2010-M-166            State of Minnesota, Appellant, vs. Angel Morales, Respondent.

HELD:  We conclude that the State’s examination of Vega Lara, an accomplice witness who refused to testify, was prejudicial to Morales to such an extent that it denied Morales a fair trial.  Under Mitchell, such unfair prejudice is reversible error.  Therefore, we reverse and remand for a new trial for charges of felony murder during an aggravated robbery.

MAJORITY:  A Hennepin County jury found Angel Morales guilty of second-degree felony murder for the death of Victor Mesa-Ortiz during the commission of an aggravated robbery.  The Hennepin County District Court convicted Morales of this crime and sentenced him to 150 months in prison.  At trial, the State alleged that Morales’s accomplice, Felipe Vega-Lara, shot and killed Mesa-Ortiz when Mesa-Ortiz resisted an attempt to rob him at gunpoint.   The district court granted Vega-Lara use immunity, and the State called Vega-Lara to testify at Morales’s trial even though Vega-Lara indicated that he planned to assert a Fifth Amendment privilege.  Over Morales’s objections, the court allowed the State to question Vega-Lara about the testimony Vega-Lara had provided at his own trial.  The court also allowed the State to introduce out-of-court statements by Vega-Lara under the statement-against-interest exception to the hearsay rule.  

 Morales appealed his conviction, and the court of appeals held that the district court abused its discretion in (1) allowing the State to question Vega-Lara after he had asserted a Fifth Amendment privilege; (2) allowing the State to impeach Vega-Lara with his prior inconsistent statements; and (3) admitting some of Vega-Lara’s out-of-court statements as statements against penal interest.  After concluding that the errors were not harmless, the court of appeals reversed.  We affirm the court of appeals in part and reverse in part.

First, the use-immunity statute, Minn. Stat. § 609.09 (2008), is appropriately coextensive with the Fifth Amendment privilege against self-incrimination, and a witness with use immunity does not have a valid Fifth Amendment privilege to refuse to testify.

Second, the framework outlined in State v. Mitchell, 268 Minn. 513, 130 N.W.2d 128 (1964), applies in cases in which the State calls a witness who refuses to testify, regardless of whether the refusal is based on a valid privilege. 

Third, the State did not call a witness in bad faith, even though the State knew with a high degree of certainty that the witness would refuse to testify, because the State may have had other reasons for calling the witness besides creating a prejudicial atmosphere.

Fourth, the State’s questioning of a witness who refused to testify was prejudicial because the State’s questioning was extensive, fact-laden, and went to the substance of the charged offense, and additionally because the State impeached the witness with his prior testimony, thereby supplying the jury with particular incriminating inferences that were consistent with the State’s theory of the case.

Fifth, the State’s questioning of a witness who refused to testify was prejudicial to the extent that it denied the defendant a fair trial and was therefore reversible error.

Sixth, the district court did not abuse its discretion when it admitted three statements that referenced “another person” and may have thereby inculpated the defendant under the statement-against-interest exception to the hearsay rule, Minn. R. Evid. 804(b)(3) because a reasonable person in the declarant’s position would not have made the statements if they were not true. 

DISSENT:  Justice Gildea opined:  “I respectfully dissent.  The majority holds that Morales is entitled to a new trial because the State attempted to lay the foundation for the admission of testimony codefendant Felipe Vega-Lara gave during his own trial.  In response to Vega-Lara’s refusal to answer questions in reliance on a nonexistent privilege, the State attempted to lay a foundation to have Vega-Lara’s testimony from his earlier trial admitted as substantive evidence. 

The majority holds that the State’s attempt to lay this foundation unfairly prejudiced Morales and entitles him to a new trial.  I disagree.  I would hold that Morales was not unfairly prejudiced and would affirm his conviction.

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

Dissent:  Gildea

               Took no part:  Stras

               [MURDER]