Hanson v. State, C5-83-1479

• Decision Date: 15 February 1984
• Docket Number: No. C5-83-1479,C5-83-1479
• Citation: 344 N.W.2d 420
• Parties: Frederick Marvin HANSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Court of Appeals

Page 420

344 N.W.2d 420

Frederick Marvin HANSON, petitioner, Appellant, v. STATE of Minnesota, Respondent.

No. C5-83-1479.

Court of Appeals of Minnesota.

Feb. 15, 1984.

Syllabus by the Court

1. The affidavit supporting the search warrant enabled the reviewing judge to make the practical, common sense decision that there was a fair probability that the articles sought would be found in defendant's house and car.

2. Circumstantial evidence was sufficient to corroborate accomplice's testimony.

3. Where defense counsel initiates questioning concerning a prior trial of defendant, he is barred from asserting prejudice from state's questions about the trial.

C. Paul Jones, Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Norman B. Coleman, Jr., Sp. Asst. Atty. Gen., St. Paul; John Pearson, Becker County Atty., Detroit Lakes, for respondent.

Considered and decided by POPOVICH, C.J., and FOLEY and SEDGWICK, JJ., with oral argument waived.

OPINION

SEDGWICK, Judge.

This is an appeal from an order denying post-conviction relief. Defendant Hanson was convicted of burglary. He argues the trial court erred in that (1) evidence seized pursuant to a search warrant should have been suppressed, (2) evidence of guilt was insufficient because circumstantial evidence did not exclude reasonable inferences other than guilt and accomplice testimony was not corroborated, and (3) evidence of similar offenses was erroneously admitted in evidence. We affirm.

FACTS

On July 26, 1981, the Maple Hills Golf Course Clubhouse and attached home of owner Kertscher were burglarized. Items taken included guns, bows and arrows, and power tools.

On August 7, 1981, officers Mercer and Sieling questioned Ted Monk about the burglary. Monk admitted his involvement, admitted possession of some stolen items and told officers that defendant Hanson assisted him in the burglary.

The next day Monk gave the officers bows, arrows and guns taken in the burglary and agreed to help them recover the other stolen property. The officers followed Monk to defendant's home. From a short distance away they observed Monk enter defendant's home empty-handed and emerge later carrying a saber saw, identified by Kertscher as his.

Based on these facts, the officers obtained a search warrant for defendant's home and car, executed the warrant and recovered several of the stolen items from his home and car.

At trial, defendant's attorney informed the jurors both during voir dire and in his opening statement that defendant had a prior record of burglary. The state questioned defendant about his prior felony convictions.

Other references to defendant's prior trial occurred when defendant sought to impeach Monk's testimony in the present trial with his testimony in a prior trial of defendant in Otter Tail County. Monk admitted he lied in the Otter Tail County trial because of fear of reprisal and to help defendant. On re-direct, the state established that he was subsequently charged with perjury because of this lie. There was also evidence that Monk made consistent statements on five separate occasions, including his trial testimony, that defendant was involved in the present burglary.

The jury returned a verdict of guilty.

ISSUES

1. Was there probable cause for the search warrant?

2. Was evidence sufficient to support the jury verdict?

3. Were references to defendant Hanson's prior trial error?

ANALYSIS

Hanson's appeal follows the trial court's denial of his petition for post-conviction relief.

In a petition for post-conviction relief, the burden of proof is on petitioner to establish facts alleged in his petition by a fair preponderance of the evidence. Minn.Stat. Sec. 590.04, subd. 3 (1982).

When considering the petition for post-conviction relief the trial court "acts as finder of facts, deciding for purposes of admissibility which evidence to believe and whether the state has met its burden of proof." Doan v. State, 306 Minn. 89, 91, 234 N.W.2d 824, 826 (1975).

On appeal, the reviewing court "will not reverse specific findings if there is sufficient evidence to support them". Id. In addition, the harmless error beyond a reasonable doubt test applies to post-conviction review. Hauwiller v. State., 295 N.W.2d 641, 643 (Minn.1980).

1. The affidavit in support of the August 8, 1981 warrant reads:

Affiant is a Becker County deputy and as such is familiar with the following facts:

During the early morning hours of 7-26-81, a building belonging to Lester Kertscher was entered and a number of items stolen, including the power tools described in this warrant. The items were taken without consent.

One Ted Monk has told affiant that he and one Fred Hanson burglarized the Kertscher building and stole a number of items including several power tools. Monk stated that he and Hanson transported the power tools to Hanson's trailer home located E. of Frazee, Minn.

Monk visited Hanson's trailer home on 8-8-81. Monk recovered 1 saber saw from Hanson. Monk also saw 1 skill saw in the trailer. Hanson told Monk that several power tools were located in a blue 1955 Chevrolet located on the Hanson premises.

The standard for probable cause stated by the United States Supreme Court in Illinois v. Gates, --- U.S. ----, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), is accurately paraphrased in the Minnesota Judge's Criminal Benchbook, 1-4 (1983 Supp.) as follows:

The test of probable cause is met if the affidavit, interpreted in a common sense and realistic manner, sets forth competent evidence sufficient to lead a reasonably prudent person to believe that there is a basis for the search or that the articles sought are located at the place to be searched. There must be sufficient underlying facts so that the magistrate may draw his own conclusions of whether probable cause exists.

The Gates court abandoned the "two-pronged test" established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in favor of the "totality of the circumstances" approach. The Gates court emphasized that the elements under the "two-pronged test" concerning the informant's "veracity," "reliability" and "basis of knowledge" should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is "probable cause" to believe that contraband or evidence is located in a particular place.

The Gates court described the duty of the magistrate:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and the "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

103 S.Ct. at 2332 (emphasis added).

The Gates court described the duty of the reviewing court:

And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Id. at 2332, (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708 (1960)).

In the instant case, the police had prior knowledge of the burglary and of the items taken. Monk identified himself, admitted his participation in the burglary and implicated defendant. He described the type of tools taken and the fact that they were taken to defendant's trailer home. He recovered a stolen item from defendant's home. These are direct observations of a co-conspirator which implicate both defendant and Monk.

Defendant asserts that Monk is an accomplice and therefore unreliable. However, as the Gates court observed: "[E]ven if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that...