The week of February 5, 2018, brought us very little in the way of published case law. Maybe it had to do with Punxatawney Phil seeing his shadow. Maybe the Minnesota legal word was still buzzing about my oral argument from weeks ago. However, what we lacked in published material we made up in jail phone calls. Jail phone calls are the best. Unless they are with their attorney (and maybe still then, cue the conspiracy) they are recorded. The majority of the jail phone calls are people asking for money. Some are a little risque. Some admit to crimes. And here today, they reference “Cookie.” Not Cookie Monster from Sesame Street. But the fictional character cookie from Empire. Here are the facts.
In January 2015, two Minneapolis police officers were patrolling a high-crime neighborhood when they observed a slow-moving vehicle approach a woman standing on the street. When the vehicle turned into an alley, the woman followed. After the officers also turned into the alley, they observed the woman get into the backseat of the vehicle.
The officers observed that none of the occupants was wearing a seatbelt. The officers signaled the vehicle to pull over. The driver stopped but then started driving away. Moments later, the driver pulled over again and stopped. The officers approached the vehicle in a parallel fashion with their guns drawn but pointed toward the ground. The officer saw marijuana in D.P.’s lap and ordered D.P. out of the vehicle. Meanwhile, they saw the defendant, in this case, Mr. Scott tosses something between the driver seat and driver door. The officers order Scott out of the car and conducted a pat-down search. They recovered $4500 in cash from his coat. When the officers were attempting to handcuff him he ran away. They found him hiding underneath a vehicle. The officers seized more than 9 grams of methamphetamine, 5 grams of powder cocaine, 13 grams of cooked cocaine, latex rubber gloves, a scale, and clear plastic baggies from the vehicle.
The state charged Scott with first-degree cocaine sale in violation of Minn. Stat. § 152.021, subd. 1(1) (2014); second-degree cocaine possession in violation of Minn. Stat. § 152.022, subd. 2(a)(1) (2014); second-degree methamphetamine possession in violation of Minn. Stat. § 152.022, subd. 2(a)(1); and second-degree methamphetamine sale in violation of Minn. Stat. § 152.022, subd. 1(1) (2014). R.F., an acquaintance of Scott’s who was not present at the scene on the night of his arrest, filed an affidavit through Scott’s counsel admitting liability for the drugs:
At trial, Scott maintained that the drugs belonged to R.F., introduced R.F.’s affidavit as evidence, and called J.A., D.P., and R.F in support. J.A. testified that Scott was carrying a large amount of cash because he was buying a used vehicle from J.A. that day. R.F. testified consistently with her affidavit. But as soon as R.F. finished testifying, the state arrested her for aiding an offender. Both sides rested, and R.F. spent the weekend in jail.
Before closing arguments on Monday, the prosecutor moved to reopen the state’s case in order to rebut R.F.’s testimony. The prosecutor advised the district court and appellant’s counsel that, during two jail calls recorded the same day that R.F. testified, she said on the phone to someone familiar with Scott’s trial,
“[W]e had an agreement,” “I kept my end of the bargain,” and “[H]e said [he] was not going to hang [me] like Cookie” and “[Y]ou watch Empire, right?”
The prosecutor argued that these statements established that R.F. lied about owning the drugs so as to take the fall for Scott. When the prosecutor called R.F. in rebuttal, she invoked her Fifth Amendment privilege against self-incrimination. The prosecutor offered the jail calls as statements against R.F.’s penal interest. Scott’s counsel objected, arguing that R.F.’s unavailability violated Scott’s confrontation rights. After concluding that the jail calls were not testimonial, the district court admitted them into evidence. The prosecutor subsequently distributed copies of the transcripts, played the calls in their entirety and argued during closing that R.F. took the fall for Scott. The jury convicted Scott on all four counts. Scott Appealed.
One exception is for statements made against a declarant’s penal or pecuniary interest. Minn. R. Evid. 804(b)(3).
The rule states that if a declarant is unavailable, a statement is admissible if, at the time of its making, it “so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” State v. Morales, 788 N.W.2d 737, 762 (Minn. 2010) (quoting Minn. R. Evid. 804(b)(3)).
Before admitting a statement under Minn. R. Evid. 804(b)(3), a district court must (1) determine that the declarant is unavailable to testify; (2) conclude that the statement, at the time of its making, so far tended to subject the declarant to civil or criminal liability that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true; and (3) scrutinize the statement so as to avoid violating the Confrontation Clause. Id.
Here, the legal analysis was conducted based on a plot of Empire, which I am sure the Justices watched for accuracy.
R.F. said, “We had an agreement,” discussed holding up her end of a “bargain,” and told the person on the phone that Scott was not going to “hang [her] like Cookie,” referencing the television show In Empire, “the audience learns that Lucious and Cookie were both involved in drug dealing, and that Cookie pled guilty so that Lucious could pursue his music career and take care of their children.” See Tanksley v. Daniels, No. 16-CV-0081, 2017 WL 1735257, at *9 (E.D. Pa. Apr. 28, 2017) (describing the plot for Empire within copyright-infringement context)
So this is how this case was decided:
1.) Scott gets arrested for drug sales.
2.) R.F. says the drugs were hers.
3. ) She gets arrested after her testimony for aiding an offender for helping Scott
4.) She spends the weekend in jail and made a phone call to her friend about not wanting to be like Cookie from Empire and that they had a “bargain.”
5.) The State got a hold of these phone calls and played them pursuant to the exception that the statement subjects the speaker to criminal or civil liability.
6.) She was unavailable because she took the 5th. It exposed her to criminal liability because she discussed an agreement to aid Scott. So it comes in. All because of Empire.
The COA actually says the District Court errored by playing the entire call rather than parsing it up. In Williamson v. United States, the Supreme Court concluded that the word ‘statement,’ as used in the statement-against-interest exception . . . should be narrowly construed as ‘a single declaration or remark’ rather than an entire confession narrative.” They should have conducted a Williamson test and didn’t. The error was harmless because Scott threw something, ran away and hid underneath a car. Plus you can jointly possess controlled substances with someone else. So even if the court shouldn’t play the whole tapes, it still didn’t matter because they had plenty of evidence to convict Scott. The Court of Appeals basically said, “that is the way the cookie crumbles.”
