State v. Buschkopf

• Decision Date: 30 August 1985
• Docket Number: No. C4-84-561,C4-84-561
• Citation: 373 N.W.2d 756
• Parties: STATE of Minnesota, Respondent, v. Carlene Ann BUSCHKOPF, Appellant.
• Court: Minnesota Supreme Court

Page 756

373 N.W.2d 756

STATE of Minnesota, Respondent, v. Carlene Ann BUSCHKOPF, Appellant.

No. C4-84-561.

Supreme Court of Minnesota.

Aug. 30, 1985.

Syllabus by the Court

1. The trial court properly admitted, over hearsay objection, statements made by a coconspirator in the course of and in furtherance of a conspiracy to conceal the charged conspiracy and to collect insurance proceeds.

2. Taped telephone conversations recorded with the consent of one party to the conversations were properly admitted.

3. Evidence obtained during a warrantless search of a dwelling occupied by a coconspirator was admissible under the third party consent exception to the warrant requirement.

4. Evidence obtained during a warrantless search of defendant's motel room was admissible under the plain view exception to the warrant requirement.

5. Defendant was not denied her rights to due process and a fair trial by the trial court's rulings on her motions for a second change of venue, for continuances, and for exclusion of certain testimonial and physical evidence.

Michael F. Cromett, St. Paul, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Robert A. Stanich, Sp. Asst. Atty. Gen., St. Paul, Julius E. Gernes, Winona County Atty., Winona, for respondent.

Heard, considered and decided by the court en banc.

WAHL, Justice.

Carlene Ann Buschkopf was convicted of first degree murder, Minn.Stat. § 609.185(1) (1984), and conspiracy to commit first degree murder, Minn.Stat. § 609.175, subd. 2(2) (1984), of her husband, Ted Buschkopf, by shooting. The trial court sentenced her to life imprisonment. She appeals from this judgment of conviction and sentence, contending that the trial court prejudicially erred by admitting certain statements of a co-conspirator and evidence seized in the course of warrantless searches. She also contends that she was denied due process and a fair trial by various trial court rulings. We affirm the conviction.

Shortly before 7:30 a.m. on July 26, 1983, a guest in the Westgate Motel in Winona heard someone calling out for help and called the motel manager. The manager found the defendant lying in the doorway of one of the motel rooms, moaning and asking for help. The manager called for a rescue squad and notified the police. When the rescue squad arrived, one member of the team attended to the defendant, who was complaining of pain in her head and stomach, while the others entered the room and attended to Ted Buschkopf, who was lying on one of the beds unconscious with a gunshot wound to his head. Police officers arrived shortly thereafter.

Officer Ronnenberg arrived at the room around 7:30 a.m. In the doorway, he saw the defendant, shot in the back. He entered the room at the rescue squad's request, and helped remove Ted and place him in the ambulance. He checked over the premises briefly and saw no one else there. He went back to where the defendant was lying twice before she was taken to the hospital. She told him several times that she and her husband had been out the night before and returned late to the motel room. She said that in the middle of the night she had been awakened, saw her husband had been shot, and then felt sharp pains herself. Officers Nyseth and Kauphusman, who arrived at the motel room shortly after Ronnenberg, related similar accounts of the events at the scene.

Officer Nyseth accompanied the defendant to the hospital in the ambulance and, with Officer Fier, a B.C.A. agent, conducted a short interview with her in the emergency room. The defendant gave an account of the events of the previous night similar to that she had given Ronnenberg at the motel. Fier and Nyseth said that she was completely cooperative and coherent at the time. Both had the impression she wanted to assist in the investigation. They admitted that she appeared to be in considerable pain, and the interview ceased in order that she might receive treatment. By 8:00 a.m. the officers who remained at the motel had secured the room and the evidence technician was on the scene.

Throughout the morning and early afternoon of July 26, the defendant was in surgery for removal of a bullet from her abdomen. Between 1 and 2 p.m. that afternoon, police officers reentered the motel room and conducted a full investigative search, seizing many items from the room and taking numerous photographs of the interior. Around 5:00 p.m. Officer Nyseth again spoke to the defendant, now out of surgery. The defendant, when questioned, described what she had been doing the night before, discussed her business relationship with Arthur Lucas, and mentioned that she had a lot of bills. Nyseth said she continued to be cooperative, indicated that she wanted the perpetrator caught, and asked about the conduct of the investigation. She consented to the swabbing of her hands and gave the officers the night gown she had worn. The officer never told her about the investigative search of the motel room, which was completed between 8 and 9 p.m. that evening. The police reentered the motel room three days later, on July 29, and seized some additional items.

The police also contacted Arthur Lucas, a friend and business associate of defendant's at his home in LaCrosse, Wisconsin on the day of the shooting. He was interviewed by Winona and LaCrosse police officers at the station in LaCrosse. In describing his activities of the previous day and evening, Lucas explained that he had spent the day of July 25 with the defendant, and in the late evening had met with Judy Baker, a bartender and acquaintance. He stated that he had spent the night at Baker's apartment. He also detailed his sexual and business relationship with the defendant, as well as their financial problems.

The officers then asked Lucas for consent to search his apartment and car for a small caliber weapon. Lucas gave his consent to both searches. He guided the officers to his apartment, let them in, and offered them coffee. Lucas took the officers through his home, answering questions about items of interest to them, and expressly consented to the seizure of each item they took from the apartment. The officers noted that there were women's clothing and other items in the bedroom of the apartment. They admittedly searched these items and seized several objects that Lucas identified as belonging to the defendant.

On July 27, the police interviewed Judy Baker at the LaCrosse police station. She initially told the police that she had seen Lucas the morning of the shooting, but her account was different in most details from the account given by Lucas. Soon, however, she told a substantially different tale. She said she first met Lucas in May, 1983. Some time in June of 1983 he began telling her of the financial problems he and the defendant were having. In mid-July the defendant, who Baker knew by sight only, visited Baker at her home. The defendant also told Baker of marital and financial problems during the visit, but said she hoped to have those problems taken care of soon.

Sometime during the week of July 10, Lucas told Baker that he and the defendant had a plan to get out of their financial problems by "getting rid" of somebody, but that previous attempts to carry out the plan had failed. Lucas also told her that the motive to get rid of this person was to collect insurance money. On July 23, he asked Baker to help him with an alibi and offered her $1,000 if she would be seen with him on a particular evening. Two days later, on July 25, he called her at the bar where she worked, again asked for her help, and said he would be coming by the bar. She hung up and said to Sheila Goplen, a co-worker, "Oh, God, that man is coming up here." He arrived around 7:30 and asked to spend the night with her. She agreed, but said she never saw him again after he left around 9 p.m.

She had received two phone calls from Lucas, however. She said he called her at about 6:30 on the morning of July 26, and said "It's happened, it's over, it's done." He went on to tell her that she should tell the police he had been with her between 5:15 and 5:30 a.m. that morning. She called into work that day, and left word with Sheila Goplen that she couldn't work her shift. Baker had received another phone call from Lucas on the morning of July 27, at which time they discussed alternative alibis.

Baker agreed to assist the police by placing telephone calls from LaCrosse to the defendant and to Lucas which would be recorded. She made the first call to the defendant in the hospital. During that conversation the defendant repeatedly asked Baker to tell Lucas that she "couldn't replace one." After numerous attempts, Baker also contacted Lucas on July 28. They had four conversations that day, each tape recorded by the police. During the first conversation, Baker relayed the message from defendant. Lucas rehearsed his alibi with Baker, and the two discussed defendant's condition. Baker also attempted to draw Lucas into a discussion of the shooting. He resisted this line of conversation. In the second, very brief conversation, Baker gave Lucas a phone number where he could call her back. During the third conversation, Lucas questioned Baker about what she had said to the police and told Baker that defendant's message meant that she couldn't replace the gun that was used with another gun. He further explained that he had disposed of the gun that was used and that it had been his gun. He also cautioned Baker to be careful about what she said to the police. During the final call, the two discussed their financial problems. Baker asked Lucas for the money he owed her because she had lost her job. Lucas said that the insurance money could not be collected until Ted died.

Subsequent investigation by the police confirmed the deep financial problems alluded to by the defendant and Lucas. In June, 1983, the Buschkopfs' contract for deed on their home was cancelled, and soon thereafter they were evicted from their rental...