Village of New Hope v. Duplessie

• Decision Date: 27 June 1975
• Docket Number: No. 45306,45306
• Citation: 231 N.W.2d 548,304 Minn. 417
• Parties: , 87 A.L.R.3d 698 State of Minnesota, VILLAGE OF NEW HOPE, Respondent, v. Eric DUPLESSIE, Appellant.
• Court: Minnesota Supreme Court

Page 548

231 N.W.2d 548

304 Minn. 417, 87 A.L.R.3d 698

State of Minnesota, VILLAGE OF NEW HOPE, Respondent, v. Eric DUPLESSIE, Appellant.

No. 45306.

Supreme Court of Minnesota.

June 27, 1975.

Syllabus by the Court

1. Testimony of a police interrogator based upon the statement of an alleged coconspirator to implicate defendant in an alleged conspiracy to commit theft does not fall within the coconspirators' exception to the hearsay rule where the alleged coconspirator was not called to testify, and where the declaration was not made during the pendency of the conspiracy.

2. The testimony of the interrogator incorporating the hearsay declaration of an alleged coconspirator is not admissible as an adoptive admission of the defendant where defendant's conduct was not unequivocal, positive, and definite.

3. Under the facts of this case, the admission of the hearsay statement was prejudicial error.

C. Paul Jones, Public Defender, William J. Mauzy, Asst. Hennepin County Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, William J. Corrick, New Hope City Atty., John W. Wood, Jr., Asst. City Atty., Robbinsdale, for respondent.

Heard before ROGOSHESKE, YETKA and SCOTT, JJ., and considered and decided by the court en banc.

YETKA, Justice.

Defendant appeals from a judgment of conviction of attempted theft in violation of New Hope Village Code, § 12.01, entered in Hennepin County Municipal Court. We reverse.

Following a plea of not guilty, defendant was tried without a jury. At trial, one Donald Berge testified on behalf of the prosecution and related the following observations:

On the night of February 19, 1974, Berge observed a light blue 1972 Ford automobile with four occupants near a parking lot where several Wonder Bread Bakery trucks were parked. That lot was located in the village of New Hope. Berge further observed two individuals leave the automobile and enter the parking lot and commence to inspect the Wonder Bread vehicles. ¹ It was dark at the time and Berge was making his observations from a distance of approximately 200 to 300 feet. Berge then called the New Hope Police Department. Berge stated that the two individuals 'took off running' into an adjacent field as a squad car approached the parking lot. Shortly thereafter the police apprehended the two occupants of the 1972 Ford automobile.

The prosecution also called Officer John E. Oberreuter of the New Hope Police Department to testify. Officer Oberreuter testified that he observed the apprehension of defendant and another individual, who were placed in custody while they were walking along a street near the Wonder Bread parking lot.

The two occupants of the 1972 Ford, along with defendant and the other individual, were placed under arrest, taken to the New Hope Police Department, given the Miranda warning, and then were interrogated en masse by Officer Oberreuter. ²

Over strong and repeated objection of defendant's counsel, Officer Oberreuter was permitted to testify as to certain statements made by the juvenile arrested with defendant during interrogation. This testimony provides the basis of the issues raised on appeal and is as follows:

'BY MR. WOOD (the prosecutor):

'Q Officer Oberreuter, what did (the juvenile) say relative to the activities of himself and Mr. Duplessie at about 9:15 p.m.?

'A (He) indicated that he had, he and Mr. Duplessie had met with the other two young men involved in this, * * * earlier in the evening. They had indicated at this time that they wished a ride to the Wonder Bread Bakery, because they believed that extra bakery goods were left in the trucks and they were, they indicated to (the other juveniles) they were hungry and wished to check the trucks to see if there were any bakery goods left in trucks at this time.

'Q Was Mr. Duplessie present when the statement was made?

'A Yes, he was.

'Q Do you recall any response on the part of Mr. Duplessie?

'A He seemed to--

'Q Well, excuse me for interrupting. Do you recall any verbal response on his part?

'A He nodded his head and laughed.

'MR. MAUZY (defense counsel): Your Honor, I enter the further objection to this, the defendant's right to remain silent at this time.

'THE COURT: Well, that is an observation of his conduct.'

The juvenile who made these statements was not called to testify at trial for reasons not of record.

The court found defendant guilty as charged and sentenced him to one year's probation pursuant to Minn.St. 609.135.

The following issues are raised in this appeal:

(1) Was the quoted testimony of Officer Oberreuter admissible under the coconspirator's exception to the hearsay rule?

(2) Was that testimony admissible as an adoptive admission of defendant?

(3) If the admission of the testimony was error, was the error prejudicial so as to mandate a new trial?

1. Defendant first contends that the testimony at issue does not fall within the 'coconspirator's' exception to the hearsay rule.

In order for the coconspirator's exception to apply, the declaration must be 'made during the pendency of the conspiracy and in furtherance of it.' State v. LaJambe, Minn., 219 N.W.2d 917, 918 (1974).

As this court stated in State v. Tennyson, 212 Minn. 158, 165, 2 N.W.2d 833, 837 (1942):

'* * * Everything said, written, or done by any conspirator in execution or furtherance of the common purpose of a conspiracy to commit a crime is deemed to be the act of every one of them and is admissible against each.'

This exception to the hearsay rule is predicated upon the fact that such statements are an actual part of the criminal conduct. However, when the conspiracy is ended (as by arrest in the instant case), the subsequent declarations of any of the alleged coconspirators are no longer an element of the actual conspiracy, rather those statements, as here, may take the form of a narrative of past events. Thus, such hearsay statements are not 'in furtherance' of the alleged conspiracy and are therefore nonadmissible. State v. Tennyson, Supra; State v. Kahner, 217 Minn. 574, 15 N.W.2d 105, certiorari denied, 323 U.S. 768, 65 S.Ct. 121, 89 L.Ed. 614 (1944); 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); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957).

In the instant case, the object of the alleged conspiracy was the theft of bakery goods from certain trucks. The conspiracy clearly ended when the four suspects were apprehended and arrested by the New Hope police. The declarations which incriminated defendant were made subsequent to that arrest, and, as such, were not made 'in furtherance of' the alleged conspiracy, ³ and thus the declarations of the juvenile were not admissible under the coconspirator's exception to the hearsay rule.

2. The prosecution asserts that the testimony of Officer Oberreuter was properly received on the ground that defendant's nodding of his head and his laughing in the face of the juvenile's incriminating statement, was an Adoptive admission. Defendant, on the other hand, contends that this testimony violated his Fifth Amendment right to remain silent and, also, his Sixth Amendment right to confront his accuser.

In a literal sense, an adoptive admission manifested in an unequivocal manner constitutes a waiver of both the right to remain silent and to be confronted by one's accuser. However, the instant case is an example of an alleged adoptive admission which is Equivocal. In the face of the juvenile's statement, defendant laughed and nodded his head. At trial, Officer Oberreuter did Not state whether defendant's head nod was affirmative or negative in character. It is beyond question that, absent that conduct, Officer Oberreuter could not have even testified that defendant had been given the Miranda warnings. ⁴ Nor could Officer Oberreuter have testified as to the content of the juvenile's statement because that testimony would have been a clear violation of defendant's constitutional right to be confronted by his accuser. ⁵ Thus, the equivocal conduct of defendant is alleged to be the sole justification for not barring the officer's testimony. In effect, the prosecution is in the position of contending that defendant's conduct constituted a waiver of his Fifth and Sixth Amendment rights.

In Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, 724 (1966), the Supreme Court stated:

'This court has always set high standards of proof for the waiver of constitutional rights * * *.'

The critical issue in this appeal thus becomes: What degree of certainty is required to hold that defendant's conduct in the face of a criminal accusation made by another manifests an adoptive admission which would constitute a waiver of constitutional rights.

Surprisingly, few occasions have previously arisen where that precise issue has been litigated. Perhaps the case most analogous to the instant case is State v. Rice, 37 Wis.2d 392, 155 N.W.2d 116 (1967), where defendant was convicted of possession and use of narcotic drugs. Defendant and one Davis had been apprehended by the police. Thereafter, during police interrogation and in the presence of defendant, Davis made statements incriminating defendant. At trial, a police officer who was present during that interrogation was allowed to testify as to the content of Davis' statement. The testimony included the following exchange:

"Q. After these statements were made in response to these questions to Oliver Leon Davis, what reaction was there on the part of the defendant in this case' What did he say? A. He didn't say anything; he just snickered." 37 Wis.2d 396, 155 N.W.2d 119.

This testimony was held to be inadmissible. The court stated:

'Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, closes the door to the admissibility of such testimony...