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State v. Huser

Supreme Court of Iowa

May 5, 2017

STATE OF IOWA, Appellee,
v.
VERNON LEE HUSER, Appellant.

         On review from the Iowa Court of Appeals.

         Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.

         Defendant seeks further review of his conviction for murder in the first degree.

          Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry, Brown & Bergmann, L.L.P., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, Steve Foritano and Michael Salvner, Assistant County Attorneys, for appellee.

          APPEL, JUSTICE.

         In this case, we consider an appeal by Vernon Huser arising from his conviction of first-degree murder in connection with the death of Lance Morningstar. In a separate proceeding, the State convicted Louis Woolheater of the Morningstar murder. The State prosecuted Huser on the theory that Huser aided and abetted Woolheater in the murder and was motivated to do so because Morningstar had an affair with Huser's wife.

         At his first trial, Huser was convicted of first-degree murder. The court of appeals reversed his first conviction on the ground the district court improperly allowed the admission of prejudicial hearsay evidence. The State retried Huser, and he was again convicted. Huser appeals his second conviction.

         Huser claims that his second conviction must be reversed because (1) the State failed to produce sufficient evidence to convict Huser of aiding and abetting the murder of Morningstar; (2) the district court erred in refusing to grant a mistrial, strike a witness's entire testimony, or give a requested curative instruction as a result of the improper admission of "backdoor" hearsay evidence; (3) the district court erred in refusing to admit evidence tending to show that Woolheater had personal motives for the murder; (4) the district court erred in refusing to grant a mistrial because of prosecutorial misconduct; and (5) cumulatively the above errors are sufficiently harmful to require reversal of Huser's conviction.

         A divided court of appeals rejected Huser's claim. We granted further review. For the reasons stated below, we reverse Huser's conviction and remand the case for a new trial.

         I. Factual and Procedural Background.

         A. Conviction of Woolheater.

         The partially decomposed body of Morningstar was discovered in February 2005 in a forested area in Altoona near Woolheater's home. Police immediately began investigating Woolheater and subsequently charged him with first-degree murder. Woolheater was convicted after a jury trial. The conviction was upheld by the court of appeals. State v. Woolheater, No. 10-0478, 2011 WL 6079094, at *6 (Iowa Ct. App. Dec. 7, 2011).

         B. First Huser Trial and Appeal.

         1. Overview of evidence at the first trial. In May 2009, the State charged Huser with murder in the first degree, alleging that he aided and abetted Woolheater in the killing of Morningstar. Huser pled not guilty. The case first came to trial in October 2010. See State v. Huser (Huser I), No. 10-2067, 2011 WL 6079120, at *2 (Iowa Ct. App. Dec. 7, 2011).

         At the first trial, the evidence, as summarized by the court of appeals, showed that Vernon and Deb Huser met in the early 1990s. Id. at *1. The couple purchased a modest garbage disposal route and substantially grew the business into what became known as Ankeny Sanitation. Id. They ultimately married, but their relationship grew tumultuous in the summer of 2003. Id. The following fall, Huser grew suspicious that Deb was having an affair and hired a private detective who observed Morningstar-a mutual friend of the Husers'-and Deb together. Id. Huser confronted Deb, and she admitted the affair. Id. The affair continued until April 2004, and the Husers' divorce was finalized in May 2004. Id.

         After the divorce, Huser remained very angry about the relationship between Deb and Morningstar and made statements threatening to "put the red dot" on Morningstar's head and that he could hire someone to kill Morningstar and nobody would find the body. Id. Huser was introduced to Woolheater in the spring of 2004 by a friend, Lawrence Webb. Id.

         Morningstar was last seen on September 30, 2004, leaving a bar at about 10:30 p.m. Id. at *2. On that date, Woolheater was spending time with a girlfriend, Michelle Zwank. Id. Woolheater instructed Zwank to drop him off at a baseball field outside Morningstar's house and return when called. Id. When Zwank returned to pick up Woolheater, he told her to drive to Morningstar's house. Id. At Morningstar's house, they loaded a body wrapped in a tarp into Zwank's truck and returned to Woolheater's residence. Id.

         At trial, the State offered evidence of statements made by Woolheater to Webb, Patti Mitrisin, and Marie Connett. Id. at *6. Woolheater's friend, Webb, testified about statements made by Woolheater after Morningstar's body was discovered. Id. Webb testified that Woolheater told him (1) the body "wasn't supposed to be there. It was supposed to be in a pit in Oklahoma, " (2) the murder weapon was "a .22, " and (3) only Woolheater, Webb, and Huser knew about the body. Id. In addition, Webb testified that Woolheater told him that he had been following Morningstar, "was going to rough him up, " and had already done so by breaking his ribs. Id. at *7. When Webb asked Woolheater why he would do that Woolheater replied, "Vern wanted something done about it." Id.

         Mitrisin testified that in September 2004, she and Woolheater drove to Woolheater's Quonset hut where a person was waiting for Woolheater. Id. Woolheater exited the truck to talk to the person. Id. When he returned to the truck, Woolheater identified the individual as Huser. Id. When Mitrisin asked what they were talking about, Woolheater replied, "[T]here was a guy messing around with Vern's wife or ex-wife . . . and he wanted this guy roughed up." Id.

         Finally, Connett testified that she had a telephone conversation with Woolheater. Id. According to Connett, Woolheater told her that "there was someone he knew, one of his friend's wives was cheating on him, and that [his friend] wanted to kill him." Id. Connett further stated that Woolheater said he was going to kill the other man. Id. When she asked why, Connett reported Woolheater said, "Because we stick together." Id.

         On this record, the jury convicted Huser of murder in the first degree by aiding and abetting another. Huser was sentenced to life in prison.

         2. First appeal.

         Huser appealed. Huser argued, among other things, that the testimonies of Webb, Mitrisin, and Connett about what Woolheater told them were hearsay and should not have been admitted at trial. Id. at *6. The State argued that the challenged testimony was offered for a nonhearsay purpose. Id. at *11. We transferred the case to the court of appeals.

         The court of appeals reversed. Id. at *13. The court of appeals noted that hearsay may be admitted to show the impact it had on a third party, but it could not be admitted to show or explain the conduct of the party making the statement. Id. at *11. The court of appeals noted that none of the hearsay statements were offered to show the impact of the statements on Webb, Mitrisin, or Connett. Id. Although defense counsel failed to properly object to the testimony of Webb and Connett, the court of appeals concluded that the failure to object amounted to a breach of a material duty. Id. at *12.

         Having found the admission of hearsay from Webb, Mitrisin, and Connett impermissible, the court of appeals turned to the question of prejudice. Id. Because the hearsay from Mitrisin was subject to a timely objection, the court of appeals held prejudice was presumed, and the State must affirmatively establish that Huser's substantial rights were not injured by the jury's consideration of the hearsay statements. Id.; State v. Sullivan, 679 N.W.2d 19, 30 (Iowa 2004). With respect to the statements offered by Webb and Connett, the court of appeals recognized the burden rested on the defendant to show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Huser, 2011 WL 6079120, at *12 (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984)).

         The court of appeals determined that Huser's conviction must be reversed because of the prejudice to Huser from the introduction of the hearsay statements. Id. at *13. The court of appeals recognized the State had presented strong evidence of Huser's motive to have Morningstar killed. Id. And, the State had presented compelling evidence that Woolheater killed Morningstar. Id. Yet, the court of appeals reasoned the three hearsay statements provided a critical link between Huser's motive and Woolheater's action. Id. According to the court of appeals, Woolheater's statements to Webb, Mitrisin, and Connett were "the most direct proof of Huser's encouragement of Woolheater's murderous acts." Id. at *12.

         Finally, the court of appeals noted that the evidence of aiding and abetting was "not overwhelming." Id. at *13. The court of appeals emphasized there were no witnesses at the scene of the murder and no clear money trail between Huser and Woolheater. Id. Without the hearsay evidence, according to the court of appeals, the link between Huser's motive and Woolheater's actions was incomplete. Id. According to the court of appeals, if counsel had "successfully objected to the inadmissible hearsay, [the court was] not fully confident that enough evidence remained on the record for a reasonable jury to convict Huser of aiding and abetting the murder." Id. Finding a reasonable probability that a different result would have occurred but for the admission of the hearsay testimony, the court of appeals reversed and remanded the case for a new trial. Id.

         C. Second Huser Trial and Appeal.

         1. Summary of evidence at the second trial.

         The State elected to retry Huser on the first-degree murder charge based upon its aiding and abetting theory. The evidence offered at the second trial overlapped with the first trial but was not identical.

         The evidence at the second trial showed that Deb and Morningstar commenced an affair sometime in the summer or fall of 2003. Huser had suspicions about the relationship early on. Deb moved out of the residence in January 2004. Huser's suspicions were confirmed when his son Nick-who, along with a business partner, had recently purchased Ankeny Sanitation from Huser and Deb-provided him with emails retrieved from Ankeny Sanitation. Huser further confirmed the affair by hiring a private investigator who provided photographs of Deb and Morningstar together at a Des Moines hotel.

         As part of the sale of Ankeny Sanitation to Nick and his business partner, Deb and Huser were to remain employed at the business for a year. As a result, although they lived apart for most of 2004, they had contact with one another through the business until Deb left Ankeny Sanitation sometime in the summer of 2004.

         In the spring of 2004, Huser and Deb tried marital counseling to save the marriage. At one point, Deb moved back into the marital residence in an attempt to reconcile. The marriage could not be saved, however, and their divorce became final on May 14, 2004.

         The State introduced evidence that Huser was particularly impacted by the affair because Morningstar had been a friend of the Husers. According to Deb, Huser placed bets with Morningstar for several years. Morningstar also attended tractor pulls with Huser and Deb. The State offered evidence that Huser became suspicious when Deb and Morningstar came back late from an evening of drinking at a tractor pull. Kevin Frey, a friend of Huser's, testified that Huser was particularly upset with Morningstar because Huser and Morningstar had been friends. Another witness, Creighton Penney, testified Huser told him that Morningstar laughed at him when Huser called Morningstar to discuss the matter and that Huser reported Morningstar telling him that "if Deb would stop calling him, he would stop fucking her." According to Penney, Morningstar's cavalier demeanor made Huser mad.

         Prior to Morningstar's disappearance on September 30, 2004, the State offered evidence that Huser made threatening statements about Morningstar. Specifically, the State introduced evidence that, prior to Morningstar's disappearance, Huser told Deb, "I'm going to kill the son of a bitch. He will turn up missing one day and no one will ever find his body." Huser stated many times within the earshot of Stephanie Duncan, an Ankeny Sanitation employee, that "he was going to kill that one-eyed motherfucker" and that "he was going to hide the body and that no one would ever find him." Huser told Penney-who rented warehouse property from Huser-that he wanted to kill Morningstar. Huser showed Penney a schedule of tractor pull events that he would attend and said if anything would happen to Morningstar it would be when Huser was out of town. He also stated that he was going to "kick [Morningstar's] butt." Shortly after talking to Penney about Morningstar, Penney overheard Huser on a phone call with a third party declaring, "Let's go ahead and let's get it done."

         Further, Huser told Deb's best friend, Jacque Wittick, that he wanted Morningstar to die or be taken out. Huser said he was going to have "Lance [Morningstar] taken out and then Debbie, " and that he was "going to put the red dot on [Morningstar's] forehead and then put it on Debbie." Huser told Frey that "he wouldn't mind if [Morningstar] was gone" and that he "wanted him dead." Finally, Huser told a friend, Robert Bunce, that he wanted to "shake up" Morningstar.

         The State offered evidence that in late summer or early fall of 2003, Huser and Bunce looked for Morningstar to confront him and drove by a bar that Morningstar frequented. Huser and Bunce continued on their way when they did not see his car. On March 17, 2004, Huser sat in a car in a parking lot across from a bar where Deb and Wittick were drinking. When Wittick came outside to talk to Huser, Huser asked whether Morningstar was inside. Wittick told Huser to stop stalking Deb. The State further introduced evidence Huser told Penney that on another occasion in the early morning hours sometime in June or July of 2004, Huser, accompanied by his son and his son's business partner, had been looking for Morningstar "to teach him a lesson."

         The State also introduced evidence of Huser's statements or conduct after the disappearance of Morningstar on September 30, 2004, that tended to implicate Huser in the murder. Specifically, a person who attended a December 2004 holiday party in Ankeny testified Huser, when asked about Morningstar, told him that "Morningstar would be found when the snow melts." Huser later told a friend that he was "in big trouble" after the discovery of Morningstar's body in February 2005. One witness testified Huser was mad at him for talking to the police after Morningstar's body was discovered.

         The State's theory of the case was that Woolheater committed the actual murder of Morningstar. In the summer of 2004, Webb introduced Huser to Woolheater as someone who did gutter work. Woolheater, apparently, was something of a talker. Woolheater told (1) girlfriend Karon Humphreys that he was a Navy SEAL and had "a high kill rate;" (2) girlfriend Jackie Putz that he was "like a bounty hunter" and would "go out and find people and bring them back;" (3) Webb that that he was "like a mercenary" and would "go take care of people or whatever" and discussed things like bullet velocity and projectile drop; and (4) girlfriend Mitrisin that "he may have to leave for days or weeks" and that he was "a peacekeeper, " which meant that "he would have to take people out."

         The State offered compelling evidence that Woolheater killed Morningstar. Morningstar's body was found near Woolheater's home. Woolheater's girlfriend, Zwank, testified that (1) she drove Woolheater to a ball field near Morningstar's home on the evening of September 30, (2) Woolheater exited the vehicle with a bag that looked like a pool cue bag, (3) she later helped Woolheater load what seemed to be a body into the trunk of her car, (4) she helped Woolheater drive Morningstar's truck to a parking lot of a tavern, (5) she helped Woolheater load a lawnmower from the Morningstar residence onto Woolheater's truck, and (6) Woolheater ultimately asked her to store the lawnmower. Shortly after Morningstar's body was discovered, Woolheater told a friend "the body was not supposed to be there . . . it was supposed to be in Oklahoma in a pit." Another girlfriend of Woolheater's found Morningstar's wallet in a bathroom cabinet of Woolheater's residence after Morningstar's disappearance.

         The State further offered evidence that Woolheater owned a .22 caliber rifle with a scope that provided the shooter with a red-dot sight and a bag for transporting the rifle. Five .22 caliber bullets were recovered from Morningstar's body, and although ballistics experts could not make a definitive determination because of the deterioration of the slugs, the markings on the bullets were consistent with Woolheater's rifle.

         Finally, the State offered evidence designed to link Woolheater and Huser. The State offered evidence that Huser hired Woolheater to do gutter work on property owned by Huser. Phone records showed a number of phone calls between Huser or Ankeny Sanitation and Woolheater during the summer and fall of 2004, but no phone calls in October or November. Huser and Woolheater were seen talking in the parking lot of property owned by Huser. Five days before the disappearance of Morningstar, Huser allowed Woolheater to use his cell phone to call Woolheater's girlfriend to pick Woolheater up at a bar where Woolheater had become intoxicated.

         The State offered evidence that Huser made a phone call on behalf of Woolheater to a member of the Bloomfield Fair Board, supporting Woolheater's desire to race sprint cars. Before making the call, Huser asked if Woolheater, who claimed to be a Navy SEAL, was "for real." A State's witness testified that the witness believed Huser was questioning the degree of experience and knowledge Woolheater claimed to have about guns.

         The State offered evidence linking Huser and Woolheater after Morningstar's disappearance. A friend of Woolheater who arrived at Woolheater's residence shortly after the discovery of Morningstar's body testified that Woolheater told him that the only persons who knew about the situation were the friend, Woolheater, and Huser. Later in November, Woolheater, Huser, and a companion of Huser's were drinking together in a bar. Woolheater provided Huser's companion with wine. Later, Huser and the companion drove to Woolheater's house to pick up a couple of bottles for Huser's companion to take with her.

         The State was unable to show a money trail from Huser to Woolheater. Deb testified, however, that Huser ordinarily had ten to fifteen thousand dollars in cash at his residence. Huser paid a private investigator in cash for his work in establishing that Deb and Morningstar had spent the night together at a Des Moines hotel. Further, the State offered evidence that Woolheater borrowed money from several girlfriends in the past and was behind on his rent for his home and the Quonset hut that he rented.

         Finally, the State offered evidence obtained from a search of the Quonset hut rented by Woolheater that linked Huser and Woolheater. In executing the search, police found a business card from Ankeny Sanitation with the annotation "call me" written on the back. In the container in which the Ankeny Sanitation business card was found, police uncovered a printout of the county assessor's website showing Morningstar's residence. In addition, police recovered a yellow sticky note from Woolheater's home with the address of Deb's new residence, which she established in August 2004. Deb testified the handwriting on the yellow sticky note was Huser's. A forensic expert testified the handwriting was probably Huser's.

         At trial, the defense sought to show that while Huser was originally angry at Morningstar, Huser got over it. Huser himself testified that he might have made inappropriate remarks about Morningstar early on, but that he came to see Deb-who was married at the time of the affair while Morningstar was single-as primarily responsible for the affair. According to Huser, after the divorce was final, Deb was upset because she wanted to continue to work on the marriage but he "was done with it." The defense noted there was no evidence Huser harassed Deb's new boyfriend after the divorce or another unidentified paramour of Deb's.

         Huser offered evidence that Morningstar was a bookie and owned racehorses. Morningstar's son, Lynn, testified his father stopped taking bets after the 2003 Super Bowl. According to Lynn, his father always had a pistol under the couch and a shotgun at the door of the residence. Lynn lived with his father when Morningstar disappeared. Lynn admitted he was taking methamphetamines during this time. Lynn was later arrested for conspiracy to manufacture meth. This evidence was designed to suggest Morningstar and his son lived the kind of lifestyles that could accumulate enemies, who might be responsible for Morningstar's death.

         Huser also offered evidence related to Woolheater's problems with the law. Woolheater was a convicted sex offender who was required to register in Iowa. On March 16, 2004, Woolheater was arrested for noncompliance with sexual registration laws. On August 19, Woolheater was placed on probation because of the violations. Woolheater was arrested again on December 23, 2004, for violations of probation, including possession of firearms and failure to secure permission prior to changing a residence. Woolheater stipulated to the violations on February 7 and was ordered to serve ninety days of incarceration.

         The defense asserted police had attempted to gather additional evidence for the case against Huser but were unsuccessful. The police placed a GPS device on Huser's truck, but no evidence was developed. Penney was given a key fob to record conversations with Huser, but nothing of value resulted. Huser also attacked experts offered by the State as having inconclusive opinions. The ballistic results were inconclusive, handwriting experts could only "probably" identify writing samples, and the time of death had never been firmly established. The defense emphasized law enforcement was unable to find a money trail from Huser to Woolheater. Additionally, law enforcement was unable to find any reference to Woolheater on Huser's various computers, which police seized as part of their investigation.

         2. Motion to suppress Woolheater's out-of-court statements.

         Prior to trial, Huser filed what he styled a "Motion to Suppress Woolheater's Out of Court Statements." In the motion, Huser sought to prevent the State from introducing evidence of Woolheater's statements to Webb, Mitrisin, and Connett that the court of appeals had ruled inadmissible in Huser I. The State resisted, asserting that while the court of appeals ruled the evidence could not be considered nonhearsay, the State could introduce the evidence as admissions against interest or as statements of a coconspirator in furtherance of the conspiracy-theories of admission that were not presented to the court of appeals. Huser countered that the State could not raise a different theory of admissibility at the second trial.

         The district court agreed with Huser, ruling that under the doctrine of the "law of the case, " the State could not assert a different ground or theory for the admissibility of this evidence. As a result, the district court ruled that "Connett and Mitrisin's testimony and parts of Webb's testimony about Woolheater's statements before the murder are inadmissible."

         3. Backdoor hearsay issue at trial.

         The State did not offer testimony from Webb and Connett at the second trial. It did, however, call Mitrisin to the stand.

         Prior to Mitrisin's testimony, the State and defense counsel met to discuss how the questioning of Mitrisin would be conducted. The informal conference was not recorded. There is no dispute, however, that Huser's counsel agreed Mitrisin could testify about Huser being the person she saw meet with Woolheater at the Quonset hut in August or September 2004, immediately prior to the murder.

         During direct examination of Mitrisin, the State established that Huser was the person Woolheater met with at the Quonset hut. But the State did not leave it there. The State continued its questioning:

Q: Okay. Could you hear what they were talking about?

A: No, I could not.

Q: Could you observe their demeanor?

A: Just like two men talking.

Q: Okay. I know it's been a long time, but do you remember when this interaction occurred?

A: The best that I can remember would have to be the end of August or the first part of September.

Q: And that would be in the year 2004?

A: Right.

Q: I do have just a couple of quick questions. Now, without telling me what Mr. Woolheater said, did he ever speak of Lance Morningstar?

A: Yes.

Q: Without telling me what Mr. Woolheater said, did he ever speak of Deb Huser?

A: Yes.

Q: And without telling me what Mr. Woolheater said, did he speak about Vern Huser?

A: Yes.

         The defense did not immediately object. After the close of Mitrisin's direct examination, Huser's lawyer asked to approach the bench and a discussion was held off the record. The trial resumed, and Huser's lawyer briefly cross-examined Mitrisin. Mitrisin was then excused. Outside of the presence of the jury, and over the next couple of days, the parties argued about the propriety and admissibility of the last three questions posed to Mitrisin.

         Huser's attorney strenuously objected to the State's additional questioning of Mitrisin and moved for a mistrial. Huser's attorney claimed,

I thought we had this worked out. . . . [The State] said they had no intention of getting into the prohibited hearsay area that the Court of Appeals had said was unacceptable and also that this Court has ruled was unacceptable.
We went over-we previewed the questions. We debated about it. The State then indicated that they would just ask if she would identify Mr. Huser, and that would be the end of it. Was that acceptable, as far as it would go? We said we agreed.
. . . [T]hey assured us that that's as far as the questions would go.

         Huser's attorney accused the prosecutor of deliberately attempting to elicit impermissible hearsay through the backdoor by asking Mitrisin if Woolheater had ever talked about Morningstar, Deb, and Huser immediately after identifying the September 2004 conversation between Huser and Woolheater. These questions, Huser's attorney stressed, would cause the jury to make an inference that the content of the discussion between Woolheater and Huser just prior to Morningstar's disappearance centered on what Huser wanted done to Morningstar.

         Huser's counsel stated that no objection was made at the time the evidence came in because the testimony was already subject to a motion in limine and that "[the judge] told us we didn't have to make an objection." Further, Huser's counsel stated that he did not jump up and yell mistrial because it would have highlighted the testimony for the jury. Instead, he waited until the close of Mitrisin's direct testimony.

         Huser's counsel also attacked the State's claim that the evidence was not hearsay. In support of its position, the State's attorney provided the district court with State v. Farrar, No. 10-1039, 2011 WL 3480999 (Iowa Ct. App. Aug. 10, 2011). Huser argued the State misread the Farrar case, and it was not on point. Further, Huser argued, the fact the State had the Farrar case ready when Mitrisin's testimony came in showed bad faith on the part of the State. Huser asserted the State intended to ambush Huser all along.

         The State defended on both substantive and procedural grounds. On procedural grounds, the State noted the defense did not make a contemporaneous objection when the testimony came in, but waited until Mitrisin's direct examination was complete to object. Thus, the State argued, Huser waived the objection. The State asserted Huser's counsel made a tactical decision to allow the tainted evidence into the record and then move for a mistrial rather than objecting in a timely fashion, which would have given the district court an opportunity to rule on the objection before the evidence came in.

         On substance, the State argued Mitrisin's testimony was not hearsay. The State stressed the language of its questions, namely, whether Woolheater had ever talked about Morningstar, Deb, or Huser.

         The State claimed that Farrar supported its position. In Farrar, the defendant was accused of domestic abuse, but the alleged victim did not respond to a subpoena and was not present in court. 2011 WL 3480999, at *1. The state attempted to offer evidence of what the alleged victim told an officer, yet avoid hearsay problems through a "without telling me what [the nontestifying witness] told you" strategy. Id. at *2. The evidence came in without objection, giving rise on appeal to an ineffective-assistance-of-counsel claim. Id. The examination by the state in Farrar was as follows:

Q: Without telling me what Ms. Clark told you, did Ms. Clark tell you what occurred in that apartment that night?

A: Yes.

Q: Without telling me what she told you, did she tell you how she received these injuries?

A: Yes.

Q: After the accounts of what occurred or the injuries, were the injuries to her face and eyes consistent with being struck in the face?

A. Yes.

Q: Obviously, there was injury to both eyes. Was it being consistent with being struck more than once?

A: Yes.

Q: Without telling me what Ms. Clark told you, after speaking with her, were you investigating a crime?

A: Yes.

Q: Did you have a possible, primary aggressor or suspect?

A: Yes.

Q: Who was that?

A: Mr. Farrar.

Id.

         On appeal, Farrar contended that this "without telling me what [the nontestifying witness] told you" strategy violated his right to confront witnesses under the Confrontation Clause of the Sixth Amendment. Id. As a result, his counsel was ineffective for failing to object to this line of questioning. Id. The state countered that the carefully worded questions did not elicit hearsay answers. Id.

         The majority of the court of appeals held that the question of whether Farrar's attorney should have objected on Confrontation Clause or hearsay grounds should be preserved for postconviction-relief proceedings to allow trial counsel an opportunity to address the issue. Id. at *3. In support of its conclusion, the majority cited a federal appellate case. Id. (citing United States v. Check, 582 F.2d 668, 679 (2d Cir. 1978) (concluding the state had "audaciously" introduced out-of-court statements by supposedly restricting an undercover agent's testimony to his half of the conversation)). As a result, the majority affirmed Farrar's conviction. Id. at *3.

         Judge Vogel concurred in the result, but would have decided the Confrontation Clause and hearsay issues in favor of the state on direct appeal. Id. at *3 (Vogel, P.J., concurring specially). According to Judge Vogel, the officer's testimony in Check conveyed "the precise substance" and "indeed the minutiae" of out-of-court statements made by an informant. Id. (quoting Check, 582 F.2d at 675, 683). In Farrar's case, Judge Vogel asserted that at no point did the testimony convey "the precise substance" of the absent witness's statements. Id.

         The district court ruled against Huser on the mistrial motion related to the backdoor hearsay testimony of Mitrisin. The district court was unpersuaded by the State's argument the testimony was not hearsay, noting "the prosecutor was acting as a transparent conduit for the introduction of inadmissible hearsay." The district court, however, declined to grant a mistrial because there was other admissible evidence before the jury of the connection between Woolheater, Huser, and Deb. Therefore, the district court reasoned, any harm from the Mitrisin hearsay was minimal and did not justify a mistrial.

         Huser's attorney then asked the court to strike the questions, admonish the jury to disregard the testimony, and prohibit the State from referring to the statements for the rest of the trial. The prosecutor replied he had no objection to striking the questions or admonishing the jury, but he was not sure how an admonishment could be crafted without alerting or reminding the jurors about the testimony. Huser's attorney agreed to work with the State in crafting a suitable admonishment. The district court agreed to let the attorneys work on an admonishment. Ultimately, however, the parties could not agree to a curative instruction, and Huser moved to strike Mitrisin's trial testimony in its entirety because of the three hearsay questions and answers. Huser wanted the entire testimony stricken because the defense did not want to highlight the three questions.

         The motion to strike Mitrisin's entire testimony was denied. The district court did agree, however, to order the State not to mention Mitrisin's answers to the additional questions in the State's closing argument.

         Later, in discussing jury instructions, Huser's attorney argued he was in a "Catch-22" situation because the jury could not be instructed to disregard the Mitrisin backdoor hearsay without reminding the jury of the hearsay. Huser proposed, therefore, that since the motion for a mistrial and the motion to strike Mitrisin's entire testimony were not granted, the only acceptable admonishment would be an instruction stating,

During the State's case when presenting the testimony of its witness Patti Mitrisin the State knowingly and intentionally asked improper questions regarding conversations she had with Mr. Woolheater. Whatever Mr. Woolheater said to Ms. Mitrisin cannot be considered by you when deciding this case.

         Additionally, Huser proposed two alternative instructions: "The information from the questions would be unfavorable to the State and favorable to Vern Huser" or "The State acted in bad faith by asking the questions, and you may draw any inference favorable to Mr. Huser." The State resisted the instructions.

         The district court rejected Huser's proposed instructions on Mitrisin's testimony. As previously ordered by the court, however, the prosecutor did not mention the Mitrisin backdoor hearsay in its closing argument.

         4. Limitation on ...


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