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State v. Olivas1/13/1998
the prosecuting attorney had reviewed reports tracking Defendant's attendance at court-ordered treatment. Defendant did not raise the separate issue that a Kastigar hearing should be ordered based upon Ramona's exposure to Defendant's immunized statements.
{17} Nevertheless, Defendant argues that the proffer of his reports to the court was sufficient to alert the trial Judge to the possibility of a Fifth Amendment violation through Ramona's exposure to his immunized statements. However, Defendant's proffer, and the argument accompanying that proffer, were specifically addressed to whether the prosecuting attorney had violated the immunity order by reviewing Defendant's reports. No mention was made of any possible taint that might result by Ramona's exposure to Defendant's statements during the counseling sessions.
{18} Furthermore, during trial, as the prosecuting attorney questioned Ramona about the events surrounding her son's death, Defendant never protested that Ramona's testimony might be influenced by her exposure to his immunized statements. Defendant never alerted the trial court to the possibility that Ramona's testimony might violate the immunity order. See ) ("To preserve a claim of error for appellate review involving the admissibility of evidence, a party must make a timely objection."); ) (to preserve an issue for appeal, defendant must specifically apprise the trial court of the nature of the claimed error). Therefore, because Defendant failed to offer specific argument concerning a possible violation of the immunity order on these grounds, and because he neglected to object to Ramona's testimony on these grounds, we conclude that Defendant failed to preserve this issue for appeal.
{19} Nonetheless, our review of the record fails to support Defendant's claim that Ramona's testimony violated his Fifth Amendment rights. In Vallejos, our Supreme Court recognized that "canning" a witness's testimony prior to exposure to a defendant's immunized statements might be sufficient to meet the prosecution's burden of showing an independent legitimate source for the witness's testimony. ; see also Kastigar, 406 U.S. at 460 (prosecution must show that it has a legitimate source of evidence wholly independent of any compelled testimony).
{20} In this case, the prosecuting attorney had an independent legitimate source for Ramona's testimony--her prior statements to the police. These statements, which were inconsistent with Ramona's testimony at trial, were used to impeach her story that Defendant did not harm his son. These "canned" statements outlined the many stories Ramona gave to the police: that Victor's death was caused by a fall in the living room, that Victor fell from his booster chair in the kitchen, that Victor fell while playing with Defendant, that Defendant punished his son for spilling or throwing milk, that Defendant hit his son on the back of the head, and that Defendant kicked his son causing him to fall on the floor.
{21} Moreover, the portion of Ramona's testimony which was not based upon her prior statements to the police tended to exculpate Defendant. We conclude that Ramona's statements to the police made prior to her participation in Defendant's court-ordered treatment, along with the exculpatory nature of her testimony, were sufficient to show her testimony was not influenced by Defendant's immunized statements.
II. Prior Inconsistent Statements
{22} Defendant argues that the State improperly used the prior inconsistent statements of Ramona to impeach her testimony. Defendant also contends that the State impermissibly used Ramona's prior inconsistent statements as substantive evidence in closing argument
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