State v. Sickels

• Decision Date: 02 February 1979
• Docket Number: No. 48066.,48066.
• Citation: State v. Sickels, 275 N.W.2d 809 (Minn. 1979)
• Parties: STATE of Minnesota, Respondent, v. Raymond Dean SICKELS, Appellant.
• Court: Minnesota Supreme Court

275 N.W.2d 809 (1979)

STATE of Minnesota, Respondent, v. Raymond Dean SICKELS, Appellant.

No. 48066.

Supreme Court of Minnesota.

February 2, 1979.

C. Paul Jones, Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Craig H. Forsman, Sp. Asst. Atty. Gen., St. Paul, Bob A. Goldman, County Atty., Albert Lea, for respondent.

Considered and decided by the court without oral argument.

WAHL, Justice.

Defendant was found guilty by a district court jury of a charge of aggravated assault, Minn.St. 609.225, subd. 2, and was sentenced by the trial court to a maximum term of 3 years in prison. Issues raised by defendant on this direct appeal relate to the admissibility of his confession, the gun he used, and the eyewitness identification testimony. We affirm.

At 1:30 a. m. on August 17, 1976, 27 year old Thomas Furness of Duluth and 24 year old Monnie Spark of Albert Lea were talking in the back part of Furness' van, which was parked on a street in Albert Lea, when they heard a loud thud on the side door of the van. Furness, who had just parked the van minutes before, thought that he may not have parked closely enough to the curb and felt that possibly it was a policeman knocking on the door. Accordingly, he opened it immediately, only to be greeted by a man pointing a shotgun at him. This man said he was a special officer and that he had been on burglary surveillance and had been watching them. He ordered Furness to show him his identification and then entered the van, closing the door behind him. Furness complied but then after a short time tried to get up, and at this point the man struck Furness in the jaw with the butt end of the gun. After a while the man allowed Furness to sit up and even offered him a drink from the pint-sized bottle of liquor he had. By then the man was not holding the gun, but he had set it down in such a way that it was pointed at Furness. Worrying about an accidental discharge because the man had cocked it, Furness reached to push the gun away from him. At this point the man became angry, grabbed the gun, and ordered Furness to get up front and drive. Furness went up front, but instead of driving he opened the door, leaped out, and ran for help. The man then gave chase, shouting "You are dead" and "I'm going to kill you." Ms. Spark then left also and managed to flag down a police car.

She and Furness were reunited at the police station a short time later. They told police officers William Barber and Spencer Osterberg about the incident and described their assailant. They were also asked to look at a number of pictures, but none of defendant. They made no identification.

At about 3:30 that same morning Officers Osterberg and Barber answered a call from defendant's estranged wife concerning a domestic problem which she described as serious. When they got to her house they found defendant was intoxicated, that he had entered the house without his wife's permission through the basement, and that he had not only threatened suicide but had taken the preparatory step of making a noose. The officers noted that defendant fit the description of the man involved in the van incident. Suspecting that he was the man, Osterberg asked him a number of questions which, though general, (e. g., "What have you been doing the last few hours?") were designed to elicit evidence which might corroborate his suspicions. However, defendant said nothing which would implicate him.

Because of defendant's intoxicated condition, his suicide threats, and the fact that his wife did not want him in the house, Officer Osterberg decided to commit defendant to the detoxification center at Naeve Hospital in Albert Lea. Once at the hospital, apparently while defendant was being admitted, Officers Barber and Osterberg resumed questioning defendant about what he had done earlier that evening. After a few questions, none of which elicited anything significant, defendant said that he knew what they were looking for and that he would tell them what happened. At this point the officers interrupted defendant and gave him a Miranda warning.

After stating that he understood what his rights were, defendant proceeded to confess to the offense in question, saying that he had a fight with a man named Perry at the bar, that he thought he saw Perry get into the van, and that he went to the van with the gun because he thought Perry was inside the van. He said that after Furness escaped he threw the gun away at the Albert Lea Armory, where officers later found it, and then hid for about 15 minutes so that the police would not find him. He said that he then went home and attempted suicide but that this attempt had nothing to do with the van incident but was related to his marital breakup.

After obtaining this information Officers Barber and Osterberg left defendant and returned to the station, where they showed Furness and Spark a 5-year-old picture of defendant. Furness said that the man in the photograph looked like he could be the man. The record is unclear whether Spark felt the same.

The prosecution gave defendant the requisite pretrial notice of its intent to introduce the evidence of the confession and the gun but made no mention that it had employed any photographic identification procedures during its investigation. Also, there was no mention of this in any of the police reports in the file which was opened to the defense. Accordingly, the defendant's pretrial motion to suppress was limited to the confession and the gun and made no mention of eyewitness identification testimony.

At the omnibus hearing defendant sought suppression of the statements on the grounds that the police should have given him a Miranda warning when they first questioned him and that the gun and anything he said after being given the warning were the fruits of this earlier illegality. Defendant also argued that because of his intoxication he was not capable of waiving his Miranda rights, thereby rendering the statements inadmissible and the gun inadmissible as a fruit of that illegality. The omnibus court ordered the suppression of all statements made by the defendant before receiving the Miranda warning at the hospital but admitted the gun and the statements made by him after receiving the Miranda warning. The court rejected defendant's argument that the gun and the statements made after he received the Miranda warning were inadmissible as fruits of the earlier illegality.

At trial the state's first witness was Thomas Furness. After describing the incident, he was asked by the prosecutor to identify a color photo of defendant which was taken on August 18, 1976, a little over a day after the van incident. Defense counsel then cross-examined Furness for the purpose of making an objection and learned, apparently for the first time, that on August 17th the police had shown Furness the old photo of defendant and that just before trial the police had again shown him that photo plus the photo of defendant taken on August 18th. Citing the lack of pretrial disclosure and arguing that the identification procedures used by the police were unfair, the defense counsel objected to the admission of the photos and to any in-court identification of defendant by Furness. The court sustained the objection to the admission of the photos but overruled the objection to the in-court identification. Furness then was asked to look around the courtroom and see if he could identify the man who had committed the assault. In the period preceding trial defendant had drastically changed his appearance by changing his hair style completely and by growing a beard, and he was sitting in the spectator section among four other men apparently selected by defense counsel. Furness nonetheless immediately and positively identified defendant.

Defense counsel, who never sought a mid-trial hearing on the identification testimony issue, then cross-examined Furness thoroughly and elicited the full details about the identification procedures, including the facts that (1) on August 17, the police had shown them 3 to 10 pictures of people other than defendant and they had not identified anyone, (2) later on August 17, the police had shown them the 5-year-old picture of defendant and Furness had said it looked a lot like the man, and (3) just before they came to the courthouse for trial they were shown the pictures of defendant and told that defendant had changed his appearance and that he would be sitting in the spectator section with a number of other people. He testified that he immediately identified the pictures of defendant as being pictures of his assailant.

Monnie Spark gave similar testimony. She took a considerable amount of time looking at the spectators before she identified defendant but said that she had not had any hesitancy in identifying the photo of defendant taken on the 18th as being a photo of the assailant.

The police officer who showed a picture of defendant to Furness and Spark just before trial testified that he did so at the request of the prosecution. Thereafter, in chambers,...