State v. Gilbert
| Citation | 262 N.W.2d 334 |
| Decision Date | 14 October 1977 |
| Docket Number | No. 46159,46159 |
| Parties | STATE of Minnesota, Respondent, v. James Raymond GILBERT, Appellant. |
| Court | Supreme Court of Minnesota (US) |
Syllabus by the Court
1. If Minn.St. 609.035 is inapplicable with respect to protection against double punishment, it is also inapplicable in respect to double prosecution.
2. In determining whether a defendant may be prosecuted and punished for multiple offenses, the court must ascertain whether the conduct underlying the multiple offenses was unitary or divisible and the test employed, when intent is an element of each offense, is whether the conduct involved was motivated by an effort on the part of defendant to obtain a single criminal objective, or whether the motivation was divisible into two or more criminal objectives.
3. Even though the conduct may be motivated by an effort to obtain a single criminal objective, a defendant may receive multiple punishment on conviction of offenses committed against multiple victims under Minn.St. 609.035.
4. Where defendant was convicted of the crime of indecent liberties in violation of Minn.St.1974, § 609.296, subd. 1(2), and has two prior felony convictions, the second conviction is not a proper basis for the invocation of the extended term provision of Minn.St. 609.155, for the conduct resulting in that conviction occurred after the instant conduct. While the state is not required to seek convictions of multiple offenses in the chronological order of their occurrence, that order will necessarily determine the applicability of Minn.St. 609.155.
5. Imposition of a minimum term of imprisonment of 3 years, pursuant to Minn.St.1974, § 609.11, subd. 1, where a defendant has not been convicted of a crime enumerated therein is reversible error.
6. Where the trial court upon Rasmussen hearing ruled that the state's taking from defendant a saliva and blood sample after Miranda warning was voluntary on the part of the defendant and the record reasonably supports such ruling, such finding by the trial court will not be reversed upon review unless clearly erroneous.
7. Where under the circumstances of this case the defendant takes the stand in his own defense and the state's cross-examination is interrupted to avoid delay and accommodate witnesses, it is not error for defendant to be recalled for additional cross-examination by the state.
8. It is not reversible error under the facts of this case where the prosecution through honest mistake inadvertently attempted to impeach or attack the credibility of defendant with the prior felony conviction of another person and the inquiry was immediately stopped and corrected by the court through a cautionary instruction to the jury and where no objection or motion to strike was made by defendant.
9. Where defendant consented and there was no evidence of coercive activity on the part of the court, the mere fact that the jury deliberated without food from 12:40 p. m. to 11:20 p. m. is not grounds for reversal on the claim of a coerced verdict.
Affirmed in part, reversed in part.
C. Paul Jones, Public Defender, Mollie G. Raskind, Asst. Public Defender, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., Richard G. Mark, Asst. Atty. Gen., Richard G. Evans, Gary Hansen, Sp. Asst. Attys. Gen., St. Paul, Helen Hill Blanz, County Atty., Grand Rapids, for respondent.
Heard before YETKA, SCOTT and STAHLER, JJ., and considered and decided by the court en banc.
*
Defendant was convicted in Itasca County District Court of indecent liberties in violation of Minn.St.1974, § 609.296, subd. 1(2), and consensual sodomy in violation of Minn.St.1974, § 609.293, subd. 5, 1 and he appeals. We affirm the convictions but remand for a new sentence.
A brief statement of facts which led up to the criminal charges against defendant-appellant is necessary for a clear understanding of the issues involved in this appeal.
The defendant, age 22, on August 14, 1974, having done some drinking of alcoholic beverages during the day and having finished work, proceeded to the Alibi Tavern in Grand Rapids and drank beer. Later in the evening he went to the Rendezvous Tavern in Grand Rapids, where he met the complainant, Debbie Keppler, and her girl friend, Pam Garro. The young girls and defendant had known each other for some time. The defendant purchased several drinks for himself and the two girls during the course of the evening. At approximately midnight, the defendant, the two girls, and an unidentified young man left the Rendezvous Tavern in defendant's automobile for the purpose of the unidentified young man picking up his motorcycle at Coleraine and rejoining the defendant and girls at Pengilly. After dropping the young man off at Coleraine, the defendant and two girls proceeded toward Pengilly, stopping some distance from Coleraine to wait for the young man. He did not arrive and defendant and the two girls, after drinking some beer in the vehicle, proceeded back to the Rendezvous Tavern, arriving at approximately 1:30 a. m. Not finding the young man there and learning that the Rendezvous and Mileage Taverns were closed, the defendant invited the two girls to view his new trailer home located on Split Hand Road. The girls consented upon defendant's promise to return them to Grand Rapids as soon as they had viewed the trailer home. They arrived at the trailer home at approximately 2:30 a. m. They entered the trailer home and for a short time engaged in a playful free-for-all wrestling. The two girls then went to the bathroom and upon their return to the living room the defendant suddenly grabbed the complainant and pulled her into a bedroom, closed the door, and proceeded to pull her hair and attempt to remove her clothes. When the complainant resisted, defendant threatened to blow her head off. According to complainant, the defendant by threat of force compelled her to perform oral sodomy and sexual intercourse. During this interlude, which occupied approximately 20 minutes, Pam Garro remained in the living room reading a magazine. When defendant had finished both he and complainant dressed and returned to the living room. Pam Garro, observing that the complainant appeared upset, inquired whether defendant had done something. The defendant then went into the bedroom and immediately returned carrying two hand guns. He proceeded to berate Pam Garro about her mother, pointing a hand gun at Pam Garro several times and threatening to kill her.
The complainant and Garro were, within a short time, able to calm the defendant to some extent, and he agreed to drive them back to Grand Rapids. Before leaving, defendant made several statements regarding killing other people and himself and fired three shots in the air. The defendant drove at high speed to the Rendezvous Tavern in Grand Rapids, where the two girls left his car at approximately 4 a. m., August 15. There the two girls met two male acquaintances and reported the events that had taken place at Split Hand; and approximately 20 minutes later reported their respective charges against the defendant to the sheriff. The defendant was arrested on August 15, 1974, and appeared before county court the following day, where the public defender was appointed to represent him. On September 19, 1974, after preliminary hearing, the defendant was bound over to district court by county court on the following complaints: Complaint No. 1 charging the defendant with Count 1, aggravated rape, and Count 2, aggravated sodomy, each against Debra Keppler; and complaint No. 2 charging the defendant with aggravated assault against Pam Garro. On September 30, defendant was arraigned on each complaint in district court and entered pleas of "not guilty" to each charge.
On November 26 and 27, 1974, the defendant was tried by jury on the charge of aggravated assault. He was found guilty and sentenced by the court to the commissioner of corrections for a period of not more than 5 years, to run concurrently with a prior sentence imposed on a conviction for the crime of unauthorized use of a motor vehicle.
On February 24, 1975, a Rasmussen hearing was held in respect to the aggravated rape and aggravated sodomy charge, after which hearing the court found no double jeopardy and that certain blood and saliva samples, taken from the defendant after arrest and after a Miranda warning, were admissible in evidence in the forthcoming trial. On February 24 and 25, 1975, a jury trial was held on the aggravated rape and aggravated sodomy charges, and the jury found the defendant guilty of the lesser included offenses, to-wit: indecent liberties and consensual sodomy. On March 3, 1975, the defendant was sentenced under his conviction for indecent liberties to the commissioner of corrections for a minimum of 3 years and a maximum of 8 years, to be served consecutively to prior sentences. No sentence was imposed for the defendant's conviction of the crime of consensual sodomy. The minimum term of 3 years was imposed pursuant to Minn.St.1974, § 609.11, and the maximum term of 8 years was imposed pursuant to Minn.St. 609.155 and 609.16 ().
1-2. The defendant's first contention is that his protection against double jeopardy provided in Minn.St. 609.035 was violated by his being prosecuted separately for the aggravated assault charge and the charges of aggravated rape and aggravated sodomy.
Minn.St. 609.035, which is broader than the Federal constitution's double jeopardy protection, provides:
The statute provides two types of protection, one against multiple...
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