State v. Graham, Minn.S.Ct., 4/23/2009. This is a lengthy opinion that ultimately affirms a murder one conviction. The main issues are the propriety of the prosecutor's request to the court to appoint independent counsel to advise two defense alibi witnesses; and rulings on various evidentiary rulings. That said, there's nothing for it but to slog through this.
Paris Furcron was in the middle of buying some weed when two men - one tall, the other short - burst in through the back door of the house where the deal was going down. The two men were apparently undertaking an armed robbery. Mr. Furcron "tussled" with the tall man, who turned out to be Mr. Graham, over the gun, during which shots were fired. Mr. Furcron died shortly thereafter. Several of the people who were at the house were able to identify Mr. Graham from a sequential photo array.
State's Request to Appoint Counsel for Defense Alibi Witnesses: Nine months after the grand jury indicted Mr. Graham on first degree murder and various other charges, he produced two alibi witnesses, his former girlfriend and her mother. Each intended to testify that Mr. Graham had been at their home at the time of the shooting. The state knew, however, that at the time of the shooting Mr. Graham was under a no contact order to stay away from the girlfriend; she was also the victim of a terroristic threats charge committed by Mr. Graham. He had also coached her on what to say in order to clear him of the terroristic threats charge. (The coaching did not work as Mr. Graham plead guilty to the terroristic threats charge.) All of this convinced the state that these alibi witnesses were about to commit perjury for starters, and aiding an offender as well. The state convinced the trial court to appoint independent counsel for them; they very quickly lawyered up and invoked their Fifth Amendment rights. The defense called foul - interference with the right to present a defense.
The Court acknowledges that it's a thin line between state intimidation of defense witnesses and protecting a witness from self incrimination. A self incrimination warning crosses that line when it "precludes [the witness] from making a free and voluntary choice whether or not to testify." Here, the Court faces a variation on this theme: when is it improper for the state to suggest that a defense witness should be appointed an attorney to give advice about possible self-incrimination?
The Court adopts a two part test to determine whether the state acts properly in seeking the appointment of independent counsel for defense witnesses:
First, the State must be able to point to facts that support a reasonable and substantial belief that the witness will offer false or self-incriminating testimony. Second, once the State has demonstrated a reasonable basis for believing a witness’s testimony may be false or self-incriminating, the warnings of self-incrimination must be given in an appropriate manner, so as not to preclude a witness’s free and voluntary choice to testify by exerting undue distress on the witness.
The Court concludes that the state had satisfied both parts of the test it just adopted. The facts cited satisfied the first part of the test. The state's concerns were made directly to the court, out of the presence of the two witnesses and thereafter the state never spoke with them out of the presence of appointed counsel; this procedure satisfied the second part of the test as well. It remains to be seen, of course, whether this practice will catch on, or whether it is an outlier.
Evidentiary Rulings: Mr. Graham also argued that the state had engaged in misconduct by some of its objections to defense questions of its witnesses. The court ducks the question whether this is even possible but does address the objections.
Defense counsel wanted to impeach a witness with statements attributed to him in a police report. Counsel asked the witness if he had uttered a statement that counsel then read verbatim from the report. The trial court sustained the prosecutor's objection. The appellate court finds no abuse of discretion with this ruling, relying on Rule 613 of the evidence rules. The problem was the form of the question; Rule 613(b) prohibits counsel from impeaching a witness by extrinsic evidence - in this case, reading verbatim from a third-party summary that purported to state what the witness actually said. Reading the statement verbatim can only be done when the witness has adopted the verbatim statement attributed to him by the third party as his own.
Defense counsel can ask the witness whether he said certain things to the officer, in essence paraphrasing the report. If the witness does not recall making the statement or denies making it, then counsel can call the author of the report (most always a risky business). Indeed, defense counsel did ask a different witness whether he had told an officer a specific fact, a question based on that officer's written summary. This question was proper.
In another instance, defense counsel asked a witness if he recalled talking to a named officer; the witness said that he did not recall such a conversation. Counsel left it at that, then later wanted to ask the named officer the details of the conversation. The trial court sustained the prosecutor's objection and the appellate court upheld the ruling. This was because the witness had not been given the opportunity to admit or deny the specific statements; counsel could not thereafter ask the officer if the witness had made those specific statements.
In yet another instance, defense counsel sought to impeach a witness by use of a defense-prepared transcript of a recorded interview; the state apparently didn't have a copy of this transcript. Even so, the appellate court concluded that the trial court was wrong to have precluded the introduction of inconsistent statements, either from the transcript or from the recording, itself.
An Unlicensed Prosecutor is Okay: Finally, the court decides that a conviction obtained by a prosecutor who was unlicensed to practice law at the time of the conviction should be set aside only when the defendant is able to show prejudice that warrants reversal. Having already concluded that there had been no prosecutorial misconduct, Mr. Graham cannot show such prejudice. I guess the prosecutor had stayed at a Holiday Express.
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