Under “Plain Error” Substantive Use in Prosecutor’s Closing Argument of Defendant’s Statement, Admitted Only For Impeachment Purposes, Does Not Warrant New Trial.

State v. Tomassoni, Minn.S.Ct., 2/18/2010.  A jury convicted Mr. Tomassoni of first degree premeditated murder, rejecting his claim that the killing was not premeditated.  Mr. Tomassoni initially told the police that an intruder had enter his home and shot his wife.  Physical evidence, (and the existence of a couple of insurance policies on his wife), however, cast considerable doubt on this claim.  After being arrested and charged with the murder, a child protection worker spoke to Mr. Tomassoni about placement of his son; during this conversation, Mr. Tomassoni admitted that he had shot his wife.

The parties agreed that this statement could not be admitted at trial as substantive evidence of guilt.  Mr. Tomassoni testified at his trial.  He said that on the night of his wife’s death he had decided to take his own life.  He described his preparations for his suicide, including kissing his sleeping son and wife goodbye.  He then said that he next remembers standing in the hallway outside his wife’s bedroom, dripping with sweat, wearing gloves, a gun in his hands and his wife dead.  The state then introduced his statement to the child protection worker to impeach this version of events. 

In closing argument, the prosecutor said this to support the state’s claim of premeditation:

[Mr. Tomassoni] admitted that he told the social worker . . . that he shot his wife once, there was a pause, and he shot her a second time. That’s premeditated. He planned to kill his wife.

Defense counsel did not object to this statement so plain error is the analysis in play.  On appeal, the parties agreed that any substantive use of Mr. Tomassoni’s statement to the child protection worker was error.  The question, then, was whether this error was “plain.”  An error is plain if it “contravenes case law, a rule, or a standard of conduct.”  State v. Ramey, 721 N.W.2d 294, 299 (Minn. 2006).  The state’s argument was that there was no authority that it is prosecutorial error to use properly admitted impeachment evidence substantively in closing argument.

The appellate court ducks the issue by deciding that even if the error were “plain” the use of statement did not affect Mr. Tomassini’s substantial rights.  The appellate court concluded that there was plenty of evidence to support the jury’s determination of premeditation. 

There was also an error in the jury instructions.  The instructions included the standard language, “In the case of the defendant, however, evidence of any statement he may have made may be considered by you for all purposes.” See 10 Minn. Dist. Judges Ass’n, Minn. Practice—Jury Instruction Guides, Criminal, CRIMJIG 3.15 (5th ed. 2008).   Again, the parties agreed that this was error but, again, there was no objection to it.  Under a “plan error” analysis, the appellate court concluded that this error did not affect Mr. Tomassoni’s substantial rights.