author: PAGE, Justice.

text:
    STATE of Minnesota, Respondent, v. Detroit DAVIS, Jr., Appellant.
    No. A06-1481.
    Supreme Court of Minnesota.
    July 19, 2007.

      John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, Michael 0. Freeman, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, Minneapolis, MN, for Respondent.
   OPINION

PAGE, Justice.

A Hennepin County jury found appellant Detroit Davis, Jr., guilty of first-and second-degree murder in violation of Minn. Stat. §§ 609.185(a)(3) and 609.19, subd. 2(1) (2006), respectively, for the shooting death of Richard Allan; second-degree murder in violation of Minn.Stat. § 609.19, subd. 2(1), for the shooting death of Pablo Morocho; and attempted aggravated robbery in violation of Minn.Stat. § 609.245, subd. 1 (2006). The jury returned a not-guilty verdict on the charge of first-degree murder in the death of Morocho.

In this direct appeal, Davis first argues that the district court erred when it admitted evidence of five of his previous felony convictions for impeachment purposes pursuant to Minn. R. Evid. 609. In making this argument, Davis asks that we alter the analysis we set out in State v. Jones, 271 N.W.2d 534 (Minn.1978), for determining the admissibility of evidence of a defendant’s previous convictions and consider only the similarity of the past crime with the charged crime, the importance of the defendant’s testimony, and the centrality of the credibility issue. He contends that under this altered analysis, it is clear that the probative value of the evidence of his previous convictions was outweighed by its prejudicial effect. Davis also argues that the prosecutor committed prejudicial misconduct by cross-examining Davis in such a way as to suggest that Davis’s testimony was suspect because he had exercised his right to be present at trial. Finally, Davis argues that the prosecutor committed prejudicial misconduct by improperly belittling his self-defense claim. While we conclude that the prosecutor’s cross-examination of Davis, which suggested that Davis’s presence at trial allowed Davis to tailor his testimony to fit the evidence, constituted misconduct, we also conclude that the misconduct did not affect Davis’s substantial rights. We further conclude that the evidence of Davis’s previous convictions was properly admitted and that the prosecutor’s closing argument did not belittle Davis’s self-defense claim. Therefore, we affirm Davis’s convictions.

The record indicates that the police, responding to a 911 call on the morning of August 8, 2005, discovered the bodies of Allan and Morocho face down on the floor of Allan’s office in south Minneapolis. Blood, some of which was eventually determined to match Davis’s DNA profile, had been dripped and smeared in various places throughout the room. A metal pipe was discovered near the body of Morocho. A bag containing about $11,000 was found near Allan’s head.

An autopsy revealed that Allan had been shot in the upper left chest and that this wound caused his death. Burn marks at the site of the wound indicated that the shot was fired at a distance of a few inches to a few feet. The autopsy also indicated that Allan had suffered a number of injuries consistent with a struggle before his death. Those injuries included a series of scalp lacerations and a skull fracture, all of which appeared to be the result of blunt force trauma, possibly from being struck with the muzzle of a gun. Allan also had a bruise on the right side of his chest, contusions on his arms, and superficial abrasions bn his knees.

Morocho’s death was caused by a gunshot wound to the right chest. Burn marks around the chest wound indicated that the shot was fired at a distance of a few inches to no more than three feet. A second bullet had passed through Moro-cho’s shoulder.

At trial, Davis testified on his own behalf and asserted a claim of self-defense. In his testimony, Davis admitted that he shot and killed Allan and Morocho during a botched attempt to rob Allan, who was known to keep large sums of cash at his office. An accomplice suggested the robbery and agreed to ensure that the door to Allan’s construction business would be unlocked when Davis arrived. Davis planned to enter the building, quickly get Allan to give him money from the business’s safe, and exit the building. Another accomplice was to act as a lookout.

Davis testified that on the morning of August 8, 2005, he entered Allan’s office carrying a loaded handgun. Davis said that, when Allan saw him enter, Allan jumped up from his desk and attacked him: A struggle ensued, and Davis struck Allan a number of times with the gun. At some point, Davis left Allan and went to the room where the safe, which was open, was located. Davis testified that he picked up a bag that felt as if it had money in it and stepped out of the safe room, at which point Allan attacked him again. According to Davis, he threw the money down, intending to escape, and said “you got your money. Just let me go.” Allan would not release him, however, and Morocho then came to Allan’s aid. Davis testified that Morocho started hitting him in the head with a metal pipe, causing both Davis and Allan to fall to the floor. Davis stated that Morocho continued to hit him with the pipe while he tried to block the blows and while Allan urged Morocho to “kill him.” Davis claimed that he shot both men in order to end the assault and save his own life. Davis then fled the building, leaving the bag of money behind.

During trial, the court heard arguments regarding whether evidence of nine felony offenses for which Davis had been convicted was admissible for impeachment purposes pursuant to Minn. R. Evid. 609. Defense counsel objected to the admission of the evidence, arguing that some of the nine convictions were outside the ten-year period set out in the rule, that the offenses had limited impeachment value, that the evidence was more prejudicial than probative, and that, if the evidence of the offenses was found to be admissible, that finding would have a chilling effect on Davis’s willingness to testify on his own behalf. The district court found that five of the convictions were admissible under Rule 609 and that the probative value of the evidence outweighed its potential for prejudice. The district court made it clear that the jury would be instructed on the proper use of the evidence.

In his direct testimony, Davis testified to having been convicted of the five offenses the district court found admissible: third-degree burglary in 1993, third-degree attempted burglary in 1998, fleeing a peace officer in 1999, third-degree burglary in 2001, and attempted fifth-degree drug possession in 2004. At the close of trial, the district court gave the appropriate cautionary instruction limiting the jury’s use of these convictions.

During cross-examination, the prosecutor asked Davis a series of questions that suggested that Davis’s testimony was not credible because he had access to the discovery materials in his case and had heard all the evidence presented against him during the trial, which gave Davis an opportunity to tailor his story to that evidence. That exchange took place as follows:

Q: You, as part of the discovery in this case, had all the police reports and all the information pertaining to this case provided to you, correct?
A: Yes, I did.
Q: And you had an opportunity to read all of that material, correct?
A: Yes.
Q: And you sat in court here throughout these proceedings, correct?
A: Yes.
Q: And listened to all the testimony?
A: Yes.
Q: And all the other witnesses were what was called sequestered. They couldn’t listen to each other, correct?
A: Yes.
Q: And you’ve had ample opportunity to think about this matter and review all the reports since August 8th of 2005, correct?
A: Yes.

Davis did not object to these questions.

During closing argument, the prosecutor attacked the veracity of Davis’s testimony and in doing so twice called Davis’s account of the killings “preposterous.” The prosecutor also argued that a self-defense claim was not available to an armed robber who encounters resistance from his victims. Specifically, the prosecutor argued that “[t]he law does not encompass th[e] kind of anarchy” that “Davis [was] attempting to sell.” Davis did not object during the prosecutor’s closing. During his own closing argument, Davis claimed he killed Morocho and Allan in self-defense, and the court gave the jury a self-defense instruction.

I.

We review a district court’s decision to admit evidence of a witness’s previous convictions for impeachment purposes for an abuse of discretion. State v. Swanson, 707 N.W.2d 645, 654 (Minn.2006). Minnesota Rule of Evidence 609 reads in part:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.
(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

When considering whether the probative value of admitting evidence of a conviction outweighs its prejudicial effect, we have indicated that it is appropriate to consider five factors:

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach [because there is a greater potential for prejudice]), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.

Jones, 271 N.W.2d at 537-38; see also State v. Ihnot, 575 N.W.2d 581, 586 (Minn.1998) (“Although Jones was decided before Rule 609 became effective, we conclude that these factors remain suitable and we reaffirm their application in determining whether the probative value outweighs the prejudice under the rule.”). Regarding impeachment value, we have held that evidence of prior convictions generally has some impeachment value because it allows the jury “to see the whole person and thus to judge better the truth of [the witness’s] testimony.” Ihnot, 575 N.W.2d at 586 (internal citation omitted). We consider recent convictions to have more probative value than older ones, and recent convictions can enhance the probative value of older convictions by placing them within a pattern of lawlessness, indicating that the relevance of the older convictions has not faded with time. See id. In addition, it is error for a district court to fail to make a record of its consideration of the Jones factors, though the error is harmless if it is nonetheless clear that it was not an abuse of discretion to admit evidence of the convictions. Swanson, 707 N.W.2d at 655.

In this case, the district court heard extensive argument about application of the Jones factors to Davis’s nine previous felony convictions. The court ultimately admitted evidence of five convictions that fell within the preceding ten-year period and excluded evidence of four convictions that fell outside that period. When the court made its ruling, it noted the importance of Davis’s credibility to the outcome of the case and specifically found that the probative value of the five convictions outweighed the potential for unfair prejudice.

Applying the Jones factors to the five convictions the district court found admissible, we conclude that the district court did not abuse its discretion in determining that the probative value of the convictions outweighed the potential for unfair prejudice. As the district court observed, the viability of Davis’s self-defense claim turned largely on facts that only he could testify to, thus his credibility was central to the case. Moreover, we note that the court’s ruling on the admissibility of the evidence of Davis’s previous convictions did not prevent Davis from testifying. We also note that the similarity between the past convictions and the charged offenses was not so great as to preclude their admission. The potential for prejudice was also reduced by the fact that Davis admitted his involvement in the attempted robbery and the deaths of Allan and Morocho, leaving for the jury only the question of Davis’s intent when he killed the two men. Further, each of the admitted convictions fell within the ten-year time period set out in the rule, and, when viewed together, they evidence a pattern of lawlessness that tends to mitigate the passage of time. Finally, under our case law it is clear that evidence of Davis’s convictions would have been helpful to the jury’s understanding of Davis’s “whole person.”

Davis argues that, even if the district court did not abuse its discretion when it applied the Jones factors, we should reconsider those factors and alter our Minn. R. Evid. 609 analysis. Specifically, Davis claims that it is improper to consider a conviction’s impeachment value as counting in favor of admission under Rule 609 because we have already determined that all convictions have some impeachment value. In addition, he claims that, because Rule 609 already takes into account timeliness by establishing that convictions more than ten years old are presumptively inadmissible, it is improper to consider timeliness as an additional factor in favor of admission. Davis argues that, when his convictions are analyzed without these two considerations, it is clear that the district court abused its discretion because the convictions are only “marginally probative of [his] truthfulness, but highly probative of his bad character.” The state, among other things, contends that Davis’s argument that we should reconsider the Jones factors and alter our Rule 609 analysis is not properly before us because it was not raised at the district court and therefore cannot now be raised on appeal.

We agree with the state. In Swanson, we declined to “revisit Minn. R. Evid. 609 and the use of prior convictions as impeachment evidence[ b]ecause [the appellant] did not make this argument before the district court.” 707 N.W.2d at 656. Here, as in Swanson, the argument is raised for the first time on appeal. As in Swanson, we decline to consider it in this appeal.

II.

Next, we address Davis’s contention that the prosecutor committed prejudicial misconduct by asking him a series of questions that attacked his credibility based on his presence at trial. Davis claims that our decision in Swanson makes clear that such' questions are improper. The right to be present at trial is protected by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Swanson, 707 N.W.2d at 657. In Swanson, we held that, absent specific evidence that a defendant has actually tailored his or her testimony to fit the evidence, it is misconduct for a prosecutor to imply that a defendant is less believable because he or she has exercised the right of confrontation. Id. at 657-58. The state contends that the “prosecutor may have inferred in good faith that there was, in fact, evidence to support an inference of fabrication,” i.e., it is not plausible that an unarmed and injured Allan attacked Davis despite an opportunity to escape. In the alternative, the state argues that Davis did not suffer any prejudice as a result of the questions.

Because Davis did not object to any of the questions, our review is for plain error. State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006). “An error is plain if it [is] clear or obvious,” and “[u]sually this is shown if the error contravenes case law, a rule, or a standard of conduct.” Id. (internal citation omitted). If plain error is proven, then, in the context of prosecu-torial misconduct, the burden shifts to the state to show that the defendant’s substantial-rights were not affected. Id. Prosecu-torial misconduct affects substantial rights if there is a reasonable likelihood that the absence of misconduct would have had a significant effect on the jury’s verdict. Id. In assessing whether there is a reasonable likelihood that the absence of the misconduct would have had a significant effect on the jury’s verdict, we consider the strength of the evidence against the defendant, the pervasiveness of the improper suggestions, and whether the defendant had an opportunity to (or made efforts to) rebut the improper suggestions. See, e.g., State v. Dobbins, 725 N.W.2d 492, 513 (Minn.2006); State v. Mayhorn, 720 N.W.2d 776, 790-91 (Minn.2006); Swanson, 707 N.W.2d at 658; State v. Buggs, 581 N.W.2d 329, 341 (Minn.1998). If the state fails to demonstrate that substantial rights were not affected, “the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.” State v. Griller, 583 N.W.2d 736, 740 (Minn.1998).

Clearly, the questions the prosecutor asked Davis on cross-examination, which are at issue here, implicate a criminal defendant’s confrontation rights. Cf. Swanson, 707 N.W.2d at 657-58. In our view, they also implicate a defendant’s right to be present at every stage of trial and the right to present a defense. Cf. id. Thus, absent evidence in the record from which it can be inferred that Davis tailored his testimony to fit the evidence, asking the questions constituted prosecutorial misconduct. See id. Based on our review of the record, we conclude that the record is devoid of any evidence from which it could be inferred that Davis tailored his testimony to fit the evidence. Thus, given our case law, we also conclude that the prosecutor’s questions constituted plain error.

Notwithstanding our conclusion that the prosecutor engaged in misconduct, we also conclude that the state has met its burden, as set out in Ramey, of showing that the misconduct did not affect Davis’s substantial rights. In this case, the evidence against Davis was substantial and compelling and included his admission that he had shot Allan and Morocho during an attempt to rob them. Further, the prosecutor’s improper suggestions were not pervasive, covering less than one of the 64 pages of the transcript containing Davis’s testimony. Moreover, the suggestion that Davis tailored his testimony to fit the evidence was not repeated in the state’s closing argument or elsewhere. Finally, our conclusion that the misconduct did not affect Davis’s substantial rights is supported by the fact that the jury apparently credited some of Davis’s testimony with respect to the shooting of Morocho and found Davis not guilty of first-degree murder for Morocho’s death.

III.

Davis also contends that the prosecutor committed prejudicial misconduct in closing argument by “calling Davis’s] testimony ‘preposterous’ and [by arguing] that the ‘law does not encompass [the] kind of anarchy’ [Davis] was ‘trying to sell’ with his self-defense claim.” Davis contends these portions of the prosecutor’s closing argument improperly belittle Davis’s defense. Because Davis did not object to the prosecutor’s comments, our review is, as discussed previously, for plain error. Ramey, 721 N.W.2d at 302.

The state has a right to vigorously argue its case, and it may argue in individual cases that the evidence does not support particular defenses. State v. MacLennan, 702 N.W.2d 219, 236 (Minn.2005). Further, the state’s argument is not required to be colorless. State v. Bolstad, 686 N.W.2d 531, 544 (Minn.2004). But the state “may not belittle the defense, either in the abstract or by suggesting that the defendant raised the defense because it was the only defense that may be successful.” MacLennan, 702 N.W.2d at 236. Moreover, we have held that a prosecutor commits misconduct if he “call[s] a type of defense ‘soddy,’ or * * * suggests] that jurors would be ‘suckers’ if they believed the defense.” State v. Johnson, 616 N.W.2d 720, 730 (Minn.2000) (internal citations and emphasis omitted).

In this case, the prosecutor did not belittle Davis’s claim of self-defense generally or suggest that the self-defense claim was raised only because Davis had no other options. Instead, when the statements are viewed in context, it is apparent that the prosecutor was making arguments about the merits of Davis’s self-defense claim in this case and about what the law requires to establish such a claim. While the prosecutor’s arguments were at times expressed in colorful terms, we conclude that the arguments did not constitute error and thus did not involve misconduct.

Affirmed.

      . Davis was sentenced to life imprisonment for the first-degree murder of Allan and to 240 months for the second-degree murder of Morocho, to be served consecutively. The district court held that Davis's convictions for second-degree murder for the death of Allan and for attempted aggravated robbery merged with the other two offenses, and no sentences were imposed.

      . The court determined that, while one of these convictions was more than ten years old, Davis was released from incarceration for that conviction within the preceding decade, thereby bringing that conviction within the general provisions of Rule 609. See Minn. R. Evid. 609(b) (providing that convictions fall outside the general provisions of the rule if "a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date" (emphasis added)). Davis does not challenge this finding.


source: Caselaw Access Project

author: /s/Helen M. Meyer Associate Justice

license: Public Domain

text:
    In re Petition for Disciplinary Action Against Francis E. GIBERSON, a Minnesota Attorney, Registration No. 34514.
    No. A07-1338.
    Supreme Court of Minnesota.
    July 24, 2007.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Francis E. Giberson committed professional misconduct warranting public discipline, namely, that m July 2004 respondent pleaded guilty to one felony count of willfully failing to pay child support in an amount greater than $10,000, in violation of 18 U.S.C. § 228(a)(3) and (c)(2)(2006). The petition for disciplinary action alleges that respondent created and used false identification to avoid payment of child support obligations, in violation of Rules 8.4(b), (c), and (d), Minnesota Rules of Professional Conduct. Respondent was indefinitely suspended from the practice of law on July 30, 1998, for failure to pay child support and spousal maintenance and for his failure to cooperate with the Director’s Office. In re Giberson, 581 N.W.2d 351, 354-55 (Minn.1998).

Respondent admits that his conduct violated the Rules of Professional Conduct, waives his rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and has entered into a stipulation with the Director in which they jointly recommend that the appropriate discipline is disbarment and payment of $900 in costs and disbursements pursuant to Rule 24, RLPR.

This court has independently reviewed the file and approves the jointly recommended disposition.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Francis E. Giberson is disbarred from the practice of law in the State of Minnesota. Respondent shall pay $900 in costs and disbursements pursuant to Rule 24, Rules on Lawyers Professional Responsibility.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: ANDERSON, Paul H., Justice. PAGE, Justice

text:
    STATE of Minnesota, Respondent, v. Farah Abshir WARSAME, Appellant.
    No. A05-488.
    Supreme Court of Minnesota.
    July 26, 2007.

      Michael 0. Freeman, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, Lori Swanson, Attorney General, St. Paul, MN, for appellant.
    Mark D. Nyvold, Richard J. Malacko, St. Paul, MN, for respondent.
   OPINION

ANDERSON, Paul H., Justice.

The state charged Farah Abshir War-same with one count of domestic assault and one count of making terroristic threats. The charges related to an incident with Warsame’s girlfriend, N.A. At a Rasmussen hearing, the district court concluded that most of N.A.’s statements to the police were inadmissible at trial. The state appealed, and the Minnesota Court of Appeals reversed, concluding that all of the statements were admissible. We denied Warsame’s petition for review. The United States Supreme Court granted Warsame’s writ of certiorari and vacated the court of appeals decision, remanding the case for reconsideration in light of Davis v. Washington, 547 U.S. -, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006). Upon remand, the court of appeals again reversed the district court’s ruling. We granted Warsame’s petition for review and affirm in part, reverse in part, and remand to the district court for further proceedings consistent with this opinion.

Shortly after midnight on October 24, 2004, the Eden Prairie Police Department received a 911 call from an individual concerning an incident at a neighboring home, located less than two blocks from the police department. Officer John Wilson responded to the call, and as he approached the address where the 911 call originated, he encountered a woman walking in the middle of the street. Before Wilson was able to get out of his car or speak to the woman, she stated, “My boyfriend just beat me up.” Wilson quickly determined that the woman, whom he later identified as N.A., was related to the 911 call. He also observed that N.A. was upset, crying, and holding the left side of her head. Wilson then moved N.A.’s hand from her forehead and observed that she had a fresh bump on her head about the size of a baseball. The bump was swollen and red. Wilson also noted that N.A. appeared “wobbly” and “potentially faint,” so he had her sit down on the curb.

Wilson retrieved his emergency medical treatment bag from his squad car and began checking N.A.’s head and neck area. He observed fresh bruising on her neck, and as he did so, N.A. stated that she had been choked. While Wilson administered first aid, he asked N.A. what he described as “some form of open-ended question of what happened,” and Wilson testified that N.A. gave the following response:

She told me that her boyfriend came home. She wanted to talk. He was tired and did not want to talk. They began to argue. And he had gone into the kitchen and grabbed a cooking pot and had struck her in the head with it. And after * * ⅜ he hit her, she fell on to the bed, and he then got on top of her and was choking her, and her sisters came up and attempted to get her boyfriend off the top of her. At that time her boyfriend went into the kitchen, got a knife and came back after her and threatened to kill her, chased her from room to room. She affirmed that she was very frightened and believed he was going to kill her.

Wilson called an ambulance. During the approximately 15 to 20 minutes before an ambulance arrived, Wilson learned more information from N.A. She told Wilson that she was pregnant, after which Wilson attempted to assess if N.A.’s pregnancy may have been affected by the alleged assault. N.A. also stated that after the assault, her boyfriend had “left in her vehicle with one of her sisters.”

N.A. explained to Wilson that she could not call 911 because the phone lines in her home had been cut, and as a result she walked toward the police department in order to report the assault. Wilson testified that N.A. provided most of this information in a “story-like fashion,” and that he asked only a few “small questions” toward the end in order to obtain extra detail. Wilson testified that N.A. was “crying and physically shaking” throughout his entire encounter with her. Wilson recalled writing down N.A.’s name, date of birth, and telephone number while he was speaking with her, but he did not recall whether any additional notes he took were written before or after the paramedics arrived.

Police Sergeant Robert Olson arrived at the scene one to three minutes after Wilson. Olson observed Wilson assisting N.A. as she was seated on the curb, and he noticed that N.A. was crying and “heaving heavily.” He also saw a large lump on her head. Olson used his portable radio to relay to other police units responding to the 911 call some of the information that N.A. was giving to Wilson about the suspect’s description. Olson heard N.A. describe her assailant, who was identified as the respondent, Farah Abshir Warsame, and state that a knife was involved in the assault, which information Olson reported over his radio. Olson also heard N.A. state that a third party had been cut with the knife. Olson stated that he took no notes during this time.

Olson testified that Warsame was not in police custody during the time he was listening to the exchange between Wilson and N.A. But Olson had learned that another Eden Prairie police officer had responded to the 911 call and that officer observed an SUV-type vehicle leaving the home where the alleged assault had taken place. Olson learned that the officer was following the vehicle, which was apparently traveling at a high speed. The vehicle, driven by Warsame, was later stopped about two miles from N.A.’s home.

Olson testified that he remained near Wilson and N.A. for three to five minutes and then went to the home where the assault allegedly occurred. After entering the home, he spoke with one of N.A.’s sisters, LA., who was apparently present during the alleged assault. Olson stated that he observed a cut on I.A.’s finger, which was not bleeding.

Wilson testified that during the 15 to 20 minutes he spent with N.A., he learned “early on” that Warsame had been apprehended. Wilson stated that he learned this shortly after Olson broadcasted War-same’s name and description over the police radio, but Wilson did not recall if Olson was still nearby when Wilson learned that Warsame had been apprehended. Wilson did not recall ever telling N.A. that Warsame was in police custody.

After the paramedics arrived to assist N.A., Wilson also entered N.A.’s home and spoke with I.A. It was during this conversation that Wilson learned that during the assault, LA. had attempted to grab a knife from Warsame, was cut, and passed out from the injury.

Both N.A. and I.A. failed to respond to subpoenas from the state to testify at War-same’s trial, so the state moved to admit their statements to Officer Wilson and Sergeant Olson. After conducting a Rasmussen hearing where Wilson and Olson both testified, the district court concluded that N.A.’s initial statement to Wilson, that her boyfriend beat her up, was not testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), but all subsequent statements by N.A. and I.A. were testimonial and therefore inadmissible because they violated Warsame’s rights under the Confrontation Clause. With the exception of the initial statement, the court concluded that the statements N.A. made to Wilson were taken “to obtain evidence that could be used at trial” and made while N.A. knew that she was safe in the presence of a police officer. The court also concluded that the statements I.A. made to Olson and Wilson were for the purpose of providing evidence and therefore testimonial.

The state appealed the district court’s ruling to the court of appeals, arguing that all of N.A.’s statements were admissible under Crawford. State v. Warsame (Warsame I), 701 N.W.2d 305, 307 (Minn.App.2005). The state did not appeal the district court’s suppression of I.A.’s statements to Wilson and Olson. The court of appeals reversed the district court’s ruling on the suppression of N.A.’s statements, concluding that none of the information N.A. gave to Wilson was testimonial, and N.A.’s entire statement was therefore admissible under Crawford. Warsame I, 701 N.W.2d at 312-13. The court of appeals determined that statements made in response to questions from a police officer are not necessarily testimonial, and there was no evidence in the record to support a finding that the purpose of Wilson’s questions was to obtain evidence for trial. Id. at 311. We denied Warsame’s petition for review.

Warsame then filed a writ of certiorari to the U.S. Supreme Court. The Court granted the writ, vacated the court of appeals decision, and remanded the case to the court of appeals for reconsideration in light of the Court’s intervening decision in Davis, 547 U.S. —, 126 S.Ct. 2266, 165 L.Ed.2d 224. Warsame v. Minnesota, — U.S. —, 126 S.Ct. 2983, 165 L.Ed.2d 985 (2006).

After reconsideration, the court of appeals again concluded that all of N.A.’s statements to Wilson were admissible. State v. Warsame (Warsame II), 723 N.W.2d 637, 643 (Minn.App.2006). The court based its decision on its determination that there was an “ongoing emergency” throughout the encounter between Wilson and N.A. because the police had not yet resolved emergencies both in the home, where there was a potentially injured victim, and in Warsame’s vehicle, where N.A.’s sister was a passenger. Id. at 642. But the court acknowledged that the record was not clear on whether those emergencies ended before completion of N.A.’s statements, which information would further inform the court’s determination of whether those statements continued to be nontestimonial. Therefore, the court of appeals remanded to the district court with the direction that the district court may reopen the record to obtain additional evidence. Id. at 643. Warsame then petitioned our court for review.

A. Standard of Review

Warsame argues that all of N.A.’s statements were testimonial and should therefore be ruled inadmissible at trial. We generally will not reverse a district court’s evidentiary rulings absent a clear abuse of discretion. State v. Caulfield, 722 N.W.2d 304, 308 (Minn.2006). But whether the admission of evidence violates a defendant’s rights under the Confrontation Clause is a question of law that we review de novo. Id.

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him.” In Crawford, the Supreme Court concluded that this clause prohibits “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54, 124 S.Ct. 1354. Although the Court concluded that it was unnecessary to endorse any particular formulation of what constituted a testimonial statement, the Court noted that included among the “core class” of such statements were “pretrial statements that declarants would reasonably expect to be used prosecutorially,” and “[statements taken by police officers in the course of interrogations.” Id. at 51-52, 124 S.Ct. 1354 (internal quotation marks omitted).

B. Recent Case Law

1. U.S. Supreme Court Decision in Davis/Hammon

Two years after its decision in Crawford, the Supreme Court in two companion cases — Davis/Hammon—was asked to determine “precisely which police interrogations produce testimony.” 126 S.Ct. at 2273. In Davis/Hammon, the Court articulated the following rule to distinguish between testimonial and nontestimonial statements:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Id. at 2273-74 (footnote omitted). The facts in each of the two companion cases are helpful in understanding this rule, so we will address them separately.

The Davis case involved a domestic assault victim’s statements to a 911 operator while the assault was occurring in the victim’s home. Davis/Hammon, 126 S.Ct. at 2270-71. During the 911 call, the victim responded to a series of questions from the operator and then told the operator that her assailant was leaving the home in a car. Id. at 2271. At that point, the operator told the victim to stop talking and proceeded to ask the victim questions about the assailant and the assault. Id. The Court concluded that at the very least, the victim’s statements up until she told the operator that the assailant was driving away from the home were nontestimonial because the circumstances objectively indicated that the primary purpose of those statements was to enable police to meet an ongoing emergency. Id. at 2277.

In the Davis case, the Supreme Court cited four objective factors that indicated the victim’s statements were made to meet an ongoing emergency: (1) the victim described events as they actually happened and not past events; (2) any “reasonable listener” would conclude that the victim 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 victim’s answers were frantic and her environment was not tranquil or safe. Id. at 2276-77. The Court further noted that the victim was seeking aid, not telling a story. Id. at 2279. Although the Court was not required to determine whether statements made after the assailant had driven away were testimonial, the Court noted that a conversation which begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements once that former purpose has been achieved. Id. at 2277.

In Hammon, the Supreme Court concluded that all of a domestic assault victim’s statements to the police were testimonial. 126 S.Ct. at 2278. In the Hammon case, the police came to the victim’s home and found the victim and her assailant in separate places, and the police kept the assailant and the victim in separate rooms while the victim was questioned. Id. at 2272, 2278. The Court noted that under the facts in Hammon, there was no emergency in progress when the police arrived at the victim’s home because the victim assured the police that things were fíne “and there was no immediate threat to her person.” Id. at 2278.

In Hammon, the Supreme Court also observed that during the officer’s questioning of the victim, the officer was determining what happened, not what was happening. Id. In addition, there was a formal aspect to the mode of questioning because the victim’s statements were deliberately recounted in response to the officer’s questions and took place some time after the events described occurred, which the Court noted are circumstances more characteristic of an investigation. Id. But the Court made a final observation that police questions at the scene of a domestic dispute can yield nontestimonial answers because the police “ ‘need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.’ ” Id. at 2279 (quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004)).

2. State v. Wright

On a remand from the Supreme Court, we applied the Davis/Hammon principles in State v. Wright, 726 N.W.2d 464 (Minn.2007). Wright involved a 911 call and victim interviews. Wright allegedly pulled a gun and pointed it at his girlfriend, R.R., and her sister before leaving the apartment Wright and R.R. shared. Wright, 726 N.W.2d at 467, 470. R.R. called 911, told the operator how she had been threatened, described Wright in response to the operator’s questioning, and then asked her sister to speak with the operator after the operator told R.R. that the police had arrived at the apartment. Id. at 467-68. After determining where R.R. and her sister were in the building and notifying R.R.’s sister that the police had sighted Wright and were following him, the operator learned that Wright was in police custody and informed R.R.’s sister of this fact. Id. at 468. Then, in response to R.R.’s sister’s concerns and questions, the operator comforted and assured the sister that the situation was under control. Id. Following Wright’s arrest, police officers conducted a “field investigation interview” of both R.R. and her sister at the apartment. Id. at 469.

We concluded in Wright that the police interviews were testimonial but that the entire 911 call was nontestimonial. Id. at 475-76. Regarding the interviews, we stated that as in Davis/Hammon, by the time the interviews occurred, the emergency had ended because Wright was in custody. 726 N.W.2d at 476. We therefore concluded that the interviews were conducted to “establish events potentially relevant” to Wright’s prosecution. Id. Regarding the 911 call, we specifically addressed whether the 911 call should be divided between testimonial and nontesti-monial statements, but we concluded that it was not necessary to do so. Id. at 474. We concluded that the emergency was ongoing until Wright was in custody, and even after Wright was in custody, the “sole purpose” of the remainder of the call was to calm R.R.’s sister and not to establish or prove past events. Id. at 474-75 (distinguishing the facts from those in Davis).

C. Were N.A.’s Statements Testimonial or Nontestimonial?

It is within the context of the foregoing case law that we must determine whether N.A.’s statements to Wilson were testimonial or nontestimonial. When making this determination we must decide whether there was an ongoing emergency when the statements were made.

1. N.A.’s Initial Statement to the Police

Warsame argues that the district court incorrectly concluded that N.A.’s initial, volunteered statement that her boyfriend beat her up was nontestimonial because N.A.’s primary concern in making the statement was to supply information relevant to criminal prosecution. According to Wilson’s testimony, when N.A. made the statement, she was walking toward the police station to report the assault.

Volunteered statements may be testimonial. See Davis/Hammon, 126 S.Ct. at 2274 n. 1. But in this ease, the objective circumstances surrounding N.A.’s initial statement indicate that she did not make the statement to Officer Wilson with the prosecution of Warsame in mind. After having been struck on the head with a pan and choked, N.A. attempted to call 911 but was unable to do so because the telephone lines in her home had been cut. N.A. left her home and took to the street with injuries at a time when she was in obvious distress and when War-same was still at large. These are not circumstances indicating that N.A.’s primary purpose for talking to the police was to prosecute Warsame, as that purpose could have been achieved after she recovered for a period of time and sought medical attention. Instead, N.A. was seeking help by walking to the police department, located approximately two blocks from her home. We conclude that N.A.’s initial, volunteered statement is nontestimonial and therefore admissible at Warsame’s trial.

2. N.A.’s Subsequent Statements— Was There an Ongoing Emergency?

We next consider the statements N.A. made to Wilson after the officer’s initial encounter with N.A. Warsame argues that there was no ongoing emergency during Wilson’s conversation with N.A. and that Wilson’s primary purpose in interrogating N.A. was to gather evidence for a criminal prosecution. Therefore, War-same argues that N.A.’s statements to Wilson during the interrogation were testimonial.

Warsame asserts that there was no ongoing emergency during the interrogation because, similar to the facts in Hammon, N.A. was separated from her alleged assailant and had police protection. The state responds by arguing that there were three ongoing emergencies during the interrogation: (1) N.A.’s medical condition; (2) Warsame’s flight; and (3) I.A.’s potential medical condition inside the home. We consider each of these potential ongoing emergencies.

N.A.’s Medical Condition

Regarding N.A.’s medical condition, we first note that neither Davis/Hammon nor Wright involved a victim with potential medical concerns. But applying the principles articulated in Davis/Hammon, if “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” then N.A.’s statements are nontestimonial. 126 S.Ct. at 2273. We conclude that questions addressing a victim’s medical condition may qualify as an interrogation designed to meet an ongoing emergency. As first responders to emergencies, police are often required to assess a party’s injuries and determine whether those injuries must be immediately addressed and whether the party requires additional assistance from paramedics or other health care professionals. In order to make that assessment, officers must inevitably learn the circumstances by which the party was injured, and if the circumstances of the questions and answers objectively indicate that gaining such information is the primary purpose of the interrogation, then the party’s statements are nontestimonial. We acknowledge that information about a victim’s injury and its cause may be useful in a later prosecution, but for Confrontation Clause purposes, it is the primary purpose of the interrogation that is dispos-itive.

Here, the objective circumstances of the interrogation indicate that the primary purpose of at least the initial part of the interrogation was to enable Wilson to address N.A.’s medical condition. After seeing N.A. and starting to assist her, Wilson had N.A. sit down because she was wobbly and potentially faint. Wilson then retrieved his emergency medical treatment bag, an act that indicates Wilson had concluded there was a medical concern. In order for Wilson to properly address the bump on N.A.’s head and the bruising on her neck, there is no question that the circumstances under which N.A. was physically hurt were relevant. There was no level of formality to the interrogation, N.A. was crying and shaking throughout, and the location of the exchange was a roadside curb. Although N.A. told Wilson about the alleged assault in the past tense rather than the present tense, this temporal context was necessary for Wilson to learn the circumstances under which N.A. was injured. Further, N.A.’s condition was severe enough that Wilson called an ambulance to the scene. Finally, Wilson addressed the concern of N.A.’s pregnancy and how that might have been affected by the alleged assault. We conclude that Wilson’s questions and N.A.’s answers, at least so far as they pertained to N.A.’s treatment, were necessary to resolve N.A.’s apparent medical emergency.

Warsame’s Flight and I.A.’s Medical Condition

The state also argues that War-same’s flight from the scene of the alleged assault and I.A.’s potential medical condition inside the house constituted ongoing emergencies. Warsame argues that there were no ongoing emergencies because N.A. was under police protection and War-same was being pursued as soon as the interrogation began. Warsame further argues that any emergency cannot be expanded beyond N.A.’s situation because Davis/Hammon defines emergency narrowly to include only “an immediate and continuing threat,” not “[pjossible concerns and emergencies.” We conclude that the Davis/Hammon test should not be interpreted so narrowly.

In effect, Warsame interprets the Davis/Hammon test to circumscribe what may constitute an ongoing emergency to a narrow geographic proximity, based on the declarant’s location. We acknowledge such an interpretation comports with the facts in Davis, Hammon, and Wright, but we conclude that the Supreme Court did not intend to restrict what may constitute an ongoing emergency to such a limited area. For example, in Davis/Hammon, the Court observed that in response to domestic disputes, officers “ ‘need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.’ ” 126 S.Ct. at 2279 (quoting Hiibel, 542 U.S. at 186, 124 S.Ct. 2451); see also 126 S.Ct. at 2276 (stating that in order to resolve a present emergency, law enforcement may have to establish an assailant’s identity “so that the dispatched officers might know whether they would be encountering a violent felon” (citing Hiibel, 542 U.S. at 186, 124 S.Ct. 2451)). Although the police in the Hammon case were encountering the alleged assailant at the scene of the crime, where the victim remained, the necessity to assess the assailant and any threat to personal safety is equally applicable when the police are pursuing that assailant outside of the victim’s proximity.

Courts in other jurisdictions have concluded that ongoing emergencies may exist beyond the declarant’s geographic proximity, even when police are with the declarant and particularly when a dangerous suspect remains at large. See State v. Kemp, 212 S.W.3d 135, 149 (Mo.2007) (concluding that a victim’s statements were not testimonial where she described her assailant’s possible location, stated that the assailant was armed with a gun, and stated that he was on drugs, which warned the police of “possible erratic or dangerous behavior upon arrival”). In State v. Ayer, the New Hampshire Supreme Court concluded that a witness’s statements were nontestimonial when the interrogating officer did not know where the perpetrator was, whether he was armed, whether the perpetrator might have other targets, and whether the violence might continue elsewhere. 154 N.H. 500, 917 A.2d 214, 224-25 (2006). The court concluded that such information was necessary for the officer to “address an existing threat to his safety and the safety of others.” Id. at 224.

We conclude that extending an emergency beyond the declarant’s geographic proximity comports with the fundamental concern the Supreme Court considered in Davis/Hammon, which was distinguishing between interrogations by the police for the purpose of addressing ongoing emergencies and interrogations for the purpose of gathering evidence for trial. We conclude that if the objective circumstances of the interrogation indicate that the primary purpose is to address an ongoing emergency, regardless of where that emergency is occurring, a declarant’s statements are nontestimonial. In order to meet this standard, the interrogation must relate directly to addressing the emergency. If the interrogator is not eliciting information that may be useful in addressing the ongoing emergency, then it cannot be maintained that the interrogation’s primary purpose is to address that emergency.

Applying the foregoing rules to the facts in this case, we conclude that Warsame’s flight and I.A.’s potential medical condition both constitute ongoing emergencies. Viewed objectively, N.A.’s statements caused the police to address the two other exigencies created by the alleged assault. First, N.A.’s identification of Warsame and her description of the assault enabled Olson to report the suspect’s name and possible weapon to the officers in pursuit, which, as in Kemp and Ayer, provided those officers with more information to better address that situation.

Second, N.A.’s statement revealed that a third party — I.A.—had been cut by a knife during the assault, which information, when viewed objectively, may have caused Olson to enter the house earlier than he would have without that information. N.A.’s statement apparently did not provide insight into the severity of I.A.’s condition, so further investigation was necessary to ensure there was no ongoing medical emergency inside the house. It is objectively reasonable to conclude that an emergency existed in that location until Olson was able to conclude that emergency medical assistance was unnecessary.

The objective circumstances under which the interrogation was conducted further buttress our conclusion that the primary purpose of the interrogation was to address ongoing emergencies. While Wilson was questioning N.A., he did not recall taking any notes other than N.A.’s name, birthday, and telephone number, and Wilson’s questions were not specific and thorough, as one might otherwise expect when interrogating a crime victim. Also, while Olson was present at the interrogation, he took no notes and instead dispatched information over his police radio that was helpful to the pursuit of Warsame. These are not objective indications that the officers were primarily gathering evidence for a criminal prosecution.

Based on the foregoing analysis, we conclude that the court of appeals correctly concluded that there were three ongoing emergencies while N.A. was being interrogated: (1) N.A.’s medical condition; (2) Warsame’s flight; and (3) I.A.’s medical condition.

3. Did the Ongoing Emergencies End at Some Point?

Warsame argues that even if there were ongoing emergencies for purposes of our Confrontation Clause analysis, those emergencies ended in a short time and did not last the entire 15- to 20-minute interrogation. As previously noted, an interrogation that begins for the purpose of determining the need for emergency assistance can evolve into testimonial statements once that purpose has been achieved. Davis/Hammon, 126 S.Ct. at 2277.

The state has the burden of proving that a particular statement does not violate a defendant’s Sixth Amendment rights. State v. Burrell, 697 N.W.2d 579, 600 (Minn.2005) (citing State v. King, 622 N.W.2d 800, 807 (Minn.2001)). Here, the state must demonstrate that N.A.’s statements were made before the emergencies ended, and if all emergencies ended before the 15- to 20-minute interrogation concluded, the state must demonstrate which of N.A.’s statements were made before those emergencies ended.

Based on Olson’s testimony, Warsame was not apprehended and I.A.’s condition was uncertain until just after Olson left Wilson and N.A. But the chronology of facts that N.A. had given at that point is not clear. The court of appeals concluded that N.A.’s “narrative account” of the assault recounted by Wilson, which apparently refers to the block quotation recited in the fact section above, was made within the time before Olson left. Warsame II, 723 N.W.2d at 642. Because Olson heard N.A. refer to the knife, and information about the knife was given in this narrative account, the court of appeals concluded that the narrative account was nontestimo-nial. Id.

According to Wilson, the narrative account was elicited through his initial, open-ended question, “what happened?” Because the apprehension and possible victim emergencies did not end before Olson left the curb, anything he heard N.A. say, which included the suspect’s description, the use of a knife in the assault, and an injury to a third party, must have been said before those emergencies ended. But the record is not clear as to whether Olson stayed for the entire narrative account, and if he left during the account, what information he may have missed. In addition, Olson remembered hearing facts from N.A. that Wilson did not testify to hearing at the Rasmussen hearing, including War-same’s physical description and that a third party was injured inside N.A.’s home. Based on those discrepancies, it is difficult to delineate a chronology for what N.A. said at what time. The only certainty from this record is that N.A.’s initial, volunteered statement to Wilson was nontes-timonial, and everything Olson heard N.A. say was said before Warsame was apprehended and I.A.’s medical status was verified.

D. Conclusion

We conclude that under the Davis/Ham-mon primary purpose test, N.A. made nontestimonial statements up to the point Warsame was apprehended and Olson verified I.A.’s medical status. The record reflects that Olson’s testimony about what N.A. said was all nontestimonial, but because Wilson’s testimony lacked chronological development, the record is unclear regarding what Wilson heard N.A. say that might be nontestimonial. Therefore, before the state is allowed to admit N.A.’s statements through Wilson’s testimony, other than the initial, volunteered statement and those statements that conform to what Olson heard, the state must demonstrate that the statements were made before the emergencies at issue ended. We hold that the court of appeals erred when it concluded that all of N.A.’s statements were nontestimonial and admissible in court. Because neither the state nor the district court had the benefit of the rules articulated in Davis/Hammon and Wright at the Rasmussen hearing, we remand to the district court so that the court may make a determination in a manner consistent with those cases and our holding in this case, including whether any part of N.A.’s statement was made after the emergencies ended. The district court may develop the record in any manner it deems appropriate.

Affirmed in part, reversed in part, and remanded.

PAGE, Justice

(concurring in part, dissenting in part).

While I do not disagree with the court’s remand, I cannot on this record conclude that the state met its burden of showing that there were any ongoing emergencies or that the primary purpose of Officer Wilson’s questioning was to address an emergency and not to establish facts relevant to the future prosecution of Warsame. Therefore, I dissent in part.

Unlike the victims in State v. Wright, 726 N.W.2d 464 (Minn.2007), all of N.A.’s statements were made while she was under police protection and while her injuries were being attended to. In order for courts to determine whether there is an ongoing emergency and whether the officers’ questions related to that emergency, the state must demonstrate the chronology of the relevant events and statements, and the specific questions asked by the officers and the responses elicited by those questions. A one-paragraph summary of a 15-to 20-minute conversation without any evidence of the specific questions asked of the victim or any way of knowing the events occurring while the victim was providing those statements is insufficient to meet the state’s burden under Davis v. Washington, 547 U.S. -, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224 (2006).

It is also important to point out that, in order for a statement to qualify as nontes-timonial under Davis, the state must show both that there was an ongoing emergency and that the questions asked related to that emergency and not to establishing facts necessary for future prosecution. Id. at 2273-74. In my view, N.A.’s statement that a knife was involved in the assault and that a third party was cut, without more, is not enough to show that there was such an emergency. Further, it is clear from the record that the officers did not ask any questions regarding her sister I.A. Absent such questions, I do not see how the state can make a showing that the officers’ questions were aimed at addressing I.A.’s situation and not at establishing facts to be used in a future prosecution of Warsame. Accordingly, I would conclude that the state failed to meet its burden of showing that N.A.’s statement regarding I.A. was nontestimonial.

Finally, I would note that, unlike Wright, a case in which the victims feared that the defendant would return to the apartment to harm them, 726 N.W.2d at 473-75, there is nothing in the record here that suggests that when N.A. made the statements at issue in response to Officer Wilson’s questions she believed Warsame was still a potential threat to her. Furthermore, once again, there is nothing in the record indicating what specific questions the officers asked with regard to Warsame and thus there is no way to conclude that the primary purpose of their questions was to resolve some ongoing emergency with respect to Warsame.

For these reasons, I concur in the remand, but, unlike the court, am unable on this record to conclude that any of the questions asked by the police had the primary purpose of addressing any ongoing emergencies.

      . Wilson apparently learned of Warsame’s apprehension over a police radio, but the record is not clear on this point.

      . In State v. Wright, we referred to the Davis v. Washington opinion as Davis/Hammon, and then referred to the individual cases as Davis and Hammon, for the purpose of avoiding confusion. 726 N.W.2d 464, 472 n. 2 (Minn.2007). We continue that practice here.

      . In Davis/Hammon, the Supreme Court defined "interrogation” broadly, to encompass police questioning in a colloquial sense. 126 S.Ct. at 2273. Neither party disputes that N.A.’s statements following her initial, volunteered statement were part of an interrogation under this definition.

      . To the extent that the dissent believes the state failed to demonstrate its burden under Davis/Hammon, we note that the state presented its evidence at the Rasmussen hearing approximately 15 months before the Supreme Court articulated the primary purpose test in Davis/Hammon.

      . The parties argue about whether it is proper to infer that N.A.’s other sister, the passenger in Warsame's vehicle, was kidnapped, but the inference is unnecessary. A high speed pursuit and apprehension of a potentially dangerous suspect qualifies as an emergency, regardless of whether a kidnapping is involved. To the extent that the court of appeals inferred that the car passenger was in danger, Warsame II, 723 N.W.2d at 642, we conclude that there must be an objectively reasonable basis in the record to make such an inference. Here, the record does not objectively support such an inference because, based on Wilson’s testimony, N.A. never gave any indication that her sister was in danger or kidnapped.
      More generally, Warsame argues that it was improper for the court of appeals to make any inferences that there were other ongoing emergencies based on Wilson’s and Olson’s testimony without explicit evidence. But such a rule would ignore the principle holding of Davis/Hammon, that declarant statements during the course of a police interview are nontestimonial if the primary purpose is to address an ongoing emergency. In the normal course of operation, law enforcement officials must make inferences from witness and victim interrogations to determine whether there are other exigencies that must be addressed. Courts cannot determine whether the primary purpose of an interrogation was to address an ongoing emergency unless the court similarly infers, based on objectively reasonable circumstances in the record, whether the police had an emergency to address.

      . In addition, we note that the state must ordinarily demonstrate that each of the de-clarant's statements pertains to the applicable ongoing emergencies in each case, and any testimonial statements should be redacted. See Davis/Hammon, 126 S.Ct. at 2277, Wright, 726 N.W.2d at 473 n. 4. Based on our review of the record in this case, all of N.A.'s statements pertained to the ongoing emergencies.

      . Warsame notes that the district court concluded that N.A.'s statements qualified as an excited utterance, an exception to hearsay. Warsame argues that this has no impact on the analysis before this court. We agree. The Supreme Court stated that testimonial statements are not admissible in court because they meet a hearsay exception, except dying declarations. Crawford, 541 U.S. at 56 & n. 6, 124 S.Ct. 1354.
      The state argues that under the rule of forfeiture, Warsame waived his right to argue that admission of N.A.'s statements violate the Confrontation Clause because he cut the phone line, preventing N.A. from calling 911. First, there is no evidence in the record to suggest that it was Warsame who cut the phone line. Second, the rule of forfeiture pertains to a defendant procuring the absence of a witness at trial. Davis/Hammon, 126 S.Ct. at 2280; Wright, 726 N.W.2d at 479. There is no evidence in the record that suggests Warsame procured N.A.’s unavailability in this case.


author: PER CURIAM.

text:
    In re Petition for REINSTATEMENT OF David A. SINGER, a Minnesota Attorney, Registration No. 101473.
    No. A05-1136.
    Supreme Court of Minnesota.
    July 26, 2007.

      David A. Singer, St. Louis Park, MN, Appellant Pro Se.
    Martin A. Cole, Director of the Office of Lawyers, Professional Responsibility, Timothy M. Burke, Senior Assistant Director, St. Paul, MN, for Respondent.
   OPINION

PER CURIAM.

David A. Singer filed a petition for reinstatement following his indefinite suspension from the practice of law. A panel of the Lawyers Professional Responsibility Board recommended against Singer’s reinstatement, concluding that Singer had failed to provide clear and convincing evidence that he has satisfactorily addressed his wrongful conduct or the motivations for that conduct. The panel also concluded that Singer failed to provide clear and convincing evidence that, if reinstated, misconduct is not likely to occur. The Director of the Office of Lawyers Professional Responsibility supports the panel’s recommendation. We conclude that Singer has not shown by clear and convincing evidence that he is entitled to be reinstated to the practice of law; therefore, we deny his petition for reinstatement.

In April 1974, petitioner David A. Singer was admitted to practice law in Minnesota. After his admission, Singer practiced with several small law firms in a variety of practice areas, including personal injury, employment, family, and appellate law. In 1995, Singer began a solo practice, which he maintained until 2001, when he was suspended from the practice of law.

Singer’s disciplinary history began in 1990, when he was admonished for failing to return a client’s phone calls. In 1993, he was admonished a second time for failing to communicate with clients for several months and failing to represent those clients diligently. The circumstances leading to Singer’s suspension began in November 1998, when one of Singer’s clients filed a complaint against him with the Office of Lawyers Professional Responsibility. Pursuant to an investigation, the Director of the Office of Lawyers Professional Responsibility requested Singer’s client trust account records, dating back to 1995. When Singer provided the records, he identified several inappropriate withdrawals he made from his client trust account.

Following an audit of Singer’s client trust account, the Director found that Singer had inappropriately withdrawn over $50,000 since 1995, with individual withdrawals ranging from $150 to $5,000. The Director found that Singer had engaged in a pattern of taking client funds and using them for periods of days to weeks or more, and then repaying the trust account by depositing other clients’ settlements into the account or leaving all or a portion of his earned fees in the account to rectify the amount he had taken. During the audit period, there was a continuous shortage in Singer’s trust account, ranging from $450 to over $16,000. Among the client funds Singer misused was a $22,500 settlement belonging to his aunt, in which Medicare claimed a subrogation interest. Although Singer’s action never resulted in a trust account deficit, he misappropriated his aunt’s settlement funds for over one year and the portion of the funds later determined to belong to Medicare for over three years. In addition to his pattern of misappropriation, Singer failed to keep and provide proper records for his trust account, including monthly trial balances and reconciliations. Despite the foregoing conduct, Singer certified on his annual registration statements that he properly maintained his trust account books and records.

The Director’s investigation led to state and federal criminal charges against Singer. Singer subsequently pleaded guilty to felony theft in state court for misappropriating client funds in connection with his use of his aunt’s settlement proceeds. In federal court, he pleaded guilty to three counts of failing to file federal individual income tax returns for the years 1996-98. Singer also failed to timely file Minnesota individual income tax returns for those same years, eventually filing his state taxes together in December 2000. Singer admitted to the Director that his conviction for misappropriation of client funds and the foregoing state and federal tax violations breached the Minnesota Rules of Professional Conduct. As a result of these violations, Singer stipulated with the Director to an indefinite suspension from the practice of law' with no right to apply for reinstatement for three years. We accepted this recommended disposition. In re Singer, 630 N.W.2d 404, 404-05 (Minn.2001).

Since his suspension, Singer has engaged in both legal and non-legal employment. Nine different lawyers have hired Singer to perform temporary, non-attorney legal work on separate occasions, predominantly consisting of drafting, but not signing, appellate briefs. Singer disclosed to each of these employers that he was suspended from the practice of law. Singer has most recently been employed outside the legal field.

In June 2005, almost four years after his suspension, Singer filed a petition for reinstatement. Following a hearing, a panel of the Lawyers Professional Responsibility Board concluded that Singer had met many of the conditions to reinstatement imposed by our court: completion of state and federal criminal probation; compliance with Rule 26, Rules on Lawyers Professional Responsibility (RLPR); completion of the professional responsibility examination; satisfaction of the continuing legal education requirements; proof of timely filing of state and federal tax returns since 2000 and payment of prior overdue income taxes; and payment of costs imposed by this court. The panel also concluded that Singer proved by clear and convincing evidence that he possesses current legal skill and knowledge.

Regarding the final condition imposed by our court, proof of Singer’s psychological fitness to practice law, Singer had been previously diagnosed with generalized anxiety disorder and bipolar disorder but stated that he has been symptom free for some months and fully functional for at least three years. Singer further stated that his medications for treating these disorders are effective, and he remains under the care of several doctors to continue to manage the disorders. The panel concluded that Singer’s bipolar and generalized anxiety disorders are in full remission.

At the hearing, Singer testified that he accepted responsibility for his past actions, admitting that he made a conscious decision to steal money. Singer stated that he had previously tried to rationalize and minimize what he had done, knowing that he could replace the money in the trust account when it became due, but after his prosecution in federal court, he understood that what he did constituted theft. After engaging in conversations with family members and attending seminars that dealt with lawyer misconduct and mental illness, Singer testified that he has become a moral person. Singer stated that he can no longer rationalize his misconduct.

Singer presented the testimony of four witnesses who knew about his past actions leading to his suspension. Each of these witnesses recommended that Singer be reinstated. One witness had been Singer’s client at various times since the late i970s. This witness testified that he considered Singer to be an honest person despite having stolen money in the past and noted that Singer had accepted responsibility for what he had done and expressed remorse.

Two of Singer’s witnesses were lawyers who had hired Singer to assist them with legal work during Singer’s suspension. The first lawyer hired Singer to write briefs in workers’ compensation cases and testified that Singer’s work was very good and that he would not hesitate to hire Singer in the future. The second lawyer testified that she met Singer when Singer was helping to wind up the law practice of a mutual friend, who had died shortly before Singer was suspended. The lawyer stated that Singer did an excellent job taking care of their friend’s practice and that she later hired Singer to work on a brief, which resulted in a satisfactory work product.

Singer’s fourth witnesses was E.W., a lawyer recruiter. E.W. testified that she shared a mutual friend with Singer, and the friend had recently died in a nursing home. E.W. testified that before the mutual friend’s death, Singer volunteered to help manage the friend’s personal affairs and also assumed power of attorney at the friend’s request. E.W. testified that she was impressed by Singer’s diligence and willingness to help and as a result, recommended that he be reinstated.

As an exhibit for the panel’s consideration, Singer submitted a May 2000 transcript from his disciplinary hearing which contained testimony given by a fellow lawyer. The lawyer represented a party opposing Singer’s client on a case that began in the late 1970s and continued for almost a decade. The lawyer described Singer as a professional and a zealous advocate and noted that he regularly referred clients to Singer. This lawyer was aware of Singer’s trust account violations.

The panel’s findings of fact included statements from other witnesses, apparently taken directly from the Director’s report. One witness knew Singer from childhood and retained him as a lawyer but noted that Singer was a procrastinator. Another witness volunteered with Singer for the Hemophilia Foundation of Minnesota/Dakotas. This co-volunteer gave examples of Singer’s “humanitarian heart” and stated that she would consider retaining Singer as a lawyer if he was reinstated.

The panel’s findings included three instances of Singer acting in a fiduciary capacity. All three instances occurred after Singer’s suspension and were taken from the Director’s report, except E.W.’s testimony described above. Attorney David Kraker was a court-appointed guardian for the aforementioned mutual friend of Singer and E.W. Kraker concluded that Singer’s role as power of attorney for the friend, which included handling his finances, “was time consuming and he did a B + or A job.” Attorney Maurice Lazarus was the attorney for the estate of K.W. Lazarus stated that Singer was the personal representative of KW.’s estate before his suspension, and he continued in that capacity following his suspension but did not handle the estate’s funds. Singer also acted as the personal representative of and pro se attorney for his mother’s estate. The panel made no findings that reflected negatively on Singer regarding these fiduciary roles.

At the hearing, the Director presented the testimony of two persons who were employed by Community Mediation Services, Inc. (CMSI) in 2005. In February 2005, Singer applied to CMSI’s mediation training program in order to become a volunteer mediator. The two employees testified that Singer never informed either of them that he was suspended from the practice of law or that he had criminal convictions. But both employees also admitted that such information was never solicited, either through the application process or through their personal contact with Singer. Singer testified that he did inform one of the employees that he was suspended from the practice of law after becoming aware, during a training session, that CMSI mediators had to meet the qualifications required by our court for the state’s roster of neutrals. The employee denied that this conversation occurred. Although Singer completed CMSI’s mediator training program, he was not accepted as a volunteer mediator because CMSI determined that he could not adequately represent the organization.

The Director also presented evidence of Singer’s management of his personal finances since his suspension, which evidence included payments due to CMSI. Singer was tardy in making a $75 payment for the CMSI training program. In addition, Singer owed a $85 payment to a separate organization for a training session in conjunction with the CMSI training program, for which Singer provided a check that was returned because of insufficient funds in his account. Singer paid the full amount for the training program and the individual training session, in addition to a $10 donation to CMSI, more than six months after the payments were due.

The Director also presented evidence obtained through an investigation of two of Singer’s bank accounts from December 2004 to May 2006. This investigation revealed a pattern of account misuse that resulted from insufficient funds (NSF) in those accounts. Review of the first account, for the period between January 26, 2005, and August 12, 2005, revealed that Singer issued eight NSF checks totaling $6,671, issued nine NSF electronic check payments totaling $592, and made four ATM withdrawals when the account was overdrawn. In September 2005, the bank closed this account.

The Director reviewed a second bank account, and for the period between March 9, 2005, and February 23, 2006, Singer issued 10 NSF checks totaling $2,234, issued two NSF electronic check payments totaling $413, and made four ATM withdrawals when the account was overdrawn. Regarding these money management issues, Singer testified that even though there were insufficient funds to cover the checks, few of the checks actually bounced, and the bank was predominantly covering the checks and charging him overdraft fees. Singer further testified: “This was how I was surviving, but I wasn’t paying real close attention to the magnitude of the number of checks that they were paying.” Singer noted that on three occasions, he wrote checks knowing that he did not have sufficient money in his account to cover payment. Singer denied that the Director’s investigation caused him to be more diligent with his bank accounts. He said that instead, it was his lack of employment during the relevant time periods that caused the problems. At the time of the hearing, Singer was approximately $12,000 in debt.

The panel found that Singer “rationalized that his checks would be covered by the bank,” “[i]n essence, * * * viewing] his actions as creating a short-term loan,” similar to how he viewed his misappropriation of client money in the late 1990s. The panel found that “[o]nly after [Singer] learned that the Director was reviewing his personal finances did [his] management of them improve.” The panel concluded that Singer “recognized he had other options than issuing the worthless checks, but chose not to utilize those options.” Based on these findings, the panel recommended that Singer’s petition for reinstatement be denied because in spite of significant improvements, Singer did not prove by clear and convincing evidence “that he has satisfactorily addressed his wrongful conduct or the motivations for that conduct” or “that misconduct is not apt to occur.”

In his petition to our court, Singer argues that he has demonstrated the moral change necessary to be restored to a position of public trust and to be reinstated. The Director disputes Singer’s argument and requests that we adopt the recommendation of the panel and deny Singer’s petition for reinstatement.

We have held that an attorney applying for reinstatement “must establish by clear and convincing evidence that she or he has undergone such a moral change as now to render him a fit person to enjoy the public confidence and trust once forfeited.” In re Jellinger, 728 N.W.2d 917, 922 (Minn.2007) (internal quotation marks omitted). In addition to moral change, we consider: (1) the petitioner’s recognition of the wrongfulness of his conduct; (2) the length of time since the original misconduct and the suspension; (3) the seriousness of the original misconduct; (4) the existence of physical or mental illness or pressures that are susceptible to correction; and (5) the petitioner’s intellectual competency to practice law. Id. We independently review the entire record to determine whether an attorney should be reinstated and consider, but are not bound by, the panel’s recommendations. In re Kadrie, 602 N.W.2d 868, 870 (Minn.1999).

Psychological Fitness

Singer appears to have met all of the conditions for reinstatement that we imposed in our suspension order, as discussed above. The only condition in the order that is discussed further in briefing to our court is Singer’s proof of psychological fitness to practice law. Singer maintains that the record indicates that he is stable and in remission, as demonstrated by evidence from two health care providers. The record contains a letter dated March 17, 2005, from a psychologist who has treated Singer since September 1999, and she states that Singer’s “psychiatric condition should in no way interfere with his reinstatement as an attorney.” The panel concluded that Singer’s bipolar and generalized anxiety disorders are in full remission. The Director does not appear to dispute the panel’s finding. We conclude that Singer has demonstrated that he is psychologically fit to practice law.

Moral Change

Singer argues that he has demonstrated moral change in his financial management, warranting his reinstatement into a position of public trust. Singer states that he “has held or gained the trust of people with whom he has worked before and during his suspension, unshaken by the revelation of his wrongdoing.” Singer asserts that he has demonstrated the moral change that we have required in other cases, such as In re Ramirez, 719 N.W.2d 920, 925 (Minn.2006), where we concluded that the petitioner for reinstatement had “undergone a moral change such that clients [could] have complete confidence in her competence and morality.” Singer cites the statements of those who testified on his behalf, noting that they considered Singer an honest and trustworthy person and many stated that they would hire him as a lawyer and entrust him with money. Singer also notes that his three fiduciary roles reflect positively on his moral fitness. Singer further states that the testimony of the lawyer who was an adversary in the 1970s and 80s “serves as a baseline of [Singer’s] honesty” because the two were adversaries on cases dating back to when Singer began his career.

Regarding the financial management of his personal finances while suspended, Singer argues that his “admitted moral and legal derelictions in the handling of his personal finances [do] not negate that he has proven sufficient moral change to warrant reinstatement.” Singer states that after reviewing other Minnesota lawyer discipline cases in preparation for his brief to this court, he now understands that issuing NSF checks is illegal and immoral, even in those circumstances when a bank honors such cheeks. Singer further asserts that his financial problems, although not morally or legally excusable, related to his “lapse of judgment during a period of severe financial stress.” Singer states that we have not required moral perfection, noting cases where we reinstated lawyers “whose conduct since disbarment was not ‘without blemish,’ ” and he cites Ramirez, 719 N.W.2d 920, as an example.

In Ramirez, we conditionally reinstated petitioner Ramirez, who had previously been disbarred for submitting improper requests for reimbursements of travel expenses to her employer. Id. at 921-22. In February 2001, while disbarred, Ramirez accepted a research and administrative position with the United States Bankruptcy Court in Puerto Rico. Id. at 922. After Ramirez began the position with the bankruptcy court, she completed a job application, on which she answered two questions in a misleading fashion, apparently to avoid referencing her past misconduct. Id. at 923. Before Ramirez applied for reinstatement in Minnesota, she notified the bankruptcy court of her disbarment, and the chief deputy of the court concluded that Ramirez accepted responsibility for her actions and the application was not a basis for the court to terminate her employment. Id. at 923-24.

We acknowledge that the petitioner in Ramirez, as Singer argues, was not “without blemish,” but there are facts that distinguish this case from Singer’s. Ramirez disclosed and seemingly rectified her dishonesty with her employer before she applied for reinstatement. In contrast, Singer’s petition for reinstatement was filed on June 6, 2005, and based on our review of the record, after Singer applied for reinstatement, he engaged in at least 14 bank transactions with insufficient funds in his respective accounts, was assessed at least 46 continuous overdraft fees, was assessed at least 15 overdraft charges, and was assessed at least 12 returned check charges. We do not suggest that the only evidence relevant to our decision is a petitioner’s conduct after he applies for reinstatement, but a petitioner must show, by clear and convincing evidence, that he is morally fit for the practice of law. The fact that Singer’s pattern of financial mismanagement continued even after applying for reinstatement hinders his ability to meet this burden of proof.

The Director’s audit of Singer’s personal bank accounts encompassed an 18-month period, from December 2004 through May 2006. During that time, Singer made a total of 37 transactions without sufficient funds in his respective bank accounts. Engaging in NSF transactions violates Minn. R. Prof. Conduct 8.4(c), which classifies “conduct involving dishonesty, fraud, deceit, or misrepresentation” as professional misconduct. See, e.g., In re Pokorny, 453 N.W.2d 345, 347 (Minn.1990).

The Director properly connects Singer’s financial mismanagement while suspended with his trust account issues that led to his suspension. The Director notes that in the late 1990s, Singer was suffering financially and instead of finding other methods for addressing his hardships, he covered his expenses by misappropriating client funds, rationalizing his conduct as short-term loans. Similarly, when Singer was suffering financially during his suspension, he covered his expenses by issuing NSF checks, rationalizing his behavior through his intent to repay the shortages in his account and pay the applicable overdraft fees.

The Director distinguishes Singer’s behavior from that of the petitioner in Jel-linger, whom we reinstated. Similar to Singer, Jellinger was suspended for misappropriating client funds, among other misconduct, and he also struggled with mental health issues. 728 N.W.2d at 919-20. But unlike Singer, there was no evidence presented that Jellinger demonstrated poor financial decision-making while suspended, and Jellinger also presented testimony of a lawyer who agreed to be a co-signer on his trust account. Id. at 920-21. The Director argues that because Singer has failed to rectify his financial irresponsibility, Singer’s petition for reinstatement is distinguishable,. and Singer should be denied reinstatement. We agree that Singer’s financial mismanagement during his suspension is serious and undermines his ability to show by clear and convincing evidence that he has “undergone such a moral change as now to render him a fit person to enjoy the public confidence and trust once forfeited.” Id. at 922 (internal quotation marks omitted).

Singer argues that little or no weight should be placed on the testimony of the two CMSI employees, insofar as their testimony bears on his moral fitness. Singer notes that he had little contact with these two people, relative to the witnesses that testified on his behalf. Singer also notes that the panel’s findings create an inference that he fabricated a conversation with one of the employees, in which he disclosed to her that he was suspended from the practice of law. The Director asserts that “the Panel made a credibility determination that petitioner’s testimony was not credible when it found that petitioner did not disclose his suspended status.”

Based on our review of the record, both parties fail to properly characterize the panel’s findings regarding the CMSI employee. The panel only recorded the conflicting testimony of Singer and the CMSI employee at the hearing, making no findings or inferences about whether Singer actually disclosed his suspended status to the employee or CMSI. Regardless of whether Singer disclosed his suspended status to CMSI, it is uncontested that Singer was more than six months tardy in paying fees for the mediation program. This delay in payment further supports the conclusion of the panel that Singer has not proven by clear and convincing evidence “that he has satisfactorily addressed his wrongful conduct.” Based on Singer’s financial mismanagement during his suspension period, including after he filed his petition for reinstatement, we agree with the panel’s conclusion that Singer should not be reinstated to the practice of law.

For all the foregoing reasons, we conclude that Singer has not established by clear and convincing evidence that he has undergone such a moral change as now to render him a fit person to enjoy the public confidence and trust once forfeited.

Petition for reinstatement denied.

      . The Director is required to investigate a petition for reinstatement and submit a report to the panel, see Rule 18(b), RLPR, but the witnesses in that report who do not testify at a subsequent hearing are not placed under oath and are not subject to cross-examination. We are mindful of this fact and weigh such statements accordingly.

      . Under our court’s rules, neutrals may not provide services while their professional license is under suspension. Minn. Gen. R. Prac. 114.12(a).