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State v. Greenleaf4/15/1999
antive errors occurred that tainted the grand jury proceedings. First, he argues that the prosecutor violated Minn. R. Crim. P. 18.05 by submitting 16 hours of audio tapes without first playing them to the grand jury. This argument is without merit. Rule 18.05 requires that a verbatim record be made of all evidence presented to the grand jury. Minn. R. Crim. P. 18.05, subd. 1. The purpose of Rule 18.05 is served, however, by maintaining a copy of all exhibits, including the tapes, received as evidence by the grand jury. Of course, no transcript was made of the grand jury's five hours of deliberations and thus there is no record as to whether the grand jury listened to any of the tapes. Even if the grand jury listened to portions of the tapes Greenleaf believes were inadmissible, the indictment would not be dismissed because it is supported by sufficient admissible evidence to clearly establish probable cause. See Minn. R. Crim. P. 18.06, subd. 2; State v. O'Dell, 328 N.W.2d 730, 731 (Minn. 1983) (holding that this court will not dismiss an indictment if the grand jury heard sufficient admissible evidence to support it). Greenleaf has the tapes and, thus, an adequate record of the information presented to the grand jury; Rule 18.05 does not require that a transcript be made of the audio tapes.
Greenleaf also argues that the indictment should be dismissed because inadmissible and prejudicial evidence was presented to the grand jury, including the uncorroborated statements of co-defendants as well as evidence that a co-defendant had discussed killing someone else a short time before the Antonich murder. The fact that grand jurors may have heard inadmissible evidence is not sufficient to dismiss an indictment if there is sufficient admissible evidence to establish probable cause. Id. While Greenleaf presents a list of evidence he claims is inadmissible, he fails to demonstrate that there was insufficient admissible evidence to establish probable cause for the indictment.
Greenleaf next argues that it was improper to join five defendants in one grand jury proceeding, citing Bruton v. United States, 391 U.S. 123, 135-36 (1968) (holding that a defendant's right of confrontation is violated when a non-testifying co-defendant's confession implicating the defendant is received in evidence), as support for the proposition. Bruton, however, involved an accused's right to confront witnesses at a jury trial. Id. A suspect has no right to be present throughout a grand jury proceeding, much less the right to confront each witness testifying at a grand jury proceeding. See Minn. R. Crim. P. 18.04.
We have carefully considered and find no merit to Greenleaf's arguments that the prosecutor (1) misled the grand jurors regarding their duty in returning an indictment; (2) failed to present exculpatory evidence; (3) prevented the jury from considering all relevant charges; (4) failed to ensure that prejudicial media coverage of the case did not jeopardize the impartiality of the process; (5) engaged in improper Discussions about trial outcomes and penalties; and (6) repeatedly told the grand jury he had already charged Greenleaf with murder in the second degree.
III.
Greenleaf next argues that the trial court erred when it joined for trial his case and DeVerney's and, as a result, he suffered substantial prejudice. Greenleaf contends that the evidence of prior crimes committed by DeVerney and of letters written by DeVerney to Aubid while awating trial was so prejudicial that it was impossible for the jury to consider such evidence only as to DeVerney.
The amended version of Minn. R. Crim. P. 17.03, subd. 2(1), provides:
"When two or more defendants
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