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August 31, 1982


Appeal from District Court, Winona County; Hon. Glenn E. Kelley, Winona 55987, Judge. Affirmed.

Rehearing Denied October 4, 1982

Kelley, J., took no part in the consideration or decision of this case. Heard, considered and decided by the court en banc.

The opinion of the court was delivered by: Scott

1. Appellant was not denied his due-process right to a fair and impartial jury where there was no showing that the jury was predisposed to convict appellant.

2. Appellant did not clearly express his desire to deal with policy only through counsel, and even assuming he did and his confession was therefore improperly admitted, the admission was harmless error.

3. Appellant's conspiracy to commit murder was not yet complete while the fee was unpaid; consequently, the statements made by appellant's co-conspirator were not hearsay.

4. The admission of items seized during the search of appellant's home was harmless error, if error at all.

5. The consent given by Raymond Riniker to have his conversation with appellant taped was freely given, and the conversation was properly admitted.

SCOTT, Justice.

This is an appeal of the partial denial of post-conviction relief in the case of the conviction of appellant for murder in the first degree. The trial judge denied in part the petition for post-conviction relief. The conspiracy-to-commit-murder conviction was vacated as a lesser-included offense. See Minn. Stat. ยง 609.04 (1980).

This is the second time we have been asked to review the conviction of a defendant charged in the killing of Shirleen Howard. The first occasion is set out in State v. Webber, 292 N.W.2d 5 (Minn. 1980), wherein we upheld the conviction of Bruce Webber. In this case we affirm the conviction of the man accused of hiring Bruce Webber to kill Shirleen Howard.

Shirleen Howard's body was discovered by her husband, the appellant Donald Howard (hereafter Howard), on Saturday, August 13, 1977, at approximately 9:15-9:20 p.m. in the basement of the Howard home. Mrs. Howard was found with two gunshot wounds in her head, and she had just been shot. Nothing in the home was disturbed or missing. Bruce Webber was convicted of committing the murder, and Howard was convicted of first degree murder of hiring Webber to do the killing.

After discovering his wife's body, Howard took his children to the next-door neighbor's home, and the police were called. The police arrived at 9:23 and began searching for clues. A.45 caliber bullet and a .45 caliber casing were found near the body. The rest of the home was searched, and some articles and pamphlets on the subject of marital difficulties were found in the master bedroom. Two days later the police returned to the scene and appellant assisted the officers in their investigation.

The prosecution's firearms identification expert concluded that the bullets found at the crime scene were in all likelihood fired from a Llama firearm. Gun records from Howard's Coast to Coast store indicated that five guns, including a .45 Llama, were transferred to Webber.

The day after the killing a friend of Howard, Charles Murphy, called police, and on Monday, spoke to them. Murphy testified at trial that he described to police how in August 1976 Howard had offered him a total of $4,000 to kill Shirleen Howard. Murphy refused, but over a period of months Howard sent Murphy messages that could be interpreted as renewals of his original request to Murphy.

Police learned of another individual whom Howard contacted for the purpose of killing his wife. Police contacted Raymond Riniker, a former classmate of Howard, and met with him on August 18, 1977. Riniker also related conversations with Howard where he was offered money to kill Howard's wife. Howard gave Riniker $1,000 and offered to supply a gun. In March of 1977 Riniker called Howard to tell him he had changed his mind.

Riniker further testified that he stopped by Howard's store in the summer of 1977 and observed Howard meeting with a third party. After the third person left, Riniker asked Howard if that was the individual who was supposed to kill his wife. Howard said he had paid the man, a resident of Joliet, Illinois (Webber's residence), $2,000, and had given him an archery bow and a gun. In the course of their investigation the police established through telephone records that numerous phone calls were placed from Howard's store and home to Webber's home prior to Howard's arrest. As late as August 7, Howard offered Riniker a motorhome as payment for the killing.

On August 23, 1977, arrangements were made to monitor a telephone conversation between Riniker and Howard. A meeting was arranged for later that day, and Riniker consented to allow police to bug the conversation. Police then stationed themselves outside the Howard home where they listened to the conversation. Howard told Riniker:

Butch, don't worry * * *. Listen, let me tell you what happened. This guy -- I told you he had backed off. He didn't seem to want to do it. He called me up and he said, "Do you still want to do that?" and I said, "Yeah." I said O.K. I come home and that's what I found. He was planning an accident, it was supposed to be an accident. I was so God damn mad -- and it was gruesome.

After Riniker left, police arrested Howard. Police advised Howard of his rights, but he did talk with officers, essentially denying any complicity in the killing. The following day, August 24, police questioned Howard again, and during that conversation he confessed. He admitted paying Webber $2,000 and merchandise. He also disclosed that on the preceding morning he had mailed Webber a certified package containing $1,500 and a diamond ring.

Webber was arrested on August 26 in Joliet, Illinois, just after he received the package containing the money and ring sent by Howard. Subsequent investigation revealed several personal contacts between Webber and Howard, including a meeting on August 12, 1977, the day before the murder.

Near the end of October, 1977, Howard escaped from the Winona County Jail. He was apprehended with Nancy Brown in Louisiana on October 31, 1977.

Howard took the stand and denied hiring Webber. His defense was that his conversations with Murphy and Riniker concerning killing Shirleen Howard were conducted in jest. The same reasoning applied, Howard testified, to his conversations with Jerry Sorenson where the topic of killing his wife arose. He testified that the ring and money were sent to Webber because Webber had threatened him. He explained his admissions to police as fabrications motivated by a desire to keep Webber off the streets and away from his family.

This appeal presents the following issues for resolution:

(1) Whether appellant was denied his due-process right to a fair and impartial jury; (2) whether the use of appellant's statements against him at his trial violated his right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation; (3) whether the statements made by appellant's co-defendant after the murder were properly admitted; (4) whether the evidence seized during a search of appellant's home on the night of the murder violated appellant's Fourth Amendment rights; and (5) whether the taped conversation between appellant and Raymond Riniker was properly admitted.

1. Appellant requests a new trial because some members of his jury were aware that his codefendant, Bruce Webber, had already been convicted of the murder of Shirleen Howard. Appellant contends that this knowledge prevented the jurors from presuming appellant's innocence because the conviction of the co-defendant inescapably invited the jury to believe that Webber's guilt implied appellant's guilt. Respondent urges this court to deny appellant's request, and argues that there was no showing of partiality by the jury or, alternatively, that appellant waived his right to object to the seating of jurors who had been exposed to pretrial publicity.

The voir dire process consumed six and one-half trial days, during which time fifty-one jurors were examined. Each of the jurors and alternates who indicated that they had knowledge of Webber's conviction testified that their knowledge would not influence their decision in appellant's case. Respondent points out that appellant passed most of the jurors who possessed what he now regards as patently prejudicial information without challenging for cause or exercising a peremptory challenge. In the case, for example, of the fourth prospective juror, the fact of the prior conviction was revealed by appellant's attorney and the juror was accepted by appellant.

In State v. Krampotich, 282 Minn. 182, 163 N.W.2d 772 (1968), this court found a waiver of the right to challenge a jury panel where that panel was aware of a related prior conviction. However, Krampotich is not quite as close an analogy as respondent suggests. Appellant in this case made several motions prior to the final empanelment of the jury to have all those with knowledge of the Webber conviction struck for cause. Counsel in Krampotich deliberately sought to seat the jurors who had found favorably in an earlier trial on his case; therefore, the waiver was much clearer.

Assuming, arguendo, that there was no waiver, appellant still falls short of establishing that the jury was predisposed to convict. In State v. Beier, 263 N.W.2d 622 (Minn. 1978), this court said:

In order to successfully challenge a juror for cause under Rule 26.02, subd. 5, in a case involving pretrial publicity, the defendant must do more than elicit an admission from the potential juror that he has been exposed to pretrial publicity. The test is whether the potential juror exposed to such publicity demonstrates to the satisfaction of the court that he can set aside preconceptions and render and impartial verdict.

Id. at 626. Cf. State v. Webber, 292 N.W.2d 5, 12 (Minn. 1980) (pretrial publicity as it affects venue). In this case the jurors were repeatedly tested and admonished concerning their impartiality. It was noted in Beier, 263 N.W.2d at 627, that "ince the trial court heard the testimony of the three jurors and observed their demeanor, he was in a better position than we are to decide whether they were telling the truth when they testified that their knowledge of the other charges had not affected their thinking."

Appellant's citation to Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639 (1961), is not helpful to his argument because the egregious facts of Irvin (eight of the twelve jurors believed the accused was guilty) stand in sharp contrast to this case. If, as here, the jurors indicate their intention to set aside any preconceived notions, and demonstrate to the satisfaction of the trial judge that they are able to do so, this court will not lightly substitute its own judgment. See United States v. Radetsky, 535 F.2d 556 (10th Cir. 1976), cert. denied 429 U.S. 820, 50 L. Ed. 2d 81,97 S. Ct. 68 (1976).

2. The issue concerning whether the use of appellant's statements against him at his trial violated his right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation is the most difficult issue presented by the appeal. On August 23, 1977, when appellant was arrested, Officer Rysavy questioned him concerning the homicide. Appellant was evasive, and made no admissions concerning any involvement on his part in the killing of his wife. Near the end of the August 23 conversation the police revealed that they had recorded appellant's conversation with Raymond Riniker just prior to his arrest. In that conversation appellant had implicated himself in the homicide.

Following the revelation of the recorded conversation appellant refused to talk further. The relevant portion of ...

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