Defense is Prohibited From Arguing what a Witness Did Not Say in Court; Request For Review Pending

State v. Caldwell, Minn.Ct.App., 4/16/2012, petition for further review pending.  A jury convicted Mr. Caldwell of the first degree assault and drive-by shooting of P.B., both for the benefit of a gang.  Mr. Caldwell shot P.B. in the knee cap, apparently in a display of disappointment that P.B. didn’t want to join Mr. Caldwell’s street gang.

Officers showed a witness, Dyshay Driver, a photo array that included Mr. Caldwell.  Mr. Driver picked out Mr. Caldwell, saying that he looked like the man who shot P.B.  The following day, Mr. Driver positively identified Mr. Caldwell as P.B.’s shooter.  At trial, however, the prosecutor did not ask Mr. Driver to make an in court identification of Mr. Caldwell, and defense counsel didn’t ask him about it either.  What defense counsel did try to do – unsuccessfully – was argue to the jury what Mr. Driver had not done:  that Mr. Driver had not made an in court identification of Mr. Caldwell as the shooter:

[W]hen Mr. Driver was here in court yesterday he said absolutely nothing about this man sitting here. If he recognized that man [Caldwell] as the shooter, he could have told you that, but he didn’t.

The state objected and the trial court sustained that objection.  The court of appeals upholds the trial court, saying that the attempted argument misled the jury and thus it had not been an abuse of discretion to forbid this argument.  The court relied upon a gun case, State v. Davidson, 351 N.W.2d 8 (Minn. 1984), the applicability of which does not seem remotely apparent.  In that case, neither the prosecutor nor the defense had questioned the police about whether the gun had been processed for fingerprints; or, if not why not.  The defense had wanted to argue (but was precluded from doing so) either that there were no fingerprints found on the gun or that the police had not bothered to process the gun for prints.  The trial testimony about what the police had or had not done outside the courtroom  supported neither of these arguments, and was, indeed, misleading.

Mr. Caldwell didn’t want to argue about what had or had not happened outside the courtroom.  Rather, he wanted to argue what had taken place right in front of the jury:  Mr. Driver didn’t identify Mr. Caldwell as the shooter during his testimony.  The reliance on Davidson is misplaced.  Mr. Caldwell has asked the supreme court to review this opinion.