State v. Paige

• Decision Date: 08 July 1977
• Docket Number: No. 46639,46639
• Citation: 256 N.W.2d 298
• Parties: STATE of Minnesota, Respondent, v. John Henry PAIGE, Appellant.
• Court: Minnesota Supreme Court

Page 298

256 N.W.2d 298

STATE of Minnesota, Respondent, v. John Henry PAIGE, Appellant.

No. 46639.

Supreme Court of Minnesota.

July 8, 1977.

Syllabus by the Court

A conviction involving a charge of carrying a pistol in a public place without a permit, in violation of Minn.St. 624.714, subd. 1, must be reversed where the trial court ordered the pistol suppressed at the omnibus hearing as having been unconstitutionally seized, and the county attorney introduced it at trial in contravention of that order.

Charles W. Anderson and Dale A. Gruis, Monte M. Miller, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Richard G. Mark, Asst. Atty. Gen., Jane Prohaska, Spec. Asst. Atty. Gen., St. Paul, John L. Plattner, County Atty., Walker, for respondent.

Heard before KELLY, YETKA and SCOTT, JJ., and considered and decided by the court en banc.

SCOTT, Justice.

This is an appeal from a judgment of conviction entered by the Cass County District Court. The jury found the defendant guilty of possession of a handgun in a public place without a permit, in violation of Minn.St. 624.714, subd. 1. We reverse.

On November 16, 1975, state's witnesses Michael Lago, Patrick O'Neill, and Jeff Johnson left a nightclub-restaurant known as "R. C.'s" in Federal Dam, Minnesota, at approximately the same time. Lago headed for his car while O'Neill and Johnson began to walk home. Defendant Paige came out of R. C.'s, referred to Lago as a "longhair," and struck him twice with his hands. Lago urged O'Neill, who had returned to the parking lot with Johnson when they heard the altercation, to leave with him, but O'Neill and Johnson remained, arguing with Paige, while Lago drove off. Sometime during the argument, Paige went to his pickup truck and returned with a revolver. Lago saw the weapon also, since he had turned his car around and returned to R. C.'s parking lot. Paige grabbed O'Neill with his free hand, then struck him with the same hand. Johnson was also hit twice by Paige. When Paige saw Lago's car return, he attempted unsuccessfully to break the rear window with the gun, then succeeded in breaking a driver's side window, and fired a shot as Lago again drove away. Paige then waved the gun at O'Neill with the hammer cocked, and O'Neill and Johnson departed the scene in haste and summoned the police.

Officer Robert Karbowski, Deputy Sheriff for Cass County, arrived in Federal Dam about 2:30 a. m. and spoke to Lago, O'Neill, and Johnson about the incident. Karbowski was given Paige's address by Johnson, and proceeded to Paige's cabin. When he knocked on the door of the cabin all of the interior lights went out. About 10 minutes later Paige emerged unarmed from the cabin and was told to stand where he was by Karbowski, who frisked him, handcuffed him, and questioned him about the incident at R. C.'s. He asked Paige if he had had a gun with him at R. C.'s, and Paige answered, "Yeah." Karbowski at no time gave Paige a Miranda warning. The officer testified as follows:

"Well, I asked him if he did, in fact, have a gun, and he said, 'Yes.' And I said, 'Would you tell me where it is?' And he said, 'It's in my pickup.' The pickup was parked right there in the front of the cabin. And so I asked him if he would mind if I would get it. And he said, 'No,' and he reached in his pocket and he gave me the keys. I unlocked the pickup. Asked him if he would mind if I looked in there. He said, 'No.' So I looked. There was a jacket or something on the seat and underneath this I found an empty holster, along with the rifle that was in a gun case. So in looking a little further, I looked up on the dash and found that revolver with six shells in it, three fired and three unfired."

Karbowski seized the two weapons, released Paige from the handcuffs, and then went home.

Paige was charged with simple assault against Michael Lago on November 17, 1975, and pled guilty to this offense on November 24. He was charged with carrying a pistol in a public place, in violation of Minn.St. 624.714, subd. 1, on November 24, 1975. Only this latter charge is at issue herein.

The trial court ruled at the omnibus hearing that Paige's pistol could not be introduced into evidence at the trial:

"And I might state for the benefit of the Sheriff's Office, that it is my opinion that the Wong Sun doctrine applies, and that because the seizure was a result of statements given without any Miranda warning, it's the fruits of the poison tree, and this simply means that the pistol, no other evidence, can be introduced at the time of the trial."

The court restated this ruling at the trial, with defendant's trial counsel present:

"However, for the record, I will say that in the omnibus hearing so that we can get the ground rules straight, I was satisfied that none of the statements, exculpatory or inculpatory, made by the defendant up at his temporary abode in Bena, nor the seizure, the fact of the seizure, nor the gun, can be brought out in a trial because there was no Miranda warning. I am satisfied on that."

It is almost incredible that during the direct examination of state's witness Jeffrey Johnson, the county attorney introduced "State's Exhibit No. 1," a Smith & Wesson .357 magnum pistol. ¹ Defense counsel did not object. Finally, when the county attorney offered the pistol into evidence, defense counsel's only objection was as to foundation, and he attempted to show that Johnson had no way of knowing if this was actually Paige's pistol. The county attorney then engaged in this colloquy with Johnson:

"Q You said you had observed that weapon or one identical to it on a previous occasion?

"A Yes, I had one identical to that in my hand once.

"Q And you said that was while working for the defendant?

"A Yes.

"Q And did you pick up that weapon at that time and take a look at it?

"A Yes.

"Q And was there anything different about that weapon which you sort of remembered?

"A Than now?

"Q Yes.

"A No. I just remembered it was kind of banged up is all.

"Q Like that weapon is?

"A Yes.

"Q That's what you are referring to?

"A Yes.

Without further objection by defense counsel, the same trial court that handled the omnibus hearing ruled as follows:

"Ladies and gentlemen, this exhibit is going to be received, but it's going to be received for a limited purpose. I don't believe the proof is sufficient to establish that this was the exact Smith & Wesson .357 magnum that this witness claims the defendant had that night. But it is so similar that I am going to permit it to go into evidence as illustrative of the witnesses' testimony, for that purpose only."

The controlling issue here is whether the admission of the pistol during trial was a violation of the omnibus hearing order constituting prejudicial prosecutorial misconduct. First of all, it seems unquestionable that the prosecution intended the jury to believe that the exhibit was actually Paige's pistol. The trial court's admonishment regarding the "illustrative" purpose of the exhibit was not sufficient to alter the jury's perception of the pistol as the one allegedly held and fired by Paige. In justification, the state contends in its brief:

"The exhibit in this case was used simply to allow the jury to view directly a pistol similar to that which witnesses fully described through their oral testimony. While it is clear that any pistol adequately fitting the witnesses' description could have been used for that limited purpose for which the exhibit in the case was admitted, it appears that the actual gun seized by Officer Karbowski was the one admitted. However, no reference was made at any time during the trial as to where this particular gun came from. Nor was any reference made to Officer Karbowski's conversation with appellant or to his search of appellant's car. It is difficult to perceive how the use of the pistol in this limited manner violated the omnibus order or prejudiced appellant."

The county attorney made no reference to the pistol being introduced solely for a "limited purpose," and as shown above deliberately attempted to lead the jury to believe the gun was in fact the one seized from Paige. No other conclusion can be drawn from the record than that the admission of the pistol was a direct violation of the omnibus order. Obviously, the failure of defendant's counsel to bring an immediate objection and to move for a mistrial should not be allowed to prejudice defendant's case.

The only remaining question is whether defendant was prejudiced by the introduction of the pistol. The state gives the relevant principle that the introduction of illegally obtained evidence will be considered harmless if there is no reasonable possibility that the evidence complained of might have contributed to the conviction. State ex rel. Kopetka v. Tahash, 281 Minn. 52, 160 N.W.2d 399 (1968).

One of the necessary elements for a conviction under Minn.St. 624.714 is that the accused did carry, hold, or possess a pistol. It is difficult to imagine that the jury's finding on this element was not influenced by the display of a pistol identified by two witnesses to be of the exact same type as that seen in the defendant's hands on the night of the incident. The direct import of Johnson's testimony set out above is that it was the same weapon. Even with the trial court's "illustrative" ruling, the prosecution gained the same benefit as if it had introduced Paige's gun with custody testimony from Officer Karbowski, specifically forbidden by the trial court under Miranda.

Since each of the three state's witnesses, Lago, O'Neill, and Johnson, stated that they saw Paige with a pistol, and since Paige did not take the stand to deny it, their testimony was uncontroverted. The jury was entitled to weigh their credibility in deciding whether or not their testimony alone...