State v. Peirce

• Decision Date: 29 March 1985
• Docket Number: No. C7-83-1774,C7-83-1774
• Citation: 364 N.W.2d 801
• Parties: STATE of Minnesota, Respondent, v. Mitchell PEIRCE, Appellant.
• Court: Minnesota Supreme Court

Page 801

364 N.W.2d 801

STATE of Minnesota, Respondent, v. Mitchell PEIRCE, Appellant.

No. C7-83-1774.

Supreme Court of Minnesota.

March 29, 1985.

Syllabus by the Court

1. Defendant's warrantless arrest was with probable cause and defendant's Miranda rights were not violated.

2. The trial court properly found, under either a clear-and-convincing or a preponderance-of-the-evidence standard, that the defendant by his own misconduct had waived his right of confrontation.

3. Defendant was properly denied use immunity for defense witnesses he wished to call.

4. The trial court's instruction on aiding and advising was not erroneous, there was sufficient corroboration for the accomplice's testimony, and the evidence is sufficient to sustain the first-degree murder conviction.

Michael F. Cromett, St. Paul, for appellant.

Thomas L. Johnson, Co. Atty., Vernon E. Bergstrom, Richard Osborne, J. Michael Richardson, Paul R. Jennings, and Beverly J. Wolfe, Asst. Co. Attys., Minneapolis, Hubert H. Humphrey, III, Atty. Gen., St. Paul, for respondent.

Heard, considered, and decided by the court en banc.

SIMONETT, Justice.

Defendant-appellant Mitchell Peirce appeals his conviction for first-degree murder (causing unintentional death during criminal sexual conduct), second-degree murder (causing unintentional death during a burglary), and his life imprisonment sentence on the first-degree murder conviction. We affirm. ¹

During the night of November 19, 1982, four young men entered Luella Larson's home. Mrs. Larson was tied up, terrorized, sexually assaulted, and beaten to death. The young men took two rings, some food, and $10. Mrs. Larson was 71 years old, blind, widowed only a week, and home alone that night, defenseless in her bed. Appellant Peirce admits he was one of the four men that entered the house, but disputes the extent of his involvement in what happened and claims various prejudicial errors occurred at his omnibus hearing and trial.

I.

Defendant Peirce claims his warrantless arrest was without probable cause and that after his arrest, notwithstanding his request that the police stop questioning him, the police continued to interrogate and obtained his signed confession, in violation of his Miranda rights. Both claims were denied at the omnibus hearing. We affirm these rulings.

1. Four days after the burglary, at about 10 p.m. at a 7-Eleven store, the police arrested defendant Peirce without a warrant on the basis of an informant's tip. The informant had given the police names of the four persons that had been involved in the burglary, reported that two of the burglars had beaten the "old woman" to death, that $10 or $15 had been taken, and that one of the burglars had burglarized the house before and knew blind people lived there. The police testified they had received information from this informant twice before, and the information had been "one hundred percent reliable" and had resulted in convictions. Defendant Peirce argues the informant had passed on nothing that was not already reported in the news coverage of the crimes. The trial court, however, found that the informant's information was reliable and had led to past arrests and convictions; that the informant had obtained his information from the burglars themselves; and that the informant knew where Peirce lived. These facts satisfy the probable cause requirements of Illinois v. Gates, 462 S.Ct. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and, indeed, would satisfy the more stringent requirements of the old Aguilar-Spinelli test which Gates replaced.

2. When he was arrested at the 7-Eleven store, defendant Peirce says he was given his Miranda rights in the squad car and he told the officers he wanted to remain silent. About 3 hours later, at the police station, Peirce says he was again read his Miranda rights, says he asked for an attorney and again stated he wanted to remain silent, but the police officer persisted in questioning him, and he finally, at 12:55 a.m., gave a written statement. At the omnibus hearing, the two police officers present during the questioning at the police station testified. They said defendant did not say anything to them about remaining silent and did not request an attorney. The officer who took the statement said that he was not "advised at any time that he [Peirce] did not want to talk or had made a statement that he did not want to talk." Peirce read over his typed statement (which also contained Miranda warnings and a waiver), made corrections, and signed it. The omnibus court found that defendant was advised of his Miranda rights at the time of his arrest and again at the police station; that defendant did not ask to speak with a lawyer or refuse to talk with the officers; and that the confession was voluntary. We have made our own independent evaluation of the record and conclude that the trial court's findings are not clearly erroneous. See State v. Kulseth, 333 N.W.2d 635, 637 (Minn.1983); State v. Hardimon, 310 N.W.2d 564, 567 (Minn.1981). The trial court was warranted in resolving the issues of credibility against Peirce. Defendant Peirce points out that the state did not call as witnesses the police officers who were with defendant in the squad car at the 7-Eleven store when defendant was first read his Miranda rights, and so Peirce's testimony that he had initially expressed a wish to remain silent was unrebutted. We think, however, that Peirce's testimony was sufficiently rebutted by the police officers who did testify.

3. Even if Peirce's testimony that he had expressed a wish in the squad car to remain silent were true, the signed statement would still be admissible. The admissibility of the statement given after an exercise of the right to remain silent depends on whether the police "scrupulously honored" the defendant's right to cut off questioning. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975). Here defendant was arrested about 10 p.m. and gave his statement at 12:55 a.m. During the ride to the police station in the squad car, Peirce says he answered no questions and, indeed, fell asleep. The signed statement was taken at the police station, a different location from where the first Miranda warning was given, and by different officers, after fresh Miranda warnings and a waiver and after a lapse of well over 2 hours. Nor does the subsequent questioning at the police station about the same crime necessarily establish undue pressure, especially with the substantial time interval between interviews. Stumes v. Solem, 752 F.2d 317 (8th Cir.1985). Under these circumstances and on this record, it cannot be said that the police failed to scrupulously honor defendant's right to have his questioning stopped. Finally, there is no merit to defendant's claim that he was incapable, because of drinking and smoking marijuana, of making a knowing and intelligent waiver of his rights. Peirce remembered being read his Miranda rights twice. He answered questions with apparent ease, and he was alert enough to make corrections on his typed statement.

II.

Defendant-appellant Peirce further claims he was denied his constitutional right to confront a key state's witness. He denies the state's contentions that he waived his right of confrontation by his own misconduct, and he raises the issue of what is the proper burden of proof on the state to prove waiver. We hold that defendant had a right of confrontation but waived it.

At trial, the state, as part of its case, put in evidence defendant Peirce's police statement. In his statement, Peirce (who later testified in his own defense) admitted the burglary but denied that he or anyone else had sexually assaulted the victim, and he denied hitting the victim. Peirce did admit tying the victim's hands behind her back, threatening anal sexual assault, and having a penlight (the evidence of sexual penetration was consistent with use of a penlight), but he stated he did not realize the victim was a woman. The state then called Mahlon Goodridge, one of defendant's fellow burglars, as a witness. Out of the presence of the jury, Goodridge refused to testify, invoking the fifth amendment, even after being granted use immunity. At that point, over defendant's objection, the trial court allowed the state to read into evidence portions of Goodridge's testimony given at his own prior trial. In this prior testimony, Goodridge stated that Peirce tied Mrs. Larson's hands behind her back and said, "Find out where that money is"; that Peirce later threatened Mrs. Larson with anal sexual assault and said he would kill her if she did not tell where she kept her money; that Peirce punched Mrs. Larson a number of times; that Peirce had a penlight; and that Peirce was present when Mark Hoagland, another member of the group, sexually assaulted Mrs. Larson, and Peirce punched the elderly woman during the assault. Goodridge also, in his trial testimony, said he himself hit the victim three times and removed her wedding rings.

Defendant-appellant Peirce contends the admission of Goodridge's prior trial testimony violated his constitutional right to confront Goodridge. He points out he was denied an opportunity to face his accuser or to cross-examine him. Peirce concedes that Goodridge's testimony was admissible hearsay as a statement against penal interest, but he contends that, even so, the hearsay testimony does not meet the necessary "trustworthiness" for admission under the confrontation clause. To be "trustworthy," the United States Supreme Court requires, first, that the hearsay declarant be unavailable and, second, that the hearsay statement bear adequate "indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-2539, 65 L.Ed.2d 597 (1980); State v. Hansen, 312 N.W.2d 96, 102 (Minn.1981). Here, as defendant concedes, the state had established Goodridge's unavailability to testify. ² It is, however, less clear if...