State v. Conaway
| Decision Date | 14 May 1982 |
| Docket Number | 51277 and 51552.,No. 51276,51276 |
| Citation | 319 NW 2d 35 |
| Parties | STATE of Minnesota, Respondent, v. Jerrold O. CONAWAY, Appellant. |
| Court | Minnesota Supreme Court |
Friedberg & Peterson and Mark W. Peterson, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief, Appellate Section, Michael McGlennen, Thomas A. Weist and Anne E. Peek, Asst. County Attys., Minneapolis, for respondent.
Heard, considered, and decided by the court en banc.
This criminal appeal from Hennepin County District Court raises three issues: (1) the legality of defendant's arrest, (2) the sufficiency of the evidence to support defendant's conviction for possession of tools with intent to commit burglary, and (3) the propriety of joinder for trial of two of the three offenses with which defendant was charged. Defendant was originally charged in two separate complaints: the first charged him with knowingly receiving or concealing stolen property; the second, with possessing tools with intent to commit burglary and using a so-called "red box" to make fraudulent long-distance telephone calls. The district court granted the state's motion for joinder of the stolen property charge with the possession of burglary tools charge, but ordered a separate trial for the fraudulent telephone calls charge. The court denied a motion to suppress, which, had it been granted, would have required the dismissal of all charges against defendant. At the first trial, on the joined charges, defendant was found guilty of the burglary tools charge and guilty of the less serious misdemeanor offense of receiving stolen property. A subsequent trial on stipulated facts resulted in the defendant being convicted of the phone calls charge. This appeal involves only the joined charges. We affirm the conviction.
Defendant is a 54-year-old Bloomington resident who has spent approximately a fifth of his life in jail and who, by his own admission, has been a professional thief most of his adult life.
On August 10, 1979, defendant was having his van repaired at Downtown Chevytown. When it became apparent that the repairs would not be completed that day, Herbert Borreson, the used car manager, who knew defendant as a customer, allowed defendant to take one of the dealership's used cars as a loaner. The loaner was a 1976 maroon-over-white Chevrolet Monte Carlo bearing license plate number ACD 362. Several months earlier, in May, a 1976 black-over-silver Chevrolet had been stolen from the lot. In reporting that car as stolen, Borreson apparently got the inventory index cards for this car and the maroon-over-white car mixed up. He gave police the correct color of the stolen car (black over silver) but the license plate number and vehicle identification number of the maroon-over-white car. Thus, on August 10, when defendant took the loaner home for the weekend, he took home a car which had never been stolen, but which had been listed on police department records and on the state computer as stolen.
On August 13, 1979, Special Agent Robert Bonshire of the FBI, who knew defendant from prior investigations and was acquainted with defendant's record, received a call from a neighbor of the defendant. The neighbor informed him that defendant was now driving a different car. After checking the state computer, which listed the car as stolen, Bonshire contacted Bloomington police.
Bloomington Police Officer James Johnson checked with the state computer and obtained the same information. Reserve officers, acting under Johnson's orders, then checked and learned that the originating agency was the Minneapolis Police Department.
Surveillance of defendant's house was established at 6:00 p.m. on August 13. Minutes later, defendant came out, entered the car, and took an unusual, indirect route to a Perkins Restaurant. Before leaving the restaurant, defendant made at least one telephone call.
After leaving, defendant took a direct route home. Officers Bonshire, Johnson and McComb continued their surveillance and commented that it was unlikely that defendant, an experienced career criminal who knew that at any time the police might be investigating him, would park a known stolen vehicle in his driveway in open view. The officers decided that it was possible that the defendant needed the car available at a moment's notice.
While waiting, the officers made a number of calls concerning the car. Johnson contacted the Minneapolis police, who told him that the car was listed as stolen but that the report listed the car as being black over silver. The officers decided, however, that the report was either incorrect about the car's color or that the car had been repainted. Johnson next contacted a representative of Downtown Chevytown. The representative said he did not believe Downtown Chevytown had any cars listed as stolen at that time and that it was possible the car had been sold to AAA Leasing. Johnson contacted a representative of AAA Leasing, who said that, to the best of his knowledge, AAA had no car similar to the alleged stolen car. Johnson then made a follow-up call to the Minneapolis Police Department and was told that Herbert Borreson or Benneson had filed a report. The officers made a number of attempts to contact him, but were unsuccessful.
At this point, the officers decided to attempt to connect the defendant to the car. In order to do this, the officers planned to contact a marked squad car and have it stop the car as soon as defendant left and to arrest the defendant as he was driving the car.
Shortly after 10:00 p.m., defendant came out, opened the trunk two times, got in the car and left. The officers did not contact the marked squad car, but instead decided to follow defendant. Instead of taking a quick route to downtown Minneapolis, defendant took a slower route using city streets. Once downtown, defendant parked his car and entered Murray's Restaurant.
McComb then contacted Minneapolis police and asked them to make the arrest when defendant came out and re-entered the car. Defendant was stopped around 11:30 p.m. on Second Avenue between Sixth and Seventh Streets.
When he was arrested and told that the car was stolen, defendant responded that the car was a loaner from Downtown Chevytown and that the problem could be straightened out quickly if the police would call Herbert Borreson or Downtown Chevytown. The apparent response of the Minneapolis officer was that it did not matter, that they were arresting him at the request of Bloomington police and that the car was listed as stolen.
An immediate on-the-scene inventory search of the trunk resulted in the discovery and seizure of three plastic garbage bags containing approximately 120 items of clothing, many on hangers with double tags attached, about half of which were later specifically identified as having been stolen (presumably shoplifted) from nine different Twin Cities area stores. The clothes that were specifically identified as having been stolen were valued at approximately $4,500. Police also found a number of gems in a black case in the trunk, as well as gems in an ankle wallet on defendant's person. These gems, which had a retail value of approximately $25,000, were offered into evidence only to connect defendant to the items in the trunk; the state stipulated that defendant had obtained the gems from retail outlets in the normal course of business. Defendant also had $1,000 in traveler's checks on his person.
A warranted search of defendant's house for more stolen property at 6:00 a.m. the following morning failed to turn up any stolen property, but resulted in the discovery of a large number of burglary tools in an old wellroom in the basement and a couple of lock picks upstairs in the living quarters. Items seized from the basement included books showing radio frequencies for various police departments around the country; books containing lock codes; communications equipment, including crystals for frequencies used by certain local police departments; sets of both blank and cut keys; tools a burglar could use; numerous lock picks; a burglar alarm bypass device; and a bulletproof vest. Although many of the items found were a number of years old, the state was able to show that one of the drills was only 2 years old, at the most, and another drill less than 6 months old. The "red boxes" used in the separate prosecution of defendant for telephone fraud were also discovered in the house. Police also took a photograph of defendant's bookshelf, which contained, among other books, a number of books on subjects of interest to the professional criminal.
The district court granted the motion to join two of the offenses for trial because it concluded that the possessory aspects of each of the two offenses occurred at the same time, although in different locations, and that the evidence of each would be admissible Spreigl evidence in the trial of the other. The court refused to join the fraudulent telephone charge with the others.
On the basis of stipulated evidence, the court denied the suppression motion at the omnibus hearing, stating that probable cause was not defeated because the evidence that indicated to the officers that the car was stolen "preponderated over the evidence to the contrary."
Defendant took the stand in his own behalf and admitted that, until a couple of years ago, he had been a professional thief, but claimed that he had "mellowed" because of his wife. He claimed that the tools, many of which he admitted were burglary tools, had been in the basement for years and that he had not had any present intent of using them in committing any burglary. He claimed he first saw the stolen clothing when he opened the trunk earlier in the day on the 13th; he had assumed the clothing was stolen, but denied knowing it was. He testified that he tried to call Borreson about the clothing.
The jury found that defendant only...
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