State of Minnesota v. Steven Douglas Nelson

STATE OF MINNESOTA

IN SUPREME COURT

A23-1919

Court of Appeals Hennesy, J.

State of Minnesota,

Respondent,

vs.
Filed: May 20, 2026
Steven Douglas Nelson, Office of Appellate Courts

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Jeffrey R. Edblad, Isanti County Attorney, Nicholas J. Colombo, Assistant Isanti County
Attorney, Cambridge, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Saint Paul, Minnesota; and

Paul J. Maravigli, Special Assistant Public Defender, Minneapolis, Minnesota, for
appellant.

________________________

SYLLABUS

The district court did not plainly err in admitting a transcript of an adverse

witness’s prior testimony at defendant’s criminal trial without the defendant’s personal

waiver of his Sixth Amendment confrontation right.

Affirmed.

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 OPINION

HENNESY, Justice.

Appellant Steven Douglas Nelson asks us to reverse his attempted second-degree

murder, first-degree assault, and second-degree assault convictions because he did not

personally waive his right to confront an adverse witness before the State submitted a

transcript of the witness’s prior testimony against Nelson at trial. Nelson argues that the

district court plainly erred by treating his attorney’s agreement to admit the witness’s

prior testimony as a valid waiver of Nelson’s confrontation rights guaranteed by the Sixth

Amendment to the United States Constitution. The court of appeals rejected this

argument, holding that any error by the district court was not plain because no binding

authority required the district court to secure the defendant’s personal waiver in addition

to his attorney’s waiver under these circumstances. We agree with the court of appeals

and, accordingly, affirm.

FACTS

This appeal arises from Nelson’s second trial (following a prior mistrial) for

assaulting T.T. on an Isanti County dirt road on November 19, 2020. At both trials, T.T.

testified that he and two men, Nelson and D.A., left a local junkyard together around

3:00 a.m. that morning. T.T. thought they were headed to a nearby gas station for food

and cigarettes. Instead, Nelson drove to a remote minimum-maintenance road. All three

men exited the truck, purportedly to determine whether the road was passable. But as T.T.

turned around to return to the vehicle, he was struck twice in the face with a metal object,

knocking him to the ground, where he was struck on the head several more times. Nelson

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and D.A. fled in the truck, leaving T.T. alone and bleeding. T.T. survived, but his injuries

required 16 staples on the back of his head and 32 stitches on the inside of his mouth.

The State ultimately charged Nelson with attempted second-degree murder under

Minn. Stat. § 609.17, subd. 1 (attempt), and Minn. Stat. § 609.19, subd. 1 (second-degree

intentional murder); first-degree assault under Minn. Stat. § 609.221, subd. 1; and

second-degree assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1.1 At

Nelson’s first trial, the State relied primarily on T.T.’s testimony to establish the above

facts, but also called D.A. to corroborate T.T.’s testimony. D.A. testified that he

accompanied T.T. that night and that he saw and heard Nelson strike T.T. Nelson’s

counsel cross-examined D.A., focusing on his prior inconsistent statements to law

enforcement, his drug use the evening of the assault, and inconsistencies between T.T.’s

and D.A.’s testimony as to whether the two communicated with each other following

D.A.’s arrest.

Nelson’s first trial ended in a mistrial after the jury deadlocked on all counts. His

second trial proceeded much like the first, but the State did not present two witnesses

from the first trial, D.A. and Dr. Sandefur, who treated T.T. at the hospital.2

1
The State also charged Nelson with an additional count of each of these offenses
under an aiding-and-abetting theory of criminal liability. The court of appeals reversed
Nelson’s aiding-and-abetting convictions, concluding they were included offenses of the
principal crimes under Minnesota Statutes section 609.04. State v. Nelson, No. A23-1919,
2025 WL 752346, at *10 (Minn. App. Mar. 10, 2025). That part of the court of appeals’
decision is not before us.
2
The State’s failure to present Sandefur at the second trial is not at issue. We
consider only the admission of D.A.’s prior testimony in Nelson’s second trial here.
3
 Throughout the four-day second trial, the parties repeatedly conferred with the

court about the State’s efforts to produce D.A. for in-person testimony. On the second

day, the State arranged to have D.A. served with a subpoena. The court instructed the

prosecutor to file the subpoena and service information once D.A. was served, but also to

file the transcript of D.A.’s prior trial testimony. The State agreed but suggested that the

court could deem D.A. unavailable even without a subpoena “based upon the State’s

representation of efforts made.”3 Defense counsel responded that he had no objection to

proceeding in that manner, noting that D.A.’s prior testimony was given under oath.

Sandefur also failed to appear at the second trial. The parties therefore stipulated

to admitting T.T.’s medical records in lieu of Sandefur’s in-person testimony. Before

admitting the medical evidence, the court asked defense counsel if he had conferred with

Nelson about the effects of that stipulation. Counsel replied that he had, and that he had

also briefly explained to Nelson his “strategic reason” for the stipulation. The court then

addressed Nelson directly, asking if he understood that the stipulation would constitute a

waiver of his right to demand Sandefur’s in-person testimony subject to cross-

examination before the jury. Nelson indicated that he did.

By the end of the colloquy regarding Sandefur’s failure to appear and admitting

T.T.’s medical records, D.A. had still not appeared in court to testify. The prosecutor

proposed to have D.A.’s prior testimony, including cross-examination, read to the jury in

lieu of live testimony. Nelson’s counsel responded: “Your Honor, I agree with this, we

3
The record is unclear as to whether the State in fact served D.A. with a subpoena.
4
can—we should be moving forward at this time with that process.” The State formally

introduced D.A.’s transcript as an exhibit and moved to have it read into evidence.

Defense counsel again agreed, stating: “Your Honor, based on the conversations that is

my understanding of how we’ll be going. Lastly, I would also note based on our previous

conversations that the testimony [the jurors will] be hearing from that day was also

provided under oath.” The district court did not question Nelson personally before

admitting D.A.’s prior testimony.

The jury found Nelson guilty as charged. The district court entered judgments of

conviction and later sentenced Nelson to 240 months in prison. Nelson appealed his

convictions, arguing, among other things, that the district court violated his constitutional

right to confront adverse witnesses by admitting D.A.’s prior testimony. Specifically,

Nelson claimed that the district court plainly erred by admitting D.A.’s testimony because

Nelson himself never personally waived his right to confront D.A.4

The court of appeals rejected this argument, holding that any error by the district

court was not plain. State v. Nelson, No. A23-1919, 2025 WL 752346, at *5 (Minn. App.

Mar. 10, 2025). In a unanimous opinion, the court of appeals determined that Nelson

“provided no binding authority to support his position that a defendant must personally

4
As discussed below, under Crawford v. Washington, a prior testimonial statement
is admissible if the witness is unavailable to testify and the witness’s statement was
previously subject to cross-examination. 541 U.S. 36, 68 (2004). Thus, the district court
could have erred with respect to the waiver only if D.A. was available to testify at
Nelson’s second trial. Here, however, the district court did not expressly find D.A.
unavailable, and the State conceded at oral argument that it did not establish D.A.’s
unavailability.
5
waive the right to confrontation.” Id. at *4. Agreeing there was no such binding authority,

the court concluded “the alleged error is not otherwise clear or obvious.” Id. The court

further noted that Nelson’s position was “in tension” with our statement in State v.

Caulfield, 722 N.W.2d 304, 311 (Minn. 2006), that “confrontation rights are not among

those (right to a jury trial and right to counsel) that require an affirmative waiver in

writing or on the record,” as well as our statement in State v. Trifiletti, 6 N.W.3d 79, 94

(Minn. 2024), that “[t]he right to confrontation … may be waived, including by failing to

object to the offending evidence.” Nelson, 2025 WL 752346, at *4. Nelson petitioned for

review, which we granted.

ANALYSIS

Nelson asserts that the Sixth Amendment confrontation right may be waived only

by the defendant’s personal, on-the-record waiver, and that the district court committed

reversible error when it failed to obtain such a waiver.5 We review a Confrontation Clause

challenge to a district court’s admission of prior testimony de novo. State v. Tate,

985 N.W.2d 291, 298 (Minn. 2023). But because neither defense counsel nor Nelson

himself objected to the district court’s decision to admit D.A.’s prior testimony into

5
Nelson also asserts that admitting D.A.’s prior testimony without securing a
personal waiver violated his confrontation rights under the Minnesota Constitution. See
Minn. Const. art. 1, § 6 (guaranteeing the accused “the right to be confronted with
witnesses against him”). Minnesota’s Confrontation Clause “contains virtually identical
language” to that of the Sixth Amendment, Caulfield, 722 N.W.2d at 306 n.1, and “[w]e
apply the same analysis under both Confrontation Clauses.” State v. Gilleylen,
993 N.W.2d 266, 278 (Minn. 2023). Nelson has not argued that Minnesota’s Constitution
provides greater protections here than the Sixth Amendment, and, given the limitations of
our plain-error doctrine, we decline to consider that question here.
6
evidence at trial, we may not consider this alleged error unless Nelson’s claim satisfies

the plain-error exception to our forfeiture doctrine. See, e.g., State v. Tscheu, 758 N.W.2d

849, 863 (Minn. 2008) (observing that we apply the plain-error analysis to a

constitutional challenge or evidentiary question that has been otherwise forfeited by a

failure to object). The plain-error exception allows an appellate court to review an error

that was not objected to at trial if the district court committed “(1) error; (2) that is plain;

and (3) the error must affect substantial rights.” State v. Griller, 583 N.W.2d 736, 740

(Minn. 1998) (citing Johnson v. United States, 520 U.S. 461, 466–67 (1997)). Even if

Nelson satisfies these three prongs, we provide relief only if failure to do so would

“seriously affect[] the fairness, integrity, or public reputation of judicial proceedings.”

Pulczinski v. State, 972 N.W.2d 347, 356 (Minn. 2022).

We need not decide in the first instance whether there was error; it is sufficient, for

purposes of our plain-error analysis, to determine that any alleged error was not plain

from preexisting case law, rules, or standards of conduct. See State v. Manley,

664 N.W.2d 275, 283 (Minn. 2003) (noting that we may address the prongs of the plain-

error analysis in any order). An error is “plain” only if it is clear or obvious “under

current law.” Johnson, 520 U.S. at 467. This “is typically established if the error

contravenes case law, a rule, or a standard of conduct.” State v. Webster, 894 N.W.2d 782,

787 (Minn. 2017) (citation omitted) (internal quotation marks omitted). Here, Nelson

alleges that the district court committed plain error by admitting D.A.’s prior testimony at

Nelson’s second trial without obtaining a personal waiver from Nelson in violation of the

Confrontation Clause. To address whether the district court plainly erred, we must

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determine whether waiving Sixth Amendment confrontation rights clearly requires a

defendant’s personal waiver.

The Sixth Amendment’s Confrontation Clause guarantees criminal defendants the

right “to be confronted with the witnesses against [them]” at trial. U.S. Const. amend. VI.

The United States Supreme Court has long maintained that face-to-face confrontation is

“essential to a fair trial in a criminal prosecution” because it is critical to the jury’s

assessment of witness credibility. Coy v. Iowa, 487 U.S. 1012, 1017 (1988). Face-to-face

confrontation gives a defendant:

an opportunity, not only of testing the recollection and sifting the conscience
of the witness, but of compelling him to stand face to face with the jury in
order that they may look at him, and judge by his demeanor upon the stand
and the manner in which he gives his testimony whether he is worthy of
belief.

Maryland v. Craig, 497 U.S. 836, 845 (1990) (quoting Mattox v. United States, 156 U.S.

237, 242–43 (1895)).

In Crawford v. Washington, the Supreme Court recognized additional protections

under the Confrontation Clause that led it to overrule prior cases allowing admission of

testimonial hearsay evidence6 that had not been subjected to cross-examination “upon a

mere finding of reliability.” 541 U.S. 36, 50–51, 60–61. In doing so, the Court stated that

6
“Testimonial hearsay” generally refers to statements made outside the current
proceeding and “under circumstances which would lead an objective [declarant]
reasonably to believe that the statement would be available for use at a later trial.”
Crawford, 541 U.S. at 51–52. It could include out-of-court statements made, for example,
in affidavits, police interrogations, or prior testimony, see id., if “the primary purpose of
the [statements] is to establish or prove past events potentially relevant to later criminal
prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).
8
the Confrontation Clause requires “that reliability be assessed in a particular manner: by

testing in the crucible of cross-examination.” Id. at 61 (emphasis added). Accordingly, the

Court held that testimonial hearsay evidence is categorically inadmissible against a

criminal defendant unless (1) the adverse witness is unavailable, and (2) the defendant

had a prior opportunity to cross-examine the witness’s testimony, regardless of external

indicia of reliability. Id. at 68–69.7

Still, the confrontation right is “not absolute.” Coy, 487 U.S. at 1020; Tate,

985 N.W.2d at 297. Even “[t]he most basic rights of criminal defendants … are subject to

waiver.” New York v. Hill, 528 U.S. 110, 114 (2000) (alteration in original) (citation

omitted) (internal quotation marks omitted). “Waiver is an intentional relinquishment of a

known right or privilege, and its validity depends … upon the particular facts and

circumstances surrounding the case.” State v. Blom, 682 N.W.2d 578, 617 (Minn. 2004)

(alteration in original) (citation omitted) (internal quotation marks omitted); see also

Trifiletti, 6 N.W.3d at 94 (explaining that confrontation rights can be waived).

Although the law is clear that a defendant can waive their Confrontation Clause

rights, neither we nor the United States Supreme Court has clearly held that a valid

waiver requires a defendant to personally waive the right to confront an adverse witness.

The United States Supreme Court has said that whether a defendant must personally

participate in waiving a right—and thus whether counsel can waive on behalf of a

client—“depend[s] on the right at stake.” United States v. Olano, 507 U.S. 725, 733

7
Again, the State acknowledges that it did not establish that D.A. was unavailable
for the purpose of this Confrontation Clause analysis.
9
(1993). And the Supreme Court has held that a defendant has “the ultimate authority” to

personally make certain “fundamental decisions regarding the case,” such as whether to

plead guilty, exercise the right to a jury trial, retain counsel, testify in their own defense,

or appeal a conviction. Jones v. Barnes, 463 U.S. 745, 751 (1983); see, e.g., Brookhart v.

Janis, 384 U.S. 1, 7–8 (1966) (holding that a defendant’s rights not to plead guilty and to

a jury trial “cannot be waived by his counsel”); Johnson v. Zerbst, 304 U.S. 458, 464–65

(1938) (holding that a defendant must personally make an “intelligent and competent”

waiver of his right to counsel); McCoy v. Louisiana, 584 U.S. 414, 422 (2018) (holding

that the right not to plead guilty includes a personal right to maintain innocence during

the guilt phase of a capital offense even if counsel reasonably concludes that admitting

guilt is the defendant’s best chance to avoid the death penalty). The Supreme Court has

not determined whether the right to confront witnesses is one of those fundamental

decisions.8 But it has stated, in dicta, that “[t]he right to confrontation may, of course, be

waived, including by failure to object to the offending evidence; and States may adopt

8
Over a century ago, in Diaz v. United States, the Supreme Court held that counsel
can validly waive a defendant’s confrontation right under some circumstances. 223 U.S.
442, 444–47, 449–53 (1912) (concluding that admitting an adverse witness’s prior
testimony where the defendant’s attorney stipulated to and “placed in evidence the
testimony disclosed by the record in question, and thereby sought to obtain an advantage
from it …” did not violate the defendant’s confrontation right). Diaz is not, however, an
authoritative interpretation of the Sixth Amendment’s Confrontation Clause because the
case took place when the Philippines was a United States territory, and the Court did not
decide the case under the United States Constitution, but under an analogous provision of
the Philippine Civil Government Act. See id. at 449–51. Furthermore, the authoritative
(not to mention persuasive) weight of this decision is unclear after Crawford and its
progeny.
10
procedural rules governing the exercise of such objections.” Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 313 n.3 (2009).

Although Minnesota appellate courts, too, have held that personal waiver is

required for a defendant to waive at least the rights to jury trial and to counsel, see State

v. Little, 851 N.W.2d 878, 882 (Minn. 2014); State v. Gant, 996 N.W.2d 1, 6–7 (Minn.

App. 2023), we have not decided whether a defendant must personally waive the

confrontation right. But we have stated, in Caulfield, that “confrontation rights are not

among those (right to a jury trial and right to counsel) that require an affirmative waiver

in writing or on the record.” 722 N.W.2d at 311 (emphasis added).

Nelson correctly points out that we have recognized confrontation as a

fundamental right that district courts have an obligation to safeguard at trial. See State v.

Cassidy, 567 N.W.2d 707, 711 (Minn. 1997); State v. Dukes, 544 N.W.2d 13, 19 (Minn.

1996) (stating that “[t]he right of confrontation is fundamental under both the federal and

state constitutions”), abrogated on other grounds by State v. Dahlin, 695 N.W.2d 588,

595–97 (Minn. 2005). It is not, however, clear or obvious that a right is personal to the

defendant solely because it is fundamental. Rather, the United States Supreme Court has

stated that “the defendant must personally make an informed waiver” only for “certain

fundamental rights.” Hill, 528 U.S. at 114 (emphasis added). Although the Supreme

Court has characterized the confrontation right as fundamental for decades, see Pointer v.

Texas, 380 U.S. 400, 403 (1965), it has consistently omitted the confrontation right when

articulating which fundamental rights a defendant must waive personally. See, e.g., Jones,

463 U.S. at 751 (explaining that the accused has a personal right to make “certain”

11
fundamental decisions “as to whether to plead guilty, waive a jury, testify in his or her

own behalf, or take an appeal”); Hill, 528 U.S. at 114 (mentioning only the right to

counsel and right not to plead guilty as rights for which defendants must “personally

make an informed waiver”); McCoy, 584 U.S. at 422 (explaining that decisions reserved

to the defendant are “whether to plead guilty, waive the right to a jury trial, testify in

one’s own behalf, and forgo an appeal”). These omissions undercut Nelson’s broad

argument that the district court was plainly required to treat the confrontation right as

personal because it is fundamental.

Given this lack of clarity in Sixth Amendment jurisprudence as to whether a

defendant must personally waive their right to confrontation, we cannot conclude that the

district court’s admission of D.A.’s prior sworn testimony, including both direct and

cross-examinations, without obtaining a personal waiver from Nelson clearly

“contravene[d] case law.” Webster, 894 N.W.2d at 787 (citation omitted) (internal

quotation marks omitted). Because no binding authority “clear[ly]” or “obvious[ly]”

required the district court to secure Nelson’s personal waiver under these circumstances,

any error by the district court was not plain. See Olano, 507 U.S. at 734. Nelson has

therefore not met our standard for reversing his convictions under the applicable plain-

error review.

CONCLUSION

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

Affirmed.

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