IN SUPREME COURT
Concurring, Hanson and Page, JJ.
Took no part, Gildea, J.
Filed: March 30, 2006
Office of Appellate Courts
Ardelle Hope Manthey,
S Y L L A B U S
Unobjected-to admission of statements that were not clearly or obviously inadmissible hearsay and presented little potential for prejudice does not warrant reversal of first-degree murder conviction.
District court did not err by failing to sua sponteprovide a curative instruction or order a mistrial in response to testimony that presented little potential for prejudice.
District court did not abuse its discretion by providing a curative instruction in lieu of granting defendant’s mistrial motion when jury heard that defendant had been in jail.
District court did not clearly err when it determined that defendant was present when a jury question was asked and answered in open court during deliberations.
Heard, considered, and decided by the court en banc.
O P I N I O N
Manthey was found guilty by an
Francis Manthey was shot and killed in the early
morning hours of March 5, 2003, in a basement bedroom of his
into his murder proceeded for more than a year before the state charged
Francis’ wife, Ardelle Hope Manthey, with first-degree premeditated murder. The state’s theory of the case was that
Manthey was in debt because of her passion for gambling and the motive for
taking her husband’s life was to collect on a life insurance policy, Francis’ retirement account, and sole title
to the family
The state developed evidence of Manthey’s gambling activities, introducing volumes of financial information, including ATM withdrawal records, bank account records, and casino activity logs. Manthey regularly gambled at casinos and cashed checks or used ATMs at casinos and elsewhere. Bank records showed that during the four years before Francis’ murder, Manthey periodically cashed several checks a day at a casino. The state argued that the financial records show that Manthey was gambling far more than the one gambling event per week she admitted, and was spending far more than she was receiving in Social Security payments.
According to the state, Manthey had used her own retirement account to pay off creditors and was regularly paying overdraft and returned check fees. Manthey’s bank cancelled her cash card in late 2002 for excessive withdrawals without sufficient funds. At the time of Francis’ death, the Mantheys had three judgments against them for unpaid credit card debt. Francis had an IRA account, but Manthey did not have access to it when Francis was alive.
presented testimony that Manthey concealed her gambling losses from her
husband. Manthey once took a trip to
Francis was 69 years old at the time of his death and had been married to Manthey for almost 52 years. An accidental death insurance policy named Manthey as beneficiary and included a provision that the face value would be reduced by half after Francis turned 70 in July 2003. The state argued that the timing of Francis’ death in March 2003 was intended to maximize the payout on the insurance policy.
Manthey also was
the beneficiary of Francis’ retirement account and would receive more than
$75,000 after his death. Manthey would also
inherit the family
After Francis’ death in March 2003, Manthey paid off her credit-card debt, paid for a grandchild’s school tuition, bought a gravestone for herself and Francis, bought a car, furnished a new apartment for herself, and paid her grandsons to help her move. Casino records showed an increase in Manthey’s gambling activity immediately after Francis’ death; Manthey explained that she gambled after Francis’ death to “escape.” Manthey’s monthly Social Security checks increased after Francis’ death from $614 to $975 (total Social Security income for the couple went down, though, from $1,469 to $975).
The state established through circumstantial evidence that Manthey had exclusive access to the house the night her husband was murdered. There were no indications of a break-in—the basement door had not been forced, the windows were untouched, the rooms were not ransacked, and none of the watches or guns that Francis collected were found to be missing.
Donald Larson, who
delivered the newspaper to the Mantheys, testified that the morning of the
murder when he went by the Manthey
Other evidence indicated that almost 100 internet visits or searches related to the word “poison” had been conducted on the computer at the Manthey residence; records of some of the searches had been deleted.
Manthey testified in her own defense and denied having killed her husband. She theorized that Francis was killed by an intruder. She had placed a quilt over the grate between the first floor, where she slept, and the basement so that the lights on the first floor would not disturb Francis. On the morning of the murder, she went downstairs, straightened a blind on the basement door that was crooked, locked the door, picked up a flashlight that had fallen off a shelf, checked the corn stove heater, then noticed Francis’ body, but did not touch him. She testified that she knew he was dead when she saw him lying next to his bed. She theorized that the killer was an intruder who needed money and used Francis’ gun to kill him when he woke up. She explained that she had not heard the gunshots because the previous night she had taken two Percocet pain pills and, as a result, had experienced the best night’s sleep she had in a while. A Bureau of Criminal Apprehension toxicology report confirmed that Manthey had taken Percocet on March 4-5, 2003.
Manthey knew that Francis kept a loaded gun at his bedside. Francis had shown her how to shoot the gun the summer before his death, though she testified that she had never actually fired it. Manthey claimed that she was not physically capable of shooting the murder weapon because she had chronic pain in her dominant right wrist and shoulder, and the gun was too heavy for her to lift. A surgeon who operated on her shoulder and another doctor who operated on her wrist/thumb in July 2003 testified that the surgeries were designed to relieve severe pain.
defense produced evidence that those who knew Francis knew that he carried hundreds
and even thousands of dollars in cash, that he stashed cash in his freezer at
Manthey voluntarily gave the police a number of statements and cooperated throughout the investigation even after police told her several weeks after Francis’ death that they believed her to be “involved in this” and read her a Miranda warning. She voluntarily gave police blood and urine samples on the day of the murder. During the time of the investigation into the murder, she called the lead investigator on the case twice to let him know that she was going out of town and again to let him know that she had returned.
Manthey and others testified that before Francis’ death she gambled roughly once a week, and that on any given day it was her habit to stop gambling when she had used up the money she had brought to gamble. Manthey testified that she used her player’s card every time she went to the casino; casino records tracking her card use indicate losses smaller than those shown by the Mantheys’ banking records. Kathleen Casper, Manthey’s friend and neighbor, testified that she never loaned Manthey money. Iralee “Dee” Clarke, Manthey’s sister, testified that any time Manthey borrowed from her (or vice versa) the funds were paid back quickly. Manthey also testified that Francis never said that she could not go gambling, and that she had worked and saved her own money. She further testified she had never initiated a claim for the accidental death policy because she did not consider his death to be “accidental” and that she did not know about the death benefit on Francis’ IRA before his murder.
Manthey explained that she had used the computer to research mushrooms in her yard to ensure that they were not poisonous and that grandchildren and others had used the computer as well. The BCA examination showed that websites pertaining to mushrooms had been visited.
The state used Manthey’s statements to police to attack her credibility and undermine her theory of the case. In her first discussion with police the morning of the murder, she said she had had the best night’s sleep she had in a long time. Later that day, she told police that she recalled waking up when she heard a loud noise at approximately 4 a.m. (which is when her medication usually wore off). She described the noise as sounding like a loud clapping on the side of the house. But she did not investigate.
The jury returned its guilty verdict on September 24, 2004. This is Manthey’s direct appeal.
Manthey argues that her constitutional rights to due process and a fair trial were infringed upon by the admission at trial of statements that she alleges were hearsay. On appeal, Manthey takes issue with six statements admitted in the course of the state’s direct examination of two of its witnesses, Lisa Casper and Mike Casper, Manthey’s daughter and son-in-law:
1. “Well, ma went gambling last night.” (Mike Casper);
2. “She left me a hundred dollar bill on the table.” (Mike Casper);
3. Francis may have said, “Damn, she went gambling.” (Mike Casper);
4. Francis was aware of Manthey’s gambling problem and that sometimes her gambling was OK and sometimes he did not like it. (Lisa Casper);
was not going to let Manthey spend his retirement funds gambling.
said his kids would be glad to get some money when he passed.
The statements were offered by the state to establish Francis’ negative attitude about Manthey’s gambling. Counsel for Manthey did not object to any of the statements.
In the absence of
an objection, we may review the admission of evidence for plain error.
plain error, “the trial error must have been so clear under applicable law at
the time of conviction, and so prejudicial to the defendant’s right to a fair
trial, that the defendant’s failure to object—and thereby present the trial
court with an opportunity to avoid prejudice—should not forfeit his right to a
remedy.” State v. Pilot, 595 N.W.2d 511, 518 (
is defined in our rules of evidence as an out-of-court statement offered as
evidence to prove the truth of the matter asserted.
The six statements at issue related to Francis’ feelings about Manthey’s gambling. We do not conclude that the statements were clearly or obviously inadmissible hearsay. In the absence of an objection, the state was not given the opportunity to establish that some or all of the statements were admissible under one of the numerous exceptions to the hearsay rule.
Even if it can be said that the statements were each inadmissible hearsay, it is not clear that Manthey was prejudiced by their admission. The statements are not convincing evidence of Francis’ negative feelings about Manthey’s gambling habit and, therefore, we cannot say that their evidentiary value was particularly strong. We conclude that it was not clear that the six statements were inadmissible hearsay and, in any event, the evidentiary value of the statements was so weak that their admission did not likely affect the verdict. We deny relief to Manthey under our plain error test.
asserts that her right to a fair trial was denied because the state elicited
irrelevant and prejudicial evidence that Manthey had sex with Francis to
appease him so that she could go gambling. On direct examination, the prosecution
argument on appeal is that the mere fact that the jury heard the objectionable
answer entitles her to a new trial because the testimony was so inflammatory
and improper that it substantially affected the verdict. We do not agree. The question is whether Manthey can meet her
burden under the plain error test. As we
recently stated in State v.
[b]ecause [appellant] did not move to strike, seek a curative instruction or request a mistrial, the question becomes whether plain error occurred when the district court, having sustained the objection to the testimony * * *, did not act sua sponte to limit the testimony’s impact by providing a curative instruction or to eliminate that impact by granting a mistrial.
693 N.W.2d 195, 205 (
Manthey made mistrial motions in response to two separate references to her custody status. The first occurred during cross-examination of Lisa Casper, when defense counsel asked, “So by your testimony for the last two years your mother had been answering the phone?” Lisa responded, “No. She’s been in jail.” Defense counsel objected, and Mike Casper, Lisa’s husband, yelled, “Let’s get out of here,” from the gallery. Manthey said, “She’s telling the truth, Mike. Leave her.” Manthey’s counsel moved for a mistrial, arguing that a curative instruction would be inadequate. The court did not specifically rule on the mistrial motion, but told the jury to disregard Lisa Casper’s comment and those of anyone other than a witness or attorney. The court then instructed the jury:
No member of the jury should in any way permit himself or herself to be prejudiced against the defendant because an indictment has been filed against the defendant, or because the defendant has been arrested, or because the defendant has been placed on trial by the ordinary process of law.
The court then instructed the jury on the presumption of innocence.
The second reference to Manthey’s custody status occurred before closing arguments. The bailiff informed the court that a juror had told him on a cigarette break, in front of two other jurors and an alternate, that she had learned from her supervisor at work that the jury would be getting the case soon. The supervisor had heard this from one of the juror’s coworkers who was in jail with Manthey. This information was relayed to the parties by the court. Defense counsel made a motion for a mistrial. The court denied the motion, and indicated that the presumption of innocence instruction again would be given during final instructions. The court noted on the record that counsel for the state and Manthey agreed not to voir dire the jurors or to inquire further.
This court reviews
a trial court’s denial of a motion for a mistrial for abuse of discretion. State v. Spann, 574 N.W.2d 47, 52 (
We have found that references to prior incarceration of a defendant can
be unfairly prejudicial.
We have recognized that the state has an obligation
to caution its witnesses against making prejudicial testimony.
deliberations, the jury sent a note to the court stating, “We would like to
know who pulled the covers up over the sheets on Francis’s bed the morning of
3-5-03.” The court reconvened to discuss
the question and both attorneys agreed that the jury members should be told to
rely on their memory of the testimony. Manthey
does not contend that the court gave the jury the wrong answer. Rather, she asserts that the court violated
her constitutional right to be present at all stages of her trial.
This court has stated that “a trial judge should
have no communication with the jury after deliberations begin unless that
communication is in open court and defendant is present.” Ford v.
State, 690 N.W.2d 706, 712 (
In response to Manthey’s contention that the record
did not establish that she was present in the courtroom, the state made a post-trial
motion to supplement the record.
GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
C O N C U R R E N C E
HANSON, Justice (concurring).
Although I agree with the conclusion of the majority that the admission of the six hearsay statements was not prejudicial, I disagree with the majority’s suggestion that the statements were not clearly or obviously inadmissible hearsay.
The six statements were all out-of-court statements supposedly made by the victim. They were apparently offered to prove that Manthey had a motive to kill the victim because the statements suggest that the victim objected to Manthey’s gambling and would not let Manthey spend his separate assets gambling. If they were not offered for this purpose, they would have no relevance to the case. Thus, they were offered to prove the truth of what was implied in the victim’s statements, that the victim objected to Manthey’s gambling. As such, they plainly meet the definition of hearsay and are inadmissible unless they fall into one of the hearsay exceptions.
Although the application of the hearsay rule and its exceptions can sometimes be complex, it was not complex here. The state’s brief, written after taking the opportunity to reflect on the issue, does not present any sound reasons for admitting these statements. First, the state suggests that the statements were offered to prove the victim’s state of mind, relying on the hearsay exception in Minn. R. Evid. 803(3). But the state fails to demonstrate how the victim’s state of mind could have any relevance to Manthey’s motives unless there was evidence that connected Manthey to these statements. As the comments to Rule 803(3) explain:
The rule makes it clear that hearsay statements probative of the declarant’s state of mind or emotion are not made inadmissible by the hearsay rule. The more difficult evidentiary problems arise in the determination as to whether state of mind is relevant to the issues in the lawsuit.
The state suggests that some of the statements might have been shown to be excited utterances, admissible under Minn. R. Evid. 803(2). But the state fails to show that the circumstances under which the statements were supposedly made would qualify them under that exception. The exception requires that the statement relate to “a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The testimony does not suggest that there was anything startling about the fact that Manthey had gone gambling. Thus, even if the state could have shown that the victim was excited when he made the statements, it could not have shown that the excitement was caused by a startling event or condition.
PAGE, Justice (concurring)
I join in the concurrence of Justice Hanson.
 Six interviews were recorded and admitted at trial; others were not recorded but were referenced at trial.