Denial of Use Immunity to Defense Witness Does Not Violate Defendant’s Rights, Absent Egregious Prosecutorial Misconduct.

State v. Super, Minn.Ct.App., 4/20/2010.  Mr. Super shot and killed Daniel Holliday, the culmination of a “love triangle” with Dana Back.  I wrote about Ms. Back’s appeal here.  The appellate court reversed Ms. Back’s conviction but not before a jury convicted Mr. Super.

Ms. Back prudently declined to testify as a defense witness for Mr. Super while her appeal was pending.  Mr. Super’s counsel asked the state to grant her use immunity, which it declined to do.  The state then demanded a speedy trial, which forced Mr. Super to trial while Ms. Back’s appeal was ongoing.  When Ms. Back asserted privilege the trial court did admit her statement to the police.

Mr. Super argued to the appellate court that the trial court had violated his right to compulsory process and to present a defense by either failing to order use immunity for Ms. Back or failing to continue the trial until her appeal was concluded.  The appellate court rejects both of these contentions.  The denial of use immunity to a defense witness does not violate a defendant’s constitutional rights absent “egregious prosecutorial misbehavior.”  State v. Peirce, 364 N.W.2d 801, 808 (Minn. 1985).  This is true even when the witness has important exculpatory evidence that is not otherwise available to the defendant.  Here, according to the appellate court, the state’s opposition to granting use immunity was nothing more than “trial strategy” over which the trial court had no control.  Denial of a continuance was not an abuse of discretion because Mr. Super could not demonstrate prejudice in the face of admitting Ms. Back’s statement to police.