State v. Pilcher, C0-90-1960

• Citation: 472 N.W.2d 327
• Decision Date: 26 July 1991
• Docket Number: No. C0-90-1960,C0-90-1960
• Parties: STATE of Minnesota, Respondent, v. Kenneth Wayne PILCHER, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 327

472 N.W.2d 327

STATE of Minnesota, Respondent, v. Kenneth Wayne PILCHER, Appellant.

No. C0-90-1960.

Supreme Court of Minnesota.

July 26, 1991.

Syllabus by the Court

1. Defendant's statements were properly admitted where defendant initiated further communications with officers after requesting counsel and then made a voluntary and uncoerced statement.

2. The actions of the police, together with the other circumstances surrounding defendant's interrogation, were not so coercive that defendant's will was overborne.

3. The conclusion reached by the jury on the issue of intoxication is supported by the evidence, and the evidence was sufficient to support defendant's convictions.

4. Although the grand jury received erroneous instructions on the issue of intoxication, that error alone does not merit reversal where defendant has demonstrated no prejudice from the error and where the prosecutor's conduct did not otherwise subvert the grand jury process.

5. Defendant's conduct and understanding of the trial strategy establishes that defendant acquiesced to defense counsel's admission of guilt.

John Stuart, State Public Defender, Michael F. Cromett, Asst. State Public Defender, St. Paul, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Paul R. Kempainen, Asst. Atty. Gen., St. Paul, for respondent.

Heard, considered and decided by the court en banc.

GARDEBRING, Justice.

Kenneth Wayne Pilcher was convicted of three counts of first degree murder (premeditated; felony murder while committing or attempting criminal sexual conduct; felony murder while committing a kidnapping) and two counts of second degree murder (intentional; unintentional death while committing a robbery) in the death of Elisa Sue Martinez. Appealing from the judgment of conviction, Pilcher claims the evidence is insufficient to support his convictions for premeditated murder and felony murder while committing or attempting criminal sexual conduct. Pilcher also claims the trial court erred in admitting statements he made to the police and that those statements were the product of police coercion. He also challenges the prosecutor's conduct before the grand jury. We affirm in all respects.

I.

On the morning of February 17, 1990, the frozen body of Elisa Sue Martinez was found. Lying on its back with legs apart, the body was discovered atop the shelled corn in an abandoned corn granary not far from where Martinez's car had gone into the ditch along a remote stretch of county road in western Minnesota. Two sets of footprints in the snow led from the car to the granary, but a single set of snowy footprints led from the granary to a vacant farmhouse about a mile east of the granary. The owner of that farm reported to police that a blanket and camouflage hunting coat were missing from the farmhouse.

Injuries to the body included substantial bruising overall and severe trauma to the head apparently caused by a blood-stained, wooden board found next to Martinez's leg. Blood spatters on the walls surrounding the head and body indicated that blows were struck while Martinez was lying on the floor. Under her shirt, Martinez's bra was pushed up, exposing her breasts. The zipper of her jeans was not fully closed, and her underwear had been pushed down over her hips. The autopsy discovered dirt and debris in the pubic area and revealed that Martinez had suffered manual strangulation and closed head trauma. An investigation of Martinez's car discovered blood consistent with Martinez's on a paper tissue and on the passenger side upholstery. Approximately two miles from where the car was found, in the direction from which her car had come, Martinez's coat, mittens, scarf, and right shoe were found alongside the road. Although she had left home the night before carrying a twenty dollar bill, no money was found on Martinez's body.

While en route to investigate the granary, Browns Valley Police Chief Gary Klempke was stopped by Doris Piechowski, who, with her husband Neil, lives on the same road as the granary. Piechowski informed Chief Klempke that Kenneth Pilcher, dressed in a camouflage coat and blanket, had appeared on their doorstep at 3:00 a.m. that same morning seeking a ride into town. Doris Piechowski described how Pilcher, whose face was bleeding, explained that a white girl and a Mexican man had given Pilcher a ride after his car had gone into a ditch but that they had left him out in the country. The Piechowskis were first reluctant to drive to town, but when Pilcher offered five dollars, Neil Piechowski accepted. In payment for the ride, Pilcher handed Neil Piechowski a twenty dollar bill. Having brought no money, Piechowski said he would return the change later. Pilcher then asked if Neil Piechowski would take the blanket and coat worn by Pilcher back to the farm from which Pilcher had taken them, but Piechowski refused. A subsequent investigation of the Piechowski car discovered corn on the floor where Pilcher had sat.

The evidence presented at trial indicated that Pilcher spent February 16, 1990 driving around the countryside drinking beer and other alcoholic beverages. Beginning in the early afternoon, Pilcher, accompanied by his uncle and aunt, drove to Sisseton, South Dakota, where they visited friends and consumed more beer and liquor. Pilcher's aunt, Louise DeMarrias, testified that they also smoked several marijuana cigarettes while in the car and later at her home. Around 8:30 p.m. that evening, Pilcher and his friend Derrick Redday left the DeMarrias home to pick up Pilcher's girlfriend, Terri Wilson, and another friend, Shelly Pederson. The foursome then drove back to Sisseton, Pilcher and Redday drinking as Pilcher drove. Later, Pilcher quarreled with his girlfriend and then took her home at 11:30 p.m. that evening. Pilcher then suggested that Pederson go get one of her girlfriends for him, but she refused. During the drive to Pederson's home in the neighboring town of Beardsley, the car slid off the road into a ditch. As Pilcher tried to push the car out, a passing car stopped. Pilcher climbed in, and the car drove off.

Pilcher was taken into custody by Browns Valley Police Chief Gary Klempke at 10:30 a.m. on February 17th, 1990, roughly two hours after the discovery of Martinez's body. After placing Pilcher in the rear of the police car, Chief Klempke read the Miranda warning. Pilcher acknowledged that he understood his Miranda rights and asked, "Do you think I should have an attorney?" Chief Klempke responded that Pilcher could have an attorney if he wanted one. Pilcher did not then request an attorney and Chief Klempke did not ask any questions of Pilcher.

While waiting at the police station, Pilcher remained very talkative, discussing a number of subjects including Pilcher's whereabouts the previous evening. Because of Pilcher's loquaciousness, Chief Klempke repeated the Miranda warning and reminded Pilcher that he did not have to speak. Without goading or provocation, Pilcher told Chief Klempke that a white girl and a Mexican male had left Pilcher out in the country after picking him up when his car had broken down. Concerned that other persons may have been near the crime scene, Chief Klempke asked what happened to the white girl and the Mexican man. Pilcher said he did not know. However, Pilcher alerted Chief Klempke to injuries Pilcher received during a struggle with the white girl and the Mexican man when they were ejecting Pilcher from their vehicle.

Around 2:00 p.m. that afternoon, Bureau of Criminal Apprehension Agent Philip Wagner and Traverse County Sheriff Donald Montonye began interrogating Pilcher in the kitchen of the Traverse County Law Enforcement Center. Although Agent Wagner was carrying a tape recorder, the device was not activated when the officers first approached Pilcher. Aware of Pilcher's equivocal statement regarding counsel, Agent Wagner began the interrogation by re-reading the Miranda warnings. Pilcher responded that he thought he should have an attorney. Agent Wagner then rose to leave, telling Pilcher that they could not speak. Pilcher stated that he wanted to tell his side of the story. Agent Wagner explained that if Pilcher wanted an attorney that Agent Wagner could not speak with him legally and again started to leave. Pilcher again stated that he wanted to tell his side of the story, at which point Agent Wagner explained that they could speak only if Pilcher waived the right to an attorney and if the entire discussion was tape recorded. Pilcher agreed. The tape recorder was then activated, recording both Agent Wagner's recitation of the Miranda warnings and Pilcher's waiver of his right to counsel.

During the interrogation, Pilcher said that he had been picked up by a white girl and a "big Mexican guy" when his car had gone into a ditch, but that they drove him out into the country and abandoned him. Pilcher also reported that he took a blanket and camouflage jacket from an abandoned farmhouse and that he paid a farmer for a ride into town. As the interrogation progressed, however, Pilcher's story changed as Agent Wagner discussed the nature of the evidence that had then come to light and the types of charges that might result based upon that evidence. Eventually, Pilcher broke down in tears and admitted his involvement in the death of Martinez. Recanting earlier statements that he was "clear headed" and "knew what was going on at all times," Pilcher stated he was "pretty drunk" when the incident occurred. Later that evening, the blood stained clothes and boots Pilcher had worn the night before together with a camouflage coat and blanket were seized from his home.

At his trial, defense counsel conceded that Pilcher was responsible for the death of Martinez, but argued that Pilcher was intoxicated at the time of the murder. The jury convicted Pilcher of three counts of first degree murder (premeditated; felony murder while committing or attempting criminal sexual conduct;...