State v. WipperState v. Wipper
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- Before:
- Keith
Defendant, David Wipper, was found guilty by a district court jury of first-degree murder,
1. Defendant’s first contention is that the state’s evidence failed to establish that he was guilty of either first- or second-degree murder. We hold that the state’s evidence was sufficient to support the verdict.
The victim was Clem Spiczka, a 71-year-old retired farmer who walked with a cane and had poor eyesight. Spiczka was last seen leaving the Country Tavern in Mayhew Lake Township in Benton County in the early morning hours of December 17,1991, in the company of defendant, age 24, and his accomplice to the crime, defendant’s cousin, 20-year-old Randy Wipper.
Spiczka’s neighbors alerted the fire department of a fire at his house at 4:36 a.m. Firefighters, who found Spiczka’s body, assumed he had died of smoke inhalation. No autopsy was conducted before he was buried.
The Benton County Sheriff began investigating Spiczka’s death after receiving phone tips. Questioned by a deputy, defendant denied wrongdoing, saying basically that they had given Spiczka a ride home, had a beer with him in his house, then left.
The sheriff obtained an order and Spiezka’s body was exhumed on December 26. An autopsy determined that Spiczka had died as a result of two gunshot wounds to the head before the fire.
Thereafter, deputies searched the house and surrounding area for shell casings, finding two. They also determined that there were two points of origin to the house fire.
Two detectives questioned defendant again on December 27. Defendant claimed his cousin, Randy Wipper, had shot Spiczka twice. Defendant said Randy had shot him through a window in the kitchen door, then had entered the house and shot him again. Later, on December 28, defendant admitted that he had set the fire.
Three witnesses testified at trial as to incriminating statements defendant made while in jail awaiting trial. One testified the defendant told him Randy fired both shots. A second testified he overheard defendant tell another inmate that he, defendant, had fired the second shot. A third testified that defendant at first told him that Randy had fired both shots but finally admitted he had fired the second shot and that they had killed Spiczka for his money.
In his testimony at trial, defendant said that Randy had told him before they took Spiczka home that he was going to take his money. Defendant testified that he thought this was “the booze talking” and that he did not take Randy seriously. He testified that, without warning, Randy had shot Spiczka with a .22 caliber rifle through the window on the front door, then had compelled him to fire a second shot. He testified that he thought Randy would shoot him if he did not comply with Randy’s demand that he shoot Spiczka. He admitted ■ that he suggested that they burn the house down and had set fire to the home in an attempt to cover up the killing.
In similar eases we have said that it is the jury’s task to listen to the available evidence and then, if possible, reconstruct what happened from the evidence. State v. Slack, 295 Minn. 518, 519, 202 N.W.2d 876, 877 (1972). Looking, as we must, at the evidence in the light most favorable to the jury’s verdict, we conclude that the evidence was sufficient to support the jury’s determination that defendant intentionally participated in the killing of Clem Spiczka in the course of committing a robbery.
2. Defendant’s next contention is that he was denied a fair trial by the manner in which the trial court instructed the jury. First, defendant contends that the trial court did not adequately instruct the jury on duress. Secondly, he contends that the manner in which the trial court submitted the verdict forms may have affected the order or procedure which the jury followed in considering the possible verdicts, thereby invading the province of the jury. Our review of the record satisfies us that, viewed as a whole, the trial court’s instructions were accurate and comprehensible, did not misinform the jury about the defense of duress, and did not invade the province of the jury or confuse the jury.
3. Defendant also contends that the trial court erred in failing to instruct the jury that the alleged accomplice to the crime, Randy Wipper, had invoked his Fifth Amendment privilege, that Randy was therefore unavailable as a witness for either party and that the jury should not draw any adverse inference against defendant from Randy’s failure to testify.
There are cases arguing both sides of the issue of whether a cautionary instruction of some sort, if requested, should be given in this situation. Compare, People v. Dyer, 425 Mich. 572, 390 N.W.2d 645, 651 (1986) (cautionary instruction that jury should not draw adverse inference from the absence of a witness should be given when requested by either party), with United States v. St. Michael’s Credit Union, 880 F.2d 579, 597-98 (1st Cir.1989) (trial court should say nothing about the matter). Cf. State v. Swain, 269 N.W.2d 707, 716 (Minn.1978) (prohibiting defense comment on state’s failure to call witness available to both sides).
Defendant in this case requested that the jury should “somehow be informed as to the reason for” Randy Wipper’s nonappearance, but defendant did not specifically request that the trial court instruct the jury that it could not draw an adverse inference against either side from the assertion of the privilege. The state argues that defendant did not ask for a no-adverse inference instruction because the defense wanted the jury to draw an adverse inference, specifically, that the one person who had personal knowledge that might support defendant’s claim that he was coerced into shooting Spiczka was unavailable to testify.
Without deciding whether a trial court should give such an instruction in an appropriate ease when requested, we hold that the trial court in this case did not abuse its discretion or commit prejudicial error in failing to give such an instruction.
4. Defendant contends, the state concedes, and we agree that, under
5. Defendant also contends that while he was properly convicted of arson, he is entitled to have the sentence for that offense vacated pursuant to
Conviction and life sentence for first-degree murder affirmed; convictions of second-degree murder vacated; conviction of arson affirmed, but 68-month sentence for arson vacated.