State v. Mitchell, 38088

• Decision Date: 01 October 1964
• Docket Number: No. 38088,38088
• Citation: 268 Minn. 513,130 N.W.2d 128
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota, Respondent, v. Richard Robert MITCHELL, Appellant. . June, 5, 1964. Rehearing Denied

Page 128

130 N.W.2d 128

268 Minn. 513

STATE of Minnesota, Respondent, v. Richard Robert MITCHELL, Appellant.

No. 38088.

Supreme Court of Minnesota.

June, 5, 1964.

Rehearing Denied Oct. 1, 1964.

Syllabus by the court

1. An accessory is a competent witness and may be called to testify.

2. It is prejudicial misconduct for a prosecuting attorney to call as a witness an accessory to an offense for which defendant is being tried when the prosecuting attorney knows that the witness will claim privilege against incrimination and calls him for the purpose of creating an atmosphere of prejudice and discrediting defendant in the minds of the jury.

3. Where an accessory to an offense for which defendant is being tried is called by the prosecuting attorney in good faith and the witness claims privilege against incrimination, the answer to the question as to whether such conduct is prejudicial to defendant must be found in an examination of the record as to what actually happened in the court below. Held, under the facts recited in the opinion, the prosecution's calling as a witness an accessory who claimed privilege against incrimination was not prejudicial error requiring a new trial.

4. Where the defense counsel with consent of the court excused a prosecution witness and reserved the right to further cross-examination of such witness; and where the court extended the right of such further cross-examination to be conducted during the course of defense presentation of evidence, there was no prejudice in the trial court's ruling denying the right to further cross-examination after the state rested until defendant had opened his case.

John S. Connolly, St. Paul, for appellant.

Walter F. Mondale, Atty. Gen., Charles E. Houston, Sol. Gen., St. Paul, William B. Randall, County Atty., Thomas M. Quayle and John P. Frank, Asst. County Attys., St. Paul, for respondent.

MURPHY, Justice.

This is an appeal from an order denying defendant's motion for a new trial following his conviction of murder in the third degree. Defendant, together with one Jacob Joseph Smith and Richard Thomas McCarty, was charged by indictment with murder in the third degree contrary to Minn.St.1961, § 619.10. The indictment alleged that the act took place on August 12, 1959, and that the victim, Gordon Knopic, died August 16, the result of an assault upon him in an attempted robbery.

The material facts as they appear in the record are substantially the same as those stated in State v. Smith, 264 Minn. 307, 119 N.W.2d 838, which affirms the conviction of defendant Smith, who was tried separately. In summary, it is sufficient to say that the defendant, Smith, McCarty, and one Lawrence Liebgott, who was indicted as an accessory after the fact, met at Duane's Lounge bar in the evening of August 11, 1959, moved to another bar, and then came to Harry Unise's tavern shortly before 11 p.m. While they were there, one of them observed the victim Knopic cashing a check. About 12:45 a.m., when Knopic left the bar, he was followed by Smith. McCarty also left a few minutes later. Defendant had preceded them. It does not appear that they followed a prearranged plan. As stated in the Smith case, Knopic went to the parking lot and, after he had entered his automobile, Smith pulled him out and defendant joined in an assault upon him. In describing defendant's participation in the offense, McCarty testified that after Knopic was on the ground, 'Mr. Mitchell came running across Rice Street and joined us in the parking lot. * * * He kicked the man (Knopic) in the head * * *. He kicked him like you kick a football.' McCarty claims he told Mitchell he 'had better leave the fellow alone,' that he was 'going to kill him.' Knopic died in the hospital a few days later.

1--2--3. The state called Lawrence Liebgott as a witness in behalf of the prosecution. He was asked if he knew Smith, McCarty, and the defendant; his own whereabouts and activities on the evening of August 11 and the morning of August 12, 1959; and if he was driving a certain Plymouth automobile on the night of August 11. In response to all of these questions, the witness invoked his privilege under the Fifth Amendment and declined to answer. Defendant claims that when the prosecuting attorney called Liebgott he knew that the witness would claim immunity and that the only purpose of calling him was to discredit defendant with the jury. It is asserted that this was prejudicial error.

The point raised has been considered in a number of cases, three of which have fully discussed the issue. They are DeGesualdo v. People, 147 Colo. 426, 364 P.2d 374, 86 A.L.R.2d 1435; United States v. Maloney (2 Cir.), 262 F.2d 535; and United States v. Hiss (2 Cir.), 185 F.2d 822. We agree with the views expressed by the Colorado court in the DeGesualdo case that, where there is an apparent want of good faith on the part of the prosecuting attorney, calling as a witness a coconspirator who did not intend to testify for the prosecution and obtaining from him the claim of privilege against incrimination in the presence of the jury is prejudicial misconduct. While a codefendant or accomplice is a competent witness and may be called to testify, he may not be called for the purpose of extracting a claim of privilege against incrimination. The Colorado court pointed out that the district attorney is a judicial officer sworn to uphold the constitution and is obligated to refrain from invalid conduct creating an atmosphere prejudicial to the substantial rights of the defendant.

In United States v. Maloney (2 Cir.), 262 F.2d 535, 537, Judge Hand noted that when a witness claims privilege an 'inference arises as to what would have been his answer if he had not refused,' and that if the prosecution puts the question knowing the privilege will be asserted, 'it is charged with notice of the probable effect of his refusal upon the jury's mind.' On the other hand, he observed that if the state fails to call the witness, there might be an adverse inference, and the jury might assume that if called the testimony of the witness would have been favorable to the accused. He concluded (262 F.2d 537):

'* * * We must confess that the situation is one in which either alternative results in prejudice to one side or the other; and it is impossible, so far as we can see, to lay down any general rule that will cover all instances.'

United States v. Hiss, supra, involved an indictment charging perjury. The government had notice that a witness had, in a proceeding previous to the trial, refused to answer questions relating to the offense on the ground of self-incrimination and had been prosecuted for contempt. The government knew that he would refuse to answer some of the questions which he would be asked and so did defense counsel, who promptly objected on proper grounds. The witness claimed his privilege and refused to answer questions with reference to the issues, but did testify that he did not know the defendant. The trial judge told the jury not to draw unfavorable inferences because of the fact that the witness claimed immunity. On review it was held that the conduct complained of was not prejudicial. In discussing the issue with which we are here concerned, Judge Chase said (185 F.2d 832):

'In some state court decisions language has been used which may support the appellant on this point. In an earlier opinion of this court, after noticing that Professor Wigmore held the view that the privilege was but an option to refuse to answer and not a prohibition of inquiry, 8 Wigmore on Evidence, 3d Ed. § 2268, we remarked by way of warning, 'Nevertheless we are not prepared to say that it would not be ground for reversal if the party who called a witness connected with a challenged transaction knew, or had reasonable cause to know, before putting the witness on the stand that he would claim his privilege.' We do not now say that such an abuse might not sometime occur so as to require reversal, but we find no such abuse occurred below. Cf. Weinbaum v. United States, 9 Cir., 184 F.2d 330; dec'd. Sept. 19, 1950; People v. Kynette, 15 Cal.2d 731, 104 P.2d 794, certiorari denied 312 U.S. 703 61 S.Ct. 806, 85 L.Ed. 1136. Where a prosecutor is charged with conduct so prejudicial as to amount to reversible error, the charge should be made good by showing a successful effort to influence the jury against a defendant by some means clearly indefensible as a matter of law. It is not enough if there are no more than minor lapses through a long trial. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239--240, 60 S.Ct. 811, 84 L.Ed. 1129. Cf. United States v. Buckner, 2 Cir., 108 F.2d 921, 928, certiorari denied 309 U.S. 669, 60 S.Ct. 613, 84 L.Ed. 1016.'

We gather from the authorities which have discussed the principle that where the prosecution calls a witness for the purpose of prejudicing the defendant in the minds of the jury, knowing that the witness will claim immunity, reversible error results. This must be so even though it cannot be established that prejudice results. The objectionable conduct tends to undermine the integrity of the judicial process and vitiates the conviction. However, it cannot be said that prejudice necessarily results in every case. Where the witness is called in good faith, the question arises as to whether, in content and extent, the prosecutor's examination is of a type that has prejudiced defendant to the extent that he has been denied a fair trial. Under such circumstances, it becomes necessary to weigh the factors which justify or proscribe the conduct complained of. The answer must be found in the context of the record or in trying to determine what actually happened in the court below.

When we examine the record in the light of Minnesota's unique procedure in criminal trials, we cannot agree that Liebgott was called by the prosecuting attorney for the purpose of imputing culpability. Although the prosecution has...