 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Olivas1/13/1998
t their evidence is not tainted [by exposure to prior immunized testimony] by establishing that they had an independent, legitimate source for the disputed evidence.'" (quoting Kastigar, 406 U.S. at 460).
{7} However, the Kastigar standard requires Defendant to make an initial showing that he made statements under a grant of immunity. See Kastigar, 406 U.S. at 461-62 ("One raising a claim under [the immunity] statute need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources."). Defendant claims the reports reviewed by the district attorney contained his immunized statements. We disagree.
{8} Immunity attached to Defendant's statements given after the entry of the order on June 12, 1995. Several reports, one of which contains Defendant's admissions of his problems with alcohol, his use of marijuana, and an arrest for driving while intoxicated, were completed prior to the grant of immunity. One of these reports also alludes to statements by Defendant that he and his sons' mother, Ramona, were experiencing problems in their relationship and that Defendant did not have a strong connection to his son prior to his death. However, these statements were not protected by the grant of immunity as they were given prior to the entry of the order.
{9} As for the reports covering the time after the immunity order, they do not contain any substantive statements made by Defendant. The reports do contain general observations of Defendant's parenting skills with his son Francisco. Also included are a general treatment plan and statements advising that Defendant continue counseling for grief over Victor's death and continue the parenting-skills sessions. Not one of the reports contains any statement by Defendant relating to the incident and circumstances of Victor's death. Moreover, the reports do not contain any reference to the psychological exam to which Defendant submitted. In fact, the psychological exam was not administered until after the social worker had transferred the case to another agency, and no statements by Defendant from that exam are contained in any of the reports.
{10} Furthermore, the record suggests no knowledge by the prosecuting attorney of the substance of Defendant's immunized statements. In fact, no use was made of any information that the prosecution may have gained from reviewing Defendant's attendance reports. Insofar as Defendant's contention that the prosecutor could have made strategic use of the statements in focusing the investigation, planning trial strategy, and refusing to plea bargain is concerned, the record reveals that the prosecutor first saw the reports on the Friday before the trial was to begin on Monday. General observations of Defendant's parenting skills with Francisco were not used at trial, and we fail to see how they could have been used to convict Defendant of Victor's death. Under the facts herein, nothing in the reports tainted the evidence relied upon by the State. Thus, we conclude that despite the district attorney's review of the reports, Defendant and the State were left "'in substantially the same position as if the witness had claimed his privilege' in the absence of a grant of immunity." Kastigar, 406 U.S. at 458-59 (quoting Murphy v. Waterfront Comm'n, 378 U.S. 52, 79 (1964)).
{11} Additionally, the trial Judge assured Defendant that he would revisit his ruling if it became apparent that the State was using any information contained in the reports. This special precaution was in place to avoid any possible taint arising from the State reviewing Defendant's r
Page 1 2 3 4 5 6 New Mexico DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|