State of Minnesota v. Eric Jamison Brewer
Opinion text
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0622
State of Minnesota,
Respondent,
vs.
Eric Jamison Brewer,
Appellant.
Filed April 11, 2016
Affirmed
Schellhas, Judge
Ramsey County District Court
File No. 62-CR-14-4379
Lori Swanson, Attorney General, St. Paul, Minnesota; and
John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, St.
Paul, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Rachel F. Bond, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
SCHELLHAS, Judge
Appellant challenges his conviction of felony domestic assault, arguing that the
district court abused its discretion by admitting hearsay evidence and excluding other
evidence. We affirm.
FACTS
On June 14, 2014, witnesses observed appellant Eric Brewer yell at his girlfriend,
G.W., calling her a b-tch; follow her to a bench in a bus shelter; put her in a headlock; and
repeatedly punch her. One witness heard shouting from the bus shelter and saw Brewer
holding G.W. “in sort of a headlock and punching her on the head.” Two Metro Transit
Police Department officers crossed the street toward Brewer, who stood up, grabbed
G.W.’s purse, and walked away. The officers approached Brewer, retrieved G.W.’s purse,
and placed Brewer in handcuffs. G.W. was crying. Although G.W. initially told the officers
that Brewer had assaulted her and “needed to go to jail,” she subsequently stopped
cooperating with the officers.
Respondent State of Minnesota charged Brewer with one count of felony domestic
assault in violation of Minn. Stat. § 609.2242, subd. 4 (2012). At a pretrial hearing, Brewer
discharged his court-appointed public defender and proceeded pro se with court-appointed
advisory counsel. A jury found Brewer guilty as charged, and the district court sentenced
Brewer to 23 months’ imprisonment.
This appeal follows.
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DECISION
Brewer seeks reversal of his conviction and a new trial, arguing that the district court
abused its discretion by admitting hearsay statements and excluding evidence that Brewer
sought to subpoena G.W. to testify at trial. “Evidentiary rulings rest within the sound
discretion of the trial court and will not be reversed absent a clear abuse of discretion. On
appeal, the appellant has the burden of establishing that the trial court abused its discretion
and that appellant was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn.
2003) (citation omitted).
Admitted evidence
The district court admitted testimony regarding G.W.’s statements to the police
officers at the scene of the assault. Brewer argues that the court abused its discretion by
admitting the statements, although he does not argue that the admission of the statements
violated the Confrontation Clause. Issues not briefed on appeal are forfeited. See Rhodes
v. State, ___ N.W.2d ___, ___, 2016 WL 626044, at *4 n.3 (Minn. Feb. 17, 2016) (noting
defendant’s failure to address issue in appellate brief and stating that “[a]s a result, that
issue is forfeited”). Raising a hearsay issue does not preserve an unraised confrontation
issue. Cf. State v. Rossberg, 851 N.W.2d 609, 618 (Minn. 2014) (noting defendant’s
“exclusive focus” on specific hearsay exception in district court and stating that defendant
failed to preserve for appeal related challenge under Confrontation Clause). We limit
review to the rules of evidence.
During his cross-examination of one of the police officers, Brewer asked whether
G.W. had any injuries. The officer answered, “[G.W.] was not cooperative after a while,
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after she said that Mr. Brewer needed to go to jail and he assaulted her, then she stopped
cooperating.” The district court overruled Brewer’s hearsay objection. Brewer also asked
the officer whether G.W. indicated to him that she was hurt, and the officer answered, “No,
she just said she was assaulted.” The court again overruled Brewer’s objection, and Brewer
whispered, “She never said that sh-t, man.” On redirect examination, the prosecutor asked
the officer, “When you first talked to [G.W.], what did she say about whether she was
assaulted?” The officer again testified, “[G.W.] told us that [Brewer] assaulted her and he
needed to go to jail.”
Relying on State v. Litzau, 650 N.W.2d 177 (Minn. 2002), Brewer argues that
G.W.’s statements were inadmissible hearsay. “‘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). “Hearsay is inadmissible unless an
exception applies.” State v. Gatson, 801 N.W.2d 134, 150 (Minn. 2011) (citing Minn. R.
Evid. 802).
But “[a] statement relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition” is admissible hearsay.
Minn. R. Evid. 803(2). “The basic elements of an ‘excited utterance’” are “(a) that there be
a startling event or condition, (b) that the statement relates to the event or condition, and
(c) that the statement is made under the stress caused by the event or condition.” State v.
Edwards, 485 N.W.2d 911, 914 (Minn. 1992) (citing Minn. R. Evid. 803(2)). Relevant
factors for determining whether a statement qualifies as an excited utterance include “‘the
length of time elapsed, the nature of the event, the physical condition of the declarant, any
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possible motive to falsify, etc.’” State v. Daniels, 380 N.W.2d 777, 782–83 (Minn. 1986)
(quoting Minn. R. Evid. 803(2) 1977 comm. cmt.); see also State v. Bauer, 598 N.W.2d
352, 366 (Minn. 1999) (concluding that testimony concerning declarant’s statement that
defendant had threatened to shoot her was admissible as excited utterance because
declarant was “extremely agitated, upset, and afraid,” which “indicate[d] that at the time
[declarant] made the statement, [she] was still under the stress caused by the threat”).
Brewer’s reliance on Litzau is misplaced. In Litzau, the supreme court addressed
testimony regarding an informant’s tip to police and did not discuss the excited-utterance
exception to the hearsay rule. See 650 N.W.2d at 183 (“We agree with appellant that
testimony to the effect that the police had received a tip from a ‘reliable source’ who said
that appellant was suspected of possessing and ‘was carrying—transporting drugs’ in his
car was inadmissible hearsay.”). Statements made to police under the stress of a startling
event may be admitted as excited utterances. See State v. Taylor, 650 N.W.2d 190, 197,
205 (Minn. 2002) (concluding that district court properly ruled that recording of 911 call
qualified as, among other things, excited utterance, where defendant argued with and struck
declarant); Edwards, 485 N.W.2d at 912, 914 (concluding that district court abused its
discretion by ruling that declarant’s statements to police were not excited utterances where
declarant called police about one minute after sexual assault and police arrived at scene
five to six minutes later and questioned declarant “shortly after the event”).
Here, the record demonstrates that G.W. made her statements to the police officers
while under the stress of Brewer’s assault. We conclude that the district court did not abuse
its discretion by admitting G.W.’s statements because her statements were admissible as
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excited utterances. And even if the court erred by admitting G.W.’s statements, any error
was harmless. “If testimony was erroneously admitted, [appellate courts] review for
harmless error.” State v. Yang, 774 N.W.2d 539, 554 (Minn. 2009). “If no constitutional
right was implicated, [appellate courts] will reverse only if the district court’s error
substantially influenced the jury’s decision.” State v. Vang, 774 N.W.2d 566, 576 (Minn.
2009) (quotation omitted). Brewer does not argue that the admission of G.W.’s statements
violated his constitutional rights. We therefore consider only whether the verdict was
substantially affected by the admission of G.W.’s statements. See State v. Valtierra, 718
N.W.2d 425, 435 & n.4 (Minn. 2006) (noting higher standard for harmless error on review
for constitutional error in admission of evidence and stating that “[defendant] does not
argue that the error affected his constitutional rights, so we inquire only whether the verdict
was substantially influenced by the error”).
Several witnesses testified that Brewer swore and yelled loudly at G.W. All of the
witnesses testified that Brewer placed G.W. in a headlock. Two witnesses observed Brewer
repeatedly punching G.W.’s head, and one of the police officers saw a “punching motion
towards [G.W.’s] head, neck, [and] face area.” We conclude that any error in the admission
of testimony regarding G.W.’s statements to the officers did not substantially influence the
jury’s verdict and therefore was harmless.
Excluded evidence
Brewer argues that the district court abused its discretion by excluding his testimony
that he sought to subpoena G.W. to testify at trial. “[Appellate courts] will not
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reverse . . . rulings [excluding a defendant’s evidence] absent a clear abuse of discretion.”
State v. Richardson, 670 N.W.2d 267, 277 (Minn. 2003).
On the first day of trial, the district court noted that Brewer had “submitted five
subpoenas for service on [G.W.] . . . [a]t various addresses.” The court also noted that two
of the subpoenas were for addresses in Hennepin County and stated that it “couldn’t assist
with those” and that “with the cooperation of the civil division, Ramsey County Sheriff’s
Office, there was an effort to serve the other three [subpoenas].” After the state rested, the
court provided Brewer with the returns of service from the Ramsey County Sheriff’s
Office. G.W. did not appear, and Brewer sought to introduce evidence of his attempts to
subpoena G.W. The court denied Brewer’s request, and Brewer argues that the court
thereby abused its discretion because the subpoena evidence was “highly relevant” and
“makes his testimony that no assault occurred more probable.” Brewer’s argument is
unavailing. He has cited no case in which the exclusion of evidence about a defendant’s
attempts to obtain a witness’s testimony was determined to be an abuse of discretion, and
we are unaware of any legal authority that supports Brewer’s argument. In the absence of
such authority, we conclude that the district court did not abuse its discretion by excluding
the subpoena evidence.
Moreover, any error in the exclusion of the subpoena evidence was harmless. “A
harmless error analysis applies to the erroneous exclusion of evidence that violates the
defendant’s right to present evidence.” State v. Blom, 682 N.W.2d 578, 622 (Minn. 2004).
“If a trial court’s evidentiary ruling is determined to be erroneous, and the error reaches the
level of a constitutional error, such as denying the defendant the right to present a defense,
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[the] standard of review is whether the exclusion of evidence was harmless beyond a
reasonable doubt.” Richardson, 670 N.W.2d at 277 (quotations omitted). “On appeal, the
appellant has the burden of establishing that the trial court abused its discretion and that
appellant was thereby prejudiced.” Amos, 658 N.W.2d at 203. Brewer has failed to meet
his burden. We agree with the state that G.W.’s absence at trial was likely more detrimental
to the state than it was to Brewer. Brewer took advantage of G.W.’s absence, arguing in
closing that the state had not satisfied its burden of proof because G.W. did not testify that
she was assaulted. Given the strength of the state’s evidence against Brewer, a reasonable
jury would have reached the same verdict even if the district court had admitted the
subpoena evidence. We conclude that any error by the district court in excluding the
subpoena evidence was harmless beyond a reasonable doubt.
Affirmed.
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