State v. Vance

• Decision Date: 06 May 1977
• Docket Number: No. 46288,46288
• Citation: 254 N.W.2d 353
• Parties: STATE of Minnesota, Respondent, v. Phillip Charles VANCE, Appellant.
• Court: Minnesota Supreme Court

Page 353

254 N.W.2d 353

STATE of Minnesota, Respondent, v. Phillip Charles VANCE, Appellant.

No. 46288.

Supreme Court of Minnesota.

May 6, 1977.

Syllabus by the Court

1. Based upon the facts of this case, it was not error for the court to deny motion for mistrial made on the grounds that defendant was denied a fair trial by reason of an impartial jury even though a state witness disclosed that she was acquainted with seven members of the jury.

2. In order to impeach a witness on grounds of inconsistent prior statements, there must be foundation that such statements are actually inconsistent. Where no foundation of inconsistency exists, attempted impeachment will not be allowed. In cases where the inconsistency is ambiguous and vague, the trial court has discretion to weigh the matter and determine the possible prejudicial effect as against the beneficial effect such evidence would have. The decision of the trial court will not be reversed unless it is clearly shown that the trial court abused such discretionary power. Whether in fact there was an inconsistency must be determined from the entire testimony in question and not from an isolated portion thereof. In this case there was no foundation for impeachment.

3. U.S.Const. Amend. VI and Minn.Const. art 1, § 6, provide a criminal defendant in this state the right to have the assistance of counsel for his defense. This right includes a fair opportunity to secure counsel of his choice.

4. An indigent defendant has the right to be provided competent counsel in all criminal proceedings. However, the right of an indigent to have counsel does not give him the unbridled right to be represented by counsel of his choice. Although he may request a substitution of counsel, his request will be granted only if exceptional circumstances exist and the demand is timely and reasonably made.

5. A continuance to permit substitution of counsel is traditionally within the discretion of the trial judge; his decision is to be based on all the facts and circumstances surrounding the request. A defendant may not demand continuance for the purpose of delay or obtain a continuance by arbitrarily choosing to substitute counsel at the time of trial.

6. In determining whether the trial court was within its sound discretion in denying a motion for continuance, the reviewing court will look to whether the defendant was prejudiced in preparing or presenting his defense so as to materially affect the outcome of his trial.

7. Evidence that the defendant refused to give a written statement does not become admissible by reason of the fact that immediately prior thereto the defendant gave an oral statement that was properly received in evidence.

8. Receiving in evidence the defendant's refusal to give a written statement is error and violates the defendant's constitutional rights. Such error, however, does not entitle the defendant to a new trial as a matter of right. Where error is found to have been harmless beyond reasonable doubt, it is not grounds for reversal. In this case we so find.

C. Paul Jones, Public Defender, Ronald L. Haskvitz, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Gary W. Flakne, County Atty., Vernon E. Bergstrom, Chief Appellate Division, David W. Larson and Phebe S. Haugen, Asst. County Attys., and Lee Barry, Law Clerk, Minneapolis, for respondent.

Heard before TODD, YETKA, and STAHLER, JJ., and considered and decided by the court en banc.

THOMAS J. STAHLER, Justice. ^*

Defendant was convicted in the Hennepin County District Court of aggravated sodomy in violation of Minn.St. 609.293, subd. 2, and he appeals from the judgment entered. We affirm.

The complainant gave the following version of the incident. At approximately 7:25 p. m. on Monday, January 6, 1975, she was waiting for a bus at 25th Street and Hennepin Avenue in Minneapolis. She had planned to take the bus downtown where she worked as a waitress. Defendant offered her a ride, which she accepted because she was afraid she would be late for work. Defendant then drove to a relatively secluded area near 21st Street and Upton Avenue. He stopped the car and ordered the complainant into the back seat, threatening her with his fist. She complied, either due to fear or being pushed into the back seat. Defendant followed her into the back seat, unzipped his pants, and forced her to perform oral sodomy. After the act, defendant drove complainant downtown to her place of employment. At this time some conversation took place and complainant told defendant she had been raped previously and had an abortion.

When defendant dropped complainant off, she noted the license number of his car. She immediately reported the incident to two coworkers. The police were summoned and given an account of what had happened, including a description of defendant and the license number of his car. On the basis of this information, defendant was arrested at about 10:50 that evening.

The following morning defendant was interviewed by police Lieutenant Dale Dowson. After receiving a Miranda warning, defendant admitted that he gave complainant a ride downtown but denied making any detour or engaging in any sexual conduct. At the conclusion of the interview defendant was asked to give a written statement, but he declined to do so. Evidence of defendant's refusal to give a written statement was later introduced at trial.

On March 26, the day before the Rasmussen hearing, defendant moved for a continuance on the ground that he wished to hire private counsel and his family was attempting to raise the money. The public defender assigned to defendant's case indicated that he was ready to proceed. The court denied the motion but indicated defendant could renew it after the Rasmussen hearing. Defendant renewed his motion on March 28, presenting a letter from his sister stating that: "If you could get more time, maybe we could help raise some money for an attorney, but it would take time." The court again denied defendant's request for a continuance.

At the Rasmussen hearing and at trial defendant expressed a desire to introduce evidence of complainant's statement that she had been raped previously and had an abortion. The trial court ruled this evidence inadmissible.

Trial began on March 31. At trial, the state introduced testimony of a similar offense by defendant for purposes of establishing a common scheme, plan, modus operandi, or intent, following notice pursuant to State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). Defendant's sister-in-law testified that defendant had committed a similar offense upon her in September 1974. She did not report the incident to the police until after defendant's arrest on the instant charge, but her testimony was corroborated by two other witnesses who stated she had reported the incident to them. One of these witnesses, Susanne Sillerud, had been a member of the Hennepin County jury panel the week before the trial. Sillerud was a counsellor at the Neighborhood Involvement Program Rape Counselling Center. Before trial, both parties had listed her as a potential witness. During jury selection the jurors were asked by the court whether any of them knew Sillerud. Only one of the jurors responded affirmatively. After examination by defense counsel, the juror who indicated acquaintance was neither challenged for cause nor peremptorily, although the defense still had some unused peremptory challenges. There was no evidence that any juror made a false response on voir dire examination. Sillerud was later called as a witness for the state. On cross-examination she was asked whether she knew any of the jurors. She recognized seven of them although she knew only two by name. She was later extensively examined in chambers regarding any statements she may have made to the jurors. She revealed that she had talked with some people about her job. She also told the jurors that she expected to receive a subpoena, but did not otherwise discuss defendant's case. On the basis of the foregoing, defendant moved for a mistrial. The trial court denied the motion but gave a curative instruction to the jury in respect to witness Sillerud.

1. Defendant's first claim of error relates to the refusal to grant a mistrial. We start with the rule that the granting of a mistrial for jury bias is a matter within the trial judge's discretion. State v. Thompson, 273 Minn. 1, 139 N.W.2d 490, certiorari denied, 385 U.S. 817, 87 S.Ct. 39, 17 L.Ed.2d 56 (1966); Eichten v. Central Minn. Co-op. Power Assn., 224 Minn. 180, 28 N.W.2d 862 (1947). There are two facets to defendant's claim of prejudice. One is that the jury might be more inclined to believe Sillerud's testimony, and the other is that they might be more sympathetic to the prosecution generally. Defendant relies on Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), where the state's two major witnesses were deputy sheriffs who were also custodians of the jury during trial. The United States Supreme Court held that even absent a showing of actual prejudice, the potential was so overwhelming as to deny defendant a fair trial. We think the facts of Turner are readily distinguishable from the instant case. Where in Turner the credibility of the deputies was critical, Sillerud's testimony related only to a collateral matter. In fact, the thrust of her testimony, that the similar-offense witness had reported being raped by defendant, was virtually undisputed. It is inconceivable that any juror could have believed otherwise, whether the juror knew Sillerud or not. Furthermore, the contact between Sillerud and the jurors does not approach that present in Turner. Sillerud's relationship with the jurors was so casual that she could only remember the names of two of them and she had no contact with them during the trial. Under the circumstances we believe the possibility of prejudice was so remote that the trial...