State v. Pieschke

• Decision Date: 10 September 1980
• Docket Number: No. 49810.,49810.
• Citation: 295 NW 2d 580
• Parties: STATE of Minnesota, Respondent, v. Dlaine Ernest PIESCHKE, Appellant.
• Court: Minnesota Supreme Court

295 N.W.2d 580 (1980)

STATE of Minnesota, Respondent, v. Dlaine Ernest PIESCHKE, Appellant.

No. 49810.

Supreme Court of Minnesota.

July 3, 1980.

Rehearing Denied September 10, 1980.

Genty & Eggert and Francis J. Eggert, Winsted, for appellant.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Gary Hansen, Sp. Asst. Atty. Gen., St. Paul, Peter J. Kasal, County Atty., Glencoe, for respondent.

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

PETERSON, Justice.

Defendant, Dlaine Ernest Pieschke, was charged with aggravated driving while under the influence of alcohol (Minn.Stat. § 171.245 (1976)),¹ driving while under the influence (Minn.Stat. § 169.121(1)(a) (1978)), driving after revocation of his license (§ 171.24), and leaving the scene of an accident (§ 169.09, subd. 4). The case was tried to a jury, and defendant was convicted of all charges but was sentenced only on the conviction of aggravated driving while under the influence, for which he received a sentence of 1 year. Defendant appeals from the convictions. We affirm in part and reverse in part.

The charges against defendant arose out of an automobile accident in Glencoe, Minnesota, in the early morning of April 1, 1978. An automobile owned by Howard McCormick rounded a corner and struck an unattended blue pickup truck parked on the street. The automobile did not stop immediately but proceeded around the corner and stopped approximately one block away. In the automobile were McCormick, Mavis Bergs, Mark Ranzau, and defendant, all of whom had spent the evening drinking heavily at a bar in Plato, Minnesota. Defendant admitted at trial that he had consumed about 10 drinks consisting of whiskey and water and was intoxicated at the time of the accident. The officers who arrested defendant at the scene of the accident also testified he was staggering, abusive, and clearly intoxicated. It is undisputed that defendant's license had been revoked prior to the morning of the accident for driving while under the influence. The only factual dispute was the identity of the person driving the automobile.

Glencoe police officers David Revier and William Newman were on duty when they heard sounds of the collision. They came upon the damaged pickup and then found the McCormick automobile nearby. As the officers approached, they saw McCormick and defendant outside the automobile examining the damage. The two then got into the automobile, McCormick in the driver's seat and defendant in the passenger's seat. The other two passengers had remained in the automobile — Bergs in the middle of the front seat, Ranzau in the back.

At the scene, the officers took statements from Bergs and McCormick. Both stated defendant had been driving when the collision occurred. Their statements were reduced to writing and signed at the police station less than an hour after the accident. Defendant, on the other hand, denied to the officers that there had been a collision, and Ranzau told the officers he had passed out in the back seat and did not know who was driving.

At trial, the prosecution called Officer Revier and brought out as substantive evidence over defense objection the oral and written statements of Bergs and McCormick. Called to testify for defendant, however, Bergs and McCormick changed their stories. Bergs testified she had actually fallen asleep in the front seat of the automobile before the others entered and that she slept the entire time the automobile was in motion, including the time of the accident. She claimed she had no way of knowing who was driving when the accident occurred. Bergs explained the inconsistent statement she made to the police by saying that she had heard defendant and McCormick outside the bar discussing who would drive McCormick's automobile but that she had fallen asleep before the discussion was resolved and simply assumed defendant had convinced McCormick to let him drive.

McCormick testified at trial that he was driving at the time of the accident but had earlier implicated defendant because he, McCormick, had a previous conviction that was less than 1 year old for driving while under the influence.

Ranzau, who had told the officers he was unconscious and did not know who was driving, testified at trial that he was in fact awake and that McCormick was the driver. Defendant also testified on his own behalf that McCormick was the driver.

1. Defendant contends, first, that the prior statements Bergs and McCormick made to the police were hearsay admissible for impeachment purposes only and should not have been admitted as substantive evidence that defendant was driving the automobile. The state contends the statements were not hearsay because they fell within Minn.R.Evid. 801(d)(1)(D), which excludes from hearsay statements "describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter," if the declarant testifies at trial and is available for cross-examination. The state contends these statements were made to police officers within minutes of the accident, and the declarants had no opportunity to manufacture a false account. The state also points out that Bergs and McCormick testified at trial that they did not speak with each other between the time of the accident and the time of their statements to the police, yet the accounts they gave the officers were consistent with each other. The state argues this is further indication of the veracity of the statements.

Defendant responds that the statements could not be admitted under Rule 801(d)(1)(D) because they were not "excited utterances" and because the statements, particularly the written statements, were not made while Bergs and McCormick were "perceiving the event or condition or immediately thereafter."

It is clear that a prior statement need not be an "excited utterance" to be excluded from hearsay under Rule 801(d)(1)(D). The traditional exception for "excited utterances" is provided in Rule 803(2). Rule 801(d)(1)(D) requires instead a statement of a "present sense impression" or "unexcited utterance" made contemporaneously with the event or immediately thereafter so that there is little time to consciously fabricate a story. 11 Minnesota Practice, Evidence § 801.07 (1979).²

The question whether the statements were made immediately after the time of the accident poses more problems but in this case must be resolved against defendant. Defendant's attorney objected to the introduction of the statements on hearsay grounds,³ but when the prosecutor responded that the statements were excluded from hearsay under Rule 801(d)(1)(D), defendant's attorney made no further objection.

It appears from the record that the police officers were close enough to the scene to have heard the collision. They responded immediately and found the automobile in which defendant and his companions were riding less than one block away. Thus, the oral statements by Bergs and McCormick were probably made within a few minutes of the accident and, by their own admission, were made before they had had an opportunity to discuss the events. While this testimony does not establish indisputably that the oral statements made to the police by Bergs and McCormick should fall under Rule 801(d)(1)(D), defense counsel's failure to object to any lack of foundation for applying that exclusion and his failure to make a record to demonstrate why the exclusion should not apply denied the trial court the opportunity to evaluate his objection and denied the state the opportunity to provide additional foundation for admitting the testimony if the court had deemed it necessary.⁴ We have held that the trial court has broad discretion in determining the admissibility of such evidence. Hase v. American Guarantee & Liability Ins. Co., 312 Minn. 271, 274-75, 251 N.W.2d 638, 641 (1977); State v. Gorman, 229 Minn. 524, 527, 40 N.W.2d 347, 349 (1949). We believe that the trial court did not abuse its discretion in determining on the basis of this record that the prior oral statements of Bergs and McCormick were not hearsay and were therefore admissible as substantive evidence under Rule 801(d)(1)(D).

2. Defendant does have a persuasive argument that the written statements were clearly taken too long after the accident to come within Rule 801(d)(1)(D). However, the written statements merely repeated the oral statements to which Officer Revier testified, so we hold there was no prejudice to defendant from their admission.

3. Defendant contends next that there was insufficient evidence to sustain his conviction. He argues that since the only witnesses who could testify that defendant was the driver recanted their stories at trial, the jury could not find beyond a reasonable doubt that defendant was the driver.

We have often held that on review of a criminal conviction we will construe the record most favorably to the state and will assume the evidence supporting the...