State ex rel. Riendeau v. Tahash

• Citation: 148 N.W.2d 557,276 Minn. 26
• Decision Date: 03 February 1967
• Docket Number: No. 40195,40195
• Parties: STATE of Minnesota ex rel. Rene RIENDEAU, Appellant, v. Ralph H. TAHASH, Warden, Minnesota State Prison, Respondent.
• Court: Supreme Court of Minnesota (US)

Page 557

148 N.W.2d 557

276 Minn. 26

STATE of Minnesota ex rel. Rene RIENDEAU, Appellant, v. Ralph H. TAHASH, Warden, Minnesota State Prison,

Respondent.

No. 40195.

Supreme Court of Minnesota.

Feb. 3, 1967.

Syllabus by the Court

1. Where the only assets of an accused are of nominal value and may not readily 2. When an accused has been bound over to the district court, the judge or magistrate who has presided at the preliminary hearing in felony prosecutions has the authority and duty under Minn.St. 629.52 to fix bail.

be liquidated and the accused is unable to make financial arrangements to retain his own lawyer, it is the duty of the arraigning court to assign counsel for him.

3. An accused is entitled to a mistrial when the prosecutor, in violation of defendant's right against self-incrimination, asks questions designed to show that defendant elected not to testify at the preliminary examination, although objection was sustained before defendant answered. Minn.Const. art. 1, § 7; Minn.St. 611.11.

4. An instruction that unexplained possession of stolen property is 'presumptive' evidence of theft Held under the circumstances to be prejudicial error, notwithstanding the court withdrew from the jury the erroneous charge.

Edward E. Dessert, Bemidji, for appellant.

Robert W. Mattson, Atty. Gen., Gerard W. Snell, Sol. Gen., David C. Weinberg, Sp. Asst. Atty. Gen., St. Paul, for respondent.

OPINION

OTIS, Justice.

Relator appeals from an order of the district court denying without a hearing his petition for a writ of habeas corpus wherein he seeks review of his conviction for grand larceny arising out of the theft of four head of cattle. Because in our opinion the sequence of events from the time of relator's arrest until his conviction denied him rights we believe to be substantial, we deem it appropriate to set forth the chronology of the proceedings.

The offense with which relator was charged occurred in Clearwater County on April 23, 1963, and resulted in his arrest without a warrant on June 15, 1963, pursuant to Minn.St. 629.34(3). On June 20 relator was arraigned in the criminal division of the probate court where he asked for a preliminary hearing and the appointment of counsel. The matter was continued until June 27, at which time the court advised relator that he was not eligible for court-appointed counsel because he was not legally indigent. A further continuance until July 9 was granted. On that date relator again stated he was unable to secure representation. Nevertheless, the court proceeded with the preliminary examination. Relator did not take the stand on his own behalf. He was bound over to the district court without bail because the probate court was of the opinion that it had no authority to fix bail. Thereafter, for reasons which do not appear in the record, relator was confined in jail for 3 months without an appearance in the district court and without an opportunity to have bail set or to engage counsel. ¹ Finally, under the authority of §§ 631.18 and 611.026, on October 9, upon the motion of the county attorney, the district court ordered relator examined by the probate court to determine whether he was mentally competent to stand trial. ² As a result of that hearing he was sent to the State Hospital at Fergus Falls until November 5, 1963, when he again appeared before the district court. For the first time he was represented by counsel and had bail fixed in the sum of $500, which he posted on November 12. On December 9, relator pled not guilty to the charge of grand larceny. He was tried and convicted on January 13 and 14, 1964. The record again is silent as to the reasons for the long delay in securing a transcript necessary for the court's ruling on relator's motion for a new trial, as a result of which delay it was not until July 6, 1964, that the motion was denied. Relator was then sentenced to 5 years' imprisonment but execution was suspended, and relator was placed on probation. On May 20, 1965, the probation was summarily revoked upon relator's conviction for simple assault following a trial on a charge of rape. ³

Relator seeks his discharge on the grounds he was denied the 'fundamental fairness' to which he was entitled under the Constitution. Lisenba v. People of State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166, 180, rehearing denied, 315 U.S. 826, 62 S.Ct. 620, 86 L.Ed. 1222. While we do not agree that a discharge is his only remedy, we do concur in the claim that the procedures described and errors which occurred at the trial are of sufficient gravity to warrant review by habeas corpus and compel a new trial. ⁴ We recognize that prearraignment irregularities which can be corrected by a timely motion must be brought to the attention of the trial court or they are deemed waived, ⁵ and we allude to these matters primarily to prevent their recurrence.

1. From the moment of his arrest relator vigorously and persistently requested the appointment of counsel. Because he had $25 in cash, a 7-year-old automobile, and some equity in 120 acres of land, the probate court held that he was not indigent. We think on this record the court was in error, more particularly when relator reported to the court that he had attempted to retain an attorney but was unable to make satisfactory arrangements with him. In this connection the United States Supreme Court in Hardy v. United States, 375 U.S. 277, 289, 84 S.Ct. 424, 431, 11 L.Ed.2d 331, 340, note 7, motion for modification denied, 376 U.S. 936, 84 S.Ct. 790, 11 L.Ed.2d 657, has made the following observation:

'Indigence 'must be conceived as a relative concept. An impoverished accused is not necessarily one totally devoid of means.' Attorney General's Report, at 8. An accused must be deemed indigent when 'at any stage of the proceedings (his) lack of means * * * substantially inhibits or prevents the proper assertion of a (particular) right or a claim of right.' Ibid. Indigence must be defined with reference to the particular right asserted. Thus, the fact that a defendant may be able to muster enough resources, of his own or of a friend or relative, to obtain bail does not in itself establish his nonindigence for the purpose of purchasing a complete trial transcript or retaining a lawyer.'

Ultimately the District court did determine relator was indigent, but we agree that in the meantime his failure to have representation undoubtedly prejudiced the preparation of his defense. ⁶

2. Clearly the probate court was in error in failing to fix bail. Had this been done, relator might well have been in a position to conduct his own investigation as well as petition the district court for the appointment of counsel and avoid needless confinement pending his ultimate arraignment. Although the language of our statutes is somewhat confusing, one of the stated purposes of the preliminary hearing is to have bail fixed. State ex rel. Hastings v. Bailey, 263 Minn. 261, 266, 116 N.W.2d 548, 551. Under § 629.44 it appears that a magistrate may not set a bond in felony cases 'without trial or examination.' However, by the terms of § 629.52, After a preliminary hearing any judge or magistrate may fix bail regardless of the gravity of the charge and the only restrictions are on justices of the peace.

3. While the irregularities to which we have referred are probably not in themselves sufficiently prejudicial to warrant a new trial, and indeed could not be corrected in that manner, we are of the opinion that errors at the trial require a reversal.

In conducting the cross-examination of relator, the prosecutor asked the following questions:

'Q You had a conversation with Sheriff Brustad where he asked you where you got those cattle, didn't you?

'A Well, he wanted to find out.

'Q And you wouldn't tell him where you got those cattle, would you?

'A No, not if he was going to accuse me.

'Q You didn't make any effort at all to tell him where you had got those cattle, did you?

'A No, sir.

'Q From the time that you were picked up until today when you came into court, you didn't tell the sheriff or anyone in connection with the State of Minnesota where you got those cattle, is that right?

'MR. SEVERSON (defendant's attorney): We object to the question as being argumentative, improper cross examination.

'THE COURT: Objection sustained.

'Q (prosecutor continuing) Now when you were in Probate Court at the preliminary examination, you didn't tell that court where you got the cattle, did you?

'MR. SEVERSON: Objected to as improper cross examination.

'THE COURT: Counsel, will you approach the bench.'

Thereupon relator moved for a mistrial on the ground that prosecutor's question violated defendant's right against self-incrimination. In response the court, outside the hearing of the jury, made the following observations:

'The Court is very much in doubt as to whether anything the Court can say to the jury can cure what counsel has just done. In this country a man does not have to give testimony against himself or incriminate himself in any manner and the fact he refuses to answer cannot be used in court against him.

'* * * Counsel should not have persisted the second time in asking that question about the preliminary hearing.

'I do not feel that it is necessary for counsel for the state to adopt any tactics of that type and I do not believe that it was done intentionally or deliberately Or at least I did not feel so until you asked the second question about the preliminary hearing.' (Italics supplied.)

The motion for mistrial was denied without prejudice to later renewing it.

Even before the decision in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, we indicated that acquiescence in an accusation may not be inferred if it occurs at a time when the defendant is under arrest. State v. Brown, 209 Minn. 478, 482, 296 N.W. 582, 585; State v. Gulbrandsen, 238 Minn. 508, 514, 57 N.W.2d 419, 423; 2 Wharton,...