Appeal from District Court, Sherburne County, Hon. Thomas Forsberg, Judge, Affirmed in part and vacated in part.
Heard, considered and decided by the court en banc.
The opinion of the court was delivered by: Kelley
1. When an accused, represented by counsel on unrelated charges in a different jurisdiction, makes statements to investigating officers in connection with the unrelated criminal charge, with respect to which he is not represented by counsel, the statements made are not automatically suppressible under the sixth amendment of the United States Constitution.
2. Testimony given by a witness after undergoing hypnosis ordinarily is inadmissible in a criminal prosecution, but under the circumstances of this case admission of posthypnotic testimony was not prejudicial.
3. Evidence of other crimes of a similar nature close in time and space to the crime charged were admissible on the issues of identification, intent, common plan or scheme and motive.
4. Argument of a prosecutor that, in effect, vouches for the veracity of the state's witnesses and expresses an opinion of the accused's testimony and guilt, while improper, under the totality of the circumstances here existing was not so prejudicial as to require a new trial.
5. Where defendant is adjudged convicted of two counts of first-degree murder arising out of the same behavioral incident and involving the same victim, one must be vacated, and when adjudged convicted of two counts of kidnapping of the same victim arising out of the same continuous course of conduct, one must be vacated.
6. Sentencing a defendant to serve a mandatory life sentence consecutive to prior sentences on unrelated crimes was not error.
Following conviction, defendant Joseph Donald Ture, Jr. was sentenced to mandatory life imprisonment for the first-degree murder of Diane Edwards. *fn1 In this appeal he claims that certain statements made by him to police officers should have been suppressed on fifth and sixth amendment grounds; that the trial court erred in admitting testimony of a witness who had undergone hypnosis prior to testifying; that the trial judge erred in admitting other crime evidence; that cumulative trial errors require the granting of a new trial; that the evidence is insufficient to sustain the convictions; that the prosecutor's final argument deprived him of a fair trial; and that the court committed sentencing errors. We affirm the judgment of conviction and the sentence imposed on one first-degree murder conviction and the judgment of conviction of one count of kidnapping. We vacate one judgment of conviction for first-degree murder and one judgment of conviction for kidnapping.
On September 26, 1980, 19-year-old Diane Edwards was abducted while walking home from her waitressing job at a Perkins Restaurant in West St. Paul. Four teen-age girls witnessed her abduction. They saw a station wagon drive west on Moreland Avenue, pull onto the sidewalk and stop by a woman walking there alone. The girls heard the woman scream and observed the driver of the station wagon force the woman into his car through the driver's door. They immediately reported the event to the police. Although they were unable to identity the driver or to precisely describe the make, model or year of the vehicle involved, they did inform the police that the abducted woman wore a Parkins uniform and was driven away in a dark-colored station wagon with wood-grain panels.
Kathy Dahn, who was sitting in her car in a laundromat parking lot on Moreland Avenue, also witnessed the abduction. She noticed a man driving an older, brown, somewhat rusty station wagon jump out of the wagon, pick a woman up over his head and throw her into the car through the driver's door. She also heard the woman screaming. She did not contact the police until she heard a news report of the missing Diane Edwards the next day.
A few minutes prior to the abduction, Tomi Willems had been forced off the road near the intersection of Thompson and Oakdale in West St. Paul by an older model, dark brown station wagon. She had stopped at a stop sign when the station wagon lightly rear-ended her car. When she turned around, the driver of the station wagon was grinning at her. The man then drove alongside her car, hopped out of the station wagon, and attempted to open the locked passenger door of Ms. Willems' car. In an attempt to avoid him, she turned left, but the man pursued her in the station wagon and forced her to stop by driving ahead of her and blocking the road. Thereupon, she began honking her automobile horn. As a car approached her from the rear, the station wagon drove away. This incident happened within minutes before, and only a few blocks away from, the abduction of Diane Edwards. Later, Ms. Willems was unable to positively identify the man but described him as being in his mid-20's, unshaven and with brown hair below ear length.
On October 9, 1980, a hunter discovered Diane Edwards' purse on a side road in rural Sherburne County. A few hours later, police discovered Ms. Edwards' naked body lying face down in a ditch close to where the purse had been found. Ms. Edwards' clothes were lying in a pile next to her. Further search uncovered Ms. Edwards' glasses, but nothing was discovered providing a possible lead to the abductor's identity.
The Ramsey County Medical Examiner concluded that Ms. Edwards had died from loss of blood resulting from stab wounds in the chest area. In his opinion the stab wounds had been caused by a single-bladed instrument, such as a buck knife, with a 6-inch long blade. He concluded she had died between 11:30 p.m. on September 26, 1980, and 1 a.m. on September 27, 1980. In addition to the stab wounds, the examiner noted four bruises on the face, one bruise on the right shoulder, and what looked like rope marks on the arms. A sexual assault examination was also conducted on the body. It revealed traces of sperm in the cervical area. Because of decomposition, blood-typing on the sperm sample was inconclusive.
A week later West St. Paul police received information that Joseph Ture had been a suspect in a criminal sexual conduct case in Hopkins. At the time of his arrest on the Hopkins charge, defendant had in his possession a number of names of waitresses in the metropolitan area. Later, West St. Paul police learned that defendant had two outstanding misdemeanor traffic tickets in their city. Hoping to question defendant about the Edwards case, they obtained a warrant for defendant's arrest for these traffic offenses. However, the warrants were never executed because West St. Paul police in the interim were informed by the Minneapolis police department that defendant had been arrested in Minneapolis on October 30, 1980 on charges of attempted rape and kidnapping. *fn2
The Dakota County sheriff's department and the West St. Paul police questioned defendant several times over the next 2 months at the Hennepin County jail. Thereafter, any contact by officers from Dakota County or West St. Paul ceased until approximately 3 months later. Subsequently, as a result of further interrogations in April and May 1981, defendant was charged with first-degree premeditated murder, first-degree murder during a sexual assault, two counts of kidnapping and criminal sexual conduct in the first degree.
1. Defendant first contends that statements made by him to various police officers during the course of the investigation of Diane Edwards' death were obtained in violation of rights guaranteed to him by the fifth and sixth amendments to the United States Constitution.
Both of those amendments guarantee an accused a right to legal counsel. The fifth amendment providing that "o person * * * shall be compelled in any criminal case to be witness against himself" *fn3 has been interpreted to secure a right to legal counsel during custodial interrogation even before the filing of formal criminal charges. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The sixth amendment provides that "n all criminal prosecutions the accused shall enjoy the right * * * to have the assistance of counsel for his defense." *fn4 The right to counsel granted by the sixth amendment attaches at the time adversary judicial proceedings are commenced against an accused. Kirby v. Illinois, 406 U.S. 682, 689, 32 L. Ed. 2d 411, 92 S. Ct. 1877 (1972).
To address this issue raised by appellant, we review in some detail the questioning conducted by various police authorities. Before the first interview of defendant at the Hennepin County jail on October 30, 1980, a Dakota County officer asked him whether he had been apprised of his rights by Minneapolis officers who had just finished questioning him on other criminal charges for which he was being held at the jail. Defendant indicated that he had been read his rights by the Hennepin County authorities and that he understood them. Moreover, he agreed to talk with the Dakota County officers.
Within the next few days, defendant voluntarily consented to take a polygraph test and a psychological stress evaluation. On both occasions he was given his Miranda rights. Defendant was interviewed by West St. Paul and Stearns County officers on November 12, 1980, after again being given his Miranda rights. On November 25, 1980 and early in December, defendant twice was interviewed by a Dakota County detective in the Hennepin County jail, both times at defendant's request. Finally, on January 13, 1981, again upon defendant's request, a West St. Paul detective again interviewed him. On each of these occasions, defendant made admissions of facts that might later prove to be inculpatory. At each interrogation police officers ...