State v. Stofflet
| Decision Date | 08 June 1979 |
| Docket Number | No. 47591.,47591. |
| Citation | 281 NW 2d 494 |
| Parties | STATE of Minnesota, Respondent, v. Larry Lee STOFFLET, Appellant. |
| Court | Minnesota Supreme Court |
C. Paul Jones, Public Defender, and J. Christopher Cuneo, Asst. Public Defender, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., and Craig Forsman, Special Asst. Atty. Gen., St. Paul, Richard T. Jessen, County Atty., Foley, for respondent.
Considered and decided by the court en banc without oral argument.
Defendant was found guilty by a district court jury of criminal sexual conduct in the third degree. Minn.St. 609.344(c) (). He was sentenced by the trial court to a 10-year term. Defendant's direct appeal was stayed so he could petition for postconviction relief. When that petition was denied, defendant combined an appeal from that order with the reinstated direct appeal. Defendant raises two issues: (1) whether, notwithstanding his failure to object at trial, he should receive a new trial on the ground that the prosecutor in his closing argument referred to evidence impeaching a defense witness when that evidence, although it existed and would have been admissible, was never offered or admitted, and (2) whether the district court erred in denying a motion for a so-called Schwartz hearing to examine a juror about possible bias toward defense counsel because of a prior feud which defense counsel failed to remember until after the guilty verdict was reached. We affirm.
The complainant in this case was a 17-year-old girl, who testified that after a dance she and a girl friend went to an isolated place along a rural road with an acquaintance named John DeMarais and several male friends of his, including defendant. She testified that she voluntarily had sexual intercourse with DeMarais but that afterwards defendant and two of the other men forcibly had sexual intercourse with her. The complainant's testimony was corroborated by her girl friend, who testified that she too was threatened with rape if she interfered, testimony that complainant promptly complained to her mother and to the sheriff, and the fact that the men disabled the girls' car.
At trial defendant testified that the complainant consented to have sexual intercourse with him and the others. DeMarais corroborated this testimony. Defense counsel, at the conclusion of his direct examination of DeMarais, asked if it was true that he "didn't tell him Deputy Sheriff Wippler exactly what you told us here." DeMarais said, "Right," explaining that the reason he did not was "I felt it was no real need where I should tell him what happened." Deputy Wippler had already testified during the state's case-in-chief but had not been questioned by the prosecutor as to the significant details of DeMarais' prior statement. Both the prosecutor and defense counsel had a summary of DeMarais' oral statement prepared by Wippler, which indicated that when questioned by Wippler DeMarais had made a number of statements inconsistent with his trial testimony on direct. Basing his cross-examination on this summary, the prosecutor questioned DeMarais about the prior statement and these inconsistencies. DeMarais admitted having made some of the prior statements. However, asked if he recalled saying that he heard the complainant say "leave me alone" and "don't do that," DeMarais replied that he had made no such statement. He also denied having told Wippler that complainant's girl friend was crying and screaming to leave complainant alone.
In closing argument the prosecutor, although he had never called Wippler to testify and provide extrinsic evidence of the prior inconsistent statements, did not confine his comments to the inconsistencies DeMarais admitted but also referred to the inconsistencies DeMarais denied. Rather than object to these statements as not being based on the evidence, defense counsel responded to them in his closing statement.
After the jury returned the guilty verdict, defense counsel sought a Schwartz hearing to examine one of the jurors about possible bias. The request was based upon a feud which defense counsel had previously had with the juror but failed to remember until the trial was over. This feud apparently occurred about a year earlier and related to defense counsel's management of an amateur hockey club. There is no transcript of voir dire because the questioning of jurors was not reported and there is disagreement over what questions were asked.
1. This is not a case in which the prosecutor's cross-examination of a defense witness about prior inconsistent statements was unjustified. The cross-examination was based entirely on a summary Wippler had made of his conversation with DeMarais. Although it is sometimes stated that a prosecutor commits misconduct if he cross-examines a defense witness about a prior inconsistent statement and then fails to produce extrinsic evidence of that statement, the more correct statement of the rule focuses on whether the prosecutor is able to produce extrinsic evidence of the prior statement. Whether cross-examination concerning a prior inconsistent statement is justified turns on whether the question is based on evidence or is simply an attempt by the prosecutor to utilize innuendo. This point is made clear by Rule 613, Rules of Evidence, which, although not yet effective at the time of this trial, nonetheless merits consideration. Rule 613 provides as follows:
As the Federal advisory committee's notes to the corresponding Federal rule make clear, it is the first part of the rule which, by providing for disclosure to counsel, "protects against unwarranted insinuations that a statement has been made when the fact is to the contrary." In this case the prosecutor was able to produce extrinsic evidence to back up his questions on cross-examination, although he did not; and such evidence had been disclosed to defense counsel. Defendant cannot complain that the prosecutor did not introduce the extrinsic evidence but instead accepted his answer. See, 3A Wigmore, Evidence (Chadbourn Rev.) § 1023. In fact, a defendant is in a better position if the prosecutor does not introduce the extrinsic evidence.
Thus, the real issue in this case is not whether the prosecutor erred in cross-examining DeMarais about the prior inconsistent statements to Wippler. Indeed, the prosecutor was perfectly justified in cross-examining him about these statements. The problem arose when the prosecutor, not having called Wippler to testify about the prior statements, spoke in his closing argument as if Wippler had testified about the prior statements. This was...
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