State v. Elli

• Decision Date: 10 January 1964
• Docket Number: No. 38003,38003
• Citation: 125 N.W.2d 738,267 Minn. 185
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota, Respondent, v. Frank Michael ELLI, Appellant.

Page 738

125 N.W.2d 738

267 Minn. 185

STATE of Minnesota, Respondent, v. Frank Michael ELLI, Appellant.

No. 38003.

Supreme Court of Minnesota.

Jan. 10, 1964.

Syllabus by the Court

1. The oral admission of a defendant charged with a robbery occurring April 27, 1959, to the effect that he had robbed the same place the preceding January 14 is held admissible where testimony subsequently received established a similar pattern of operation on the two occasions.

2. Cross-examination of an alibi witness developing the fact that she had appeared in this role in another criminal case involving a different defendant was of doubtful propriety, but not prejudicial error under the circumstances of this case.

3. While sequestration of witnesses in a criminal case should generally be ordered upon request, the matter is discretionary with the trial court and failure to sequester did not create reversible error in this case.

John S. Connolly, St. Paul, for appellant.

Walter F. Mondale, Atty. Gen., William B. Randall, County Atty., John P. Frank, Asst. County Atty., St. Paul, for respondent.

SHERAN, Justice.

Appeal from district court judgment of conviction.

Defendant, under indictment for first-degree robbery, was represented by the public defender of Ramsey County. The jury found him guilty. He waived presentence investigation and admitted the truth of an information charging two prior convictions. His motion for a new trial was denied. The district court then adjudged defendant to be guilty as charged and to have been previously convicted of first-degree robbery in California and second-degree burglary in the State of Washington, both crimes being felonies under the laws of the respective states and of Minnesota. His punishment was a sentence of imprisonment in the State Prison at Stillwater 'according to law.'

Upon this appeal defendant contends that he was denied a fair trial, and that his constitutional rights, state and Federal, were invaded for the following reasons:

(1) A police officer called as a witness by the state in the course of testimony relating to an alleged oral confession of the robbery for which defendant was being tried stated that defendant then acknowledged that he had robbed the same place of business previously. The robbery for which he was indicted occurred April 27, 1959; the prior robbery on January 14, of the same year.

(2) The prosecution, in cross-examining one of two alibi witnesses presented by defendant, asked whether it was not true that she had appeared as an alibi witness for another defendant in criminal proceedings conducted in the same courtroom some 2 months before.

(3) The trial court failed to sequester the witnesses called to establish the identity of defendant as the person who committed the April robbery.

On April 27, 1959, at approximately 7 p.m., a man whose identify was concealed by a mask covering the lower part of his face entered the Nickel Joint Tavern at Blair and Mackubin Streets in St. Paul, and at gunpoint compelled the person in charge, Carl Wegscheider, to turn over to him the contents of the cash register, said to have been approximately $750.

A number of persons present at the time the robbery was committed were called as witnesses by the state in an attempt to identify defendant as the person who committed the crime. One of them, John Freitag, a patron, observed the robbery and saw the masked bandit leave the premises through the rear door. Freitag followed him to the alley where he had a brief and limited opportunity to observe the holdup man without his mask. That same night he identified a picture of the defendant in the files of the St. Paul Police Department as being a picture of the person he had seen. At the time of trial, Freitag testified that defendant, then present in the courtroom, was the person whom he had observed committing the robbery.

Ralph G. Merrill, detective lieutenant with the St. Paul Police Department, testified that on April 28, 1959, at about 3 p.m., he had a conversation with the defendant at the county jail, during the course of which defendant admitted that he had 'stuck up the Nickel Joint.' All witnesses agreed that during the course of the robbery at least one shot had been fired by the robber. The bartender, Wegscheider, was hit by a bullet which apparently ricocheted from the floor. Merrill testified that defendant, when questioned on April 28, said in this regard: 'If the bartender got shot I can't understand it, because I pointed the gun at the floor when I shot it. * * * I fired it intentionally. I wanted to scare him.' Officer Merrill then asked defendant if he had robbed the same place on January 14, and, according to Officer Merrill, defendant replied: 'Yes, I did.'

At a later point in the trial, Maurice O'Connor, a co-owner of the Nickel Joint Tavern, testified that the bar had been held up on January 14, 1959, by a robber who entered through the back entrance; wore a white mask; and was equipped with a blue steel revolver. It is undisputed that the robbery of April 27, 1959, was committed by a person who entered the bar in the same way and was similarly masked and armed.

Defendant testified in his own behalf and denied that he had committed the robbery or made the admissions recited by Officer Merrill. He claimed by way of alibi that at the time the robbery occurred he was in the company of Lois Hale and Lois Frankfurth at the former's apartment located some distance from the site of the robbery. Both women appeared as witnesses in behalf of defendant and corroborated his claim that he was with them. During the course of the cross-examination of Lois Hale, the prosecuting attorney asked her: 'Lois, on April 3rd didn't you testify in this court room as an alibi witness for a man by the name of Donald Meyers?' The objection of defendant's attorney to this question was overruled and the witness replied in the affirmative.

Defendant contends that a motion to sequester the witnesses was made at the inception of the trial and denied by the trial court. The synopsis of the proceedings made available to us does not disclose whether such a motion was made, but for the purposes of this review we will assume the fact to be as defendant claims.

1. The testimony linking defendant with the January 14 robbery corroborates the testimony identifying him as the guilty party on April 27, because the pattern of operation in the two cases was strikingly similar. This is sufficient grounds to admit it.

Evidence connecting defendant to other crimes is, as a rule, not admissible, principally because it tends to justify, to the jury, a finding of guilt irrespective of the present charge. State v. Gress, 250 Minn. 337, 84 N.W.2d 616. But it is generally understood that there are exceptions. State v. Wofford, 262 Minn. 112, 114 N.W.2d 267; Note, 37 Minn.L.Rev. 608. It is settled law in this state that evidence of a separate crime may be admitted if it has 'a reasonably close relation in scheme and pattern and in time to the act charged * * *. The determination * * * is in the first instance * * * largely within the discretion of the trial court.' State v. DePauw, 246 Minn. 91, 95, 74 N.W.2d 297, 300. The reason for the exception is that such facts are of particular relevance. If they tend to show defendant was involved in a plan or scheme, his guilt of a crime according to that scheme may well be inferred. State v. Bock, 229 Minn. 449, 39 N.W.2d 887; Annotation, 42 A.L.R.2d 869, 880. A leading...