State v. O'Neill

• Decision Date: 29 March 1974
• Docket Number: No. 41988,41988
• Citation: 299 Minn. 60,216 N.W.2d 822
• Parties: STATE of Minnesota, Respondent, v. John Lloyd O'NEILL, Appellant.
• Court: Minnesota Supreme Court

Page 822

216 N.W.2d 822

299 Minn. 60

STATE of Minnesota, Respondent, v. John Lloyd O'NEILL, Appellant.

No. 41988.

Supreme Court of Minnesota.

March 29, 1974.

Syllabus by the Court

1. Minn. St. 629.34(1), permitting a warrantless arrest for a misdemeanor violation only if the offense is committed in the officer's presence, is not violated where the arrest for an ordinance violation based on possession of guns did not take place until after the guns were found during a consensual search of a car following a reasonable investigatory stop.

2. It is not improper for the police to approach a defendant after his initial refusal to cooperate and ask him to reconsider his silence as long as the urging to reconsider is not in any manner compulsive on defendant and his asserted right not to speak is respected.

3. A jury instruction concerning permissible inferences of specific intent did not cast the burden on defendant of proving his innocence when viewed in the context of the overall charge.

4. Representation by counsel is presumed competent and will not be held constitutionally defective unless so inadequate as to amount to a sham.

C. Paul Jones, Public Defender, Minneapolis, David Essling, Asst. Public Defender, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, George M. Scott, County Atty., Theodore R. Rix, Vernon E. Bergstrom, Michael McGlennen, Asst. County Attys., Minneapolis, for respondent.

Heard before KNUTSON, C.J., and ROGOSHESKE, PETERSON, and KELLY, JJ., and considered and decided by the court.

KELLY, Justice.

On June 17, 1968, defendant, John Lloyd O'Neill, age 17, along with two companions, was arrested for violation of the Minneapolis gun ordinance. Thereafter, defendant was charged with and convicted of the murder of Edward Kuehn who had been killed a few days before defendant's arrest. Defendant appeals from this conviction of second-degree murder and also seeks review of the denial of postconviction relief. We affirm.

Defendant's conviction was for the killing of Edward Kuehn, a 51-year-old white male. Kuehn was killed on a north Minneapolis street by a small-caliber bullet shortly after midnight on the night of June 15, 1968.

On June 17, at about 1:30 a.m., Minneapolis police officers Danielson and Nelson while on patrol in their squad car received a radio report that three white males in a "55 or '56 green Oldsmobile' bearing a certain license number had discharged a gun in a gasoline filling station and had bragged about shooting out street lights. Within one-half hour after the radio report, the officers observed the described automobile and followed it. The officers saw three white males in the car and then stopped the car. Officer Danielson got out of the driver's side of the squad car, stood behind the door, and drew his revolver. Officer Nelson moved behind a telephone pole with a shotgun to cover Officer Danielson. The officers ordered the three occupants to get out of the car stating: 'Police. Get out of the car and put your hands over your head.'

When defendant and his two companions emerged as instructed, Officer Danielson holstered his revolver and then patted them down for weapons. One of the three then volunteered: 'If you are looking for the guns, they are in the car.' When they searched the car, the officers found two small-caliber pistols--a Beretta under the front seat and a Ruger in the glove compartment. ¹ The Beretta was later connected with the death of Edward Kuehn and its possession, control, and use was linked to defendant. The three were taken into custody for possessing guns in violation of a Minneapolis gun ordinance. Several live rounds of ammunition were also found in defendant's pockets.

Independent of this incident, Detective Russell J. Krueger who was assigned later that same morning to investigate the death of Edward Kuehn, received a phone call reporting that a 1956 Oldsmobile had been seen in the area of the Kuehn killing at the time of the shooting. When he discovered that three persons had been arrested that morning in a 1956 Oldsmobile for violation of the gun ordinance, Detective Krueger interviewed defendant's companions and obtained a statement from one of them, Philip Roehl, implicating defendant in Kuehn's death.

Thereafter, Detectives Krueger and O'Rourke went to the Juvenile Detention Center to interview defendant. Detective Krueger identified himself, advised defendant he was a suspect in Kuehn's death, and gave him a Miranda warning. In response, defendant became 'very wild and upset.' He stated that the last time he had cooperated with the police he had ended up in jail and began threatening the officers. The officers terminated any attempt to question defendant at this time but returned about 1 1/2 to 2 hours later. They again advised defendant of his rights and told him of Roehl's statement implicating him in the killing. They asked defendant to drop his trousers to determine if there were any bullet holes in them or wounds on his legs. This was to substantiate other information which had been received that defendant on the night of Kuehn's killing had shown such evidence to others claiming that a man had shot at him twice before he had fired. The officers told defendant that they were trying to determine whether Kuehn's death was murder or manslaughter. There was some discussion that defendant was a juvenile, but the officers did not know if he would be treated as an adult if charged with Kuehn's death. Defendant stated: 'I don't deny it, but I would like to talk to my father or my brother first.' Questioning stopped at this time, and the next day, in the presence of his father and brother, defendant made no further statement.

On July 3, 1968, juvenile court waived its jurisdiction over defendant and referred him for prosecution as an adult. On July 15, 1968, defendant was indicted for murder in the first degree. After being convicted of second-degree murder on October 18, 1968, defendant appealed. Upon motion to this court, the appeal was stayed pending a postconviction hearing. Defendant also seeks review of the denial of postconviction relief.

1. The first issue raised by defendant is that evidence discovered at the time of arrest or as a result of jail detention was inadmissible because it resulted from an improper arrest. It is argued that the arrest was improper because the misdemeanor offense for which defendant was arrested was not committed in the presence of the officers. In discussing this issue, it is helpful to restate the sequence of events leading to defendant's arrest for violation of the Minneapolis gun ordinance. The police stopped a vehicle whose three occupants were believed with good reason to have been involved a short time earlier in discharging firearms in a gasoline filling station and shooting out street lights. With their weapons ready, the officers asked the three occupants of the vehicle to get out with their hands above their heads. After patting them down for weapons, one of the occupants spontaneously informed the officers that the guns were in the car. When the guns were found in the car, the occupants were taken into custody.

Minn.St. 629.34(1) permits a warrantless arrest for a misdemeanor violation only if the offense is committed in an officer's presence. In construing this requirement, we observed in State v. Pluth, 157 Minn. 145, 151, 195 N.W. 789, 791 (1923):

'* * * It cannot be said that a criminal offense is committed in the presence of an officer, unless the acts constituting the offense become known to him at the time they are committed through his sense of sight or through other senses.'

In State v. Miller, 290 Minn. 33, 185 N.W.2d 872 (1972), we held an arrest improper under the statute when it was based on information from police in a neighboring town that LSD was in the possession of individuals in a described vehicle. We held that even reliable hearsay information was never a substitute for personal observation by an officer making an arrest for a misdemeanor violation. ²

'Since the law of Maine thus recognizes, foundationally, the lawfulness of such searches and seizures Upon issuance of a warrant supported by probable cause, we hold (as we are constitutionally free to decide under Chambers v. Maroney) that the same searches and seizures may be made Without a warrant, notwithstanding that the criminal conduct which makes the property lawfully subject to seizure is only a misdemeanor; provided that (a) there is probable cause, (b) there are Accompanying exigent circumstances which make procurement of the warrant impracticable, and (c) the methods, time and place are reasonable under all of the circumstances constituting the exigency, * * *.' 294 A.2d 690.

However, the statutory limitation on misdemeanor arrests does not prevent the police from stopping persons and temporarily detaining them for questioning. A person who is engaged in activity which arouses suspicion of criminal conduct can have his liberty restrained temporarily until the police have investigated the circumstances. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Armstrong, 292 Minn. 471, 194 N.W.2d 293 (1972); State v. Valstad, 282 Minn. 301, 165 N.W.2d 19 (1969); State v. Fish, 280 Minn. 163, 159 N.W.2d 786 (1968). See, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). In Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616 (1972), it was observed:

'In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly (sic) criminal behavior even though there is no probable cause to make an arrest.' (Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to...