State of Minnesota v. Gregory Antoine Davis , 864 N.W.2d 171 ( 2015 )


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  •                                  STATE OF MINNESOTA
    IN SUPREME COURT
    A13-1863
    Hennepin County                                                                   Wright, J.
    State of Minnesota,
    Respondent,
    vs.                                                                     Filed: June 3, 2015
    Office of Appellate Courts
    Gregory Antoine Davis,
    Appellant.
    ________________________
    Lori Swanson, Attorney General, Saint Paul, Minnesota; and
    Michael O. Freeman, Hennepin County Attorney, Kelly O’Neill Moller, Assistant County
    Attorney, Minneapolis, Minnesota, for respondent.
    Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant
    Public Defender, Saint Paul, Minnesota, for appellant.
    ________________________
    SYLLABUS
    1.     The district court erred when it incorrectly instructed the jury on the “intent
    to steal” element of burglary. However, there is no reasonable likelihood that the error
    substantially affected the verdict.
    1
    2.       Although the district court erred by instructing the jury that it did not need
    to consider lesser offenses if it found appellant guilty of a more serious charge, the error
    was not plain.
    3.       The district court did not abuse its discretion when it excluded alternative-
    perpetrator evidence because the evidence was irrelevant or hearsay, and, therefore,
    inadmissible.
    4.       The district court did not err under Minn. R. Crim. P. 26.03 when it
    proceeded without appellant present during parts of his trial.
    Affirmed.
    OPINION
    WRIGHT, Justice.
    Following a jury trial, appellant Gregory Antoine Davis was found guilty of
    unlawful possession of a firearm, 
    Minn. Stat. § 624.713
    , subd. 1(2) (2014), and first-
    degree felony murder,1 
    Minn. Stat. § 609.185
    (a)(3) (2014). The district court adjudged
    Davis guilty of both offenses and sentenced him to life in prison with the possibility of
    release. In this direct appeal, Davis argues that he is entitled to a new trial on any of the
    following four grounds: (1) the district court erroneously instructed the jury on an
    element of burglary, the predicate offense for the felony-murder charge; (2) the district
    1
    As has been our common practice, we use the term “first-degree felony murder”
    when we refer to the crime of “caus[ing] the death of a human being with intent to effect
    the death of the person or another, while committing or attempting to commit burglary”
    or other enumerated crimes. 
    Minn. Stat. § 609.185
    (a)(3) (2014); see State v. Koskela,
    
    536 N.W.2d 625
    , 629 (Minn. 1995).
    2
    court erred in its jury instructions by suggesting the order in which the jury should
    consider the charges; (3) the district court abused its discretion by excluding certain
    reverse-Spreigl evidence;2 and (4) the district court violated Minn. R. Crim. P. 26.03,
    subd. 1, when it proceeded with the trial in Davis’s absence. Because Davis has not
    established that the district court committed reversible error, we affirm.
    I.
    Brianna Jones was shot to death on December 22, 2011, in the lower-level unit of
    a Minneapolis duplex that she shared with her boyfriend, D.M. Several other family
    members, including D.M.’s mother, A.M., lived with them. Davis was A.M.’s boyfriend.
    D.M. discovered Jones’s body when he arrived home from work and saw her lying on the
    living-room floor, having been shot once in the left temple. Clothing, electronics, and
    luggage were strewn about the apartment. Jewelry and other items, including a gun that
    belonged to D.M., were missing.
    Investigators questioned Jones’s upstairs neighbors, who told them that, on the
    date of the murder, a man who was not D.M. was at the door of Jones’s apartment. A
    few months earlier, D.M. had a confrontation with one of the upstairs neighbors in
    Jones’s apartment. That neighbor told the investigators that the man who was at Jones’s
    apartment when the murder occurred was the same man who had been in her apartment
    2
    “Reverse-Spreigl” evidence is evidence of other crimes, wrongs, or bad acts
    committed by the alleged alternative perpetrator used to cast reasonable doubt on the
    identification of the defendant as the person who committed the charged crime. State v.
    Jones, 
    678 N.W.2d 1
    , 16 (Minn. 2004).
    3
    during the neighbor’s earlier confrontation with D.M. D.M. later identified Davis as the
    man who had been in the apartment during the confrontation.
    Investigators conducted an initial interview with Davis on January 1, 2012. Davis
    said that, on December 22, he attended several appointments in the morning and in the
    early afternoon he went to Target in Brooklyn Center and then drove back to A.M.’s
    apartment. Investigators confirmed that Davis had gone to Target on December 22, but
    he was there at a later time than he had suggested to them. When investigators searched
    Davis’s St. Paul apartment on January 3, they found several of the stolen items, including
    jewelry and D.M.’s gun, which they subsequently determined was the murder weapon.
    Shortly after the search was completed, Davis was arrested and investigators
    interviewed him again. He initially did not respond when asked why he had the murder
    weapon. When questioned further, Davis said that he had received a call and was asked
    to help with a burglary. Davis characterized the incident in Jones’s apartment as a
    burglary that went “bad.”     Davis was subsequently indicted for first-degree felony
    murder.
    While in custody awaiting trial, Davis discussed the murder with another inmate.
    Davis claimed that, among other things, the burglary was part of a scam to take items
    from the apartment temporarily so that the tenants could avoid paying rental fees for the
    items. The inmate subsequently testified at trial about Davis’s explanations for the
    burglary and murder and indicated that Davis’s explanations were unconvincing.
    Before trial, Davis moved to introduce reverse-Spreigl evidence to support an
    alternative-perpetrator defense: that D.M., Jones’s boyfriend and the owner of the murder
    4
    weapon, committed the murder. The district court ruled that certain evidence supporting
    the alternative-perpetrator defense was admissible, but it excluded other reverse-Spreigl
    evidence involving D.M.’s past conduct.
    After several days of trial, Davis delayed the start of the day’s proceedings for a
    second time by initially refusing to leave the jail. Davis’s attorney told the district court
    that Davis did not want to be present in the courtroom during the testimony of a particular
    witness. When Davis subsequently confirmed the reason for his absence, the district
    court advised Davis that it was unnecessary to refuse future transport from jail to court
    because the district court would ensure that Davis would not be present when the witness
    testified. The district court also warned Davis that if he refused transport again, the
    district court would assume that Davis was absent without justification and that the trial
    would proceed without him. Davis confirmed that he understood. Several days later,
    when Davis refused to attend closing arguments, Davis’s attorney informed the district
    court that she had advised Davis that his absence would be deemed a voluntary waiver.
    The district court ruled that Davis had voluntarily waived his right to be present by
    refusing to attend the proceeding.
    Later that day, when the district court replayed the audio recording of Davis’s
    post-arrest interview, Davis again refused to attend. As before, the district court ruled
    that Davis’s refusal to attend the proceeding was a voluntary absence. Davis’s attorney
    did not object to the district court’s decision to proceed.
    The jury subsequently found Davis guilty of first-degree felony murder and
    unlawful possession of a firearm. The district court convicted Davis of first-degree
    5
    felony murder, in violation of 
    Minn. Stat. § 609.185
    (a)(3), and sentenced him to life in
    prison with the possibility of release. Davis now appeals.
    II.
    According to the State’s argument at trial, Davis killed Jones while committing
    burglary. At the conclusion of the evidence, the district court instructed the jury on the
    first element of first-degree felony murder as follows:
    First, the defendant or an accomplice was committing the crime of
    burglary. This element is satisfied if there is proof beyond a reasonable
    doubt that the defendant or an accomplice entered a building without the
    consent of the person in lawful possession and intended to commit or
    committed a theft while in the building.
    Although Davis did not object to this instruction at trial, he now contends that this
    instruction was erroneous for two reasons. First, he argues that the instruction was
    incomplete because the district court did not define the crime of theft, even though it is an
    element of the predicate offense of burglary. Second, Davis argues that the district court
    misstated the “intent to steal” element of burglary. We address each argument in turn.
    A.
    Before reaching the merits of the arguments, we address Davis’s failure to raise
    these issues at trial. A defendant generally forfeits the right to contest jury instructions
    on appeal when the defendant fails to object at trial. State v. LaForge, 
    347 N.W.2d 247
    ,
    251 (Minn. 1984). An exception to this general rule allows us to consider such a claim
    under plain-error review, which requires the defendant to establish (1) an error, (2) that is
    plain, and (3) that affects the defendant’s substantial rights. State v. Griller, 
    583 N.W.2d 736
    , 740 (Minn. 1998); see Minn. R. Crim. P. 31.02. When these three requirements are
    6
    met, “we may correct the error only if it seriously affect[s] the fairness, integrity, or
    public reputation of judicial proceedings.” State v. Kelley, 
    855 N.W.2d 269
    , 274 (Minn.
    2014) (alteration in original) (quoting State v. Crowsbreast, 
    629 N.W.2d 433
    , 437 (Minn.
    2001) (internal quotation marks omitted)).
    B.
    Davis argues that the district court erred by failing to instruct the jury on the legal
    definition of the crime of theft, the predicate offense for the burglary. Specifically, he
    contends that the district court should have instructed the jury that it had to find that he
    took property from Jones’s apartment “with intent to deprive the owner permanently of
    possession of the property.” 
    Minn. Stat. § 609.52
    , subd. 2(a)(1) (2014). Because he did
    not intend to “deprive the owner permanently of possession,” Davis argues, if the jury
    had been properly instructed, the jury could have found him not guilty of burglary and,
    consequently, not guilty of first-degree felony murder. Davis claimed at trial that the
    burglary was a scam to take rented items from the tenants of the apartment so that they
    would no longer have to pay rental fees for the items.               If the jury believed this
    explanation, Davis argues, his actions would not meet the statutory definition of theft.
    See 
    id.
    To receive a new trial on this ground, Davis first must show that the district court
    erred in its jury instructions. A district court has “considerable latitude” when selecting
    the language of jury instructions. Gulbertson v. State, 
    843 N.W.2d 240
    , 247 (Minn.
    2014). Yet jury instructions “ ‘must fairly and adequately explain the law,’ ” 
    id.
     (quoting
    State v. Carridine, 
    812 N.W.2d 130
    , 142 (Minn. 2012)), and “define the crime charged,”
    7
    
    id.
     (citing State v. Kuhnau, 
    622 N.W.2d 552
    , 556 (Minn. 2001)). Jury instructions that
    confuse, mislead, or materially misstate the law are erroneous.        State v. Vang, 
    847 N.W.2d 248
    , 261 (Minn. 2014). We review a district court’s jury instructions as a whole
    to determine whether they correctly state the law. 
    Id.
     When jury instructions contradict
    the plain language of the statute or an interpretation of the statute previously adopted by
    our court, they are erroneous. See State v. Pendleton, 
    567 N.W.2d 265
    , 270 (Minn.
    1997); see also State v. Vance, 
    734 N.W.2d 650
    , 656-57 (Minn. 2007). Davis argues that
    the district court committed plain error by not including the definition of theft in its
    burglary instruction because the statements he made to a fellow inmate supported his
    alternative defense—that he had permission to take the items temporarily and, therefore,
    did not commit a theft.
    As an initial matter, we observe that the third-degree burglary statute uses the term
    “steals,” not “commits theft.”     
    Minn. Stat. § 609.582
    , subd. 3 (2014).        It is well
    established that “detailed definitions of the elements to the crime need not be given in the
    jury instructions if the instructions do not mislead the jury or allow it to speculate over
    the meaning of the elements.” Peterson v. State, 
    282 N.W.2d 878
    , 881 (Minn. 1979).
    Here, the failure to provide a definition of “theft” or “steal” to the jury did not mislead
    the jury or allow it to speculate over the meaning of the element.          Moreover, the
    “temporary” taking of an item does not provide a blanket defense to a theft charge. See
    
    Minn. Stat. § 609.52
    , subd. 2(a)(5) (2014) (providing that the acts constituting theft
    include “any of the acts listed in this subdivision but with intent to exercise temporary
    control” in one of three enumerated manners, including “an indifference to the rights of
    8
    the owner”).     We therefore conclude that the district court’s omission of the legal
    definition of theft from its jury instructions on burglary as a predicate offense to first-
    degree felony murder was not an error, much less a plain error that affected Davis’s
    substantial rights.3
    C.
    Davis also argues that the jury instruction misstated the law with respect to the
    intent required to commit the crime of burglary. A person commits third-degree burglary
    when that person “enters a building without consent and with intent to steal,” or “enters a
    building without consent and steals . . . while in the building.” 
    Minn. Stat. § 609.582
    ,
    subd. 3. However, the district court instructed the jury that a burglary was committed if a
    person or an accomplice entered a building without consent “and intended to commit or
    committed a theft while in the building.”          Davis contends that the district court’s
    instruction was erroneous because it failed to inform the jury that it could find him guilty
    3
    We are not alone in our conclusion that a district court’s failure to define “theft” or
    “steal” in a burglary instruction is not an error, much less a plain error. See State v.
    Forde, 
    315 P.3d 1200
    , 1221 (Ariz. 2014) (holding that the trial court did not err by failing
    to define theft as part of its burglary instruction because a trial court need not “ ‘define
    every phrase or word used in the [jury] instructions, especially when they are used in
    their ordinary sense and are commonly understood’ ”); cf. Commonwealth v. Yarris, 
    549 A.2d 513
    , 527 (Pa. 1988) (holding that the trial court’s recitation of theft as an element of
    the crime of robbery is adequate); State v. Ng, 
    750 P.2d 632
    , 639 (Wash. 1988) (holding
    that theft is a term of such common understanding as to allow the jury to find a defendant
    guilty of robbery).
    We also observe that the definition of theft that Davis contends should have been
    given is itself incomplete and misleading. Davis urged the district court to define theft
    consistent with the provisions of 
    Minn. Stat. § 609.52
    , subd. 2(a)(1). Had the district
    court granted Davis’s request, the jury would have been instructed on only one of 18
    ways in which theft can be committed. See 
    Minn. Stat. § 609.52
    , subd. 2(a).
    9
    of burglary only if the jury determined that Davis intended to steal at the time he entered
    the building. The instruction was erroneous, Davis argues, because it permitted the jury
    to find him guilty of felony murder if the jury determined that he formed an intent to
    commit the theft after entering the building, even if he did not actually commit a theft.
    Because Davis did not object to the jury instruction at trial, we again apply the plain-error
    standard of review. See Griller, 583 N.W.2d at 740.
    A conviction of felony murder with burglary as the predicate offense requires
    proof beyond a reasonable doubt of both the elements of felony murder and the elements
    of burglary. Minnesota’s felony-murder statute provides, in pertinent part:
    Whoever does any of the following is guilty of murder in the first degree
    and shall be sentenced to imprisonment for life: . . . causes the death of a
    human being with intent to effect the death of the person or another, while
    committing or attempting to commit burglary . . . .
    
    Minn. Stat. § 609.185
    (a)(3). The third-degree burglary statute provides:
    Whoever enters a building without consent and with intent to steal . . . , or
    enters a building without consent and steals . . . while in the building, either
    directly or as an accomplice, commits burglary in the third degree . . . .
    
    Minn. Stat. § 609.582
    , subd. 3. Whether a district court’s jury instructions correctly state
    the law presents a question of statutory interpretation, which we review de novo. See
    State v. Wilson, 
    830 N.W.2d 849
    , 852 (Minn. 2013). We apply a statute’s plain meaning
    when the statutory language is unambiguous. State v. Leathers, 
    799 N.W.2d 606
    , 608
    (Minn. 2011); see 
    Minn. Stat. § 645.16
     (2014).
    Section 609.582, subdivision 3, addresses the intent element of burglary with the
    following language: “[E]nters a building without consent and with intent to steal or
    10
    commit any felony or gross misdemeanor while in the building.”4 This language requires
    the offender to possess the intent to steal at the time of entry when the offender does not
    commit a felony or gross misdemeanor while in the building. When the district court
    changed the language from “enter[ed] . . . with intent,” as provided by the statute, to
    “entered . . . and intended” (emphasis added), the district court effectively instructed the
    jury that it could find Davis guilty if he entered the apartment without an intent to steal,
    then formed an intent to steal while in the apartment, but ultimately chose not to steal
    anything while in the apartment. Therefore, Davis’s argument that the district court’s
    jury instructions were inconsistent with the statutory language is well-founded. The
    district court erred.
    Assuming, without deciding, that the district court’s error was plain, we next
    consider whether the plain error affected Davis’s substantial rights. An error affects a
    defendant’s substantial rights when there is a reasonable likelihood that the instruction
    had a significant effect on the jury verdict. State v. Baird, 
    654 N.W.2d 105
    , 113 (Minn.
    2002). Here, the likelihood that the erroneous instruction had any effect on the verdict,
    much less a significant effect, is less than remote when we consider the two defenses that
    Davis offered for the jury’s consideration. Davis’s primary defense at trial was that he
    was not at the apartment and that Jones’s boyfriend was the murderer. This alternative-
    perpetrator defense does not implicate the intent element of burglary. If the jury had
    4
    The guides for jury instructions for burglary in the third degree also use the
    language “with intent to steal.” 10A Minn. Dist. Judges Ass’n, Minnesota Practice—
    Jury Instruction Guides, Criminal, CRIMJIG 17.10 (5th ed. 2006).
    11
    believed Davis, it could have found him not guilty based on any of the other elements of
    burglary or felony murder. Moreover, Davis’s second defense—that he had permission
    to take the items temporarily—does not implicate the intent element of burglary because
    there is no evidence that Davis entered the apartment without an intent to steal,
    subsequently formed an intent to steal while in the apartment, but ultimately chose not to
    steal anything while in the apartment.          Accordingly, because the district court’s
    instruction on the intent element of burglary did not affect either of Davis’s defenses at
    trial, we conclude that the district court’s error did not affect Davis’s substantial rights
    and, therefore, does not constitute reversible plain error.
    III.
    Davis also argues that the district court’s jury instructions improperly suggested
    the order in which the jury should consider the charges against him. Because Davis did
    not object to the jury instructions at trial, we apply the plain-error standard of review.
    Griller, 583 N.W.2d at 740.
    We have held that a district court errs when it suggests the order in which the jury
    should consider the charges. See State v. Prtine, 
    784 N.W.2d 303
    , 316 (Minn. 2010);
    State v. Dahlstrom, 
    276 Minn. 301
    , 311, 
    150 N.W.2d 53
    , 61 (1967). A district court also
    errs when it “ ‘instruct[s] the jury to consider the lesser crimes only if it finds the
    defendant not guilty of the charged offense.’ ” Prtine, 784 N.W.2d at 316 (quoting 10
    Minn. Dist. Judges Ass’n, Minnesota Practice—Jury Instruction Guides, Criminal,
    CRIMJIG 3.20 cmt. (5th ed. 2006)). The jury’s consideration of both the greater- and
    12
    lesser-included offenses is important because such consideration may cause the jury to
    evaluate the evidence differently as to an essential element. Id.
    Davis argues that the facts here are analogous to those of Prtine, in which we
    concluded that the district court committed plain error. In Prtine, when asked by a juror,
    “ ‘[I]f we ruled on first degree murder, we wouldn’t rule on second degree murder?’, ”
    the district court advised the jury to proceed “ ‘down the line’ ” of charges. Id. at 317.
    The district court in Prtine also instructed the jury that it was not required to consider the
    remaining charges after arriving at a guilty verdict. Id.
    Here, although the district court did not use language similar to the Prtine court’s
    “down the line” instruction, the district court advised the jury that it “need not
    consider . . . the lesser offenses that are now being submitted.” When faced with several
    possible verdicts, as the jury was here, the jury easily could have interpreted instructions
    that it “need not consider” lesser offenses to mean that it should consider the most serious
    charge first. Logically, the jury could have concluded from that instruction that if it
    found the defendant guilty of the most serious charge, it need not continue its
    deliberations. Because the district court’s instruction reasonably could be construed as
    suggesting an order in which the jury should consider the charges, the district court erred.
    The district court’s error, however, was neither clear nor obvious. We have not
    previously determined that instructing a jury that it “need not consider . . . lesser
    offenses,” by itself, is error. And the district court neither ordered the jury to proceed in a
    particular manner, as in Prtine, nor made explicit suggestions, as in Dahlstrom. See
    Dahlstrom, 276 Minn. at 311, 
    150 N.W.2d at 61
     (concluding, after the district court
    13
    expressly provided the jury with a suggested procedure for considering the charges, that a
    court should not impose its views “as to the order of procedure to be followed by the
    jurors”). Therefore, the district court’s error was not plain, and Davis is not entitled to
    relief on this ground.
    IV.
    We next consider whether the district court abused its discretion by excluding
    alternative-perpetrator evidence of D.M.’s alleged bad acts. We review a district court’s
    evidentiary rulings for an abuse of discretion. State v. Graham, 
    764 N.W.2d 340
    , 351
    (Minn. 2009). Reversal is warranted only when an erroneous ruling resulted in prejudice.
    State v. Amos, 
    658 N.W.2d 201
    , 203 (Minn. 2003).
    A defendant has a constitutional right to present a complete defense, which
    includes the right to present evidence that the crime was committed by another person.
    State v. Atkinson, 
    774 N.W.2d 584
    , 589 (Minn. 2009). The purpose of alternative-
    perpetrator evidence is to create a reasonable doubt as to the defendant’s guilt. State v.
    Larson, 
    787 N.W.2d 592
    , 597 (Minn. 2010).            Alternative-perpetrator evidence is
    admissible only when it “has an inherent tendency to connect the alternative party with
    the commission of the crime.” State v. Jones, 
    678 N.W.2d 1
    , 16 (Minn. 2004). After
    meeting this threshold requirement, the defendant must meet three additional
    requirements before introducing evidence of other bad acts committed by the alternative
    perpetrator, which is commonly referred to as “reverse-Spreigl evidence.”         State v.
    Miller, 
    754 N.W.2d 686
    , 700 (Minn. 2008). The defendant must show “(1) clear and
    convincing evidence that the alleged alternative perpetrator participated in the reverse-
    14
    Spreigl incident; (2) that the reverse-Spreigl incident is relevant and material to
    defendant’s case; and (3) that the probative value of the evidence outweighs its potential
    for unfair prejudice.” Jones, 678 N.W.2d at 16-17 (footnote omitted). When introducing
    reverse-Spreigl evidence, the proponent also must “ ‘comply with procedural and
    evidentiary rules.’ ” State v. Scanlon, 
    719 N.W.2d 674
    , 684 (Minn. 2006) (quoting State
    v. Blom, 
    682 N.W.2d 578
    , 621 (Minn. 2004)).
    The district court admitted several pieces of evidence that Davis offered in support
    of his alternative-perpetrator defense, including that (1) D.M. was in possession of the
    gun that caused Jones’s death, (2) D.M. was at the crime scene and located Jones’s body
    first, (3) Jones had D.M.’s DNA under her fingernails, (4) D.M. lied to the police about
    owning a gun, and (5) D.M. threatened Jones’s family after the murder. But the district
    court excluded reverse-Spreigl evidence involving D.M.’s assaults, both alleged and
    proven, on other family members; D.M.’s alleged assault of two individuals unrelated to
    this case; and Jones’s statement to her mother that D.M. had choked her. The district
    court concluded that evidence of these assaults was not relevant and that Jones’s
    statement was inadmissible hearsay.
    “ ‘Relevant evidence’ means evidence having any tendency to make the existence
    of any fact that is of consequence to the determination of the action more probable or less
    probable than it would be without the evidence.” Minn. R. Evid. 401. An alternative
    perpetrator’s past crimes or bad acts are relevant to a defendant’s case only when they are
    sufficiently similar to the charged crime with respect to time, place, or modus operandi.
    State v. Swaney, 
    787 N.W.2d 541
    , 558 (Minn. 2010). In Swaney, a first-degree murder
    15
    case, we affirmed the district court’s exclusion of reverse-Spreigl evidence of a robbery
    and kidnapping committed by the alleged alternative perpetrator because the charged
    offense and the prior act were not sufficiently similar. 
    Id. at 559
    . The reverse-Spreigl
    incident in Swaney occurred about three weeks before the murder. 
    Id.
    Here, most of the alleged assaults lack close temporal proximity, having occurred
    up to several years before the murder. One occurred more than four years before the
    murder, when D.M. was 14 years old. The assaults also were not committed in the same
    way as the murder. Although the victim here was shot to death, none of the proffered
    evidence established that D.M. used a gun in any prior assault. The district court did not
    abuse its discretion by excluding the reverse-Spreigl evidence because D.M.’s acts were
    not sufficiently similar to the murder to be relevant.
    The district court also did not abuse its discretion by excluding Jones’s hearsay
    statement to her mother that D.M. had choked her. The district court determined that the
    statement did not fall within any of the hearsay exceptions, including rule 807, the
    residual hearsay exception. Minnesota Rules of Evidence 807 provides:
    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. Courts look at the totality of the circumstances to determine whether
    a hearsay statement has “circumstantial guarantees of trustworthiness.”            State v.
    
    16 Robinson, 718
     N.W.2d 400, 408 (Minn. 2006). The relevant circumstances under Minn.
    R. Evid. 807 are “those circumstances actually surrounding the making of the
    statements.” State v. Lanam, 
    459 N.W.2d 656
    , 661 (Minn. 1990).
    As a guarantee of trustworthiness, Davis relies on the fact that Jones made the
    statement to her mother not long before the murder. Other facts in the record call into
    question the statement’s trustworthiness, however. The prosecutor informed the district
    court that Jones’s mother told her that “she had no recollection of making any statements
    to the police on the night of the incident . . . that [D.M.] had choked her daughter or that
    her daughter had told her [D.M.] choked her.” Davis failed to provide any evidence to
    rebut the prosecutor’s account.          Thus, whether Jones’s hearsay statement has
    circumstantial guarantees of trustworthiness is ambiguous at best. Because Davis has not
    shown that Jones’s statement had circumstantial guarantees of trustworthiness, the district
    court did not abuse its discretion by excluding the statement as inadmissible hearsay.
    Accordingly, the district court did not abuse its discretion when it excluded the
    alternative-perpetrator evidence offered by Davis.
    V.
    Davis next contends that the district court violated Minn. R. Crim. P. 26.03, subd.
    1, by proceeding with his trial while he was absent from the courtroom. Because Davis
    failed to object at trial to the district court’s alleged violation of rule 26.03, subdivision 1,
    he is entitled to a new trial only if he can satisfy the plain-error standard. See State v.
    Mosley, 
    853 N.W.2d 789
    , 797 (Minn. 2014).
    17
    Minnesota Rules of Criminal Procedure 26.03, subdivision 1(1), provides
    generally that “[t]he defendant must be present at arraignment, plea, and for every stage
    of the trial.” However, subdivision 1(2) provides in pertinent part:
    The trial may proceed to verdict without the defendant’s presence if:
    1. The defendant is absent without justification after the trial starts;
    or
    2. [t]he defendant, after warning, engages in conduct that justifies
    expulsion from the courtroom because it disrupts the trial or hearing. But,
    as an alternative to expulsion, the court may use restraints if necessary to
    ensure order in the courtroom.
    Minn. R. Crim. P. 26.03, subd. 1(2). Rule 26.03, subdivision 1, also provides: “In felony
    cases, the court may, on the defendant’s motion, excuse the defendant’s presence except
    at arraignment, plea, trial, and sentencing.” 
    Id.,
     subd. 1(3)(2).
    Davis argues that subdivision 1(3)(2)’s requirement that a defendant be present at
    a felony trial prevents a defendant’s waiver of presence under subdivision 1(2). Because
    subdivision 1(3)(2) disallows the district court from excusing the defendant’s presence at
    trial, Davis contends, the district court must halt the trial proceedings even when the
    defendant is absent without justification under subdivision 1(2).
    We review the interpretation of a procedural rule de novo. State v. Dahlin, 
    753 N.W.2d 300
    , 305 (Minn. 2008). The first question in our analysis is whether the rule’s
    language is ambiguous and, therefore, subject to more than one reasonable interpretation.
    
    Id. at 305-06
    .     If the rule’s language is unambiguous, we apply its plain meaning. 
    Id. at 305
    .
    18
    Davis’s proposed interpretation of rule 26.03—that subdivision 1(3) controls over
    subdivision 1(2)—divorces subdivision 1(3) from its context. Courts are required to give
    effect to all provisions of a rule, if possible. See Am. Family Ins. Grp. v. Schroedl, 
    616 N.W.2d 273
    , 277 (Minn. 2000); see also 
    Minn. Stat. § 645.16
     (2014). Under Davis’s
    interpretation, a district court would be allowed to proceed without a defendant’s
    presence during trial only when the defendant was on trial for a misdemeanor and had
    requested to be excused. See Minn. R. Crim. P. 26.03, subd. 1(3)(3)-(4). Because
    Davis’s proposed interpretation effectively ignores subdivision 1(2) and rule 26.03 in its
    entirety, it is not reasonable. The only reasonable interpretation of the rule is that a
    district court, even in a felony case, may proceed without the defendant present under the
    circumstances listed in subdivision 1(2). When read in the context of the rule as a whole,
    the plain meaning of subdivision 1(3)(2) does not prevent a district court from waiving a
    defendant’s presence under subdivision 1(2).
    Having determined that subdivision 1(2) allows a district court to conduct a trial
    without a defendant present when the defendant’s absence is without justification, we
    consider the district court’s actions here. After Davis told the district court that he did
    not want to be present for a particular witness’s testimony, both the district court and
    Davis’s counsel warned Davis of the consequences if he refused to attend the trial.
    Specifically, the district court advised Davis that it would assume his absence was
    19
    without justification in the future and that the trial would continue in Davis’s absence.5
    Because the district court correctly applied subdivision 1(2), we conclude that the district
    court did not err when it proceeded with the trial during Davis’s absences.
    VI.
    For the foregoing reasons, Davis is not entitled to relief on the grounds raised in
    this appeal.
    Affirmed.
    5
    The district court did not conclude expressly that Davis’s initial absence was an
    absence without justification under rule 26.03, subdivision 1(2). However, if a refusal to
    attend trial, without any prior notice that such a refusal would be deemed a waiver,
    demonstrates a knowing waiver of the constitutional right to be present, surely a refusal
    to appear, with prior notice of the consequences of the refusal, demonstrates a knowing
    waiver. See State v. Worthy, 
    583 N.W.2d 270
    , 277-78 (Minn. 1998) (holding that the
    district court did not abuse its discretion by proceeding with the trial after the defendants
    voluntarily left the courtroom).
    20
    

Document Info

Docket Number: A13-1863

Citation Numbers: 864 N.W.2d 171

Filed Date: 6/3/2015

Precedential Status: Precedential

Modified Date: 1/12/2023