A Murder Victim’s Threats to a Third Person Do Not Authorize Third Party Perpetrator Evidence.

State v. Jamie Larson, Minn.S.Ct., 9/2/2010.  The state charged Ms. Larson with aiding and abetting first degree murder.  Her brother, Robert, utilized “zip stips” to choke Thomas John Cady to death because Mr. Cady had abused Ms. Larson, or so everyone believed.  Ms. Larson drove Mr. Cady’s truck to the eventual murder site, as Mr. Cady lay sleeping off the effects of too many street drugs.  You can read about Robert’s appeal here.

Ms. Larson wanted to introduce third party perpetrator evidence which consisted of the following:

(1)  Mr. Cady had burglarized B.E.’s house and threatened to kill B.E. when B.E. confronted him about it.

(2)  Mr. Cady had found Ms. Larson and J.H. in a compromising position, which prompted Mr. Cady to threaten J.H. and his children too; which, in turn, prompted J.H. to threaten to kill Mr. Cady.

For third party perpetrator evidence to be admissible, there must be evidence that has an inherent tendency to connect a proposed third party perpetrator with the commission of the charged offense.  State v. Atkinson, 774 N.W.2d 584 (Minn. 2009).  A threat by the murder victim, however, lacks that inherent tendency so to connect.  Even more problematic for Ms. Larson, she could offer no evidence whatsoever to put either B.E. or J.H. anywhere near the murder scene.

Ms. Larson also complained that the jury should have known that a key witness for the state was in removal proceedings, was an illegal immigrant, and was not charged with either a drug or fraud offense for stuff police found in his hotel room.  However, there was no evidence that this witness had received any consideration from the government for his testimony so there was no impeachment value to this information.

Ms. Larson tried to introduce transcripts of law enforcement interviews, which her counsel had prepared from the audio recordings that the state had provided.  She wanted either to introduce the transcripts as substantive evidence or to use them to impeach the witness that had been interviewed.  The defense neither showed the transcripts to the officers nor called those officers to authenticate the transcripts.

No one seems to have heard of State v. Graham, 764 N.W.2d 340 (Minn. 2009), which initially puts the burden on the state to prepare transcripts of audio recordings that its agents have generated.  Alternatively, a defense generated transcript should be provided to the state for verification and if they won’t do it, then the court steps in to order appropriate relief.  Here, Ms. Larson made no effort to authenticate the transcript, Rule 901(a), so the trial court correctly declined to admit them as substantive evidence.  Any error in prohibiting the transcript’s use for impeachment was harmless.

Finally, Ms. Larson complained about several of the court’s jury instructions but the appellate court found these complaints either to be not preserved or without merit.