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State v. Hawn6/30/2000
s case-in-chief, defendant took the witness stand and gave his version of the events. Defendant was found guilty, but on appeal his conviction was reversed on a finding that his confessions had been illegally obtained by police and were therefore not admissible in evidence against him.
Upon remand, Harrison was again tried before a jury. While the prosecutor during the second trial did not offer evidence of defendant's illegally obtained confessions, he did nevertheless read to the jury defendant's testimony from the first trial. Defense counsel objected, stating that defendant's testimony at the first trial had been improperly compelled by the introduction into evidence of defendant's inadmissible confessions. Defendant was once again convicted and the court of appeals affirmed.
The United States Supreme Court reversed defendant's conviction, holding that because defendant had testified at the first trial only after the government introduced evidence of his confessions that were illegally obtained, defendant's trial testimony was tainted by the same illegality that rendered his confessions inadmissible. Thus, the fruit of the poisonous tree doctrine barred the use of defendant's testimony from his first trial in the subsequent trial.
We do not believe that the case before us is controlled by the decision in Harrison, supra. First of all it is not clear in this case whether or not Hawn had made a decision to testify at trial in order to put his version of these events before the jury prior to the presentation of the State's improper evidence. Furthermore, the case before us does not involve any retrial or subsequent proceeding. Even more critical, we believe, is the fact that the inadmissible evidence improperly admitted during Hawn's trial involved, for the most part, his other crimes and acts of wrongdoing involving domestic violence matters, collateral matters which were too remote in time and circumstance to have any relevance to Hawn's guilt for shooting Sue Jack, much less identify him as the perpetrator of that crime.
Unlike Harrison, the improperly admitted evidence here did not involve defendant's own statements to police that were improperly obtained, a constitutional violation of Fifth Amendment rights which would require suppression. Thus, we cannot say that the form of error and the fundamental illegality at issue in the case before us is the same as in Harrison. In Hawn's case there is no Fifth Amendment self-incrimination consideration involved in the evidence which was improperly admitted, and Hawn's testimony at trial, while perhaps strategically desirable or necessary to lessen or overcome the impact of that improperly admitted evidence, was nevertheless not compelled in the constitutional sense or otherwise derived from the illegality of the improperly admitted evidence.
Hawn's fifth assignment of error is not well taken and is overruled.
SIXTH ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN PERMITTING IMPROPER REBUTTAL TESTIMONY WHICH VIOLATED MR. HAWN'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.
Hawn argues that the rebuttal testimony of the State's firearms experts, David Brundage, was improper because it was cumulative to the State's evidence-in-chief and was offered merely to bolster the testimony previously given by the State's other firearms expert, Chris Monturo, during the State's case-in-chief.
During the State's case-in-chief, Chris Monturo, a firearms expert, opined that the gun which killed Sue Jack was fired from a distance of over five feet away. This testimony rebuts Hawn's claim that Sue Jack had committed suicide, and constitutes the primary evidence upon which the Sta
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