Erroneous Hearsay Rulings Result in New Trial

State v. Morales, Minn.Ct.App., 4/28/2009.  The state claimed that Mr. Morales, Mr. Vega-Lara, and Mr. Solorzano-O'Brien went into a Minneapolis whorehouse intending to rob its operators; in addition to the robbery, one or more of them committed murder.  The appellate court only gives proper names to the defendants; everyone else gets initials.  There are a lot of initials in use here so let me try to chart out the players.

V.M.-O:  the victim.	M.F.:  a cook at the whorehouse
C.M:  a prostitute	M.G.:  "associate" of Vega-Lara
M.R.:  a prostitute

Okay.  The state's theory was that either Mr. Morales or Mr. Vega-Lara had cased the house as a possible robbery target some days before the actual robbery.  On the date of the homicide, the three men visited the house; Vega-Lara and Solorzano-O'Brien engaged the services of C.M. and M.R., while Morales hung out in the parlor.  When done - according to C.M., Vega-Lara wanted a redo on the sex, but I digress - Vega-Lara and Morales commenced the robbery;  Morales drew a gun on the victim and Mr. Vega-Lara then shot and killed the victim.  Neither prostitute stayed in the parlor during the entire robbery/homicide but each could place Vega-Lara in that room and each heard the struggle and shooting.

The police investigation turned up M.G., who had information about the robbery/homicide.  The state put him up on the stand, which is where the state's trouble started.  To explain, it's time for another chart:

What M.G. told police	What M.G. told the jury
Three days before the murder, Morales told me of the plan to rob a house of prostitution.	Three days before the murder, another person told me of the plan to rob a house of prostitution.
After the murder, Vega-Lara told me that Morales had drawn a gun on the victim and that Vega-Lara had then shot the victim.	After the murder, Vega-Lara told me that another person had drawn a gun on the victim and that Vega-Lara had then shot the victim.

See the problem?  The prosecutor did, easily sliding into naming Morales as the "other person" in her closing argument.  The appellate court agreed with Morales that the redaction thus had been totally ineffective:

Thus, the state was allowed, in effect, to elicit the hearsay statements of Vega-Lara that Morales had a gun on the day of the robbery, walked towards the victim with his gun drawn, and got into a struggle with the victim over that gun.

By now you've deduced that Vega-Lara did not testify at Morales' trial.  Indeed, he "took the Fifth."  Even so, the trial court permitted the state to call Vega-Lara to the stand so that the jury would know of this invocation.  This is because the state had also granted Mr. Vega-Lara use immunity and so the trial court thought that he had no privilege to assert.  This was incorrect, however, because the use immunity granted him did not extend to perjury.

Vega-Lara had testified at his own trial.  So, every time that he refused to answer the prosecutor's question, she commenced to ask Mr. Vega-Lara questions, the theme of which was "Didn't you testify at your trial that [reads statement that implicates Morales from transcript]?"  The appellate court concluded that this was prejudicial to Morales for any number of reasons.  He gets a new trial. 

The appellate court also decided a Spreigl issue, applying the Ness analysis.