review from the Iowa Court of Appeals.
from the Iowa District Court for Polk County, Glenn E. Pille,
seeks further review of his conviction for murder in the
Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Dunn,
Boles, Gribble, Gentry, Brown & Bergmann, L.L.P., Des
Moines, for appellant.
J. Miller, Attorney General, Sharon K. Hall, Assistant
Attorney General, John P. Sarcone, County Attorney, Steve
Foritano and Michael Salvner, Assistant County Attorneys, for
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.
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.
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.
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
Factual and Procedural Background.
Conviction of Woolheater.
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).
First Huser Trial and Appeal.
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).
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.
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.
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
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.
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.
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.
record, the jury convicted Huser of murder in the first
degree by aiding and abetting another. Huser was sentenced to
life in prison.
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.
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.
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)).
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.
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.
Second Huser Trial and Appeal.
Summary of evidence at the second trial.
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.
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.
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.
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.
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
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."
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.
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."
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.
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."
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
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
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.
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.
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.
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.
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.
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
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.
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
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
Motion to suppress Woolheater's out-of-court
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.
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."
Backdoor hearsay issue at trial.
State did not offer testimony from Webb and Connett at the
second trial. It did, however, call Mitrisin to the stand.
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.
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
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?
Q: I do have just a couple of quick questions. Now, without
telling me what Mr. Woolheater said, did he ever speak of
Q: Without telling me what Mr. Woolheater said, did he ever
speak of Deb Huser?
Q: And without telling me what Mr. Woolheater said, did he
speak about Vern Huser?
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.
attorney strenuously objected to the State's additional
questioning of Mitrisin and moved for a mistrial. Huser's
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
. . . [T]hey assured us that that's as far as the
questions would go.
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
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.
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.
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
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.
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?
Q: Without telling me what she told you, did she tell you how
she received these injuries?
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?
Q: Obviously, there was injury to both eyes. Was it being
consistent with being struck more than once?
Q: Without telling me what Ms. Clark told you, after speaking
with her, were you investigating a crime?
Q: Did you have a possible, primary aggressor or suspect?
Q: Who was that?
A: Mr. Farrar.
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
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.
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.
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.
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
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.
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
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.
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.
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.
Limitation on ...