Although Portions of State’s Grand Jury Presentation Were “Problematic” Dismissal of Indictment was Not Required.

State v. Morrow, Minn.S.Ct., 8/7/2013.  A grand jury indicted Mr. Morrow with one count of first degree premeditated murder, two counts of attempted first degree premeditated murder and seven other counts.  A jury convicted him on everything and the court imposed a life sentence without possibility of parole on the top count.  Mr. Morrow raised a number of issues on appeal, including the denial of his motions to dismiss the indictment on various grounds, and to suppress his statement to the police.  Justice G. Barry Anderson – Wright & Lillehaug not participating - affirmed the conviction and sentence.

Mr. Morrow, through counsel, notified the prosecutor that he wanted to testify before the grand jury.  The attorneys then spent some time negotiating whether that would happen; it didn’t and instead, the grand jury heard an officer’s summary of Mr. Morrow’s statement to the cops.  Mr. Morrow complained that what the cop told the grand jurors misrepresented what he’d said to the point of more or less eviscerating his claim of self defense.   Mr. Morrow also complained that the prosecutor failed to present exculpatory evidence and failed properly to respond to questions from the grand jurors.  The court summarily rejects Mr. Morrow’s clam that he had a right to testify before the grand jury; rather, the decision to call a defendant as a witness before the grand jury is a discretionary decision that was not abused in this case.

Mr. Morrow also claimed that his testimony would have been exculpatory but the court was not presented with an offer of proof of what that evidence would have looked like.  On his claim that the officer misrepresented his statement to the grand jury the court concludes that even though there were some inaccuracies in it, it was close enough for government work.  The court does describe portions of the officer’s summary to the grand jury of Mr. Morrow’s statement as “problematic,” but not so much to overcome what the court described as a “heavy burden” that has to be satisfied to dismiss an indictment.

At the beginning of Mr. Morrow’s custodial interrogation he asked the officers if could talk to his Dad if he cooperated with them “one hundred percent.”  The officers told him that if he told them the truth and if they believed him then he would be allowed to make the call to his Dad.  Mr. Morrow argued that this made his statement involuntary because the officers exploited Mr. Morrow’s special relationship with his father.  The test whether a defendant’s statement is voluntary is whether that defendant’s will was overborne at the time of his confession, determined under a “totality of the circumstances” analysis.  State v. Zabawa, 787 N.W.2d 177 (Minn. 2010).  The court affirms the trial court’s conclusion that the statement had been voluntarily made.

The trial court permitted the state to introduce a photograph of the deceased, who was a grown man at the time of his death, as a child.  The court upheld the introduction of this photograph – “spark of life” – concluding that it was not used to invoke undue sympathy or to inflame the jury’s passions.  See State v. Scales, 518 N.W.2d 587 (Minn. 1994).