State of Minnesota, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0161

State of Minnesota,
Appellant,

vs.

Michael Bruce Tapper,
Respondent.

Filed August 1, 2022
Affirmed
Bjorkman, Judge

Hennepin County District Court
File No. 27-CR-21-21874

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Tory R. Sailer, Eden Prairie City Prosecutor, David R. Hackworthy, Assistant City
Prosecutor, Gregerson, Rosow, Johnson & Nilan, Ltd., Minneapolis, Minnesota (for
appellant)

Drake D. Metzger, Jasmin Quiggle, Metzger Law Firm, LLC, Minneapolis, Minnesota (for
respondent)

Considered and decided by Bjorkman, Presiding Judge; Segal, Chief Judge; and
Hooten, Judge.∗

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
BJORKMAN, Judge
In this pretrial appeal, the state challenges the suppression of the co mplainant’s
recorded statements made to a police officer responding to a domestic-disturbance call.
Because admission of the statements would violate the Confrontation Clause, we affirm.
FACTS
Early in the morning of November 27, 2021, police responded to a 911 call at an
Eden Prairie apartment complex. At the scene, the responding officers encountered A.H.,
the complainant. A.H.’s conversation with one of the officers (recording officer) was
captured on a body-camera recording (recording). Appellant State of Minnesota charged
A.H.’s ex-husband, respondent Michael Bruce Tapper, with misdemeanor domestic
assault. A.H. did not respond to the state’s trial subpoena, so the state moved the district
court to admit approximately the first eight-and-a-half minutes of the recording at trial.
The following summarizes that portion of the recording.
The recording officer initially encounters A.H. while she is descending a common
staircase. When she reaches the bottom, the recording officer asks A.H. which unit she
lives in. A.H. responds, “I’m not leaving my kids. He punched me in the face. I don’t
know if he broke my nose, but he poured hand sanitizer all over my face and my eyes” and
“I came out to call—have somebody call the police because I think he took my phone and
he won’t give it to me so—I had nobody to call. I have blood all over me.” After the
officer asks whether the blood is hers, A.H. confirms that it is and says, “He’s just—he
3
threw me into the fireplace. I think—I’m gonna die this weekend if I don’t—report.” The
recording does not clearly reveal blood on A.H. or her clothing.
The recording officer then asks, “Do you want somebody to come check you out,
make sure you’re okay?” A.H. responds, “Yeah. My head is really messed up. He kicked
my head into the wall and he threw me into the—into the brick fireplace.” The recording
audio captures another officer knocking on a door and announcing, “Michael, come to the
door, it’s the police.” A.H. indicates her youngest children are still in the apartment. The
recording officer then radios dispatch for a “medics routine to check out a female.”
The recording officer next obtains A.H.’s name and information about her
relationship with Tapper and asks, “So what happened? I mean I didn’t get the full story.”
A.H. describes several arguments, interactions, and prior instances of physical abuse with
Tapper, including an argument that took place within the last day during which Tapper hit
her. Another officer walks by, and A.H. advises that the back door is probably open and
that each unit has a stairway leading to that door. The other officer asks, “If he left, where
do you think he would’ve gone?” A.H. responds, “There’s nowhere for him to go. I don’t
think he left. I don’t know what is going on. He might’ve fallen asleep, he was drunk.”
The recording officer then says, “So you guys came home and what happened from
there?” A.H. states that they “had a little bit of an argument” and Tapper became
increasingly aggressive. She says, “I just went to sleep though—like the last thing I want
to do is —I mean—this time I actually have like physical—sometimes I haven’t had
anything that I can show, like it’s mostly like back head wounds like he pushes me into
some—or my head hits the wall and it isn’t bruised up.” A.H. indicates her oldest two
4
children can usually calm Tapper down. The recording officer asks, “So how many kids
are in the apartment right now?” A.H. responds that three of her children (ages ten, six,
and four) are still in the apartment. The recording officer instructs a third officer to go up
to the apartment, and then takes A.H. outside to one of the squad cars to wait for medical
assistance.
At the beginning of the recording, A.H. is sniffling and wiping her nose and eyes .
But she soon gains her composure as she describes what happened and responds to
questions. She does not raise her voice or cry.
The district court denied the state’s motion to admit this portion of the recording,
concluding that A.H.’s statements are inadmissible hearsay and testimonial so their
admission would violate the Confrontation Clause. The state appeals.
DECISION
I. Suppression of the recording has a critical impact on the state’s ability to
prosecute this case.

The state may only appeal a pretrial ruling if “the district court’s alleged error,
unless reversed, will have a critical impact on the outcome of the trial.” State v. Stavish,
868 N.W.2d 670, 674 (Minn. 2015) (quotation omitted). The state can make this showing
when suppression of evidence “‘completely destroys’ the state’s case” or “significantly
reduces the likelihood of a successful prosecution.” State v. McLeod, 705 N.W.2d 776,
784 (Minn. 2005) (quoting State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987)). The parties
acknowledge that suppression of the recording satisfies the critical-impact test. We agree.
Without the recording, there is no evidence identifying Tapper as the assailant. The district
5
court’s exclusion of the recording has a critical impact because it “significantly reduces the
likelihood of a successful prosecution.” Id. (quotation omitted).
II. Admission of the recording would violate Tapper’s confrontation right.
The Sixth Amendment to the United States Constitution 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; see also Minn. Const. art. I, § 6. With
limited exceptions not applicable here, the Confrontation Clause bars the admission of prior
testimonial statements of an unavailable witness who was not subject to cross-examination.
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Whether the admission of evidence
violates a defendant’s rights under the Confrontation Clause is a question of law that we
review de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).
In determining whether a statement is testimonial, we consider the primary purpose
of the interrogation. State v. Wright, 726 N.W.2d 464, 472 (Minn. 2007). We make this
determination by “objectively evaluat[ing] the circumstances in which the encounter
occurs and the statements and actions of the parties.” Michigan v. Bryant, 562 U.S. 344,
359 (2011). When the “primary purpose of the interrogation is to establish or prove past
events potentially relevant to later criminal prosecution,” the statement is testimonial. Id.
at 356 (quotation omitted). Conversely, “[s]tatements 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.” Id. (quotation omitted). This is so if the police questioning “relate[s] directly
to addressing the emergency.” State v. Warsame, 735 N.W.2d 684, 694 (Minn. 2007).
6
The state argues that the district court’s suppression order is legally flawed because
(1) it is based on clearly erroneous findings of fact and (2) A.H.’s statements were
nontestimonial because they relate to an ongoing emergency. The state’s first argument is
misplaced. We do not read the district court’s order to make findings of fact. Rather, the
order characterizes the facts revealed in the recording as part of the district court’s primary-
purpose analysis. Our de novo review does not turn on the district court’s characterization
of the recording. To the contrary, we conduct our own analysis of the interrogation’s
primary purpose. We begin this analysis by reviewing the relevant caselaw.
In Davis v. Washington, a domestic- assault victim made statements to a 911
operator while the assailant was still in the home. 547 U.S. 813, 817 (2006). The Supreme
Court cited four factors when concluding that the victim made the statements to meet an
ongoing emergency: (1) the victim 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 victim’s answers were frantic and
her environment was not tranquil or safe. Id. at 827.
Lack of formality and the victim’s urgent need for medical care likewise guided the
Supreme Court’s determination in Bryant that a shooting victim’s statements related to an
ongoing emergency rather than establishing past events. 562 U.S. at 349. In that case,
responding officers found the victim bleeding on the ground. Id. During a five- to ten-
minute conversation, the victim gave police the assailant’s name and told them when,
7
where, and how he had been shot. Id. The victim was then taken to the hospital where he
died within hours. Id. The Supreme Court reasoned that the informality of the
interrogation and the potential threat the at-large assailant posed to the victim, the police,
and the general public objectively indicated that the “primary purpose of the interrogation
was to enable police assistance to meet an ongoing emergency.” Id. at 375-78 (quotation
omitted).
In contrast, the Supreme Court determined that no such ongoing emergency existed
in Crawford and Hammon v. Indiana, 547 U.S. 813, 829 (2006), which was decided at the
same time as Davis. In Crawford, the Supreme Court concluded that a recorded statement
“knowingly given in response to structured police questioning” following a Miranda
warning was testimonial. 541 U.S. at 38, 53 & n.4; see also Davis, 547 U.S. at 830
(observing that these circumstances in Crawford “made it more objectively apparent . . .
that the [statement’s] purpose . . . was to nail down the truth about past criminal events”).
Likewise, in Hammon , though the facts presented a less formal interrogation than in
Crawford, the Supreme Court determined that the primary purpose of the interrogation and
statements in question was to establish past events. 547 U.S. at 830. The Supreme Court
concluded “[t]here was no emergency in progress” because “the interrogating officer . . .
heard no arguments or crashing and saw no one throw or break anything,” the victim told
the officers when they arrived “that things were fine” and “there was no immediate threat
to her person,” and the officer “was not seeking to determine (as in Davis) ‘what is
happening,’ but rather ‘what happened.’” Id.
8
Minnesota’s jurisprudence applies the Davis/Hammon principles. In Wright, our
supreme court addressed the victim’s statements to a 911 operator and those made to
responding officers. 726 N.W.2d at 474-76. The former statements were nontestimonial
because some were made before the assailant left the scene and others related to the 911
operator’s efforts to calm and comfort the victim’s sister. Id. at 474-75. But the victim’s
statements to officers were testimonial because the emergency had ended and officers
elicited the statements to determine “what happened, not what was happening.” Id. at 475-
76; see also State v. Her, 750 N.W.2d 258, 269 (Minn. 2008) (concluding that the “record
do[es] not indicate to an objective observer that police were attempting to resolve a present
emergency” where the victim was upset and visibly injured but did not require emergency
medical care or express fear of the assailant, and the assailant had left the scene), vacated
on other grounds, 555 U.S. 1092 (2009). In contrast, in Warsame, our supreme court
concluded that a victim’s statements were nontestimonial where she appeared “wobbly”
and “potentially faint,” required immediate first aid, the officer called an ambulance, the
assailant was not yet in custody, and the police officer’s open-ended questioning about the
events related “directly to addressing the emergency.” 735 N.W.2d at 688, 694-95.
The circumstances here persuade us that A.H.’s statements to the recording officer
are more like the testimonial statements in Hammon and Wright than the nontestimonial
statements in Davis and Warsame. As in Hammon, A.H.’s statements report a past assault;
there was no ongoing disturbance when the officers arrived on the scene. See 547 U.S. at
829. A.H. did not face any immediate threat from Tapper because he was inside the locked
apartment. The record does not support the state’s suggestion that the presence of the three
9
children in the apartment created an emergency. A.H. mentions the children twice and tells
the recording officer that she will not leave them behind. But she does not express fear for
their safety or indicate they have been harmed by Tapper in the past. The fact that Tapper
was not in custody at the time A.H. made her statements does not compel a conclusion that
the statements relate to an ongoing emergency. See Bryant, 562 U.S. at 361-70 (explaining
that courts must evaluate the entirety of the circumstances to determine whether an
interrogation relates to an ongoing emergency). A.H. stated that Tapper was asleep in the
apartment, and officers were covering both exit points. In short, the circumstances did not
reflect a risk of ongoing harm to A.H. or anyone else.
A.H.’s demeanor, the nature of her injuries, and the substance of her statements
further persuade us that her statements were testimonial. She was sniffling, wiping her
eyes and nose, and breathing rapidly when she started talking to the reporting officer. But
she soon began to speak calmly and answered questions coherently. She said Tapper
punched her in the face, that she had blood all over, and her head was “messed up.” No
significant amount of blood is visible. Yet the recording officer asks A.H. if she wants
“someone to check you out” and A.H. responds affirmatively. Unlike the situation in
Warsame, the reporting officer does not find it necessary to render first aid or to call for an
ambulance. 735 N.W.2d at 687. And the conversation does not focus on A.H.’s medical
condition. Most of the questions and responses relate to Tapper’s conduct on the night in
question and prior instances of abuse. A.H. described past events, and the recording
officer’s questions elicited information about what had happened in the past, not what was
happening. See Davis, 547 U.S. at 826-27.
10
In sum, there are aspects of A.H.’s unprompted statements and answers to the
recording officer’s questions that relate to A.H.’s medical status and need for treatment. 1
But the primary purpose of the interrogation was to determine what Tapper had done that
night, not how to resolve an ongoing emergency. As such, A.H.’s statements were
testimonial. Admitting them would violate the Confrontation Clause.2
Affirmed.

1 The state does not divide the recording and urge admission of certain segments as
nontestimonial. Instead, it treats the first eight-and-a-half minutes of the recording as a
whole, asserting that all of it is nontestimonial.

2 Because we conclude the statements are not admissible based on the Confrontation
Clause, we need not address whether the district court abused its discretion by excluding
them as inadmissible hearsay.