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State v. Olivas1/13/1998
eports. But Defendant never asked the trial Judge to revisit his ruling. We do not hold that Defendant thereby waived the issue. But cf. ) (where court restricted the defendant's cross examination and defendant said he would take up matter later, but never did, any error was waived). However, the facts that Defendant never asked the court to revisit the matter and the court never revisited the matter on its own strongly suggest the absence of any exposure to immunized statements. See (discussing ), for the proposition that there is no Kastigar violation when the immunized testimony reveals nothing new or beneficial); see also United States v. North, 910 F.2d 843, 860 (D.C. Cir. 1990) (holding that without "significant exposure" to the immunized testimony, the prosecutor could not have made significant non-evidentiary use).
{12} The New Mexico cases Defendant cites for support are distinguishable. In Munoz, the defendant was compelled to testify at his co-defendant's trial under a grant of use immunity. The defendant's immunized testimony revealed, for the first time, his defense of coercion. . At the defendant's subsequent trial, the same district attorney that prosecuted the co-defendant prosecuted the defendant. Id. Furthermore, the district attorney presented a motion in limine seeking to impeach the defendant's claim of coercion--a subject revealed only during the defendant's immunized testimony. Id. The district attorney also reviewed a transcript of the defendant's immunized testimony in preparation for trial. Id. at 41-42, 702 P.2d 986-87. The Court held that the district attorney was not insulated from the defendant's immunized testimony and that the "State and the defendant were not in 'substantially the same position' as if defendant had retained the right to remain silent." Id. at 44, 702 P.2d at 989 (quoting Murphy, 378 U.S. at 79).
{13} Defendant's reliance on , is similarly misplaced. In Vallejos, the prosecution witness heard the defendant's immunized testimony and subsequently changed his testimony to exculpate himself and inculpate the defendant. . In this case, we conclude the district attorney did not review or have any exposure to Defendant's immunized statements and the trial court did not err in failing to hold a Kastigar hearing on this matter.
{14} Finally, although we have not found any violation of the Fifth Amendment, we must caution the district attorney, as did the Court in , that prosecution of this case was potentially jeopardized by viewing material that could well have contained reference to Defendant's immunized statements. In view of the heavy burden to show lack of taint once exposure to immunized statements occurs, it would appear most prudent in the future to avoid the possibility of taint by not taking the chance.
B. Ramona's Testimony
{15} Defendant claims that Ramona was present during many of the counseling sessions he attended at Peanut Butter and Jelly Therapeutic Center. Defendant claims that the court erred in not ordering a Kastigar hearing to determine whether Ramona's testimony was tainted by exposure to Defendant's immunized statements. This was necessary, Defendant explains, because Ramona was present during the counseling sessions and was exposed to all immunized statements made by Defendant during those sessions. We disagree.
{16} The presentation of a trial witness's testimony that has been derived from or influenced by the defendant's immunized testimony is forbidden. North, 910 F.2d at 865. However, Defendant failed to preserve the issue of Ramona's exposure to his immunized statements for appeal. Before trial, Defendant argued to the court that a Kastigar hearing was necessary because
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