Under “Plain Error” Test, Admission of Two Out of Court Statements Did Not Violate Crawford; Court Ducks Challenge to Admissibility of Fingerprint Evidence.

State v. Hull, Minn.S.Ct., 9/9/10.  Lewis Wilczek went missing after a family barbeque.  Six days later, police found his body buried in a gravel pit.  A grand jury indicted Mr. Hull for Mr. Wilczek’s murder, and a jury convicted him.  Mr. Hull did not deny killing Mr. Wilczek; rather, he argued that he had acted with neither premeditation nor intent.

On appeal, Mr. Hull complained that the admission of two out of court statements made by Mr. Wilczek to third parties violated his confrontation rights.  In one such statement, J.B., a friend of Mr. Wilczek’s said that Mr. Wilczek told him that he was meeting Mr. Hull and that if he wasn’t back by a certain time “somethin’ was probably wrong.” 

Mr. Hull did not raise the confrontation claim at trial and so on appeal, “plain error” is the standard of review.  Under that standard the appellate court handily concludes that this statement was of the “casual remark to an acquaintance” kind and not a “formal statement” to a police officer.  It was thus not testimonial.  Moreover, it was not hearsay because it was admitted to explain J.B.’s efforts to find Mr. Wilczek the next day.

The second out of court statement was to a police officer at least.  Mr. Wilczek called the police to report the theft of cash and checks from his business.  Mr. Wilczek offered the name of a suspect but it was not Mr. Hull; the problem was, defense counsel elicited the information on cross examination that Mr. Hull’s name “came up” during the report.  Now, naming Mr. Hull as a possible suspect clearly was to assist the cops in the investigation so that’s “testimonial” evidence.  The question was, though, who started this name calling anyway?

The appellate court rejects the state’s contention that Mr. Hull had “opened the door” to the officer’s statement about Mr. Hull’s name coming up.  The appellate court said, wait a minute:  that the state had started it because there was no other reason to offer evidence of the theft except to dirty up Mr. Hull.  (Chief Justice Gildea and Justice Dietzen concluded that Mr. Hull did “open the door” and thus waived the Confrontation Clause right, relying on a Tenth Circuit opinion, United States v. Lopez-Medina, 596 F.3d 715 (10th Cir. 2010).  Cf., United States v. Cromer, 389 F.3d 662 (6th Cir. 2004).]  In any event, whoever started it, admitting this testimony was not plain error.

In a pretrial hearing, Mr. Hull moved to exclude fingerprint and handwriting evidence.  The trial court held a hearing, limited to whether the procedures that had been followed in this case complied with appropriate standards and controls.  A majority agreed in principal that lengthy use of a method by law enforcement and unquestioning acceptance by courts does not by itself exempt expert testimony from scrutiny under the first prong of the Fry-Mack test, whether the test has been generally accepted as scientifically reliable.  At the same time, the appellate court declined to send the case back to the trial court for a full blown, anything goes, Fry-Mack hearing.  Instead, the appellate court ducks the issue, concluding that if they could figure out that there was error it was harmless.