State v. Pieschke

• Decision Date: 25 January 1978
• Docket Number: No. 11987,11987
• Citation: 262 N.W.2d 40
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. Mark Wayne PIESCHKE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 40

262 N.W.2d 40

STATE of South Dakota, Plaintiff and Respondent, v.Mark Wayne PIESCHKE, Defendant and Appellant.

No. 11987.

Supreme Court of South Dakota.

Jan. 25, 1978.

Peter H. Lieberman, Asst. Atty. Gen., Pierre, for plaintiff and respondent; William J. Janklow, Atty. Gen., Pierre, on the brief.

Derald W. Wiehl of May, Johnson, & Burke, Sioux Falls, for defendant and appellant.

WOLLMAN, Justice.

Defendant was charged with aiding and abetting the commission of the crime of robbery in the first degree.He was found guilty by a jury of the offense of robbery in the second degree and has appealed from the judgment of conviction entered on the verdict.

On the night of October 19, 1975, one Wesley Cochrun pointed a gun at a check-out clerk at the Kwik-Chek grocery in the city of Sioux Falls, told the clerk that it was a hold-up and that he wanted all of the money, and threw a pillow case at her.Cochrun was wearing a stocking cap, gloves, and a green coat.The clerk put the money into the pillow case, whereupon Cochrun ran out the back of the store and apparently fled in a waiting car.

On December 23, 1975, Detective John Johnson and Sergeant Edward Corbett of the Sioux Falls Police Department went to Huron, South Dakota, to arrest defendant on a warrant issued on the charges stemming from the October 19 robbery.The officers read the warrant of arrest to the defendant and advised him of his Miranda rights.Defendant indicated that he understood those rights and that he was willing to talk to the officers.In response to the officers' questions, defendant admitted that he had participated in the October 19 robbery by driving the car and by giving Cochrun the gun that the latter had pointed at the check-out clerk.Defendant stated that he had stolen the gun from his stepfather, who lived in Huron, and that he had stolen the getaway car, which he described as a blue, 1964 Chevrolet with a beige front end, at a point on West 13th Street in Sioux Falls on the night of the robbery and had later abandoned it on a Sioux Falls street after the robbery.Defendant described the gun as a .357 Magnum with a long barrel and pearl grips.He told the officers that he had put the gun into a mailbox in Sioux Falls after abandoning the getaway car.Defendant stated that he had received a couple of hundred dollars as his share of the proceeds of the robbery.

One of the state's witnesses, Debra Ann Jacobson, testified that defendant had told her that he had had a car and had dropped it off after the robbery.Miss Jacobson also testified that on the evening of the robbery she had observed Wesley Cochrun at a friend's house dressed in what she described as mechanic's clothing and a stocking cap.His face had been greased and dirtied.Cochrun and his companions left the house.They returned later accompanied by defendant and went into the basement.Defendant later told Miss Jacobson that ". . . he thought that he got ripped off of some money," inasmuch as he had "read that there was 900 taken and he only received a hundred from it, five or something."

Another witness for the state testified that on the morning of October 20, 1975, she had discovered that her automobile, a 1964 blue Chevrolet with a beige front end, was missing from where she had parked it on the street at her residence at 719 West 13th Street in Sioux Falls.She was informed by the police on October 21 that her car had been recovered.

The trial court admitted into evidence a Colt Python .357 Magnum handgun having a six-inch barrel and bearing serial number 3893.This weapon had been turned over to the Sioux Falls police on December 3, 1975, by a third party at the request of Sergeant Corbett, who had been notified that a .357 Magnum bearing serial number 3893 had been reported stolen in Huron on or about October 21, 1975.Sergeant Corbett testified that there was a connection between the .357 Magnum that had been marked as an exhibit, and which was later admitted by the trial court into evidence, and defendant's stepfather, but on objection by defendanthe was prevented from testifying concerning the nature of that connection.

Defendant, who was 19 years of age at the time of trial, took the stand in his own behalf.He acknowledged that he had pled guilty to a charge of third degree burglary when he was 17 years old and had been sentenced to serve two years in the reformatory section of the state penitentiary.Although he admitted that he had been living at the same address as Miss Jacobson in October of 1975, along with some of the other individuals whom Miss Jacobson identified in her testimony, he denied having participated in the October 19th robbery in any way.He acknowledged on cross-examination that he had cleared up one or two car thefts for Detective Johnson and Sergeant Corbett at the time they interrogated him in the Minnehaha County Jail after he had been returned to Sioux Falls from Huron.Specifically, he admitted telling the officers that he had stolen a Mustang automobile in the early summer of 1975.Defendant could not remember the details concerning the other auto theft, other than that it had occurred after the theft of the Mustang.

Following his testimony, defendant called as a witness Michael Husen, one of the men who was living with the defendant at the time of the robbery.Mr. Husen, who was an inmate at the state penitentiary at the time of trial, apparently appeared in the courtroom wearing handcuffs, for defense counsel inquired of the trial court after the witness had been sworn, "Your Honor, must he have the cuffs on to testify?"The trial court replied, "There is no reason to take them off, as far as I know," to which defense counsel responded, "All right," and then proceeded with his examination.The substance of Mr. Husen's testimony was that he did not recall that defendant had made any admissions that he had had anything to do with the robbery.The state asked no questions of Mr. Husen on cross-examination.

Defendant's first contention on appeal is that his rights were violated when the trial court refused to require the state to disclose the identity of the informant whose information led the police to link the defendant with the robbery.Although defendant cites Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, in support of this contention, we think that his reliance upon that case is misplaced, for the testimony regarding the tip received from the informant was of significance only in explaining why the Sioux Falls police had secured a warrant for defendant's arrest on the robbery charge and was not introduced for the purpose of establishing defendant's guilt on that charge.Indeed, it was only at defense counsel's insistence that the state asked the officers any questions regarding the informant's tip.Moreover, even if the identity of the informant was somehow material to defendant's case, the record reveals that during the chambers conference on defendant's request that the state establish defendant's connection with the offense before questioning the officers regarding defendant's admissions, the Deputy State's Attorney stated:

"During the recess I was able to learn that the informant that police officers relied on has been subpoenaed.A subpoena was handed to the Sheriff in another county, at least.I'm having the police officer now make sure it was served.Our information this morning was that person was on her way and expected to arrive at 9:30 and now that's where we are at in view of the Court's ruling."

This witness was obviously Miss Jacobson, for on her direct examination she testified that she had told Detective Johnson and another officer about her conversations with defendant.There is no evidence that the officers relied on any informant other than Miss Jacobson with respect to the charges against defendant; consequently, we do not understand how defendant can be heard to complain that he did not learn of the informant's identity.

Defendant's next claim of error is that the introduction of evidence tending to show that he had committed several other crimes unrelated to the offense charged was plain error that necessitates reversal of the conviction.Two answers suffice to meet this contention.First, we do not recognize the plain error doctrine.State v. Barr, S.D., 232 N.W.2d 257.Second, we note that the theft of the gun and the automobile used in the commission of the robbery were not such unrelated offenses that they had no bearing upon the offense charged.Defendant admitted during his direct testimony that he had previously been convicted of third degree burglary.This was a perfectly sound bit of trial strategy, given the fact that no doubt the state would have inquired into the prior conviction early on during cross-examination.The testimony during defendant's cross-examination concerning the fact that he had admitted two prior auto thefts to the investigating officers came in without objection, as did Debra Jacobson's testimony that defendant and Michael Husen had been charged along with Miss Jacobson with the theft of an automobile belonging to one Irene Curtis.We note that Miss Jacobson testified that only Michael Husen was convicted of that offense.

Defendant contends that there was insufficient foundation laid to warrant admitting the .357 Magnum handgun into evidence.Admittedly, the state did a rather inept job of laying the foundation for the admission of this exhibit.For example, the state did not ask the check-out clerk whether the gun that was pointed at her during the robbery resembled that which the police had recovered from the third party in Sioux Falls.Moreover, the state did not establish how the weapon had come into the hands of the third party.Additionally, the testimony identifying the gun as that stolen from the defendant's stepfather was presented in a sketchy, attenuated manner.

Notwithstanding all of the state's shortcomings in...