2010-M-153             State of Minnesota, Respondent, vs. Randy Leeroyal Swaney, Appellant.

MAJORITY:  Randy Leeroyal Swaney was convicted in Rock County, Minnesota of first-degree

premeditated murder for the death of Carrie Nelson and was sentenced to life in prison without any possibility of release.  Swaney filed a direct appeal of his convictions.  On appeal, Swaney argues that (1) the admission of an investigator‘s out-of-court questions violated his Confrontation Clause rights, (2) the district court violated his right to present a defense by excluding reverse-Spreigl evidence regarding an alternative perpetrator, (3) the State committed prosecutorial error, and (4) the district court erred when it permitted the State to introduce rebuttal evidence.  Swaney also makes several other arguments in his pro se supplemental brief.  We affirm.

First, when an investigator‘s out-of-court questions to a person are admitted at trial, and

those questions, when put together or read in sequence, repeat or specifically imply that

person‘s out-of-court answers or statements in response to the questions, the investigator‘s questions may properly be considered to be that person‘s out-of-court statements and if the defendant did not have an opportunity to cross-examine the other person, there may be a Confrontation Clause issue.

Second, the admission of an investigator‘s out-of-court questions to a person other than the defendant violated the defendant‘s Confrontation Clause rights because the questions (1) were offered for the truth of the matter asserted and (2) inescapably implied the other person‘s out-of-court testimonial statements, and the defendant did not have an opportunity to cross-examine the other person.  

Third, error in admitting an investigator‘s out-of-court questions was harmless beyond a reasonable doubt because other evidence at trial established the facts that could be inescapably implied from the investigator‘s out-of-court questions.

Fourth, the district court did not clearly abuse its discretion in excluding the defendant‘s proffered reverse-Spreigl evidence on relevancy grounds.

Fifth, the State did not commit prosecutorial error by attacking the defendant‘s character, speculating about events occurring at the time of the murder absent a factual basis, or improperly using past-crimes impeachment evidence as substantive character evidence.

Sixth, the district court did not abuse its discretion in allowing the State to present rebuttal testimony when the rebuttal testimony was relevant and was designed to concisely refute the defendant‘s evidence.

 Affirmed.

CONCUR:  Justice Page opined:  “I concur in the result, but I write separately to note my disagreement with the court‘s conclusion that there was no prosecutorial misconduct.  The court concludes that the State did not commit misconduct when it questioned witnesses about Swaney‘s children and when it suggested to the jury during closing argument that Swaney stole a replacement watch based on ―the evidence you‘ve heard in this case.  I would hold that the State did commit misconduct, but concur in the result because the misconduct was harmless and did not affect Swaney‘s substantial rights.

Paul Anderson  (Gildea, Meyer, Barry Anderson, and Dietzen)

               Concur:  Page

               Took no part:  Stras

               [MURDER]