State v. DeSchepper, 44769

• Decision Date: 20 June 1975
• Docket Number: No. 44769,44769
• Citation: 304 Minn. 399,231 N.W.2d 294
• Parties: , 89 A.L.R.3d 1084 STATE of Minnesota, Respondent, v. Michael DeSCHEPPER, Appellant.
• Court: Minnesota Supreme Court

Page 294

231 N.W.2d 294

304 Minn. 399, 89 A.L.R.3d 1084

STATE of Minnesota, Respondent, v. Michael DeSCHEPPER, Appellant.

No. 44769.

Supreme Court of Minnesota.

June 20, 1975.

Syllabus by the Court

Where jury acquitted defendant of the charge of speeding in Rock County, subsequent conviction of defendant of perjury for his testimony at the speeding trial that he did not drive the vehicle involved in the offense in Rock County was not barred by collateral estoppel and did not place the defendant twice in jeopardy for the same offense, as the truth of defendant's testimony was not necessarily adjudicated in the speeding trial, and the jury in that first trial could have found that defendant did drive in Rock County but ceased to drive, switching positions with a passenger, prior to the time the speeding commenced.

C. Paul Jones, Public Defender, Mollie G. Raskind, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Peter W. Sipkins, Sol. Gen., Richard B. Allyn, Asst. Atty. Gen., Gary Hansen, Sp. Asst. Atty. Gen., St Paul, Marlyn Vollmer, County Atty., Luverne, for respondent.

Heard before KELLY, TODD, and CHANAK, JJ., and considered and decided by the court en banc.

NICHOLAS S. CHANAK, Justice. ^*

On appeal to district court from a conviction in municipal court on a charge of speeding, defendant was tried de novo by jury and acquitted. Thereafter defendant was indicted for perjury for alleged false statements uttered while testifying in the speeding trial in district court. From judgment of conviction ¹ for perjury, Minn.St. 609.48, subd. 1, in the District Court of Rock County, defendant appeals.

The incident out of which both the speeding charge and the perjury charge arose occurred on September 18, 1971. Most of the facts are not in dispute. On that evening, defendant and three of his friends were driving around in various small towns near Pipestone, Minnesota. Defendant and Glen Hubers occupied the front seat of the automobile, which was owned by Hubers' brother. Dave Hartz and Janice Skyberg occupied the back seat.

Shortly before they reached the town of Jasper, defendant, whose driver's license had been revoked, took over the driving. At about 9 p.m. Officer Glen Buskerud of the Jasper village police recognized defendant driving and, knowing of the license revocation, following the vehicle. Defendant attempted to elude the police car on a 7-block course through Jasper, all of which streets were in Pipestone County. The last block was an 'S' curve, running in a southeasterly direction, which merged into County State Aid Highway No. 1 (hereafter Highway No. 1), proceeding in an easterly direction. Highway No. 1 forms the dividing line between Pipestone and Rock Counties, its eastbound lane being in Rock County and its westbound lane in Pipestone County. Thus, the vehicle occupied by defendant left the 'S' curve in Jasper and entered into Rock County. The speed limit on Highway No. 1 was 55 miles per hour.

Hubers' vehicle was within the sight of the officer except for the last 2 blocks during which it traversed the 'S' curve. As the pursued vehicle was entering Highway No. 1 the officer again sighted the vehicle, at that time being 2 blocks ahead of him. When the officer reached the same juncture, the other vehicle was about 1/2 to 3/4 of a mile down Highway No. 1. The officer continued to give chase, the vehicles reaching speeds from 90 to 100 miles per hour. The gap remained constant except that the officer felt that during the third mile of the 4-mile chase he narrowed the gap to less than half a mile. Approximately 4 miles down the highway, the vehicle turned north onto a gravel road, at which point the officer abandoned his pursuit.

Defendant was charged with speeding in Rock County. At trial in the district court on that charge, defendant claimed that he and Glen Hubers had switched positions within the 'S' curve while the vehicle was moving at approximately 20 miles per hour before entering Rock County and that Hubers was the driver in Rock County. Hubers testified that the switch took place approximately 2 miles down Highway No. 1 while the vehicle was traveling at 90 to 100 miles per hour. Passenger Hartz corroborated defendant, with Skyberg testifying that she observed the switch on the 'S' curve. However, on cross-examination Skyberg stated she was not sure that she saw the shift. The officer could not see the switch at any point because of the darkness and the distance between the vehicles.

The jury acquitted defendant of speeding. A grand jury on February 12, 1973, indicted defendant for perjury. The indictment specified:

'* * * (T)he said Michael DeSchepper then and there did willfully, wrongfully, unlawfully, knowingly and feloniously as a witness in said trial as aforesaid, testify falsely in substance and to the effect that he, the said Michael DeSchepper, as defendant in said matter, was not driving said motor vehicle involved in said speeding offense on Pipestone County State Aid Highway No. 1 in the County of Rock, Minnesota, as charged in said complaint, * * *.'

The evidence presented by both the state and the defense at the perjury trial was substantially similar to that presented at the speeding trial, except that the state did produce three additional witnesses. One Jennifer A. Hemmingson testified that defendant had told her the day after the incident that the switch of drivers occurred 'out east of town.' Mark S. Matson testified he overheard defendant tell Glen Hubers about a month after the incident that he (defendant) was driving at the time of the speeding but that Hubers could not prove it because Hubers did not have any witnesses. On the same occasion, Kevin Benson was also present and overheard defendant say to Hubers, 'I know I was driving, but you can't prove it.' The jury convicted defendant of perjury.

The trial court denied defendant's motion to dismiss the indictment and his post-trial motion for judgment notwithstanding the verdict or for a new trial, holding that the second prosecution was not barred. We affirm.

The only issue before this court on appeal is whether the state was estopped by the judgment of acquittal on the speeding charge from prosecuting defendant for perjury on the basis of his testimony at the speeding trial that he did not drive the vehicle in Rock County.

The courts have long struggled with the question of when acquittal of a crime will bar the defendant's subsequent prosecution for perjury for testimony given in his own behalf at trial. Five different rules have been advocated by various courts and commentators. They may be briefly summarized as follows:

(1) A person acquitted of an offense is wholly immunized from subsequent prosecution for perjury based upon testimony given in his own behalf at the first trial. ²

(2) A person acquitted of an offense may always be prosecuted for perjury based upon testimony given in his own defense, without regard to the nature of the testimony and even though the two verdicts are logically inconsistent (for convenience, hereafter 'no bar' rule). ³

(3) A person acquitted of an offense may not be prosecuted for perjury based upon testimony given in his own defense if a conviction of perjury would necessarily import a contradiction of the acquittal (for convenience, hereafter 'issues necessarily adjudicated' rule). ⁴

(4) A person acquitted of an offense may not be prosecuted for perjury based upon testimony given in his own defense if it appears from the record that the factfinder probably passed upon the credibility of the testimony in question in order to reach its verdict of acquittal (for convenience, hereafter 'issues probably adjudicated' rule). ⁵

(5) A person acquitted of an offense may not be prosecuted for perjury based upon testimony given in his own defense unless the state introduces evidence at the perjury trial which was not available to the fact-finder at the first trial and which independently tends to establish that defendant committed perjury while testifying in his own behalf. ⁶

No 'majority rule' suggests itself upon a reading of the more than 50 reported cases which have considered the problem. The acceptability of each of these rules varies widely over time and across jurisdictional boundaries. Perhaps the only generalization which may be drawn is that the Federal courts have traditionally been more likely than the state courts to bar the perjury prosecution. ⁷

The diversity of authority flows from the difficulty of balancing the competing public policy goals to be served. The dilemma faced by the courts in attempting to protect simultaneously the administration of justice from rampant perjury and the criminal defendant from potential prosecutorial harassment was well stated in Adams v. United States, 287 F.2d 701, 703 (5 Cir. 1961):

'Two opposing policy considerations have weighed heavily in prior determinations of this problem. On the one hand the concern exists that allowing an acquittal to afford any sort of insulation for perjury will be giving defendants an uncontrollable license to testify falsely. The resulting detriment to the reliability of evidence and more so, to the stability of the judicial process, would only be enhanced by the obvious fact that the more persuasively flagrant the defendant's fabrication, the greater his chances of total exoneration. This completes a vicious circle since the successful acquittal on the substantive offense would immunize him as to the very falsehoods which brought it about. On the other hand some apprehension exists that allowing prosecution for perjury will actually give the state a second shot at the defendant for the same wrong. The mere fact, this argument continues, that one charge relates to the doing of an act and the other to a denial of having done it, or to affirmative proof that it was not so done, is not sufficient basis on which to make a distinction.'

Over 60 years ago...