State v. Johnson

• Decision Date: 12 November 1971
• Docket Number: No. 42785,42785
• Citation: 192 N.W.2d 87,291 Minn. 407
• Parties: STATE of Minnesota, Respondent, v. James Harold JOHNSON, Appellant.
• Court: Minnesota Supreme Court

Page 87

192 N.W.2d 87

291 Minn. 407

STATE of Minnesota, Respondent, v. James Harold JOHNSON, Appellant.

No. 42785.

Supreme Court of Minnesota.

Nov. 12, 1971.

Syllabus by the Court

1. The testimony of a factual witness is admissible even though his identity is discovered as a result of disclosures made by the accused during an illegal detention and investigation. A distinction is made between discovery of evidentiary material and discovery of the identity of witnesses. Where no evidence is introduced as a result of an illegal interrogation but only the identity of a factual witness is elicited, testimony of that witness is admissible.

2. The admission of motion pictures or evidence of experiments performed outside the jury's view rests in the sound discretion of the trial court. To overturn a trial court's ruling, a clear abuse of discretion must be both alleged and proved.

3. When the accusation of a criminal offense is by indictment, a preliminary hearing is not required, nor does a denial thereof constitute a violation of due process and equal protection guarantees of either the United States or Minnesota Constitutions.

4. A prosecutor has the right to introduce evidence of the defendant's prior convictions to impeach his credibility if he takes the stand to testify in his own behalf.

The prosecutor has the right to cross-examine the defendant concerning the fact of conviction, the nature of the offense, and the identity of the defendant for the purpose of affecting the weight of his testimony. On appeal one cannot obtain review of an advisory opinion of the trial court.

5. Any error which may occur by reason of the erroneous admission of evidence is cured when that evidence is stricken from the record and is accompanied by a clear instruction to disregard so that the evidence is not put to use by the jury. If, however, the evidence is of such an exceptionally prejudicial character that its withdrawal from the jury cannot remove the harmful effects caused by its admission, a new trial should be granted.

6. It is within the trial court's discretion to allow depositions to be taken in criminal cases. It is also within the trial court's discretion to determine the manner and extent to which expert testimony may be used to impeach prior expert testimony. Out-of-court deponents are subjected to the same testimonial restrictions as the incourt witnesses.

John S. Connolly, Harrison P. Dilworth III, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., John Mason, Sol. Gen., Robert Carolan and Eldon G. Kaul, Sp. Asst., Attys. Gen., St. Paul, James Korman, County Atty., Faribault, for respondent.

Heard and considered en banc.

OPINION

RONALD E. HACHEY, Justice. ^*

Defendant appeals from a judgment of conviction of murder in the third degree and kidnapping. An indictment was returned by the grand jury of Rice County on October 10, 1969, charging defendant with the crimes of murder in the first degree and kidnapping. On motion of defendant, venue was changed to Olmsted County. After numerous pretrial motions were heard and ruled upon, the trial commenced on February 13, 1970, and the jury's verdict was returned on March 20. Defendant was immediately sentenced to a prison term not to exceed 40 years. There was no motion for a new trial, and on September 14 this appeal was filed alleging 17 specific errors which occurred during trial as grounds for reversal or, in the alternative, for a new trial.

Sandra Meinke lived on a farm with her parents and family near Webster, Minnesota. Some time after 5:45 p.m. on August 31, 1969, Sandra was given permission to drive her motorbike to a neighbor's farm to pick up a younger sister and bring her home. A short time later, Sandra appeared at another neighbor's farm to inquire about her sister. Those neighbors informed Sandra that they had not seen her sister. Sandra was then seen on her motorbike going in the direction of her home.

Shortly thereafter, defendant's truck was observed as it abruptly stopped and backed into the driveway of the farm where Sandra had made her last inquiry. At that time there were no passengers with defendant. The truck remained in the driveway a few minutes and then proceeded down the same roadway, following Sandra some distance back. Within a half hour thereafter defendant's truck was observed by Sandra's mother as it drove past the Meinke farm. Other witnesses noticed the same truck at approximately 6:30 p.m. after it had passed the Meinke farm. At approximately 6:45 p.m. defendant's truck was again seen near the intersection of Highway No. 13 and LeSueur County Road No. 28, in the vicinity of Lake Pepin, a distance of approximately 15 miles from Sandra's home. At that time a witness observed a girl in the truck with defendant. Attention was drawn to her because of her facial contortions. That witness then observed defendant make an abrupt right turn, proceeding toward Heidelburg, Minnesota.

Defendant had spent the afternoon in his gas station which he operated at St. James, Minnesota, some 88 miles distant from the Meinke farm. He had left his station at approximately 4 p.m. on August 31 and was seen driving in the direction of Mankato, Minnesota. He arrived at his home at Prior Lake at approximately 8:10 p.m. that same evening.

Sandra was never again seen alive. Her partially nude body was found on September 11 in an undisturbed wooded area near Lake Pepin. A ball-type earring was still attached to her right ear, but a search of the area failed to produce a matching earring. Cause of death was concluded to be a skull fracture.

Defendant was told by his brother on September 1, the day after Sandra's disappearance, that certain people were looking for a truck matching a description of defendant's and that a visit might be expected from the police. During the few days that followed, defendant got rid of the camper part of his truck by burning it at a dump near St. James, and he replaced the truck with a newer model. Defendant's old truck was impounded on September 21, and a thorough search of the interior resulted in finding an earring which matched the one found on Sandra's body. Also found were several hairs in the cab of the truck which compared with the hairs taken from Sandra's head in eight different respects, resulting in an opinion of high probability that the hairs found were originally from Sandra's head. Defendant was arrested on September 23.

1. Defendant challenges the testimony of three witnesses, Lloyd Sandberg, Steve Westman, and Kenneth Christman, as inadmissible because learning of their identity was the product of an illegally obtained statement. Defendant was arrested by agents of the Minnesota Bureau of Criminal Apprehension. En route to jail, he stated to one of the agents that he had destroyed his camper in St. James and that he had been in St. James on August 31. An incomplete Miranda warning had been given defendant, and this testimony was ruled inadmissible at the Rasmussen hearing. Defendant contends that, if he had not made the statements to the agent, the identity of his gas station employees would not have been established.

The testimony of a factual witness is admissible even though his identity is discovered as a result of disclosures made by the accused during an illegal detention and interrogation. Brown v. United States, 126 App.D.C. 134, 375 F.2d 310 (1966), certiorari denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967); Smith v. United States, 117 App.D.C. 1, 324 F.2d 879 (1963), certiorari denied, 377 U.S. 954, 84 S.Ct. 1632, 12 L.Ed.2d 498 (1964); State v. King, 286 Minn. 392, 176 N.W.2d 279 (1970). A distinction is made between discovery of evidentiary material and discovery of the identity of witnesses. Where no evidence is introduced as a result of an illegal interrogation but only the identity of a factual witness is elicited, the principle regarding the 'fruit of the poisonous tree' doctrine, enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), is inapplicable.

'* * * (A) witness is not an inanimate object which like contraband narcotics, a pistol or stolen goods, 'speak for themselves.' The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, since the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.' Smith v. United States, 117 App.D.C. 1, 3, 324 F.2d 879, 881, quoted by this court in State v. King, 286 Minn. 392, 398, 176 N.W.2d 279, 283.

Furthermore, there is ample evidence to support a conclusion that the identity of the three witnesses in question was obtained from sources independent of defendant's interrogation. It appears that crime bureau agents talked to defendant's wife, and it was she who stated that defendant had junked his camper near St. James. It appears that one of the agents knew that defendant owned a gas station in St. James where these witnesses were employed. Another agent had learned that defendant had been at his station on August 31. Defendant's conclusion that his conversation was the only source of information concerning the identity of those witnesses is conjectural at best.

2. During trial defendant attempted to introduce a film taken from within an automobile passing a farm driveway upon which a pickup truck with a camper unit was parked. Defendant also attempted to introduce results of an experiment under conditions allegedly similar to those at the time Sandra was abducted in an effort to prove that paint on the earring found in the cab of defendant's truck could...