State v. Grunau

• Decision Date: 18 March 1966
• Docket Number: No. 39573,39573
• Citation: 141 N.W.2d 815,273 Minn. 315
• Parties: STATE of Minnesota, Respondent, v. Richard John GRUNAU, Appellant.
• Court: Minnesota Supreme Court

Page 815

141 N.W.2d 815

273 Minn. 315

STATE of Minnesota, Respondent, v. Richard John GRUNAU, Appellant.

No. 39573.

Supreme Court of Minnesota.

March 18, 1966.

Rehearing Denied April 19, 1966.

Syllabus by the Court

1. Where a search of an automobile and seizure of articles found in it are lawful as to the person in possession of the automobile, the search and seizure does not become unlawful as to another individual, not present or in possession of the automobile at the time of the search and seizure but later charged with commission of a crime, even though the articles seized are used against him since under the circumstances of this case there is no invasion of his privacy.

2. Where there is no connection shown between articles seized in the search of an automobile and the commission of a crime charged against one not in possession of the automobile, such evidence ought to be excluded on the grounds of relevancy. Before such evidence is admitted, a foundation should be laid showing the connection between the evidence offered and the commission of the crime.

3. The so-called Jencks rule, adopted in State v. Thompson, 272 Minn. ---, 139 N.W.2d 490, will be applied to cases coming here on appeal, where the judgment has not become final and the record has been protected, if failure to do so will result in substantial prejudice to the defendant. It will not be applied retrospectively to cases where the judgment has become final, or where the case has been tried without a demand for production of statements that come within the rule.

4. In determining what statements come within the rule the following guidelines may be used:

a. Written statements made by a witness and signed or otherwise approved or adopted by him are producible.

b. Reports made by an officer, who is called as a witness by the prosecution, to another officer or the department for which he works are producible.

c. A recording, whether prepared by stenographic, mechanical, electrical, or other method, or a transcription thereof, shown to be a substantially verbatim recital of an oral statement made by the witness to an investigator and recorded contemporaneously therewith or shortly thereafter is producible.

d. Notes or memoranda of the witness not shown to be a substantially verbatim recording of an oral statement of the witness or not approved or adopted by him, and notes or memoranda which contain impressions and observations of the officer, are ordinarily not producible.

5. Where doubt exists as to the producibility of a statement, an in camera hearing should be held to determine the question and a record made of the hearing.

6. The trial court correctly quashed a subpoena duces tecum requiring production of all the police records pertaining to the investigation of the crime.

7. Where a witness uses memoranda or notes on the stand to refresh his recollection, defendant may demand to see such notes and memoranda. Where a witness refreshes his memory from notes or memoranda before taking the stand, and relies on such refreshment to testify, defendant may demand to see such notes and memoranda as are relied upon by the witness.

8. Minn.St. 595.02(5) has no application to the facts of this case.

9. We do not pass upon adoption of pretrial discovery by extension of the rules discussed in this case.

Rudy K. Steury, Minneapolis, for appellant.

Robert W. Mattson, Atty. Gen., William B. Randall, County Atty., Bertrand Poritsky, Asst. County Atty., St. Paul, for respondent.

KNUTSON, Chief Justice.

Defendant was convicted by a jury of the crime of assault in the second degree. He appeals from an order of the district court denying a new trial or judgment notwithstanding the verdict, and from the judgment of conviction.

During the early morning of August 31, 1963, one of the state's witnesses, James Wilson, upon returning to his home, noticed a man sitting in a parked car nearby. He went into his house, and later came out to meet a friend. He then noticed a second man get out of the car and walk between some houses and proceed to climb over a fence surrounding the Kline Oldsmobile establishment. He testified that this man was carrying an L-shaped bar and had a gun stuck in his belt. Wilson went to a nearby restaurant and called the police. He gave the police the license number of the car--5G 7171. He returned to his home and, about 15 minutes after making the first call, he called the police again and informed them that the car had moved from the front of his house to the corner of Pascal and Sherburne, about half a block away.

After the second call, two police cars arrived at the scene and Wilson told them that the automobile had just left, traveling south on Pascal, with the trunk partially open. Officers Drassal and Doran, who were in one car, proceeded to look for this automobile. The other car was occupied by Detectives Freischel and Opheim.

Drassal and Doran came upon the car near Snelling and University Avenues, and stopped it after it had turned the corner onto Sherburne Avenue. As had been described by Wilson, the car bore license number 5G 7171, and its trunk was partially open. The driver of the car was identified as Donald Moe, who was questioned and then placed in the squad car. The officers observed cartons of cookies and candies, various tools, a carton containing a billfold, a locking mechanism similar to those used on safes, and a box containing some live ammunition in the trunk. Moe told the officers he had borrowed the car from defendant, Richard John Grunau; that he had left Grunau at the State Fairgrounds earlier in the evening and was on his way to pick him up. Apparently Moe did not realize that the trunk of the car was open.

Detectives Freischel and Opheim learned by radio of the apprehension of Moe and arrived on the scene. They observed miscellaneous items in the partially open trunk and then closed it without making a thorough search. They ordered that the car be towed to the public safety garage. They then returned to the Kline establishment. Freischel began to investigate the premises. He observed that a small service door was ajar. When he stepped through this door he saw a man in the center of the service department and ordered him to stop. Instead of doing so, the man ducked behind an automobile. Freischel fired three shots at him as the man went toward the east end of the building. When the man reached a service door at the end of the building, he fired rapidly four times at Freischel. He then ran out of the Kline establishment and north on Pascal. Freischel went to his police car and radioed for assistance.

Officers Doran and Drassal responded to Freischel's radio communication. As they drove through an alley between Asbury and Simpson they observed a man run across the alley approximately 15 to 20 feet in front of them, running north on Simpson, and disappear between some buildings. Officer Doran, the driver of the car, yelled out of the window for the man to stop, and fired two shots at him. He testified he saw a three-quarter profile of the man's face for a second, and identified defendant, Richard John Grunau, at the trial as the man he had seen run in front of the squad car. He described the man as wearing a blue long-sleeved shirt and light tan trousers. Officer Drassal, who was a passenger in the front seat of the same automobile, could not identify the man who ran in front of the car.

Freischel stated that the man he had encountered in the Kline establishment, with whom he had exchanged shots, was 5 feet, 8 or 9 inches in height and stocky, with brown hair in a crew cut. The man who ran in front of the car occupied by Officers Drassal and Doran was not apprehended at that time.

Upon reentering Kline's, Freischel found an automobile facing a large door used as entrance and exit. In the car there were a television set and a number of radios and other articles that had apparently been placed there with the object in mind of removing the car and these articles upon completion of a burglary. The combination locks of two safes had been knocked off. No fingerprints were found on the safes, the tools used to knock off the locks, the automobile, or the items found in it.

Moe was taken to the police station and later the same morning Officers Drassal and Doran and Detective Freischel went to the public safety garage, broke open the trunk of the automobile without a search warrant, and removed from the trunk a box of live ammunition; a billfold found in a box; a locking mechanism; various tools, including a crowbar, several hammers, a wire cutter, chisel, center punch, cold chisel, and screwdriver; and some gloves. All of these items were received in evidence over the objection of the defendant that they were irrelevant and immaterial. Defendant also moved to suppress these items on the ground that they were obtained through an illegal search and seizure. This motion was denied by the trial court.

Prior to the trial, James Wilson had identified the defendant from some 'mug shots' as a likeness of the person he had seen climbing the fence. He also picked defendant out of a lineup consisting of four persons, one of whom he knew and the other two of whom were not the same size as the defendant.

During the trial Wilson testified that he had refreshed his recollection concerning the events surrounding the night of the offense. He stated that he had given an oral statement to the police, and that he had had an opportunity to talk to the county attorney, at which time he reviewed that statement. Defendant's counsel then moved for an order of the court compelling the state to turn over to him any statement given by Wilson relevant to the facts of this case. The court denied defendant's motion. Officer Doran testified that he had made a written report concerning the circumstances surrounding his investigation, and that he had reviewed this report before testifying in a prior prosecution agains...