*1 (1953). Generally, police discretionary offi Minnesota, Respondent, are classified as officers STATE Elwood, immunity. to that cers entitled 678; v. Tro 423 N.W.2d at see also Cook LARSON, Philip Appellant. Bruce 221, 224, vatten, 200 Minn. 274 N.W. No. C2-88-2379. immunity applies re official Whether Supreme Court of Minnesota. quires court to focus on the nature March particular question. act Larson Dist. Indep. Rehearing School No. May Dеnied case, Van Hal tire immunity for three acts: seeks handcuffing, pointing
shooting, by the threat accompanied
of his revolver indicated, As we have concluded
to shoot. battery arising the tire
there was no
shooting handcuffing. nor from But a battery during if there was presents
handcuffing, it seems to us this type
the classic case of exercise giving immunity. rise official
discretion exception immunity exists the officer acted mali-
doctrine Minn, Susla, willfully. ciously or
175,
officer acted
usually question of fact to be resolved Elwood, jury. N.W.2d at 679. Suf- say, per-
fice it to facts exist which would respect to infer
mit a that with
pointing of the and the threat to revolver
Johnson, assault, Hal Van committed an doing maliciously so acted will- Therefore,
fully. on this issue we affirm and remand to the trial trial of the
court for assault issue under only,
state law but otherwise reverse the affirm the trial court
grant summary judgment on all other
issues. part, part,
Affirmed reversed in
remanded.
COYNE, Justice.
In its
this case the court
decision
the trial court
concluded that
erred
admitting
certain
state-
nontestify-
ments made
available but
ing complainant
prose-
in a child sex abuse
Larson,
cution.
(Minn.App.1989).
The court of
error,
prejudicial
error
ruled that the
was
assuming
complainant
compe-
was
that
tent,
determined,
trial court
therefore available.
Id. at 598-99.
ruled, however,
that the trial court
may not have realized the effect of its
compe-
determination that
child was
tent,
it
that
and remanded with instructions
its
changed
trial court on remand
competency
on its
determination based
awareness of the effect
the determina-
tion, then a new trial
nоt be needed.
panel, arguing
that
Id. One member
required,
trial
new
was
dissented
the remand for
reconsideration of
competency.
issue
Id. at 600. We
for
granted
petition
both the defendant’s
cross-petition
for review
review
Having
concluded that
filed
state.
err in
the trial court did not
child, we reverse
hearsay statements of the
appeals and
of the court of
decision
judgment
of conviction.
affirm
case, B.,
was born
The child in
from defen-
May
separating
On
of 1983.
dant,
custody of
B.’s
was awarded
mother
B.,
privi-
subject
defendant’s visitation
leges.
April
In late
when she
old,
com-
years
the child
quite
four
vaginal
plained
soreness
to her mother
took
burning
Her mother
urination.
physi-
clinic. The
family practice
her
ato
assistant,
conducted the exami-
cian’s
swelling
nation,
around
saw redness and
Cromett,
Public
F.
Asst. State
Michael
abuse,
Suspecting
vaginal opening.
Paul,
Defender,
appellant.
St.
for
had
B. who
touched
asked
examiner
Gen.,
III,
Humphrey,
Atty.
H.
Hubert
had
replied
“Daddy”
touched
her. B.
that
Gen.,
Atty.
St.
Kempainen,
Paul R.
Asst.
of his
“came out
her
“his bone” that
Wilhelm,
Paul,
Martin Coun-
and D. Gerald
she
hurt and that
pants.” B. said
had
Fairmont,
respondent.
ty Atty.,
stop.
him to
asked
pur-
temporarily discontinued
Visits
2,Mаy
obtained
suant to a court order
county only
purposes
court in
hearing,
in the district
B.,
five,
then
incompetent
where
resides.
to testify.
The trial
ruled
that the statements
7,May
On
B. made more state-
were admissible
Minn.Stat. §
protection
a child
about
abuse
*3
(1988).1
worded,
As
subd.
the statute is
specialist.
put
“someone”
his
She said
had
the
pursu-
statements cannot be admitted
penis
legs
up
her
her butt.”
“between
(a)
ant to the statute unless the child either
say
She
was
would
who
“someone”
(b)
testifies
trial
is unavailable and
Daddy
her
because “she loved
and she
corroborating
After
evidence.
rul-
get
didn’t
him to
into
She
want
trouble.”
did,
ing
granted
as it
the trial court
a
happened
Daddy’s
“in
said the abuse
her
continuance to the defendant so that
house.”
try
expert
defense could
to obtain
testimo-
an аttorney
Defendant retained
and ob- ny and also so that defendant could decide
allowing super-
court order in June
tained a
testify.
whether to call B. to
vised visits.
Defendant
his
renewed motion at the re-
psychologically by
B. was evaluated
a
convened
in
hearing
August,
omnibus
doctor,
talked
her
with
four times. He
shortly before the rescheduled trial date.
“high
that
probabili-
concluded
there was
support,
Iowa,
Coy
he cited
487 U.S.
ty”
she
“inappro-
that
had been involved in
108 S.Ct.
cently unsupervised reinstаted visits. objection would to make an additional ground if developed. another Defendant
Hennepin County, the county of the said also he intended to call B. The trial residence, mother’s obtained an order as- court therefore conducted an in-chambers suming custody younger of B. and her said, competency hearing. The court “It is terminating brother and defendant’s visita- understood рarty that neither the court privileges. tion people More interviewed —if * * * competent finds has to call her [B.] B. in November and this was party wish to so.” do The [that doesn’t] commenced in December subsequently trial court determined that B. hearing The omnibus was held competent. Defendant did not call B. county district court in the where the statements, When state introduced B.’s charged abuse occurred June of 1988 objection continuing defendant made a shortly begin. before trial was to The hearsay grounds. hearing was held on the state’s motion for jury guilty The found of crimi- defendant permission to use the out-of-court state- degree. nal sexual conduct the second the complainant ments of and on the defen- dant’s motion suppress the statements concluding appeаls, that ground that their admission trial court erred the hear- violate right child, (1) defendant’s constitutional say statements of ruled that parties stipulated, confrontation. The the trial court’s determination that vic- Although trial court had B's ruled that mitted into evidence and shown to the videotaped statement made in November 1987 pursuant parties’ stipulation. inadmissible, videotape at trial the was ad- she was not be able to claim that the interests meant that competent tim was compulsory available, served confrontation in turn meant that both which process were not served in this precluded case be- the constitution statute he cause had victims out-of-court statements use of the victim’s witness; (2) hearing. Any at the other rule would her called unless permit challenge his cоn- deprives Minn.Stat. subd. § by pointing viction in faith bad authority to admit out-of- the courts of prosecutor’s failure to call a witness of child sex abuse victims by his action whom defendant own dem- 803(24), the so- pursuant to Minn.R.Evid. onstrated he no desire examine. (3) that exception; and called catch-all 803(4), ad- dealing with the Id. *4 pur- for the mission of made statements Inadi, in Subsequently, v. United States treatment, diagnosis or pоse of medical 394, 1121, 475 106 89 U.S. S.Ct. admitting a not a does afford basis (1986), L.Ed.2d 390 the United States Su- identity of her victim’s as to the statement preme Court ruled that the confrontation disagree of these con- We with all abuser. showing normally require clause does not a reasoning underlying clusions and the is in that the declarant unavailable order to them. The admit out-of-court statements. out-of- Inadi were made First, pre the Constitution does not nontestifying co-conspirators available clude the use of the victim’s out-of-court the of the defendant. The Court said that has called her statements unless the state unavailability developed in cases Koonsman, In 281 as a witness. State involving testimony given in tri- an earlier (Minn.1979), a rejected we al, good is a where there reason such defendant’s contentiоn that he was denied rule, to apply but that the rule does not by the state’s his of confrontation many kinds admitted criminal the testify to the victims to at failure call 392-94, 106 at 1124-26. trials. Id. at S.Ct. admis hearing on the issue of the omnibus impose signifi- Recognizing that would We sibility testimony. of identification to prosecutor practical cant burden the stated: availability of declarants even insure the arguments rejected We have similar be- prosecutor de- neither the nor the when see, e.g., Maloney, fore— Minn. declarant at fense wished to examine the (1973), —and trial, rejected the Court the again. objectives we do so rule: compulsory- confrontation clause marginal protection defendant Any process to clause are assist the defen- government to by forcing the securing presence dant the witness- co-conspirator declarants witnesses those es to the to exam- and enable defendant available, willing hos- testify, to statements are used ine witnesses whose yet already defense, and not tile Westen, trial. against him at Confron- prosecution, when subpoenaed Process, 91 Compulsory tation and call and cross-ex- defendant himself can differеnt- Harv.L.Rev. 616. Stated declarants, support an amine such cannot process ly, compulsory confrontation today that unavailability rule. We hold goal a common “work tandem toward not em- Clause does the Confrontation producing assisting the defendant rule. body such a Ibid., examining witnesses trial.” at 399-400, S.Ct. at 1128-1129.2 Id. at event, if it p. any could be applies here. As reasoning prosecutor sоme The same said that the breached it was in the victims, Inadi, is at all clear that should it not duty to call the as a required call the declarant to said: would witness, In a footnote Court also only is the declarant to insure that or Appeals’ clear from the Court of It una- if needed. The available for vailability opinion whether in order to meet its burden many same unavailability, rule suffers showing requested declar- to of the defendant that the call the child but has interests side. It well expressed ant be called either his intention to call child to go defendant to have been better for the testify. rely we see no need to challenge ambiguity statute to sustain the admission of (when she said that the child’s statements statements in this case. house but abuse occurred defendant’s By enaсting 595.02, section subdivision it) say than have who did legislature deprive did not possibly testify child in court called authority to admit who did it. Given that it was defendant complainants pursu- child or witnesses case, the circumstances of this the Inadi any promulgated ant rule of evi- us, approach makes at least with sense noted, already supra dence. As we have respect to constitutional clаim. 3,n. we the primary responsibility literally, Read section subdi separation powers doctrine for 3, recognizes admissibility vision regulation evidentiary matters. only child’s out-of-court statements the Moreover, no reason to believe that child either testifies unavailable legislature attempting preempt legislature
witness. The enacted the stat *5 Indeed, expressly the field. the statute 1984, years ute two before the Unitеd authorizes the admission of certain out-of- Supreme States Court made it clear Ina- court “not otherwise admissible unavailability di that the of the declarant is evidence,” by statute or rule of signifying always prerequisite not to of supplement only an intention the rules of hearsay evidence the defendant evidence.4 Here out-of-court state- Understandably, case. criminal sinсe the ments were admissible under two different resolved, question yet legisla been evidence, 803(24) rules Minn.R.Evid. ture the safe took constitutional course and 803(4). codified what understood the confronta
tion clause of the re sixth amendment 803(24), Minn.R.Evid. one of the two quired in order to make out-of-court state hearsay exceptions so-called “catch-all” to the ments admissible. le,5 hearsаy that a state ru may may It well ment be admitted even if not applying be that the stat- admissi comity,3 exceptions ute as a matter of ble under of the other we could con- requiring “equiva strue the statute as rule if has not the state the statement available, guarantees to call a child declarant at lent circumstantial of trustwor where, here, least the defendant has not thiness” and сertain other conditions are Bellotti, 308, interpretation, (Minn. flaws under either and in fact State v. 383 N.W.2d 313 may (Minn., 24, less defensible under an inter- April App.1988), pet. rev. denied pretation requiring to call 1986), appeals upheld admission each declarant as a witness. pursuant certain out-of-court statements 10, 475 U.S. 398 n. S.Ct. n. 106 at 1127 803(24), where those statements deemed were inadmissible under statute. primary responsibility 3.The has un Dana, rejected, We have v. since 422 separation powers der the regulation doctrine for the 246, (Minn. 1988), evidentiary N.W.2d 250 the conclusion of matters but has en statutory forced reasonable rules of evidence as Bellotti that state comity a matter of where rules were one child about assaults another conflict with the Rules of statute, Evidence. Minnesota child inadmissible undеr the but we Dana, 246, (Minn. 1988); State v. 422 N.W.2d 259 rejected the conclusion that statements Willis, 180, (Minn. State v. 184 inadmissible under the statute be admitted 1984). disagree We dictum contained in under one of our Minnesota Rules of Evidence. opinions appeals deferring of the court of legislature regulator primary as the of evidentia- 804(b)(5). other 5. The is Minn.R.Evid. As the ry E.g., Proposed Suspension, matters. In re clear, 1977 committee cоmment makes but for Nursing Revocation Non-Renewal requirement in rule Parkway Home Licenses Manor Healthcare 804(b)(5), exception this is identical to rule Center, Center and Innsbruck Healthcare 448 803(24). 116, (Minn.App.1989), pet. N.W.2d (Minn., 18, January 1990). rev. denied
47
relying Eighth
of the United States Court
of this court
Circuit
Relevant cases
met.6
803(24)
Ortlepp,
Appeals
upheld
v.
include State
has
admission under
on rule
(Minn.1985)
39,
(ruling
803(4)
44
ad
Fed.R.Evid.
of the victim’s stаtement
363
prior statement as
accomplice’s
identifying
theory
missible
the abuser
pertinent
under the
identity
evidence
substantive
abuser
involving the catch-all
citing
See,
other cases
e.g.,
v. De
treatment.
United States
that the out-
exceptions).
Cir.1987)
We are satisfied
(8th
(the
Noyer, 811 F.2d
438
in this
by the victim
of-court statements
psychological prob
nature and extent of
guaran
circumstantial
cаse had sufficient
the nature of the
lems which ensue and
justify
their ad
of trustworthiness
tees
knowing
depend often on
treatment
under this rule. United States
mission
identity
abuser);
also,
see
Goldade
(8th Cir.1987)(trial
Shaw, 824 F.2d
State,
(Wyo.1983)
P.2d
discretion in admit
court did not abuse its
denied,
(same),
cert.
467 U.S.
identical federal version
this
ting, (1984).
S.Ct.
should not recur. relevant cases suggest
of this court do not that the effect competency determination on the
trial of the case is a factor which should be deciding competency. considered in Cf. Amos, (Minn.
State v. 347 N.W.2d
1984); Yahnke, State v. FAMILY AMERICAN MUTUAL summary, extrajudi- we hold that the COMPANY, INSURANCE cial complainant statements of the child Petitioner, Appellant, who was prosecution available to both testify defendant but called neither to VANMAN, al., Respondents. Robert et properly admitted. Accordingly, we reverse decision of the court of No. C8-89-310. and affirm the defendant's conviction. Supreme Court of Minnesota. Reversed; judgment of conviction af- March
firmed.
KELLEY, (dissenting): Justice
I respectfully dissent. At steps all
this criminal the defendant
duly objected to the admission of out of alleged of the victim on grounds that since the
victim was crucial to the establishment of
the elements charged, of the crime obligation had the produce
victim in court for examination and cross-
examination under the Sixth Amendment to
the United States Constitution and Article
I, Section Six of the Minnesota Constitu-
tion, each of which that the “ac- * * * cused enjoy shall to be
confronted with the witnesses Any
him.” statute or court-promulgated evidence,
rule of “prac- concern for problems
tical prosecutors,” view, in my
cannot dilute that constitutional mandate.
Moreover, admission of evidence in viola-
tion of the seldom, confrontation clause is ever, Hansen, harmless. State v. I would
hold that if the state wishes to establish
the crime testimony, victim which is