State v. PieschkeState v. Pieschke
- Reporters:
- ,
- Before:
- Peterson
Defendant, Dlaine Ernest Pieschke, was charged with aggravated driving while under the influence of alcohol (
The charges against defendant arose out of an automobile accident in Glencoe, Minnesota, in the early morning of April 1, 1978. An automobile owned by Howard McCormick rounded a corner and struck an unattended blue pickup truck parked on the street. The automobile did not stop immediately but proceeded around the corner and stopped approximately one block away. In the automobile were McCormick, Mavis Bergs, Mark Ranzau, and defendant, all of whom had spent the evening drinking heavily at a bar in Plato, Minnesota. Defendant admitted at trial that he had consumed about 10 drinks consisting of whiskey and water and was intoxicated at the time of the accident. The officers who arrested defendant at the scene of the accident also testified he was staggering, abusive, and clearly intoxicated. It is undisputed that defendant’s license had been revoked prior to the morning of the accident for driving while under the influence. The only factual dispute was the identity of the person driving the automobile.
Glencoe police officers David Revier and William Newman were on duty when they heard sounds of the collision. They came upon the damaged pickup and then found the McCormick automobile nearby. As the officers approached, they saw McCormick and defendant outside the automobile examining the damage. The two then got into the automobile, McCormick in the driver’s seat and defendant in the passenger’s seat. The other two passengers had remained in the automobile — Bergs in the middle of the front seat, Ranzau in the back.
At the scene, the officers took statements from Bergs and McCormick. Both stated defendant had been driving when the collision occurred. Their statements were reduced to writing and signed at the police station less than an hour after the accident. Defendant, on the other hand, denied to the officers that there had been a collision, and Ranzau told the officers he had passed out in the back seat and did not know who was driving.
McCormick testified at trial that he was driving at the time of the accident but had earlier implicated defendant because he, McCormick, had a previous conviction that was less than 1 year old for driving while under the influence.
Ranzau, who had told the officers he was unconscious and did not know who was driving, testified at trial that he was in fact awake and that McCormick was the driver. Defendant also testified on his own behalf that McCormick was the driver.
1. Defendant contends, first, that the prior statements Bergs and McCormick made to the police were hearsay admissible for impeachment purposes only and should not have been admitted as substantive evidence that defendant was driving the automobile. The state contends the statements were not hearsay because they fell within
Defendant responds that the statements could not be admitted under
It is clear that a prior statement need not be an “excited utterance” to be excluded from hearsay under
The question whether the statements were made immediately after the time of the accident poses more problems but in this case must be resolved against defendant. Defendant’s attorney objected to the introduction of the statements on hearsay grounds,
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but when the prosecutor
It appears from the record that the police officers were close enough to the scene to have heard the collision. They responded immediately and found the automobile in which defendant and his companions were riding less than one block away. Thus, the oral statements by Bergs and McCormick were probably made within a few minutes of the accident and, by their own admission, were made before they had had an opportunity to discuss the events. While this testimony does not establish indisputably that the oral statements made to the police by Bergs and McCormick should fall under
2. Defendant does have a persuasive argument that the written statements were clearly taken too long after the accident to come within
3. Defendant contends next that there was insufficient evidence to sustain his conviction. He argues that since the only witnesses who could testify that defendant was the driver recanted their stories at trial, the jury could not find beyond a reasonable doubt that defendant was the driver.
We have often held that on review of a criminal conviction we will construe the record most favorably to the state and will assume the evidence supporting the conviction was believed and the contrary evidence disbelieved. State v. Strimling, 265 N.W.2d 423, 428-29 (Minn.1978); State v. Olsen, 258 N.W.2d 898, 901 (Minn.1977); State v. Norgaard, 272 Minn. 48, 52, 136 N.W.2d 628, 631-32 (1965). This is especially true where resolution of the case depends on conflicting testimony, because weighing the credibility of witnesses is the exclusive function of the jury. State v. Poganski, 257 N.W.2d 578, 581 (Minn.1977). In Poganski, we concluded that the jury could choose to believe the testimony of two witnesses against the defendant even though the testimony was inconsistent and contradictory and even though the witnesses had been involved in numerous fraudulent schemes and had been accorded favorable treatment by the prosecutor in return for their testimony. Even inconsistencies in the state’s case will not require a reversal of the jury verdict. State v. Bond, 285 Minn. 291, 173 N.W.2d 347 (1969). In State v. Reichenberger, 289 Minn. 75, 182 N.W.2d 692 (1970), the 13-year-old prosecutrix in a carnal knowledge case changed her story about defendant’s conduct a number of times, but we held her testimony at trial was sufficient to justify the conviction.
In the case at bar, the jury had facts from which it could reasonably choose between the conflicting stories of Bergs and McCormick. On cross-examination the prosecutor brought out several incredible aspects of Bergs’ story that she was asleep
McCormick’s testimony was not so incredible as Bergs’, but it was still for the jury to resolve the question of his credibility. Accordingly, we hold the jury was entitled to believe Bergs’ and McCormick’s prior statements, which were properly admitted as substantive evidence, and the jury’s determination of guilt should be upheld.
4. Defendant next contends that the trial court should have declared a mistrial when it was discovered that a six-pack of beer, which had been seized at the time of the arrest but never reviewed at a Rasmussen hearing, was sitting in the courtroom in full sight of the jurors. Defendant also complains of a reference in the testimony of Officer Revier to a beer can he saw on the floor of the automobile; the beer can also had not been reviewed at a Rasmussen hearing.
Defendant’s claim of prejudice as a result of these incidents must be rejected. The only issue in the case was whether defendant was driving. He admitted he was intoxicated, and the evidence of his behavior in that respect was undisputed. He was not being tried for a violation of the “open bottle” law, § 169.122. Therefore, the presence of the six-pack and the reference to the beer can could not possibly have prejudiced him, and it is clear the incidents were unintentional on the part of the prosecution. See LaMere v. State, 278 N.W.2d 552, 554-55 (Minn.1979).
5. Finally, defendant contends the trial court erred in refusing to instruct the jury that if it convicted defendant of aggravated driving while under the influence it could not also convict him of the lesser charges of driving while under the influence and driving after revocation. We agree with defendant that he should not have been convicted on all three charges. Section 609.04, subd. 1, provides:
Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following:
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(4) A crime necessarily proved if the crime charged were proved.
Defendant contends that driving while under the influence and driving after revocation are lesser included offenses of aggravated driving while under the influence under § 609.04, subd. 1(4), because a conviction of the latter offense necessarily requires proof of the former two offenses. While this question is one of first impression before this court, it is clear that defendant is correct. However, defendant was not prejudiced by the court’s failure to instruct the jury that if it convicted on the greater offense it could not also convict on the lesser offenses. The only issue was whether defendant had been driving. Once the jury decided defendant had been driving, it was undisputed that he was driving while under the influence and that his license had been revoked on the basis of a prior conviction for the same offense. Furthermore, the jury convicted defendant on all three counts. Thus, the only effect of defendant’s requested instruction would have been to limit the conviction to aggravated driving while under the influence. Since that result can be accomplished simply by re
Affirmed in part; reversed in part.
Notes
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. The advisory committee comment to
. Defense counsel’s objection at trial was based entirely on
. We also note that defense counsel made no attempt to obtain a jury instruction limiting the use of the statements to impeachment.
. The police officers testified Bergs did not appear or act intoxicated at the scene. Thus, the jury could have concluded she had not’ “passed out” in the automobile.