State v. Morales, Minn.S.Ct., 9/23/2010. A jury convicted Mr. Morales of the murder of Victor Mesa-Ortiz, who was the chief financial officer of a local brothel. Mr. Morales and two others went to the brothel intending to rob it; instead, Mr. Mesa-Ortiz was killed. You can read more about the facts of the case here. One of the guys who accompanied Mr. Morales, Felipe Vega-Lara, went to trial ahead of Mr. Morales; Mr. Vega-Lara testified at his trial. A jury convicted him; Mr. Vega-Lara appealed that conviction.
During the pendency of that appeal, the state brought Mr. Morales to trial. The state called Mr. Vega-Lara to testify against Mr. Morales; Mr. Vega-Lara refused. The stated gave him statutory use immunity under Minn.Stat. 609.09; Mr. Vega-Lara still refused to testify. Even though the state knew Mr. Vega-Lara’s stance on testifying against Mr. Morales, they put him on the stand anyway. Right out of the box, Mr. Vega-Lara “pled the fifth.” Thereafter, and continuing for an excruciatingly long time, the prosecutor would ask Mr. Vega-Lara a question, he would refuse to answer and the prosecutor followed up with an impeachment question, didn’t you previously testify such and so. For example:
State: Did you -- did Angel Morales point the gun at Victor Mesa-Ortiz for the purpose of robbing him? Vega-Lara: Refuse to answer.
State: Did you previously testify that he pointed the gun at Victor Mesa-Ortiz -- Vega-Lara: Refuse to answer. State: -- for the purpose of robbing him? Vega-Lara: Refuse to answer. State: Did Victor Mesa-Ortiz resist when Angel Morales pointed the gun at him and tried to rob him? Vega-Lara: Refuse to answer. State: At that point did you enter the -- did you previously tell the jury that Victor Mesa-Ortiz started struggling with Angel Morales over the gun? Vega-Lara: refuse to answer.
See how this works? Having back-doored nearly all of Mr. Vega-Lara’s trial testimony in this fashion, the state, still dissatisfied, also moved to introduce a transcript of his trial testimony as substantive evidence. The trial court denied this request.
After the trial court granted Mr. Vega-Lara use immunity did he still have a valid Fifth Amendment privilege? If you want to skip to the end, the answer is, no. Here’s why. Mr. Vega-Lara said that he did have a valid privilege because he could be charged with perjury if the state determined that a conflict existed between his testimony in the Morales trial and his own trial testimony. In addition to a Fifth Amendment argument, Mr. Vega-Lara pointed to subdivision 3 of the immunity statute:
When the declarant has made two inconsistent statements under such circumstances that one or the other must be false and not believed by the declarant when made, it shall be sufficient for conviction under this section to charge and the jury to find that, without determining which, one or the other of such statements was false and not believed by the declarant
Not to worry. The appellate court says that the statute forecloses prosecution of an immunized witness for perjury based upon prior false statements that were not made under immunity. The court relies upon Fifth and Eighth circuit court of appeals opinions to support this conclusion. In re Grand Jury Proceedings, 644 F.2d 348, 350 (5th Cir. 1981); accord In re Grand Jury Proceedings, 625 F.2d 767, 770 (8th Cir. 1980).
If Mr. Vega-Lara didn’t have a valid privilege then what’s the problem with the state calling him to testify? Generally speaking, the state can’t call a witness knowing ahead of time that the witness will invoke a Fifth Amendment privilege and refuse to testify. State v. Mitchell, 268 Minn. 513, 130 N.W.2d 128 (1964) and Namet v. United States, 373 U.S. 179 (1963). A state’s witness who clams up, “pleading the fifth” tends to send a pretty strong signal to the jury that if the witness did testify it would not be a good thing for the defendant. It turns out, however, that this is the case whether the claim is valid or invalid.
Now we get to the core issue. Was the state’s examination of Mr. Vega-Lara reversible error? Yes, it was. There were two ways that the appellate court could have gone on this. It could have concluded that the prosecutor was acting in bad faith, in which case prejudice to the defense is presumed, new trial. “Under the second theory of error—the unfair-prejudice theory—reversible error results if the State calls a witness in good faith and the State’s “examination is of a type that has prejudiced defendant to the extent that he has been denied a fair trial.”
The appellate court goes with the later theory, ducking the bad faith determination. (Chief Justice Gildea would have found neither bad faith nor prejudice to Mr. Morales.) Where the substance and manner of the state’s examination of the witness who is claiming privilege adds “critical weight to the prosecution’s case in a form not subject to cross-examination” then there is prejudicial error. Namet. That’s what the appellate court says happened to Mr. Morales. (Mr. Vega-Lara wouldn’t answer defense questions, either.) The state’s questions to Mr. Vega-Lara provided the only detailed account of the crime that fit the state’s theory of the case. In addition, it’s not fair to let the state call a witness only to impeach him with prior testimony.
The state thought that Mr. Vega-Lara’s previous testimony was admissible as a prior inconsistent statement under Rule 801(d)(a)(A). The problem with this thought, however, is that the rule required that Mr. Vega-Lara be subject to cross examination. Mr. Vega-Lara answered only one question on cross examination. He wasn’t subject to cross examination.
The appellate court also ruled on the admissibility of some statements that Mr. Morales made to an acquaintance both before and after the murder, as guidance to the trial court on any re-trial. These statements had been admitted under the statement against interest exception to the hearsay rule; the appellate court affirmed those trial court rulings.
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