No Shoes, No Shock, No Justice?: Examining Justice Chutich’s Dissent in Minnesota v. Tapper

*Paige Dobberstein

“I have no shoes” were the first words spoken to Officer Johnson as she arrived on the scene of a domestic disturbance.¹ The following eight minutes of body-camera footage captured by Officer Johnson plays a key role in a recent Minnesota Supreme Court decision that could have large policy implications on a vulnerable group of individuals. Minnesota v. Tapper² is a case that tells two vastly different stories. To the majority, this is a case concerning inadmissible hearsay statements under Minnesota Rules of Evidence 803(2).³ In contrast, the dissenting opinion not only finds these statements admissible, but it also highlights the larger implications that the majority holding could have on the domestic violence crisis we are experiencing in Minnesota.⁴ 

Under Minnesota Rules of Evidence 801(c), hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”⁵ Rule 803 outlines several exceptions to the general bar against hearsay, including one for excited utterances.⁶ An excited utterance is, “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”⁷ As a person responding to a startling event “has little opportunity to concoct falsehoods,” an excited utterance is seen as more reliable than other out-of-courtroom statements.⁸

Around six in the morning on November 27, 2021, police received a report of a domestic disturbance from an Eden Prairie apartment complex.⁹ The caller stated that “he heard a woman yelling, banging on a door, and saying ‘something about getting her face smashed in.’”¹⁰ The issue in this case concerns the initial eight minutes and seventeen seconds of body camera footage taken by responding Eden Prairie Police Officer, Carly Johnson.¹¹

Upon entering the apartment building, Officer Johnson was met in the stairway by the female victim, A.H.¹² “I have no shoes” were the first words that A.H. spoke to Officer Johnson.¹³ A variety of haunting statements followed that describe the event and circumstances that ultimately led to the 911 call:  

• “I am not leaving my kids. He punched me in the face. I don’t know if he broke my nose, but he poured hand sanitizer all over my face and eyes.”¹⁴
• “I think he took my phone and he won’t give it to me. I had nobody to call, I have blood all over me.”¹⁵
• “I’m going to die this weekend if I don’t  . . . report.”¹⁶
• “My head is really messed up. He kicked my head into the wall, and he threw me into the brick fireplace.”¹⁷
• “My kids are in there.”¹⁸

While making these statements, the recording showed A.H. “crying, sniffling, and raising her voice.”¹⁹ There were moments where she “threw her hands up, sniffled, and rubbed her face” while talking.²⁰ The video shows A.H. finally stopped crying as she described to officers her relationship with Tapper,²¹ detailing a concerning history of domestic violence. A.H. explained that although they are currently divorced, the two still live together while raising their five children.²² Three of their children, ages ten, six, and four, were still inside of the apartment with Tapper as these events unfolded.²³

• “We’ve had multiple calls. I’ve gotten to the point that I don’t call much anymore.”²⁴
• “[I]t started early today. He dragged me out of the car in the middle of 494.”²⁵
• “[H]e’s been increasingly aggressive. And that is something I’ve explained every time that people have come out, that it’s increasing.”²⁶
• “And I had the [expletive] no contact dropped, and I wish I hadn’t.”²⁷

When asked if Tapper was still inside, A.H. stated: “I don’t know what’s going on. He might have fallen asleep, he was drunk. I just don’t see him as running.”²⁸

Tapper was charged with one count of misdemeanor domestic assault.²⁹ A.H. did not respond to the State’s subpoena, and as a result, did not testify at the hearing.³⁰ While prosecutors sought to introduce Officer Johnson’s body camera footage, the district court ultimately granted Tapper’s motion to suppress the first eight minutes and seventeen seconds of the recording.³¹ This resulted in none of the statements above being admitted into evidence. The district court held that, “although downcast and sad, [A.H.] was not ‘agitated, shaky, or afraid,’ and enough time had passed since the alleged assault by Tapper for A.H. to ‘conjecture that [Tapper] may have fallen asleep.’”³² The Court of Appeals affirmed this decision on different grounds.³³ In the opinion, the Court of Appeals acknowledged that “‘[w]ithout the recording, there is no evidence identifying Tapper as the assailant.’”³⁴

On petition for review, the Minnesota Supreme Court affirmed the Court of Appeal’s decision.³⁵ The court held that the district court did not abuse its discretion in finding that A.H.’s statements were inadmissible hearsay because the statements did not meet the requirements of an excited utterance under Minnesota Rule of Evidence 803(2).³⁶ The Minnesota Supreme Court explained that “[the] record supports [the district court’s] findings because it is unclear how much time had passed since the alleged assault by Tapper, and A.H., appeared to grow calmer as the interaction with Officer Johnson continued.”³⁷ Additional factors the court considered in reaching this holding include the nature of the responses given by A.H., the majority of the statements being made in response to police questioning, and the description A.H. provided of past events.³⁸ The court reviewed under an abuse of discretion standard, and noted they have “only rarely reversed a court under these circumstances.”³⁹

Justice Chutich wrote a dissenting opinion joined by Justice McKeig and Justice Moore. The dissent concluded the statements met the requirements of the excited utterance exception.⁴⁰ Justice Chutich analyzed three factors that a court must evaluate in deciding whether a statement meets the requirements of an excited utterance: “(a) that there be a startling event or condition, (b) that the statement relates to the event or condition, and (c) that the statement is made under the stress caused by the event or condition.”⁴¹ As Tapper had conceded the first two factors, only the third factor was in dispute.⁴² The dissent found the body camera footage did support the finding that the statements were made under the stress caused by the condition, and as a result, the district court abused its discretion in holding otherwise.⁴³

Justice Chutich raised two strong points in making this finding. First, during the interaction with Officer Johnson, “[A.H.’s] voice was shaky. A.H. was sniffling. She threw her arms up as she spoke. She said that she’s going to die this weekend if she doesn’t report and describe the violent assault.”⁴⁴ These factors all indicate that A.H. did not have a calm demeanor, and instead was exhibiting signs of distress. Second, the dissent found that the district court “placed too much emphasis on A.H. stating that Tapper may have fallen asleep to reach a conclusion about how long A.H. had been locked outside her apartment after the alleged attack.”⁴⁵ To support her position, Justice Chutich cites to three cases which held statements made an hour, ninety minutes, and even three hours after the event were still held to be excited utterances.⁴⁶

Lastly, the dissent acknowledges the domestic violence crisis we are experiencing in Minnesota. The opinion cites to a number of alarming statistics, including “[o]ne in every three women in Minnesota will experience violence, rape, or stalking by an intimate partner in their lifetime,”⁴⁷ and that “[w]omen who report an increase in the severity of the violence against them, as A.H. did here, are five times more likely to be murdered than those who do not report such an increase.”⁴⁸

Justice Chutich discusses the “unreasonable burden” this places on victims of domestic violence, and the pressure, which they don’t even realize they are under, to say “exactly the right thing, with exactly the right amount of emotion, at exactly the right time,” contributing to alleged abusers escaping punishment.⁴⁹

In a footnote, the dissent acknowledges victims of traumatic events may display “unexpected responses to trauma.”⁵⁰ Victims could come across as “unemotional” or as having a “flat affect.”⁵¹ This caused me to consider the unfortunate implications this holding could have on women trapped in a cycle of domestic violence. One potential effect of repeated trauma is numbing, a “biological process whereby emotions are detached from thoughts, behaviors, and memories” which can result in an “inability to associate any emotion with [the] history of abuse.”⁵² It’s possible that domestic violence victims experiencing this numbness may not be able to meet the excited utterance requirements, potentially causing them to remain trapped in the cycle of repeated abuse if their abuser is able to walk free.

Justice Chutich’s dissent provides an exceptional analysis of why these statements qualify as excited utterances, as well as the larger policy implications to be considered in this decision. It’s important to note that this case came down to a 4-3 decision at the Minnesota Supreme Court. Had even one more justice sided with the dissent, there could have been a very different outcome for both A.H., and for future victims of domestic violence.

---

*Paige Dobberstein, J.D. Candidate, University of St. Thomas School of Law Class of 2025 (Associate Editor).

1. Minnesota v. Tapper, 993 N.W.2d 432, 434 (Minn. 2023). ↩︎
2. Id. at 432. ↩︎
3. Id. at 434. ↩︎
4. Id. at 447 (Chutich, J., dissenting). ↩︎
5. Minn. R. Evid. 801(c). ↩︎
6. Minn. R. Evid. 803(2). ↩︎
7. Id. ↩︎
8. Deborah Jones Merritt & Ric Simmons, Learning Evidence: From the Federal Rules to Courtroom 504 (5th ed. 2022). ↩︎
9. Tapper, 993 N.W.2d at 434. ↩︎
10. Id. ↩︎
11. Id. ↩︎
12. Id. ↩︎
13. Id. ↩︎
14. Id. ↩︎
15. Tapper, 993 N.W.2d at 435. ↩︎
16. Id. ↩︎
17. Id. ↩︎
18. Id. at 434. ↩︎
19. Id. ↩︎
20. Id. at 435. ↩︎
21. Tapper, 993 N.W.2d at 435. ↩︎
22. Id. ↩︎
23. Id. at 436. ↩︎
24. Id. at 435. ↩︎
25. Id. ↩︎
26. Id. ↩︎
27. Tapper, 993 N.W.2d at 436. ↩︎
28. Id. at 435. ↩︎
29. Id. at 436. ↩︎
30. Id. ↩︎
31. Id. ↩︎
32. Tapper, 993 N.W.2d at 436. ↩︎
33. Id. ↩︎
34. Id. at 437. ↩︎
35. Id. at 434. ↩︎
36. Id. ↩︎
37. Tapper, 993 N.W.2d at 438. ↩︎
38. Id.  ↩︎
39. Id.  ↩︎
40. Id. at 439–40 (Chutich, J., dissenting). ↩︎
41. Id. at 440 (quoting Minnesota v. Edwards, 485 N.W.2d 911, 914 (Minn. 1992)) (internal quotations omitted). ↩︎
42. Tapper, 993 N.W.2d at 440 (Chutich, J., dissenting). ↩︎
43. Id. ↩︎
44. Id. at 440–41 (emphasis in original). ↩︎
45. Id. at 441. ↩︎
46. Id. (citing State v. Berrisford, 361 N.W.2d 846, 850 (Minn. 1985); State v. Daniels, 380 N.W.2d 777, 783 (Minn. 1986); State v. Crowhurst, 470 A.2d 1138, 1145 (R.I. 1984)). ↩︎
47. Tapper, 993 N.W.2d at 447 (Chutich, J., dissenting) (citing Domestic Violence in Minnesota, Nat’l Coal. Against Domestic Violence (2020)). ↩︎
48. Id. at 448 (citing Minn. Dep’t of Health, Report: Hospital Treated Intimate Partner Violence in Minnesota1 (Mar. 2019)). ↩︎
49. Id. at 448 (emphasis in original). ↩︎
50. Id. at n.4. ↩︎
51. Id. ↩︎
52. Substance Abuse and Mental Health Services Administration, A Treatment Improvement Protocol No. 57, Trauma-Informed Care in Behavioral Health Services 63 (2014) (ebook). ↩︎