A Witness Who Refuses to Testify Except to Volunteer That Defendant is Innocent Allows Introduction of Prior Inconsistent Statements; a Coroner Who Did Not Perform Autopsy May Testify to its Results, at Least For Now.

State v. Bobo, Minn.S.Ct., 7/30/2009.  James Roberts and Reginald Nichols were waiting for a friend to finish up work at Stand Up Frank’s, a bar in Minneapolis.  As they waited, a truck or SUV drove past them, made a U-turn and returned.  As the SUV drove past the two men a second time someone in the SUV opened fire, wounding Mr. Nichols and killing Mr. Roberts.  The state eventually charged Mr. Bobo with the shooting and homicide, in no small part on the basis of information from a less than reliable snitch, one Sam James.  Mr. James gave statements both to the police and to a grand jury that implicated Mr. Bobo in the shooting and homicide.

Come trial time, however, and Mr. James would not testify other than to offer, unsolicited, the opinion that Mr. Bobo was innocent; the trial court held him in contempt.  The state alleged, unsuccessfully, that Mr. Bobo had intimidated Mr. James out of testifying by, among other things, packing the court room with fellow gang members.  That being the case, the state wanted to introduce Mr. James’ prior statements to the police and to the grand jury.  The trial court denied this request, so the state then asked to close the court room during James’ testimony.  The trial court agreed but Mr. James persisted in not testifying.  Exasperated, the trial court then permitted the state to introduce some of James’ prior statements, although they didn’t really seem to hurt Mr. Bobo.  Nonetheless, Mr. Bobo’s counsel then cross examined Mr. James, who launched into this tirade that everything he claimed he knew about the charges had come from the police and that he had lied to the grand jury.  Bingo, the trial court then let the state introduce wholesale James’ prior statements.

In this combined direct appeal and post conviction appeal, Mr. Bobo argued, among other things, that his trial counsel had been ineffective by deciding to cross examine Mr. James.  The appellate court avoids this claim by saying that the trial court was wrong to have excluded James’ prior testimony after he first hit the stand and proclaimed that Mr. Bobo was innocent.  The trial court should have admitted the prior statements as prior inconsistent statements. 

Mr. Bobo also complained about the closing of the courtroom.  The trial court had evidence before it that immediately before James first testified several gang members entered the courtroom; those same gang members left the courtroom immediately after his testimony.  The trial court also had evidence that James claimed it was the presence of these gang members that made him afraid to testify.  This satisfied the appellate court that the trial court had a valid basis to close the courtroom; the appellate court also rejected the claim that the court should have excluded only the alleged intimidators.

Finally, a medical examiner who did not perform the actual autopsy testified about the autopsy results; she did so without defense objection and so the appellate court applied a plain error standard.  The appellate court politely noted that a court of appeals opinion, State v. Johnson, 756 N.W.2d 883 (Minn.Ct.App. 2008), rev. denied, (Minn. 12/23/2008), had held that admitting an autopsy report by a medical examiner who was not testifying was plain error.  This opinion, however, came after Mr. Bobo’s trial so any error in his trial could not be “plain.”  The appellate court did not mention last term’s U.S. Supreme Court Opinion, Melendez-Diaz v. Massachusetts, which held that to avoid a Crawford violation the state must produce the chemist who tested the drugs in a drug prosecution and could not just introduce the lab report.  But see, Briscoe v. Virginia, cert. granted, 6/29/2009, which asks the question whether allowing the defense to call the chemist after the state introduces the lab report satisfies Crawford.