State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A19-1045

Court of Appeals McKeig, J.

State of Minnesota,

Respondent,

vs. Filed: May 26, 2021
Office of Appellate Courts
Dylan Roger Sutter,

Appellant.

________________________
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.
________________________

S Y L L A B U S
1. A testimonial statement made before a defendant’s trial by a co-conspirator
who does not testify at the trial is subject to a Confrontation Clause analysis.
2. The erroneous admission of testimonial statements of the nontestifying
co-conspirator was harmless.
Affirmed.
2
O P I N I O N
MCKEIG, Justice.
This case presents the legal question of whether a testimonial statement of a
nontestifying co-conspirator is subject to a C onfrontation 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.
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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
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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 firear m 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

1 In August of 2018, the missing gun along with Burks’s ID and cell phone surfaced
during the investigation of a drive-by shooting.

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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 (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.
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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 (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 (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

2 Before the court of appeals Sutter also argued: the district court erred by admitting
the jail phone calls; the cumulative effect of the district court’s errors deprived him of a
fair trial; and the evidence of unlawful possession of a firearm was insufficient because the
juvenile adjudication to which he stipulated is not a “crime of violence.” Sutter did not
petition for review of these issues; therefore, they are not before us.
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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, t he 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’

3 From the record, it is unclear what the State’s purpose was in admitting Burks’s
statements. In its brief to our court, the State said that the statements were not offered to
prove the truth of the matter asserted. But a t oral argument, the State indicated that its
argument on appeal did not rely on the second requirement of the Andersen test when it
said, “[W]hether or not [Burks’s statement] was used for the truth of the matter is really
irrelevant.” Because t he State effectively waived any argument regarding the second
requirement in a Confrontation Clause analysis, we do not address it in our analysis. See
Weitzel v. State, 883 N.W.2d 553, 554 n.1 (Minn. 2016) (explaining that waiver is the
intentional abandonment of a known right).

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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 (1980). In Crawford, the Supreme Court rejected the rule
in Roberts. Crawford, 541 U.S. at 60–65. The Supreme Court held that “[w]here
testimonial statements are at issue, the only indicium of reliability sufficient to satisfy
constitutional demands is the one the Constitution actually prescribes: confrontation.” Id.
at 68–69.
Brist involved the admission at trial of a recorded statement of a nontestifying co-
conspirator made unwittingly to a confidential government informant. 812 N.W.2d at
55‒56. We held that the admission of a nontestifying co-conspirator’s unwitting statement
to a government informant does not violate the Confrontation Clause. Id. at 56 –57; see
also Bourjaily v. United States, 483 U.S. 171 (1987) (holding that admission of a
nontestifying coconspirator’s statement to a government informant does not violate the
Confrontation Clause).
We noted that, even though Bourjaily was decided prior to Crawford, it still applied
to the facts in Brist because (1) only the Supreme Court can overrule its own decisions and
(2) the holding of Bourjaily was directly on point. Brist, 812 N.W.2d at 56-57. We also
observed that the United States Supreme Court has said that “statements made unwittingly
to a Government informant” do not pose a Confrontation Clause problem because they are
“clearly nontestimonial.” Id. at 57 (quoting Davis v. Washington, 547 U.S. 813, 825
9
(2006)). We therefore held that the admission of the nontestimonial statement of Brist’s
nontestifying co-conspirator “did not violate Brist’s rights under the Confrontation Clause
of the Sixth Amendment.” Id. at 58. But we have never extended the Brist exemption to
a testimonial statement of a nontestifying co- conspirator and we decline to do so now. 4
Accordingly, we turn to the question of whether Burks’s statements are testimonial.
This case is not like Brist because Burks did not make unwitting statements to an
undercover informant in furtherance of a conspiracy. Instead, he made his statements in
response to direct questioning by a police officer. The Supreme Court has stated that the
phrase testimonial “applies at a minimum . . . to police interrogations.” Crawford, 541
U.S. at 68.
But the fact that a statement is made to a police officer does not end the inquiry. To
determine whether the Confrontation Clause bars admission of a statement, a court “should
determine the ‘primary purpose of the interrogation’ by objectively evaluating the

4 We acknowledge that in United States v. Stewart, the Second Circuit Court of
Appeals held that “when the object of a conspiracy is to obstruct justice, mislead law
enforcement officers, or commit similar offenses by making false statements to
investigating officers, truthful statements made to such officers designed to lend credence
to the false statements and hence advance the conspiracy are not rendered inadmissible by
the Confrontation Clause.” 433 F.3d 273, 293 (2d Cir. 2006) (emphasis added) (footnote
omitted). In reaching this conclusion, the court said that a different reading “would result
in obvious and unacceptable impediments to prosecuting cases like this one, in which the
very object of the charged conspiracy is for the defendants to mislead investigators by
responding falsely to the investigators’ questions in a structured setting, fully aware that
their responses might be used in future judicial proceedings.” Id. Under these unique facts,
the Second Circuit Court of Appeals held “there was no error here in admitting the
testimonial statements of one Defendant against the other.” Id. Because the facts of
Sutter’s case are materially distinguishable from the facts of Stewart, we do not need to
decide whether the reasoning in Stewart is sound.
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statements and actions of the parties to the encounter, in light of the circumstances in which
the interrogation occurs.” Michigan v. Bryant, 562 U.S. 344, 370 (2011).
In Davis v. Washington, the United States Supreme Court analyzed the distinction
between testimonial and nontestimonial statements. 547 U.S. at 821–22. The Court
determined that statements made to a 911 operator during the course of an emergency were
nontestimonial and that statements made to the police during an initial, on- scene
investigation where the danger had passed were testimonial. Id. at 817–23. The Supreme
Court held:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing
emergency. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the pri mary
purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.

Id. at 822.
The Supreme Court has further stated that “whether an ongoing emergency exists is
simply one factor . . . that informs the ultimate inquiry regarding the ‘primary purpose’ of
an interrogation.” Ohio v. Clark, 576 U.S. 237, 245 (2015) (alteration in original) (quoting
Bryant, 562 U.S. at 366). “Thus, the primary purpose test is a necessary, but not always
sufficient, condition for the exclusion of out- of-court statements under the Confrontation
Clause.” Id. at 246.
In State v. Warsame, we articulated the factors used to determine when a testimonial
statement is admissible because it was made during an ongoing emergency:
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(1) the [person] described events as they actually happened and not past
events; (2) any “reasonable listener” would conclude that the victim was
facing an ongoing emergency; (3) the questions asked and answers given
were necessary to resolve a present emergency, rather than only to learn what
had happened in the past; and (4) there was a low level of formality in the
interview because the [person’s] answers were frantic and [their]
environment was not tranquil or safe.

735 N.W.2d 684, 690 (Minn. 2007). For the reasons that follow, we conclude that Burks’s
statements were testimonial and not made in the course of an ongoing emergency.
First, as Sutter points out, Burks did not describe events as they actually happened.
Instead, in his statements to Sergeant Kenyon, Burks described what he and Sutter did
hours earlier that day.
Second, no “reasonable listener” would conclude that Burks was the victim of an
ongoing emergency. See Warsame, 735 N.W.2d at 690. Police questioned Burks not
because he was a victim, but because they were trying to determine his possible
involvement in the theft.
Third, Sergeant Kenyon did not ask Burks questions to resolve an ongoing
emergency. Instead, as Sergeant Kenyon testified at trial, he asked the questions to
establish where Burks and Sutter went earlier in the day. Sergeant Kenyon told Burks
“we’re just trying to figure out what happened, when it happened, how it happened, all that
good stuff.” Police did not frisk or detain Burks when they questioned him. And it was
not until after asking Burks multiple questions about where he went that day that Sergeant
Kenyon even brought up the gun. Sergeant Kenyon did not express concern for anyone’s
safety regarding the missing gun. Instead, she told Burks that it would inconvenience his
mother if they had to issue a search warrant for her house. Therefore, the primary purpose
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of the interview was to establish or prove past events potentially relevant to later criminal
prosecution
Fourth, to fall under the ongoing emergency exception, not only must the interview
be informal, but the informality must be “because the [person’s] answers were frantic and
[their] environment was not tr anquil or safe.” Id. The State focuses on the low level of
formality in the interview, observing that the police conducted the interview in public;
Sergeant Kenyon did not give Burks Miranda warnings; the officers did not take Burks
into custody; and the officers did not search Burks or his car. This description is accurate,
and nothing in the record supports the conclusion that Burks was frantic or indicates that
his environment was not tranquil or safe.
Because Burks’s statements to police were made in response to questioning for the
purpose of establishing or proving past events for a later criminal prosecution, and not to
enable police assistance to meet an ongoing emergency, they were testimonial under
Crawford, Davis, and Warsame. Therefore, we conclude that the district court violated
Sutter’s right to confrontation when it admitted the statements into evidence at trial.
II.
Our conclusion that the district court violated Sutter’s right to confrontation does
not end our analysis. A new trial is not warranted if the violation of the Confrontation
Clause is harmless beyond a reasonable doubt. State v. Wright, 726 N.W.2d 464, 476
(Minn. 2007.) F or an error to be harmless, the jury’s verdict must be “surely
unattributable” to the error. State v. Courtney, 696 N.W.2d 73, 80 (Minn. 2005). “[ W]e
consider the manner in which the evidence was presented, whether the evidence was highly
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persuasive, whether it was used in closing argument, and whether it was effectively
countered by the defense.” Id. Additionally, although it is not the only factor, “[e]vidence
of the defendant’s guilt is also a relevant consideration.” Id. Evidence presented as only
one item “among a plethora of other evidence” weighs in favor of finding that the verdict
was surely unattributable to its admission. See State v. Caulfield, 722 N.W.2d 304, 314
(Minn. 2006).
The court of appeals did not conduct a harmless error analysis. The State argues
that the admission of Burks’s statements was harmless because this was “one item among
a plethora of other evidence including the testimony of fourteen witnesses and the
admission of twenty -seven other exhibits.” The State also argues that the testimony
surrounding the admission of the statements “constituted approximately nine transcribed
pages of a trial with over five hundred transcribed pages of testimony.” Additionally, the
State notes that Sutter used the evidence in his own closing statements.
Sutter argues that the admission of Burks’s testimonial statements to police was not
harmless because “Burks was a key character in the [State’s] story.” Additionally, he notes
that the State asked the jury to pay attention to Burks’s statements to police during its
opening statement.
We conclude that Burks’s statements to police was just one piece of evidence that
the State used to try to establish a conspiracy between Burks and Sutter. The additional
evidence included: recorded jail phone calls between Sutter and Burks as well as another
individual and Burks; the testimony of two officers regarding the events of a drive-by
shooting a month later that linked Burks to the handgun; and a BCA scientist who testified
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regarding DNA evidence found on the hand gun. The State also entered into evidence the
phone call in which Sutter told his mother that Burks had left his “wallet” at her house, and
testimony that Burks stopped by Sutter’s house, grabbed something, and left. The trial
included 15 witnesses, 28 exhibits, and took place over 5 days. Based on this record, we
conclude that the jury’s verdicts were surely unattributable to the erroneous admission of
Burks’s relatively innocuous statements to police.
CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.