This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2008).
UNPUBLISHED OPINION
BJORKMAN, Judge.
Appellant Erwin Carl Morris challenges his convictions of terroristic threats and domestic assault, arguing that the district court (1) impermissibly dissuaded him from representing himself and (2) abused its discretion by admitting the complainant's prior consistent statements without evaluating the necessary factors for admission. Because we conclude that the district court did not err by inquiring as to whether Morris's waiver of his right to counsel was voluntary and intelligent or commit plain error in its evidentiary rulings, we affirm.
FACTS
Morris's conviction stems from a dispute with his wife, R.H., over whether she served him poisoned grape juice. The argument took place in the basement of the parties' home while R.H.'s six-year-old daughters were sleeping upstairs. According to R.H., Morris "just turned [into] a different person" and began yelling at her and hitting her. She tried to escape by running up the stairs, but Morris dragged her back to the basement. He told her that he would "slice [her] throat" and harm the children if she screamed or called the police. The two then talked, and Morris calmed down.
While making breakfast the next morning, R.H. decided to use the opportunity to get out of the house. She gathered her daughters, flagged down a passing car, and went to her friend R.W.'s house.
R.W. observed that R.H. looked unkempt and her eyes were puffy. After R.H. described the incident with Morris, R.W. called the police. When the police arrived, R.H. was crying and her face appeared swollen. R.H. told the officers what happened the night before and the officers transported her to a shelter. Morris was arrested and charged with making terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2008), and domestic assault in violation of Minn. Stat. § 609.2242, subd. 2 (2008).
On the morning of trial, Morris stated that he wanted to discharge his lawyer and represent himself. Morris said that he was ready to begin trial that day. His lawyer advised the court that Morris appeared to be agitated, which made communications difficult. When the district court directly asked Morris if he wanted to represent himself, he responded in the affirmative. The district court then inquired about whether Morris understood his decision. The district court asked Morris if he had represented himself in the past. Morris said that he had, but he could not remember when, stating that "[m]y memory will never be good. I've been shot in the head, so I don't remember a lot."
During the district court's questioning, Morris attempted to leave the courtroom. When asked why he was trying to leave, Morris said, "I have anxiety. That's all I know." The district court informed him that if he chose to represent himself he would need to be prepared and ready to begin trial immediately, and that if he attempted to leave the courtroom or was otherwise disruptive, the trial would proceed without him. While the district court was explaining the risks involved in self-representation, Morris interrupted, stating that he no longer wanted to represent himself. The trial proceeded with original defense counsel.
After R.H. testified, the state indicated its intention to offer portions of her statement to police as prior consistent statements. The district court met with counsel outside of the jury's presence to review the contents of the police report, determining on a line-by-line basis the portions of R.H.'s statement that were consistent with her trial testimony and the portions that were inconsistent and would be redacted. Morris objected to admission of the consistent statements only on the ground that they were cumulative. Morris objected to R.W.'s testimony as to what R.H. told her about the incident on hearsay grounds. The district court overruled the objections.
The jury found appellant guilty of the charged offenses. The district court sentenced Morris to 30 months' imprisonment. This appeal follows.
DECISION
I. The district court did not err by questioning whether Morris's proposed waiver of his right to counsel was voluntary and intelligent.
A defendant has a right under the federal constitution to represent himself in a state criminal proceeding. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533 (1975); State v. Blom, 682 N.W.2d 578, 613 (Minn. 2004). When a defendant seeks to waive the right to counsel, the court must ensure that the defendant is "made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open." State v. Worthy, 583 N.W.2d 270, 276 (Minn. 1998) (quotations omitted). Our supreme court has cautioned district courts to "comprehensively examine the defendant regarding the defendant's comprehension of the charges, the possible punishments, mitigating circumstances, and any other facts relevant to the defendant's understanding of the consequences of the waiver." State v. Camacho, 561 N.W.2d 160, 173 (Minn. 1997); see also Minn. R. Crim. P. 5.04, subd. 1(4).
Whether a constitutional violation has occurred presents a question of law, which we review de novo. State v. Bobo, 770 N.W.2d 129, 139 (Minn. 2009).
Morris argues that the district court's lengthy questioning effectively denied him the right to represent himself. When the district court asked whether he had ever represented himself in court, Morris said that he had but could not remember when, acknowledging that his prior head injury affects his memory. His lawyer advised the court that Morris was "quite agitated" and Morris attempted to leave the courtroom during the proceeding due to anxiety. Morris acknowledged that he would not want to be represented by a lawyer who had similar anxiety attacks. The district court appropriately advised Morris that he could not repeatedly interrupt the trial to address anxiety issues and that the trial would proceed in his absence.
Morris's statements, conduct, and history of memory and anxiety issues support the district court's thorough inquiry into his expressed desire to represent himself. Under the circumstances, a cursory examination would not have been sufficient to establish that Morris's proposed waiver of his right to counsel was knowing and intelligent. State v. Garibaldi, 726 N.W.2d 823, 830 (Minn. App. 2007) (noting that district courts must do more than perform a "cursory examination" before finding a competent and intelligent waiver of the right to counsel). We conclude, on this unique record, that the district court's questioning, albeit lengthy, was warranted.
II. The district court did not commit plain error by admitting R.H.'s prior consistent statements.
"Evidentiary rulings rest within the sound discretion of the [district] court and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of establishing that the [district] court abused its discretion and that appellant was thereby prejudiced." State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation omitted).
Generally out-of-court statements are not admissible if they are offered to prove the truth of the matter asserted. Minn. R. Evid. 801(c), 802; see also State v. Litzau, 650 N.W.2d 177, 182-83 (Minn. 2002). But a witness's prior consistent statements are not hearsay if they are "consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness." Minn. R. Evid. 801(d)(1)(B).
Before a prior consistent statement can be admitted under rule 801(d)(1)(B), the district court must determine whether: (1) the witness's credibility has been challenged; (2) the prior statement would be helpful to the trier of fact in evaluating the witness's credibility; and (3) the prior statement and the trial testimony are consistent with each other. State v. Bakken, 604 N.W.2d 106, 109 (Minn. App. 2000), review denied (Minn. Feb. 24, 2000).
Morris argues that the district court abused its discretion by admitting R.H.'s prior consistent statements to the police and R.W. and by failing to make express findings on each of the Bakken factors. We disagree. We first note that Morris did not object to admission of R.H.'s statements to the police under rule 801. Accordingly, we review admission of these statements for plain error. See Minn. R. Crim. P. 31.02; State v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). "The plain error standard requires that the defendant show: (1) error; (2) that was plain; and (3) that affected substantial rights." State v. Strommen, 648 N.W.2d 681, 686 (Minn. 2002) (citing Griller, 583 N.W.2d at 740 (citing Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549 (1997))).
While the district court did not specifically address the Bakken factors, the record shows that the Bakken standard for admission was met. Morris's lawyer repeatedly challenged R.H.'s credibility. In his opening statement, counsel indicated that "[R.H.] is not consistent with her stories . . . none of it adds up." During cross-examination, counsel repeatedly attempted to impeach her testimony. And in questioning one of the police officers, defense counsel again attempted to impeach R.H.'s earlier testimony.
Implicit in the district court's admission of R.H.'s prior consistent statements to the police and R.W. is the determination that they would help the jury evaluate her credibility. The district court carefully reviewed the police report that contained R.H.'s statements to determine which statements were consistent with her trial testimony. Consistent with the parties' agreement, the district court redacted the portions of the police report that differed from R.H.'s trial testimony. Because the prior statements were consistent and assisted the jury in evaluating R.H.'s challenged trial testimony, we conclude that the district court did not commit plain error by admitting the prior consistent statements.
Morris's argument that the district court abused its discretion because R.H.'s prior consistent statements are cumulative is also unavailing. The state introduced the statements in response to defense counsel's repeated efforts to undermine R.H.'s credibility. Because the prior consistent statements did more than simply restate R.H.'s testimony, we discern no abuse of the district court's broad discretion.
Affirmed.
red to the weight of
the evidence in favor of maintaining the existing residency arrangement, not any legal standard itself. The error in the majority's conclusion, however, is revealed in the district court's concluding paragraph, in which the court emphatically states: "Once the court sifts through
those factors which can be considered in a custody case, the Court reaches the
same conclusion as the limited case manager's written recommendation. There is
no compelling reason to significantly change the arrangement that has existed all of [J.D.H.'s] life."
Unlike the majority, I would not attempt to minimize the district court's multiple references to the incorrect legal standard, particularly when the court initiated and concluded its analysis with these incorrect statements, clearly indicating its reliance on that standard. Instead, I would remand this case to the district court with instructions to consistently apply the "best interests of the child" standard to this initial custody determination.
Further, as discussed below, the district court's application of the incorrect legal standard is irreversibly intertwined with its erroneous legal conclusion that a parent's religious practices may not be considered in a custody determination regardless of their impact upon the best interests of the child.
FAILURE TO CONSIDER EVIDENCE RELEVANT TO "BEST INTERESTS OF CHILD"
I also disagree with the majority's conclusion regarding the extent to which one parent's religious practices may be considered by the district court in determining primary residential custody, and I would find the district court erred in refusing to consider evidence of religious practices to the extent it pertained to the court's determination of the best interest of the child.
Specifically, I cannot reconcile the majority's analysis of our Supreme Court's holding in Sinclair v. Sinclair, 204 Kan. 240, 461 P.2d 750 (1969), with the district court's paramount obligation to consider the child's best interests in making a custody determination.
The majority correctly recites Sinclair's synopsis of the court's holding in Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705 (1957):
"The import of our holding in Jackson was that religious views alone afford no ground for depriving custody to a parent who is otherwise qualified." (Emphasis added.) Sinclair, 204 Kan. at 244. The majority further recites Sinclair's recognition that Jackson emphasized that the "paramount consideration of the court in custody cases between parents is always the welfare and best interests of the children." 204 Kan. at 244.
Despite this recognition of the trial court's overriding obligation to determine the welfare and best interests of the child, the majority nevertheless restricts Sinclair's conclusion as follows: " Sinclair teaches that while religious views and practices alone may not be considered in a child custody case, Kansas courts may consider the parent's `utter disregard and indifference' to children where religious beliefs `precipitated' that parent's neglect of the children. [Citation omitted.]" (Emphasis added.) Finally, the majority concludes, "In summary, Kansas law provides that a parent's religious beliefs and practices may not be considered by the trial court as a basis to deprive that parent of custody unless there is a showing of actual harm to the health and welfare of the child caused by those religious beliefs and practices."
The majority then proceeds to analyze the evidence presented in this case with respect to Mother's religious practices and to eventually conclude that Father failed to prove that any of Mother's actions caused actual physical or emotional harm to the child.
I would hold that Sinclair means what it says — i.e., that "religious views alone afford no ground for depriving custody to a parent who is otherwise qualified." 204 Kan. at 244. And while the evidence in Sinclair established that the mother's religious beliefs "precipitated a course of action on her part of utter disregard and indifference to her children and their activities," 204 Kan. at 244, the court in that case did not restrict the trial court's consideration to such egregious circumstances. Instead, the court emphasized that the trial court's "paramount consideration" in a custody case is always the welfare and best interests of the child. 204 Kan. at 244; see also Anhalt v. Fesler, 6 Kan. App. 2d 921, 923, 636 P.2d 224 (1981) ("Religion and church attendance, although factors to be considered, are not alone sufficient to determine the best interests of minor children." [Emphasis added.]).
In this regard, it is important to remember that custody disputes involve two parents — two parents who each have a fundamental right to exercise the care, custody, and control of their child. By concluding that one parent's religious practices may not be considered in a custody determination unless those practices are shown to cause actual physical or emotional harm to the child, the majority has gutted the straightforward "best interests" standard. Further, the majority has essentially judicially mandated a preference for one parent's fundamental right to the free exercise of religion over another parent's fundamental liberty interest in exercising the care, custody, and control of the child. This cannot be the import of our case law on this difficult issue.
Thus, I would hold that to the extent one or both parents' religious views and practices impact upon the child's best interests, they are admissible and should be considered, along with all other evidence, by the trial court in making a custody determination.
DISTRICT COURT'S APPLICATION OF APPLICABLE FACTORS
Although the district court made numerous statements regarding its inability to consider mother's religious practices and strongly qualified its ultimate conclusion based upon this perceived prohibition, the majority nevertheless concludes the district court's ultimate determination is sound. The majority reasons that the district court appropriately based its determination upon all of the facts presented to the court, including those the court explicitly found it could not consider.
A review of the district court's numerous statements regarding its inability to consider evidence of the effect of Mother's religious practices upon the child reveals that this case should be remanded to the district court with instructions to consider the best interests of the child in light of all of the evidence presented.
First, regarding Father's assertion that Mother's religious beliefs as they related to prohibition on celebratory events were disruptive to the child's social development, the district court recognized that Father presented evidence concerning anxiety experienced by the child in connection with celebration of holidays. However, the court simply concluded: "Case law which is binding precedent on this Court prohibits consideration of matters directly associated with decisions a parent makes in an effort to put into practices the teachings of that parent's faith."
Regarding Father's assertion that Mother's religious beliefs would prevent her from approving a blood transfusion, the trial court stated that "it was clear to the court that Mother was not going to disavow the teaching of the Jehovah's Witnesses on the use of blood products." In a footnote, the court found that these views would require mother to "deny blood products to her son under any medical circumstances." Further, the court recognized that the LCM acknowledged at trial that "given the fact that either parent would be an appropriate residential custodian, the fact the Mother would not approve of the use of blood products would cause him to favor Father as a residential custodian."
Despite the district court's obvious concern regarding Mother's religious views prohibiting the use of blood products, the court concluded it was "bound by Kansas case law which prohibits consideration of the beliefs of the Jehovah's Witnesses, even insofar as these beliefs impact decisions made as to the future medical care and treatment of the minor child."
Regarding Father's concerns regarding the detrimental effect of the child's exposure to Jehovah's Witnesses activities, including up to 5 hours at a time of door-to-door proselytizing, the district court again concluded: "Kansas case law prohibits the Court from considering these factors." Nevertheless, the court then appeared to consider this factor in isolation and determine that it did not "appear to have any adverse impact" on the child.
Regarding Father's complaints that mother's religious teachings have resulted in the child's alienation from his father, the district court commented: "This is a particularly thorny issue for the Court to wade through." The court resolved what it termed a "jurisprudential quagmire" by concluding that religious beliefs: "no matter how unorthodox, are constitutionally protected." Finally, the court stated, "The teachings of the Jehovah's Witnesses, including those that teach non-Jehovah's Witnesses will suffer annihilation, may not be considered by this Court in deciding custody issues." Despite these pronouncements, the district court then discussed some of the evidence concerning this issue and ambiguously concluded it was unclear from the evidence whether the child's concerns regarding his father's potential demise were "coming from things he is taught at church, or whether they are coming from Mother." In any event, believing it was unable to consider religious practices, the district court ultimately cautioned Mother to "respect the bond" between Father and child.
Significantly, the district court then proceeded to consider other acts of alienation committed by Mother as alleged by Father — acts unrelated to religious practice — and concluded: "Although the court has concerns, Father has not established alienation to such a degree that justifies a change in custody."
Finally, the district court's conclusory paragraphs highlight the court's struggle with its perceived inability to consider religious practices and their effect upon the child. In its conclusion, the court initially states: " Once those factors related to religion are removed from this case, what is left is a very bright little boy who is well adjusted to his current living environment." (Emphasis added.)
In the second concluding paragraph, the court again prefaces its remarks with the statement: " Once the court sifts through those factors which can be considered in a custody case, the Court reaches the same conclusion as the limited case manager's recommendation [as set forth in its report of May 16, 2008]." Importantly, the court then notes in a footnote that at trial, LCM altered his recommendation to conclude residential custody should be awarded to Father based upon Mother's testimony concerning the use of blood products, but the court restated its belief that it was "bound by precedent which prohibits consideration of this factor." The court then concludes: "As such, the limited case manager's revised recommendation is of little use since it depends in no small part on consideration of factors which the Court constitutionally may not take into account."
Despite the district court's numerous statements regarding its inability to consider mother's religious practices or their effect upon the child, as well as the court's strong qualification of its ultimate conclusion based upon this same prohibition, the majority nevertheless concludes the district court's ultimate determination is sound. Further, the majority reasons that the district court appropriately based its determination upon all of the facts presented to the court, including those the district court explicitly found it could not consider.
Unlike the majority, I would not attempt to dissect and then reconstruct the district court's custody determination. Instead, I would simply recognize that the district court erred in two significant respects: (1) in ultimately considering whether there was a "compelling reason" to alter the status quo with respect to residential custody instead of applying the "best interests" standard; and (2) in ruling that Kansas law did not allow it to consider evidence relating to the effect of a parent's religious practices in making its custody determination.
I would remand this case to the district court for consideration of all of the evidence relevant to the child's best interests, including but not limited to the impact of either or both parents' religious practices. In making this determination, the district court should be mindful not to consider any factor in isolation or permit either parent's religious practices to be the sole deciding factor in the custody determination. Further, the court should be mindful that both parents have a fundamental right to exercise the care, custody, and control of their child, just as both parents have a fundamental right to exercise their respective religious beliefs. These rights must be protected, of course, but must be considered in light of the district court's overriding concern — that is, the best interests of the child.