This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1076
State of Minnesota, Respondent,
vs.
Jorge Roman Vasquez, Appellant.
Filed May 31, 2016 Affirmed Rodenberg, Judge
Dakota County District Court File No. 19HA-CR-14-2912
Lori Swanson, Attorney General, St. Paul, Minnesota; and
James C. Backstrom, Dakota County Attorney, Elizabeth Swank, Assistant County Attorney, Hastings, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Peterson, Presiding Judge; Bjorkman, Judge; and
Rodenberg, Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
On appeal from his convictions after a drive-by shooting, appellant Jorge Roman
Vasquez argues that the district court reversibly erred by admitting the out-of-court statements of the non-testifying victim to his friend and to a detective, as well as
statements made by unknown declarants describing the incident. In his pro se brief,
appellant also argues that there was insufficient credible evidence to support his
convictions. We affirm.
FACTS
Between 9:00 a.m. and 2:00 p.m. on August 18, 2014, J.C.-L., who was then living
in an apartment in West St. Paul, sat in his open one-stall garage socializing and drinking
alcohol with some friends, including M.L. and M.E.-R. Around 2:00 p.m., a green car
slowly drove past the garage and reversed course. The barrel of a gun was pointed out
from the car. Shots were fired. J.C.-L. was shot in the upper right arm and in the lower
right leg. M.E.-R. ran away from the garage while M.L. hid behind some garbage bags
that blocked his view of the shooting. M.L. remained with J.C.-L., who indicated at first
that “he was okay [and] that nothing happened to him.”
A maintenance worker observed a car speeding away just after the shooting. He
later identified it as a green Pontiac with a spoiler. The property manager also observed
an older green car with a spoiler speed past her office window after she heard the gun
shots. Two neighbors who lived nearby heard the gunshots from their third-floor
balcony, and one of them observed a green, four-door Pontiac quickly leaving the area
from where the gunshots seemed to have come.
The maintenance worker and the property manager ran to the garage to assist
J.C.-L. The maintenance worker described J.C.-L. as “very calm . . . [and] very quiet”
and stated that he “[did not] know if [J.C.-L.] was in shock or couldn’t believe what just
2 happened or what [because] he just sat there.” The property manager described J.C.-L. as
“not upset,” saying “I’m fine, I’m fine.” J.C.-L. appeared to the property manager to be
intoxicated.
Before paramedics arrived, J.C.-L. realized that he was bleeding and became
“concerned,” “scared,” “real pale,” and “alarmed.” At that point, J.C.-L. told M.L. that
the shooter was the husband of a woman with whom he had been in a relationship.
J.C.-L. described the shooter as “sort of a light [complexioned] man . . . from Honduras.”
M.L. testified at trial that other unknown declarants described the car to him as a green
Ford Taurus and the gun as a small, silver handgun.1
Inver Grove Heights Police Detective Justin Parranto assisted paramedics as a
Spanish interpreter while J.C.-L. was transported to Regions Hospital in St. Paul. The
detective asked J.C.-L. his name and date of birth. J.C.-L. gave his birth year as 1979,
but gave an incorrect age. J.C.-L. appeared to Detective Parranto to be “very, very
scared, frightened, very excited about everything that was going on . . . he thought he was
going to die . . . was sweating . . . yelling at [the detective] . . . [and] just panicked.” As
the ambulance approached the hospital, J.C.-L. began repeatedly screaming that the
person who shot him “lives over there,” gesturing toward a nearby apartment. He pointed
southwest toward the intersection of Lafayette and University, and asked the detective
why he was at the hospital and not “going over there.”
1 Appellant objected several times to the prosecutor’s elicitation of this testimony, and the district court sustained those objections. Later questions by the prosecutor concerning the statements of the unknown declarants were not objected to, and M.L. testified to what the unknown declarants said to him.
3 At the emergency room, J.C.-L. provided the name of the shooter’s wife,2 L.C.,
and stated that she lived in apartment number 10 near a McDonald’s restaurant and a
Metro Transit Station. J.C.-L. described the shooter as taller, darker, and skinnier than
himself, and with short hair. J.C.-L. also stated that the shooter had been driving an
older, green, four-door car. Detective Parranto testified at trial that he considered the
situation to be an ongoing emergency because the victim had sustained multiple bullet
wounds and the shooter had not been located.
As the detective was about to leave the hospital, J.C.-L. grabbed his arm and
excitedly said the name “Jorge.” Detective Parranto repeated the name, and J.C.-L. said
“it was Jorge, his name is Jorge.” The detective asked J.C.-L. if Jorge was the person
who shot him, and J.C.-L. responded that “yes, Jorge. Jorge, the one that lives with [L.C.]
in apartment 10.”
Detective Parranto confirmed after follow-up investigation that L.C. lived in
apartment number 10 in a building near a McDonald’s restaurant and a Metro Transit
station. The detective also confirmed that L.C. was associated with an individual named
Jorge Vasquez, appellant herein.
West St. Paul police officers followed up on this information and located appellant
at L.C.’s apartment. The officers handcuffed appellant and placed him in a squad car.
The officers obtained a search warrant and found a handgun and a box of ammunition in
L.C.’s closet. They also learned that appellant had a four-door, green Pontiac with a
2 As described below, the legal relationship between appellant and L.C. was apparently not one of husband and wife, but L.C. is referred to at several points in the record as appellant’s wife.
4 spoiler, which was also searched pursuant to a warrant. Police found documents
indicating that appellant had purchased the vehicle approximately one month earlier.
At the scene of the shooting, officers recovered six shell casings and five bullet
fragments in or near the garage. No DNA evidence conclusively linked appellant to the
shooting. A firearms examiner testified that bullets test-fired from the firearm located in
L.C.’s apartment matched those found at the scene of the shooting.
L.C. testified that she had met J.C.-L. in 2010, that they had been in a romantic
relationship for a few months, were no longer romantically involved, but remained
friends. She testified that she had known appellant for six years and had an intermittent
relationship with him. She stated that she and appellant were never legally married. Her
children referred to appellant as “dad,” and he stayed with her several nights per week.
Before trial, L.C. had told investigators that, when the police knocked on her door,
appellant had confessed to shooting J.C.-L. She also told them that, within 30 days of the
shooting, she and appellant had argued about her relationship with J.C.-L. At trial, she
testified that both of these statements were lies caused by her anger toward appellant for
involving police in her life.
Appellant was charged with attempted first- and second-degree murder, second-
degree assault, and being a prohibited person in possession of a firearm. J.C.-L. had been
removed from the country by the time the case came to trial. The state moved pretrial to
admit J.C.-L.’s out-of-court statements to Detective Parranto and to M.L. as excited
utterances. Appellant argued that the statements were not excited utterances and that
admission of them at trial violated his constitutional right to confront the witnesses
5 against him. The district court ruled that the statements to Detective Parranto in the
ambulance and at the hospital were admissible under the excited-utterance exception to
the rule against hearsay, and were not testimonial. The court ruled that J.C.-L.’s
statement to M.L. about the shooter’s identity shortly after the shooting was also a non-
testimonial excited utterance. The district court was not asked to make any pretrial ruling
concerning the out-of-court statements of declarants other than J.C.-L. Appellant
stipulated before trial that he is ineligible to possess a firearm.
The jury found appellant guilty of all charges. He was sentenced to 60 months on
the prohibited-person-in-possession charge and 228 months for the attempted first-degree
murder charge, concurrent with the prohibited-person-in-possession charge and
consecutive to the unexpired term of appellant’s prior and unrelated conviction. This
appeal followed.
DECISION
I. J.C.-L.’s statements
Appellant first argues that the district court erred in admitting into evidence
J.C.-L.’s statements to M.L. and Detective Parranto. “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, hearsay evidence is inadmissible unless it qualifies under an exception
provided in Minn. R. Evid. 803. State v. Bauer, 598 N.W.2d 352, 366 (Minn. 1999).
6 One exception allows for the admission of an “excited utterance.” Minn. R. Evid. 803(2).
“For a statement to be admitted under the excited utterance exception to the hearsay rule,
there must have been a startling event or condition, the statement must relate to the event
or condition, and the statement must be made under the stress caused by the event or
condition.” State v. Gates, 615 N.W.2d 331, 337 (Minn. 2000) overruled on other
grounds by Crawford v. Washington, 541 U.S. 36, 1245 S. Ct. 1354 (2004). The excited-
utterance exception to the general inadmissibility of hearsay finds its support in the belief
that the excitement caused by an event eliminates the possibility of conscious fabrication,
and insures the trustworthiness of the statement. State v. Daniels, 380 N.W.2d 777, 782
(Minn. 1986). It is within a district court’s discretion to admit such evidence if the
district court determines that “the declarant was sufficiently under the aura of
excitement” when the statement was made to insure that it is trustworthy. State v.
Edwards, 485 N.W.2d 911, 914 (Minn. 1992) (quotation omitted). In making this
determination, a district court considers all relevant factors, including the length of time
elapsed, the nature of the event, the physical condition of the declarant, and any motive to
falsify. Daniels, 380 N.W.2d at 782-83.
a. J.C.-L.’s statements to M.L.
Appellant argues that J.C.-L.’s statements to M.L. were not excited utterances
because, when he described the shooter, J.C.-L. was not stressed or excited. Appellant
7 emphasizes that several witnesses described J.C.-L. as “very calm,” “not upset,” and
saying “I’m fine, I’m fine,” “this is nothing” and that “nothing happened.”3
Although he was described by some as calm after he was shot, J.C.-L. was
intoxicated and seems not to have immediately recognized that he had been shot. The
maintenance worker testified that he “[did not] know if [J.C.-L.] was in shock or couldn’t
believe what just happened or what [because] he just sat there.” When he realized that he
had been wounded, J.C.-L. became “concerned,” “scared,” “real pale,” and “alarmed.” It
was after this realization, and before medical help arrived, that J.C.-L. described the
shooter to M.L. These statements to M.L. were made sufficiently close in time to the
startling event as to be appropriate for admission as excited utterances. See, e.g., Daniels,
380 N.W.2d at 782-84 (concluding that a statement made as long as an hour after the
startling event may be considered an excited utterance); State v. Berrisford, 361 N.W.2d
846, 850 (Minn. 1985) (concluding that a statement made 90 minutes after a murder may
be considered an excited utterance). The district court acted within its discretion in
concluding that J.C.-L.’s statements to M.L. shortly after being shot were admissible
under the excited-utterance exception.
b. J.C.-L.’s statements to Detective Parranto
Appellant also argues that the district court erred by allowing Detective Parranto
to testify to J.C.-L.’s out-of-court statements in the ambulance and at the hospital.
Appellant argues that these statements were not excited utterances and were, in any
event, testimonial.
3 Appellant does not argue that J.C.-L.’s statements to M.L. were testimonial.
8 i. Excited Utterance
Appellant argues that J.C.-L.’s statements to Detective Parranto were not excited
utterances because they were too remote from the shooting in time and location. But
there is record evidence indicating that Detective Parranto arrived on the scene within
minutes of the shooting. The detective described J.C.-L. as “very, very scared,
frightened, very excited about everything that was going on . . . he thought he was going
to die . . . was sweating . . . yelling at [the detective] . . . [and] just panicked.” J.C.-L.
described the shooter in outbursts that occurred between answering the detective’s
questions about medical issues and saying he did not want to die. J.C.-L. only positively
identified the shooter as “Jorge” at the emergency room when he spontaneously grabbed
the detective’s arm as the detective was about to leave.
In the ambulance, J.C.-L. said he was born in 1979, but misstated his age as 36
years old, rather than the 34 or 35 years old he was on that date. Appellant argues that
this demonstrates that J.C.-L. was lying, which, in turn, establishes that he was not so
excited that his out-of-court statements should be considered sufficiently trustworthy.
Viewed in the light most favorable to the district court’s ruling, J.C.-L.’s “lie” appears at
least as likely to have arisen from the combination of J.C.-L’s intoxication and his having
been shot as from any fabrication on his part. See Lossing v. Lossing, 403 N.W.2d 688,
690 (Minn. App. 1987) (stating that in determining whether a finding is clearly
erroneous, we review the record in the light most favorable to the district court’s
findings); see also State v. Gomez, 721 N.W.2d 871, 883 (Minn. 2006) (stating it is not
the reviewing court’s role to reconcile conflicting evidence). No motive appears for
9 J.C.-L. to mislead the detective about his age. The district court acted within its
discretion when it concluded that J.C.-L.’s statements to Detective Parranto were excited
utterances admissible under Minn. R. Evid. 803(2).
ii. Confrontation Clause
The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.” U.S. Const. amend. VI; see also Minn. Const. art. I, § 6. The
Confrontation Clause generally bars the admission of testimonial statements of a person
who does not testify at trial. Crawford, 541 U.S. at 53-54, 124 S. Ct. at 1365-66). Even
though it may be admissible under the evidentiary rules, the admission of a testimonial
hearsay statement in a criminal trial violates the Confrontation Clause unless the person
who made the statement is unavailable and the defendant has had a prior opportunity to
cross-examine the declarant. See id. at 53-54, 124 S. Ct. at 1365. Nontestimonial
hearsay statements are admissible in a criminal trial to the extent allowed under the rules
of evidence. See Davis v. Washington, 547 U.S. 813, 825-26, 126 S. Ct. 2266, 2275-76
(2006). We review de novo whether the admission of an out-of-court statement of a
person not present at trial violates the Confrontation Clause. State v. Caulfield, 722
N.W.2d 304, 308 (Minn. 2006).
Whether a statement is testimonial turns on the primary purpose of the
interrogation or questioning. Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74. If the
primary purpose of the questioning is to enable police to meet an ongoing emergency, the
10 statements are nontestimonial. Id. If the purpose is to “establish or prove past events” to
be used in a later criminal prosecution, the statements are testimonial. Id.
Davis identifies four factors to be considered in determining whether a hearsay
statement was made to meet an ongoing emergency:
(1) the [hearsay declarant] described events as they actually happened and not past events; (2) any “reasonable listener” would conclude that the [declarant] was facing an ongoing emergency; (3) the questions asked and answers given were necessary to resolve a present emergency, rather than only to learn what had happened in the past; and (4) there was a low level of formality in the interview because the [declarant’s] answers were frantic and [the declarant’s] environment was not tranquil or safe.
State v. Warsame, 735 N.W.2d 684, 690 (Minn. 2007) (citing Davis, 547 U.S. at 826-27,
126 S. Ct. at 2276-77). The Minnesota Supreme Court recognized in State v. Brist that
courts are required “to conduct a separate Confrontation Clause analysis for out-of-court
‘testimonial’ statements, even when the statements at issue otherwise satisfy a firmly-
rooted hearsay exception.” 812 N.W.2d 51, 56 (Minn. 2012).4
Applying the Davis factors to this case, J.C.-L.’s statements to Detective Parranto
in the ambulance were nontestimonial, and therefore admissible at trial. At the time, the
detective was assisting paramedics by interpreting; his primary role was not gathering
information for later use at trial. J.C.-L.’s statements were made shortly after he was
shot. The shooter was still at large and no firearms had been recovered. At the time
J.C.-L. made the statements, he was panicking, in pain, and fearful of dying. See
4 The state’s brief argues that the Confrontation Clause analysis properly considers whether the out-of-court statement falls within a firmly-rooted hearsay exception. This is no longer the case after Crawford. 541 U.S. at 53-54, 124 S. Ct. at 1365-66.
11 Michigan v. Bryant, 562 U.S. 344, 349, 131 S. Ct. 1142, 1050 (2011) (holding that
statements made by a gunshot victim in response to informal police questioning about a
shooting event when the victim appeared to be in great pain and spoke with difficulty
were not testimonial). The questions asked by the detective were primarily designed to
address J.C.-L.’s medical condition, and Detective Parranto appears to have asked about
the shooter’s identity only after J.C.-L. began pointing out the back of the ambulance and
screaming that “he lives over there.” The statements were also made in the non-tranquil
environment of an ambulance that appeared to be getting closer to where J.C.-L. believed
the shooter lived. Cf. State v. Hull, 788 N.W.2d 91, 93 (Minn. 2010) (holding that
out-of-court statements identifying a suspect and made to “a police officer investigating a
theft” are testimonial under Crawford (emphasis added)).
J.C.-L.’s statements in the emergency room are a closer call, occurring after the
ambulance ride and after Detective Parranto asked about the shooter’s identity based on
J.C.-L.’s earlier statements. These statements at the hospital included a description of the
shooter and the shooter’s vehicle, that he had access to firearms, and that the shooter was
associated with someone named L.C. who resided in an apartment numbered 10 near a
McDonald’s restaurant and a Metro Transit Station. This was an ongoing emergency in
which Detective Parranto was not acting primarily as a crime investigator. When these
statements were made, J.C.-L. was still in pain and panicking, the shooter had yet to be
apprehended and apparently lived near the hospital where J.C.-L. was being treated, and,
like the ambulance, the emergency room was not a “tranquil” environment. Additionally,
J.C.-L.’s initial identification of the shooter as “Jorge” was made spontaneously as
12 Detective Parranto was about to leave the hospital, and it was not made in response to
any questioning. Under Davis, J.C.-L.’s emergency-room statements were
nontestimonial. 547 U.S. at 822, 126 S. Ct. at 2273-74. The district court did not err in
allowing Detective Parranto to testify to J.C.-L.’s out-of-court statements over appellant’s
Confrontation Clause objections.
II. Statements of unidentified declarants
Appellant argues that the district court erroneously permitted M.L. to testify about
statements made by unidentified declarants concerning the shooter’s vehicle and firearm.
M.L. had no personal knowledge of those details. Appellant notes that four of the eight
police officers who testified at trial repeated M.L.’s descriptions, which were in turn
based on things he had heard from others.
Appellant objected to M.L.’s description of the car and firearm in his motion in
limine and objected during M.L.’s testimony. The district court sustained appellant’s
objection as inadmissible hearsay and rejected the prosecutor’s request to admit the
statements as an excited utterance. But the prosecutor nevertheless continued to question
M.L. about the statements of others. Although appellant did not specifically object to
each of the prosecutor’s questions, the district court had already definitively and correctly
ruled that M.L.’s testimony concerning what unidentified others had said was not
admissible because of the rule against hearsay. See Minn. R. Evid. 103(a) (“Once the
court makes a definitive ruling on the record admitting . . . evidence, either at or before
trial, a party need not renew an objection . . . to preserve a claim of error.”) (emphasis
13 added). Admission of the out-of-court statements of persons not identified or present at
trial was error.
An evidentiary error that does not implicate a constitutional right5 warrants a new
trial if there is a “reasonable possibility” that the error “significantly affected the verdict.”
State v. Matthews, 800 N.W.2d 629, 633 (Minn. 2011) (quotations omitted). Here, it is
highly unlikely that the error in admitting these hearsay statements to M.L. significantly
affected the verdict. The property manager, a maintenance worker, two neighbors, and
M.E.-R. all appeared at trial and testified about the shooter’s vehicle. M.E.-R. also
testified that the firearm used was a small silver handgun. This was first-hand and
persuasive evidence concerning those issues. The testimony of M.L. and of the officers
concerning the out-of-court statements of unknown declarants was cumulative of these
eyewitness accounts. We see no reasonable possibility that the district court’s admission
of the unknown declarants’ descriptions of the firearm and car had any significant effect
on the jury’s verdict. The evidentiary error does not warrant a new trial.
III. Sufficiency of the evidence
Appellant argues that insufficient evidence supports his conviction because there
was no conclusive DNA evidence linking him to the shooting and the victim did not
testify at trial. When reviewing the sufficiency of the evidence supporting a jury verdict,
we are “limited to ascertaining whether, given the facts in the record and the legitimate
inferences that can be drawn from those facts, a jury could reasonably conclude that the
defendant was guilty of the offense charged.” Bernhardt v. State, 684 N.W.2d 465, 476
5 Appellant does not argue that these out-of-court statements were testimonial.
14 (Minn. 2004) (quotation omitted). We “will not disturb the verdict if the jury, acting with
due regard for the presumption of innocence and for the necessity of overcoming it by
proof beyond a reasonable doubt, could reasonably conclude that [the] defendant was
proven guilty of the offense charged.” Id. at 476-77 (quotation omitted).
It is not for us to second-guess the jury’s credibility determinations. State v.
Moore, 438 N.W.2d 101, 108 (Minn. 1989). The state’s evidence, if believed, amply
establishes the elements of each conviction. Appellant’s sufficiency-of-the-evidence
challenge therefore fails.
Affirmed.