: unavailability [of a witness] and a prior opportunity for cross-examination."  Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004).  Thus, a hearsay statement admitted into evidence that is testimonial in nature and is made by an unavailable declarant offends the Confrontation Clause and may not be used unless the declarant was previously available for cross-examination.  Id. 

            Here, the confidential informant (CI) failed to appear at trial in response to a subpoena.  Despite the CI's absence and appellant's inability to cross-examine the CI, the investigating officer, Daniel Greenwald, testified at length about statements made by the CI.  Specifically, Greenwald stated that (1) the CI provided him with appellant's name when listing people who had sold her methamphetamine in the past; (2) the CI said that she had received a call from appellant earlier in the day; (3) the CI said that the call was made on someone else's cell phone and that appellant had told her he could be contacted at that number; (3) the CI gave him a description of the person she contacted by cell phone; (4) the CI identified a picture of appellant; (5) the CI told him the address where the controlled buy was to take place and pointed it out to them; (6) Wesenberg told him that appellant was not a resident of the apartment where the controlled buy took place; (7) the CI corroborated that a shuffling sound on the audiotape was the exchange of money for methamphetamine; and (8) the CI said that the actual transaction took place in a back bedroom.  All of these statements were offered for the truth of the matter asserted: that appellant was the person who participated in a controlled substance transaction.  Thus, all of these statements fit within the definition of hearsay, were made by an unavailable declarant who had not previously been cross-examined, and admission of this evidence violated the protections extended to appellant under the Confrontation Clause.

            We are particularly troubled here because only the statements of the absent CI served to identify appellant as a participant in the controlled buy.  The district court admitted the state's recordings of the CI's telephone conversation setting up the controlled buy without foundational evidence to establish the CI's identity.  The audiotape of the controlled buy is largely indecipherable, and neither the recordings nor other evidence admitted at trial identified the two unintelligible male voices on the recording.  Not only was Greenwald unable to identify either voice as belonging to appellant, he was permitted to interpret words used by the CI and to supply some of the unintelligible words attributed to the voice presumed to be appellant's.

            We conclude that the district court plainly erred by permitting extensive hearsay testimony made by an unavailable declarant who had not previously been cross-examined.  We further conclude that the error was prejudicial, affected appellant's substantial rights, and influenced the outcome of the trial.  See Griller, 583 N.W.2d at 741.  We therefore reverse appellant's conviction and remand this matter for a new trial.

            Reversed and remanded.