State v. Burch

• Decision Date: 15 August 1969
• Docket Number: No. 41146,41146
• Citation: 284 Minn. 300,170 N.W.2d 543
• Parties: STATE of Minnesota, Respondent, v. Ralph Lee BURCH, Jr., Appellant.
• Court: Minnesota Supreme Court

Page 543

170 N.W.2d 543

284 Minn. 300

STATE of Minnesota, Respondent, v. Ralph Lee BURCH, Jr., Appellant.

No. 41146.

Supreme Court of Minnesota.

Aug. 15, 1969.

Syllabus by the Court

1. With certain well-defined exceptions, the determination that there is probable cause to make an arrest must be made by a neutral and detached magistrate.

2. In order to make the required independent determination as to the existence of probable cause, the magistrate must be provided with the facts on which the one seeking the arrest warrant determined that there was cause to believe the person sought committed the crime and the source of those facts, including, where the source is other than personal observation, facts on which the reliability of the source can be determined. The complaint here fails to meet this requirement and the warrant is therefore invalid.

3. The Constitution does not require that all of the necessary information appear on the face of the complaint so long as there is a sworn record, made at the time the warrant was issued, which contains those facts. However, no such record was made here.

4. The defect in the complaint and the consequent invalidity of the warrant did not deprive the court of jurisdiction over the defendant when he appeared and defended on the merits.

5. The proper method to challenge personal jurisdiction in a criminal case is 6. Where the constitutional error in the arrest of a defendant results in no prejudice affecting the determination on the merits, the Constitution does not require that he be granted a new trial.

to appear specially and, if jurisdiction is upheld by the trial court, obtain a writ of prohibition or habeas corpus to secure a final determination prior to proceeding on the merits.

7. The factors which affect the reliability of eyewitness identification go to the weight to be accorded the evidence, not its admissibility, and under the facts of this case we cannot say that the evidence was not entitled to the weight the jury apparently gave it.

8. The pretrial identification procedures followed in this case were not so 'impermissibly suggestive' as to give rise to a serious likelihood of misidentification.

9. A conviction will not be set aside for the failure of the trial court to instruct the jury on the dangers of identification testimony where no such instruction was requested.

10. The denial of defendant's motions to sit elsewhere in the courtroom did not constitute an abuse of the considerable discretion of the trial court in the conduct of a trial.

11. The considerable doubts that have been raised as to the reliability of eyewitness identification require increasing effort on the part of the police in their conduct of lineups to insure against the dangers of misidentification.

12. Where requested by defendant, the court should instruct the jury as to the factors to be considered in evaluating identification testimony and the dangers in automatic acceptance of such evidence.

C. Paul Jones, Public Defender, Rosalie E. Wahl and Roberta K. Levy, Minneapolis, John F. Markert, St. Paul, for appellant.

Douglas M. Head, Atty. Gen., Richard H. Kyle, Sol. Gen., William B. Randall, County Atty., Gary Fridell and Thomas Quayle, Asst. County Attys., St. Paul, for respondent.

UPON REARGUMENT

ROGOSHESKE, Justice.

This is an appeal from a judgment entered upon a verdict finding defendant guilty of aggravated robbery.

Early in the morning of January 29, 1967, Malcolm Walter Cornell, the lone attendant at the Clark Gas Station at 201 North Snelling Avenue in St. Paul, was robbed of $30 or $35 at gunpoint by two men and hit over the head with the gun. Cornell, a 17-year-old white boy, described the robbers to the police as Negroes, between 16 and 20 years old, and each weighing 130 to 140 pounds. Cornell said the shorter man was about 5 feet 7 inches or 5 feet 8 inches, was wearing a trenchcoat, and carried the gun. The other wore a shiny green jacket. Cornell said they were in the station for not more than 5 minutes and that he had never seen either man before.

About 2 weeks to a month after the robbery, Cornell went to police headquarters to look at photographs--'mug shots.' After about 25 minutes, he picked out the picture of a man whom he later identified at a lineup and in court as the defendant, Ralph Lee Burch. There was at least one other photograph that Cornell said he thought looked like his assailant, but when he picked out defendant's photograph he said to the attending police officer, 'This is the one. This looks like the one.'

On March 25, 1967, defendant was picked up in Duluth, Minnesota, by St. Paul police following his release from the workhouse in that city. He was returned to St. Paul, where a lineup was held. At the lineup Cornell identified defendant as one of the robbers. According to Cornell's testimony at trial, there were only three men in the lineup. One was a light-colored Negro about 6 feet tall, weighing about 190 pounds; the second was darker, shorter, and thinner; the third was defendant. The three did not look at all alike.

At the preliminary hearing on April 3, defendant, represented by private counsel, moved to dismiss on the ground the complaint did not state facts from which the magistrate could have found probable cause to justify bringing the defendant before the court and his arrest was therefore constitutionally defective. This motion was denied and defendant was bound over to district court, where he was represented in all appearances by the Ramsey County Public Defender. Apparently defendant had made a similar motion at a special appearance.

The jury trial began July 5. After an opening statement by the prosecutor, the public defender moved the court to allow defendant to sit with his brothers in the back row of the chamber or alongside the spectators' rail, rather than be the only Negro inside the rail, in order to test Cornell's identification. These motions were denied.

Cornell made positive courtroom identification of defendant as the shorter and darker of the two men who had robbed him. Following Cornell's testimony, a Rasmussen hearing was held and the evidence incident to defendant's arrest in Duluth was suppressed as prejudicial unless the state could make a further showing on its relevance. Such a showing was never made.

At the trial, the only evidence introduced by the state consisted of testimony and identification by Cornell; testimony of the officers who had been sent to the scene of the robbery; and testimony by the officer who had returned defendant from Duluth, that he had done so.

Defendant attempted to show that he, another man, and two girls had attended the birthday party of a third girl on the evening of January 28, 1967, and that his girl friend had subsequently spent the night with him at his home. However, his girl friend could not remember the exact date of the party and the girl at whose home the party was allegedly held did not appear in court, even though she had been subpoenaed.

No exceptions were taken to the court's instructions, and the jury found defendant guilty of aggravated robbery. Defendant moved for acquittal notwithstanding the verdict, contending that the record indicated more than reasonable doubt relative to proof of identity. The motion was denied. The court sentenced defendant to a term of not more than 20 years.

Defendant contends on appeal that the warrant signed by the magistrate was constitutionally defective in that the complaint on which it was based failed to state facts upon which a magistrate could find that there was probable cause to believe he committed the offense. The complaint submitted to the magistrate was a form complaint which, we were informed by counsel for the state, is commonly used in Ramsey County. Eliminating the matter struck out by complainant, it read as follows:

'Maurice L. Ricco being duly sworn makes complaint to the above named Court, and says that on the 29th day of January A.D. 1967, within the corporate limits of said * * * (City) of St. Paul in the County of Ramsey, and the State of Minnesota, one Ralph Lee Burch then and there being, did wrongfully, unlawfully, and knowing that he was not entitled thereto, take from the person of Malcom (sic) Walter Cornell personal property consisting of lawful money of the United States in excess of one dollar, and he, the said Ralph Lee Burch, threatened the imminent use of force against Malcom Walter Cornell, to compel his acquiescence in the said taking of the said property, he, the said Ralph Lee Burch, being then and there armed with a dangerous weapon, to wit: a gun * * * contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Minnesota.

'That affiant's complaint is made (upon information received from other law enforcement agents) and (upon information resulting from his own investigation).

'WHEREFORE COMPLAINANT PRAYS, That * * * said offender * * * be * * * dealt with according to law.

'UPON READING THE FOREGOING COMPLAINT and examination of complainant under oath,

'THE COURT FINDS, That there is probable cause to bring the offender before this court to answer to the offense herein complained of

'AND IT IS HEREBY ORDERED, That (a warrant issue and) the offender be (arested and) dealt with according to law.'

1--2. The Fourth Amendment of the United States Constitution guarantees against the invasion of the individual's right of privacy except upon a showing of probable cause 'supported by oath or affirmation.' With certain well-defined exceptions, the determination that there is probable cause to make an arrest or conduct a search must be made by a 'neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440. In order to make this determination, the magistrate must...