State v. Sutter

959 N.W.2d 760

STATE of Minnesota, Respondent,

v.Dylan Roger SUTTER, Appellant.

A19-1045

Supreme Court of Minnesota.

Filed: May 26, 2021

Keith Ellison, Attorney General, Saint Paul, Minnesota; and Mark A. Ostrem, Olmsted County Attorney, Jennifer D. Plante, Senior Assistant County Attorney, Rochester, Minnesota, for respondent.

Cathryn Middelbrook, Chief Appellate Public Defender, John Donovan, Assistant State Public Defender, Saint Paul, Minnesota, for appellant.

OPINION

McKEIG, Justice.

This case presents the legal question of whether a testimonial statement of a nontestifying co-conspirator is subject to a Confrontation Clause analysis. The district court determined that appellant Dylan Roger Sutter's co-conspirator made testimonial statements during police questioning. However, it concluded that the statements were admissible as co-conspirator statements and thus Crawford did not apply. The court of appeals affirmed Sutter's conviction, concluding that our decision in State v. Brist , 812 N.W.2d 51 (Minn. 2012), exempted all co-conspirator statements from a Confrontation Clause analysis. We conclude that a testimonial statement of a nontestifying co-conspirator is subject to a Confrontation Clause analysis. Because the statements of Sutter's co-conspirator were testimonial, the district court erred when it failed to conduct that analysis. Nevertheless, because the error was harmless, we affirm.

FACTS

On the morning of July 14, 2018, an employee at a restaurant in Rochester brought his gun to work and stored it in his backpack in the back hallway of the restaurant. The only people working at the restaurant that day were the employee, the manager, and appellant Sutter. After the employee left the restaurant to make a delivery, Sutter asked the manager if he could leave early from his morning shift. The manager allowed him to leave, and Sutter's friend Ron Burks picked him up. When the employee returned from his delivery, he realized his gun was missing and called the police to report the theft.

When Sutter returned to the restaurant that evening to work his second shift, the employee called the police and notified them that Sutter was there. Several hours later, four officers arrived at the restaurant. After the officers detained Sutter, Burks came to the restaurant.

An officer questioned Sutter in the back of his squad car while Sergeant Kenyon questioned Burks in the parking lot. First, Sutter told the officer that after Burks picked him up from his morning shift, they went to Burks's house. Immediately after, Sutter changed his statement and said they did not go to Burks's house, but instead went to a car wash, then to the Rochester airport to pick up Burks's mother. Like Sutter, Burks made inconsistent statements about where he was that afternoon.

After interviewing Burks and Sutter, the officer and Sergeant Kenyon compared the statements and found they did not match. The officer and Sergeant Kenyon then confronted Burks and Sutter about the discrepancies. At this point, both Burks and Sutter stated that they had gone to a carwash and then picked up Burks's mother at the Rochester airport. The police then arrested Sutter.

Sutter made multiple monitored phone calls after he was booked at the jail. Sutter tried calling Burks several times, but Burks did not answer his phone. Sutter also called his mother. He asked her if she had spoken to Burks, and told her to tell Burks that Burks left his "wallet" at her house. Believing that Sutter was speaking in code—that the "wallet" likely referred to the employee's missing gun—officers went to Sutter's house. When the officers arrived, they learned that Burks had already been to the house. The police did not execute their search warrant because they believed that Burks had already taken the gun.¹

The State charged Sutter with theft in violation of Minn. Stat. § 609.52, subd. 2(a)(1) (2020). The complaint alleged both principal and accomplice liability. See Minn. Stat. § 609.05, subd. 1 (2020) ("A person is criminally liable for a crime committed by another if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime."); State v. DeVerney , 592 N.W.2d 837, 846 (Minn. 1999) (explaining that "aiding and abetting is not a separate substantive offense," and accomplices are criminally liable as principals). The State also charged Sutter with being an ineligible person in possession of a firearm in violation of Minn. Stat. § 624.713, subd. 1(2) (2020).

On the day of the trial, the State informed the district court that it planned to offer the bodycam video of Burks's police interview into evidence, but that it would not call Burks to testify. The State indicated that it planned to use the bodycam video to show guilt and "an attempt to cover up exactly what [Burks and Sutter] did after they left [the restaurant]." Characterizing the statements that Burks made to police as statements made in the course of and in the furtherance of a conspiracy to take "the firearm and attempt to cover up the theft," the State argued that the statements fell outside the definition of hearsay. See Minn. R. Evid. 801(d)(2)(E) (explaining that a co-conspirator's statement is not hearsay if "there was a conspiracy involving both the declarant and the party against whom the statement is offered," and "the statement was made in the course of and in the furtherance of the conspiracy"). Sutter objected. Citing Crawford v. Washington , 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), he argued that Burks's interview in the bodycam video was plainly testimonial and that its admission would violate Sutter's constitutional right "to be confronted with the witnesses against him." See U.S. Const. amend. VI.

The district court overruled Sutter's objection. The court concluded that Burks's statements to police were testimonial because they were provided as part of their investigation into the theft of the gun. The court went on to say, "If it is a statement of a co-conspirator, it is not hearsay, so Crawford doesn't apply, regardless of whether it is testimonial."

Sutter's jury trial lasted five days, during which 15 witnesses testified and 28 exhibits were entered into evidence. Burks did not testify at trial. Instead, the State played the bodycam video of Sergeant Kenyon questioning Burks. The jury found Sutter guilty of being an ineligible person in possession of a firearm and theft under a principal theory of criminal liability.

Sutter appealed his convictions, arguing that the district court violated his right to confrontation by admitting Burks's co-conspirator statements to the police when he had no opportunity to cross-examine Burks. State v. Sutter , No. A19-1045, 2020 WL 3172654, at *3 (Minn. App. June 15, 2020). The court of appeals affirmed Sutter's convictions.

We granted Sutter's petition for review.²

ANALYSIS

I.

In general, evidentiary rulings are within the district court's discretion. State v. Caulfield , 722 N.W.2d 304, 308 (Minn. 2006). However, we apply de novo review when determining whether the admission of evidence violates a defendant's rights under the Confrontation Clause. Id. The Sixth Amendment to the United States Constitution provides, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI ; see also Pointer v. Texas , 380 U.S. 400, 400–08, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (making the protections of the Confrontation Clause applicable to the States under the Due Process Clause of the Fourteenth Amendment).

In Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court

clarified the requirements for a Confrontation Clause claim. Based on the Court's analysis in Crawford, we have held that there are three prerequisites to a successful Confrontation Clause claim: "the statement in question was testimonial, the statement was admitted for the truth of the matter asserted, and the defendant was unable to cross-examine the declarant." Andersen v. State , 830 N.W.2d 1, 9 (Minn. 2013).³ "The threshold question for a Crawford analysis is whether the statements at issue are testimonial." State v. Vang , 774 N.W.2d 566, 577 (Minn. 2009).

In its analysis of Burks's statements, the court of appeals concluded that it was required to apply our decision in State v. Brist , 812 N.W.2d 51 (Minn. 2012), which it read as exempting all co-conspirator statements from a Crawford analysis. Sutter, 2020 WL 3172654, at *4–5. Because Burks's statements satisfied the requirements of Minn. R. Evid. 801(d)(2)(E), which governs co-conspirator statements, the court of appeals held that a Crawford analysis was not required. Id. at *5. The court of appeals also found that, "even if Crawford did apply to Burks's statement to police, the majority of his statement that was admitted at trial was not testimonial because he also made his statement during the course of an ongoing emergency—the search for a stolen firearm from a public restaurant." Id.

We turn first to the question of whether Brist applies in this case. Sutter argues that Brist is not applicable because the statements in Brist were non-testimonial, and Burks's statements to police were testimonial. The State argues that the court of appeals’ application of Brist is correct. We agree with Sutter that Brist does not exempt a co-conspirator's testimonial statements from a Confrontation Clause analysis.

Prior to Crawford, the admissibility of an out-of-court statement under the Confrontation Clause turned primarily on evidentiary rules and "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). In Crawford , the Supreme Court rejected the rule in Roberts . Crawford, 541 U.S. at 60–65, 124 S.Ct. 1354. The Supreme Court held that "[w]here testimonial statements are at issue, the only indicium of...