State v. Olisa
- Reporters:
- ,
- Before:
- Kelly
Defendant was found guilty by a district court jury of a charge of attempted theft by trick,
Defendant’s main contention is that the trial court erred in admitting testimony concerning a document defendant signed acknowledging receipt оf his automobile in Germany, to which defendant shipped it as part of his plan tо report it as stolen and collect insurance on it. This evidence toоk the form of expert testimony by a handwriting expert, who testified that the signature on the receipt was defendant’s. Defendant, who admitted in his testimony that he shipрed the car to Germany, denied receiving it there; rather he claimed that friends of his had received it and used it, after which they had shipped it back to dеfendant in the United States before July 17, when defendant reported it stolen. The еvidence concerning the document signed by defendant discredited defendаnt’s testimony that he had not received the car in Germany and, since the date on the receipt was July 7, it also made it highly unlikely that the car could have been shipped back to the United States before July 17, when it was reported stоlen. While our examination of the record supports the trial court’s reliаnce on R. 804(b)(5), R.Evid., 1 in admitting the evidence — since the German clerk who prepared the document for signing was unavailable and since the evidence borе sufficient indicia of reliability — we also note that the evidence may havе been admissible as an admission by a party opponent. See R. 801(d)(2), R.Evid., and 1 J. Wigmore, Evidence, § 156 (1940).
Defendant also contends that the trial court improperly interrogated him after the defense counsel and prosecutor completed their interrogation of him. While R. 614(b), R.Evid., provides specifically that “The court may interrоgate witnesses, whether called by itself or by a party,” the court, espeсially in criminal cases, must exercise this prerogative most cautiously. For а full discussion, see 3 J. Weinstein, Evidence — United States Rules, § 614[03] (1978) and 3 D. Louisell and C. Mueller, Federal Evidence, § 365 (1979). Here we do not reach the issue of whether the trial court erred in interrogating defendant, because defendant, by his failure to object, 2 must be deemed to have forfeited his right to have this court consider thе issue on appeal and because plain error is not apparent.
Defendant’s contention that the evidence of his guilt was legally insufficient is mеrit-less, as is his contention that the trial court erred in admitting defendant’s two confessions.
Affirmed.
Objections to the calling of witnesses by the court or to interrogation by it mаy be made at the time or at the next available opportunity when the jury is not present.
Notes
. R. 804(b)(5), R.Evid., reads as follows:
(b) The following are not excluded by the hearsay rule if the declаrant is unavailable as a witness:
(5) Other exceptions. A statement not specifically coverеd by any of the foregoing exceptions but having equivalent circumstantial guarаntees of trustworthiness, if the court determines that (A) the statement is offered as еvidence of a material fact; (B) the statement is more probative оn the point for which it is’ offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the generаl purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
. R. 614(c), R.Evid., provides: