2010-M-157             State of Minnesota, Respondent, vs. Jeremy Jason Hull, Appellant.

MAJORITY:  Lewis Wilczek disappeared after attending a family barbecue in Little Falls on April 29, 2007.  Six days later, the police found Wilczek’s body buried in a gravel pit.  A Mille Lacs County grand jury subsequently indicted Jeremy Jason Hull for one count of first-degree premeditated murder and one count of first-degree intentional murder while committing aggravated robbery for causing Wilczek’s death.  After a jury trial, Hull was found guilty of both counts.  Conviction was entered on the first-degree premeditated murder count, and Hull received a sentence of life in prison without the possibility of parole. 

He now appeals his conviction.  Hull argues that two out-of-court statements made by Wilczek before his death, one to a friend and another to a police officer investigating a theft, were admitted in violation of the Confrontation Clause.  He further argues that a complete hearing should have been conducted on the admissibility of expert testimony on the subjects of fingerprint and handwriting analysis.  Hull also raises several arguments in a pro se supplemental brief.  We affirm.

First, the district court did not violate the defendant’s Confrontation Clause rights by admitting into evidence the deceased victim’s out-of-court statement to a friend when the statement was not testimonial.

Second, the district court’s admission of an officer’s statement that the defendant’s name “came up” in an investigation of a robbery does not warrant reversal because the admission of the statement did not constitute plain error and did not affect the defendant’s substantial rights.

Third, any error in the admission of fingerprint and handwriting expert evidence was harmless because there is no reasonable possibility that the admission of the evidence significantly affected the verdict.

Fourth, the defendant’s pro se arguments lack merit and therefore do not warrant a reversal. 

Affirmed.

CONCUR:  Justices Gildea and Dietzen opined:  “I agree with the majority that Hull’s conviction should be affirmed, but I write separately to address one issue on which I part company from the majority’s analysis. 

I disagree with the majority’s conclusion that the district court erred in admitting Sergeant Strack’s testimony that Hull’s name came up during the course of law enforcement’s investigation of a theft at Wilczek’s business.  Specifically, the majority holds that the admission of this evidence violated Hull’s rights under the Confrontation Clause.  I disagree.

 

I would hold that the district court did not err in admitting the challenged testimony because Hull opened the door to the State’s redirect examination.  On direct examination, the State did not elicit any information from Strack about Hull.  The majority nonetheless finds that the State opened the door to the cross-examination about Hull’s lack of involvement in the theft.  The majority questions the relevance of Strack’s testimony and speculates that “[t]he only possible relevance [of Strack’s testimony] was the inference that Hull could have been the thief.”  But the State did not make this suggestion during its direct examination or during closing argument.  

Moreover, the defense did not lodge a relevance objection to Strack’s testimony.  Rather, the defense used Strack to exonerate Hull of the theft by directly asking Strack if Wilczek had told the police that he thought he knew who had committed the crime and that “it was not Jeremy Hull.”  It was only after this cross-examination that the State elicited the testimony about which Hull now complains.  By offering evidence that Hull was not responsible for the theft, the defense opened the door to the State’s response.

The majority concludes that even if the defense opened the door to the testimony at issue, the Crawford analysis “would not end.”  I disagree.  The majority notes that we have not resolved the question of whether the defense’s opening the door to inadmissible testimonial evidence waives the Confrontation Clause protection.  But we have applied a similar principle outside the context of the Confrontation Clause.  See State v. DeZeler, 230 Minn. 39, 45, 41 N.W.2d 313, 318 (1950) (“Where one party introduces inadmissible evidence, he cannot complain if the court permits his opponent in rebuttal to introduce similar inadmissible evidence.”).   I would follow the same analysis in this case

CONCUR:  Justice Meyer opined:  “I concur in the result reached by the majority but write separately because I would address the substantive issue this case presents:  whether Hull was entitled to a full FryeMack hearing on the admissibility of the State’s expert testimony regarding handwriting and fingerprints.  The majority skips over that analysis, preferring instead to affirm on harmlessness grounds.  But because this issue has wide-ranging implications for future cases, we do a disservice to district courts and the administration of criminal justice in this state by declining to decide the issue on its merits.

Paul Anderson  (Page, and Barry Anderson)

Concur:  Gildea and Dietzen

Concur:  Meyer

               Took no part:  Stras

               [MURDER]