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STATE OF MINNESOTA IN COURT OF APPEALS A10-999 State of Minnesota, Respondent, vs. Abdulsalam Mohamed Usee, Appellant. Filed June 20, 2011 Affirmed Kalitowski, Judge Hennepin County District Court File No. 27-CR-08-41587 Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, Minneapolis, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Sara L. Martin, Assistant Public Defender, St. Paul, Minnesota (for appellant) Considered and decided by Stauber, Presiding Judge; Kalitowski, Judge; and Worke, Judge. SYLLABUS A district court does not violate a criminal defendants right to confront witnesses against him under Bruton v. United States by admitting nontestimonial hearsay statements of a jointly tried codefendant.

A district court does not violate a criminal defendants right to confront witnesses

OPINION KALITOWSKI, Judge Appellant Abdulsalam Usee challenges his convictions of three counts of attempted first-degree murder, one count of first-degree assault, and two counts of second-degree assault. Appellant argues that (1) admission of a jointly tried

codefendants statement inculpating appellant violated his rights under the Confrontation Clause; (2) there was insufficient corroboration of accomplice testimony to support the verdicts; and (3) the district court abused its discretion in denying appellants motion for a Schwartz hearing. FACTS Appellant and Ahmed Ali were tried jointly for shooting T.G., A.F., and A.A. On August 14, 2008, the three victims were outside a Minneapolis apartment complex when T.G. saw three men with their faces covered by towels or bandanas approach them and start shooting. A bullet hit T.G.s hand; A.F. was shot in his buttocks; and A.A. was shot several times, including a potentially fatal shot to his abdomen. T.G. and A.F. provided testimony about their injuries and stated that they could not identify the shooters. C.K. was walking her dog near the apartment complex when she saw a black SUV pull into the parking lot. She watched three men get out of the SUV. C.K. then heard several gunshots and saw three men, who appeared to be wearing the same clothes as the three men who got out of the SUV, run away from the building. C.K. called 911 to report the shooting and gave a description of the SUV and its license-plate number to the dispatcher. C.K. could not identify the three men. Footage from surveillance cameras at 2

the apartment complex showed three individuals walking up the ramp where the shooting occurred shortly before security guards patrolling the complex heard shots. The same night, a Metro Transit police officer drove past a blue SUV parked in the middle of the street near a freeway wall. The officer saw several people inside the SUV, one person standing next to it, and another person running away from the SUV toward the freeway wall. The transit officer followed the SUV until he saw a

Minneapolis squad car following it and heard that Minneapolis police were stopping the SUV to investigate its connection to a shooting. There were six men in the SUV when police officers stopped it, including appellant, Ali, A.N., and M.H. The officers found a live 9mm cartridge and five white towels in the SUV. After the men were arrested, the transit officer directed a canine unit to the location where he had seen the SUV parked earlier. Police found a 9mm

semiautomatic handgun and a .40-caliber semiautomatic handgun near the freeway wall. Shell casings and fired bullets found at the apartment complex matched these guns. And DNA on the 9mm handgun matched appellants DNA and none of the SUVs other occupants DNA. A.N. and M.H. testified against appellant and Ali at trial. A.N. testified that he was one of the six occupants of the SUV. Appellant asked to be dropped off at the apartment complex to visit his family, and M.H. and Ali accompanied him. Later that night, appellant, Ali, and M.H. met the three other men at a fast-food restaurant near the apartment complex. A.N. testified that appellant, Ali, and M.H. were out of breath from running and appeared nervous. 3

M.H. testified that he participated in the shooting with Ali and appellant. M.H. testified that while he and the five other men were driving around in the SUV, they began talking about a conflict with a group of people who spent time at the apartment complex. The men decided to shoot people in the group in retaliation for past shootings. The men retrieved M.H.s .40-caliber gun from a Minneapolis residence. M.H. gave the gun to Ali, and the men drove to the apartment complex. M.H., Ali, and appellant got out of the SUV and went to the apartment complex. One of the people in the other group started yelling at them, and Ali and appellant began shooting at them. After the shooting, the three men ran toward the fast-food restaurant, where they saw the SUV. Appellant and Ali wiped down the guns and threw them into a grassy area near a bridge over the freeway. M.H. identified the .40-caliber gun recovered by police as his and the 9mm gun as appellants. R.S. was in custody with Ali before trial. R.S. testified that Ali told him that M.H. was supposed to be one of the shooters but "chickened out" and that Ali took the gun and committed the shooting. R.S. also testified that Ali told him that appellant was the other shooter. Ali did not testify. The district court instructed the jury that it could consider Alis statements only in the case against Ali, not in deciding whether appellant was guilty. The jury began deliberating on February 2, 2010, and returned guilty verdicts on February 4, 2010. On February 8, 2010, appellant moved for a Schwartz hearing,

claiming that on February 1 or 2, the prosecutor posted several comments on her public Facebook page that could have prejudiced the jury. The district court denied the motion. 4

ISSUES 1. Did the district court commit plain error in admitting Alis statement

inculpating himself and appellant in their joint trial? 2. Was there sufficient corroboration of the accomplice testimony to sustain

the jurys verdicts? 3. Did the district court abuse its discretion by denying appellants motion for

a Schwartz hearing? ANALYSIS I. Appellant argues that his rights under the Confrontation Clause were violated when the district court admitted, through witness R.S., Alis statement inculpating appellant. But appellant did not object to the admission of this statement at trial. Alleged errors that were not objected to at trial are reviewed for plain error. State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). To establish plain error, appellant must show that there was an error; that the error was plain; and that the error affected appellants substantial rights. Id. If these three prongs are met, we assess whether we should address the error "to ensure fairness and the integrity of the judicial proceedings." Id. The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. amend. VI. We review de novo whether admitted testimony violates a defendants rights under the Confrontation Clause. State v. Blanche, 696 N.W.2d 351, 366 (Minn. 2005). 5

To support his Confrontation Clause argument, appellant relies on the U.S. Supreme Courts decision in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968). In Bruton, the Court held that a defendants rights under the Confrontation Clause are violated when an out-of-court confession of a nontestifying codefendant that implicates the defendant is introduced into evidence at their joint trial. Bruton, 391 U.S. at 137, 88 S. Ct. at 1628. The Court concluded that limiting instructions are not an adequate substitute for a defendants constitutional right to cross-examine the witnesses against him: "The unreliability of [accomplice statements] is intolerably compounded when the alleged accomplice . . . does not testify and cannot be tested by crossexamination. It was against such threats to a fair trial that the Confrontation Clause was directed." Id. at 136, 88 S. Ct. at 1628. But see Gray v. Maryland, 523 U.S. 185, 196, 118 S. Ct. 1151, 1157 (1998) (excluding statement because it was inadequately redacted); Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 1709 (1987) (allowing admission of sufficiently redacted statement). Application of Crawford v. Washington The U.S. Supreme Court revisited the application of the Confrontation Clause in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The Court held that the Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Crawford, 541 U.S. at 53-54, 124 S. Ct. at 1365; see also State v. Bobo, 770 N.W.2d 129, 143 (Minn. 2009) (quoting Crawford). And the Court subsequently clarified that although the Confrontation Clause imposes a bright-line 6

rule against admission of testimonial out-of-court statements, it is not implicated by nontestimonial out-of-court statements. Davis v. Washington, 547 U.S. 813, 824, 126 S. Ct. 2266, 2274 (2006) (stating that the Confrontation Clauses focus on testimonial hearsay "must fairly be said to mark out not merely its ,,core, but its perimeter"); see also Whorton v. Bockting, 549 U.S. 406, 420, 127 S. Ct. 1173, 1183 (2007) (stating that "[u]nder Crawford . . . the Confrontation Clause has no application to [nontestimonial out-of-court] statements"). Because Bruton and its progeny are based on the protections afforded by the Confrontation Clause, after Crawford, Brutons restriction on the admission of inculpatory statements by a jointly tried codefendant is limited to testimonial hearsay. See United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010) ("It is . . . necessary to view Bruton through the lens of Crawford and Davis. The threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause "has no application.") (quotation omitted); United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) ("[T]he Bruton rule, like the Confrontation Clause upon which it is premised, does not apply to nontestimonial hearsay statements."); United States v. Johnson, 581 F.3d 320, 325 (6th Cir. 2009) (holding same), cert. denied, 130 S. Ct. 3409 (2010); United States v. Avila Vargas, 570 F.3d 1004, 1009 (8th Cir. 2009) (holding same). After Crawford and Davis, admission of nontestimonial out-of-court statements is restricted only by the rules of evidence. See Avila Vargas, 570 F.3d at 1009 & n.5 (concluding that hearsay rules, not Confrontation Clause, governed admission of 7

nontestimonial statement by jointly tried codefendant); see also Johnson, 581 F.3d at 325 (concluding same regarding nontestimonial statement by accomplice). Applying Crawford, we must first determine whether Alis statement that appellant was one of the shooters is testimonial or nontestimonial hearsay. The Crawford Court included "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial" as an example of a "core class of ,,testimonial statements." Crawford, 541 U.S. at 51-52, 124 S. Ct. at 1364 (quotation omitted). It further explained that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id. at 51, 124 S. Ct. at 1364. In Davis, the Court described statements from one prisoner to another as "clearly nontestimonial." Davis, 547 U.S. at 825, 126 S. Ct. at 2275 (citing Dutton v. Evans, 400 U.S. 74, 87-89, 91 S. Ct. 210, 219 (1970) (plurality opinion)). The record indicates that Ali and R.S. became acquaintances while incarcerated together and there is no evidence that R.S. was acting on the governments behalf when Ali made the statement. Thus, Ali would not reasonably believe that his statement inculpating himself and appellant would be used in trial. Rather, it was a casual remark, not made with an eye toward trial, and therefore nontestimonial. See State v. Morales, 788 N.W.2d 737, 767 (Minn. 2010) (concluding that inculpatory statements to friend were nontestimonial); State v. Brist, ___ N.W.2d ___ (Minn. App. June 6, 2011) (holding that statement made unwittingly to government informant is nontestimonial). As such,

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Alis statement to R.S. does not implicate the Confrontation Clause and Bruton does not bar its admission. Application of the Rules of Evidence Having concluded that admission of Alis statement did not violate the Confrontation Clause, we next address whether admission of the statement was error under Minnesotas rules of evidence. Initially, we note that Alis statement inculpating himself is not hearsay but is admissible as a statement by party-opponent. Minn. R. Evid. 801(d)(2)(A) (excluding from hearsay a statement "offered against a party [that] is . . . the partys own statement"). But Alis statement inculpating appellant is hearsay. And hearsay is inadmissible unless an exception applies. Minn. R. Evid. 802. Rule 804(b)(3) provides an exception for statements made against a declarants interest. The exception is premised on the "commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true." Williamson v. United States, 512 U.S. 594, 599, 114 S. Ct. 2431, 2435 (1994). A court must engage in a three-step analysis to determine whether a statement is admissible as a statement against interest: first, the court must determine if the declarant was unavailable to testify at trial; second, the court must determine that the statement must "at the time of its making so far tend to subject the declarant to civil or criminal liability that a reasonable person in the declarants position would not have made the statement unless believing it to be true"; and third, the court must scrutinize the statement

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to avoid violating the Confrontation Clause. State v. Tovar, 605 N.W.2d 717, 723 (Minn. 2000) (quotation omitted). As one of the defendants on trial, Ali was unavailable to testify about his statement based on his constitutional right not to testify. See U.S. Const. amend. V; Minn. Const. art. I,

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