State v. Hogan

• Decision Date: 02 November 1973
• Docket Number: No. 43032,43032
• Citation: 297 Minn. 430,212 N.W.2d 664
• Parties: STATE of Minnesota, Respondent, v. Gary HOGAN, Appellant.
• Court: Minnesota Supreme Court

Page 664

212 N.W.2d 664

297 Minn. 430

STATE of Minnesota, Respondent, v. Gary HOGAN, Appellant.

No. 43032.

Supreme Court of Minnesota.

Nov. 2, 1973.

Syllabus by the Court

1. The trial court did not err in this case in admitting evidence of another crime where there was clear and convincing evidence of defendant's complicity in that other crime, the other crime had some bearing on his guilt of the crime charged, and the jury was appropriately informed of the limited purpose for which the evidence was admitted.

2. No Spreigl notice was required in this case. State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), expressly excludes the requirement of prior notice as a prerequiste to admission of evidence of another crime where that other crime was a part of the immediate episode for which the defendant is being tried.

3. The trial court did not abuse its discretion in denying a change of venue where the record failed to show that pretrial publicity prevented a fair and impartial trial.

4. The juvenile court did not exceed its authority in waiving jurisdiction and referring defendant for adult prosecution under Minn.St. 260.125, subd. 2(d), where the nature of the offenses indicated that public safety would not be promoted by treating him as a juvenile.

5. Presence of juvenile's parents is not a constitutional prerequisite to the admissibility of statements made during waiver of Miranda rights and custodial interrogation.

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

Warren Spannaus, Atty. Gen., St. Paul, William B. Randall, County Atty., Steven

C. DeCoster and Robert Kittel, Asst. County Attys., St. Paul, for respondent.

Heard and considered en banc.

OPINION

KELLY, Justice.

This is an appeal by Gary Hogan, a juvenile, from a conviction in Ramsey County District Court of attempted first-degree murder and aggravated arson. We affirm.

About 5 p.m. on Saturday, August 22, 1970, a bomb exploded in a ladies' restroom in Dayton's department store at Sixth and Cedar in downtown St. Paul, Minnesota. A woman who was in the restroom at the time of the explosion was seriously injured by the blast. Immediately following the explosion, police searched about 100 lockers near the restroom and discovered a brown 18- by 12- by 10-inch satchel containing a second bomb device. It was found in a locker about 30 to 40 feet from the restroom. After the bomb had been disarmed, it was discovered that it had malfunctioned with 25 minutes remaining on the timing device. The unexploded bomb found in the satchel was composed of 10 sticks of dynamite while the damage to the restroom could have been caused by a single stick of dynamite.

Prior to the explosion, at approximately 4:45 p.m., Mrs. Catherine Wiley and her four daughters were seated in a car outside the entrance to Dayton's near the site of the explosion. She observed a black youth dressed as a woman, wearing a long dark wig, white pants, a beige jacket, and white tennis shoes, enter Dayton's. He was carrying a bag she described as a white, tan, and blue striped plastic bag about 15 to 18 inches deep and 12 inches wide. She stated that this bag was not large enough to hold the satchel which contained the unexploded bomb. A friend of defendant, Phillip Wright, in a statement made to the police, stated defendant had told him on the evening of the bombing that he had dressed like a teenage girl and planted a 3-stick dynamite bomb in Dayton's ladies' restroom. Defendant also had told him that he was unaware of the second bomb discovered in the locker.

Ten days later, on September 1, 1970, about 7 a.m., another bomb exploded in the area of the Second Street viaduct in St. Paul. Two public works employees who were in a truck at Kellogg Boulevard and Wabasha Street heard the explosion and observed smoke from the area. After driving to the site, they observed defendant climb through the railing along the edge of the viaduct. He was full of dust, injured on his head and legs, and was screaming, 'I have been bombed.' He told the workers,' 'I have been hurt, I have been hit by shrapnel--take me to the hospital.' He also said he had come to the viaduct to meet his girl friend, Barbara, and asked one of the workers to look for her while the other worker took defendant to St. Paul Ramsey Hospital. No trace of the girl was found.

Shortly thereafter, about 7:15 a.m., two police officers talked to defendant in the emergency room at the hospital. Defendant stated he was 'blown up' while walking along the street after coming downtown by bus to meet his girl friend. About 8 or 8:30 a.m., two detectives of the police juvenile division talked to defendant after first advising him of his rights. He responded that they did not have to give him his rights because he was a 'victim' and repeated his story. He then declined to proceed without a lawyer and the officers left. Another police officer, Officer Francis Whitney, also questioned defendant at about 8:35 a.m. After again being given a Miranda warning, defendant responded that he had already been advised of his rights and repeated his previous story. When defendant was taken from the emergency room, Officer Whitney advised him that he was under arrest. At this time, defendant, without being asked a specific question, volunteered this statement: 'I suppose you are going to say I brought the dynamite up here from Des Moines.' After speaking to his grandmother, he told Officer Whitney he did not wish to speak further and the officer left. Later that day, following surgery, defendant was questioned by the anesthetist in order to determine if he had recovered from the anesthetic and he repeated substantially the same story about the explosion in which he was injured.

The following items were found in defendant's room in the house where defendant lived with his grandmother: (1) A brown cotton jacket and a pair of white corduory pants; (2) two books--Mini Manual of Urban Guerilla Warfare and Face the Reality America--and a pamphlet on preparing bombs; (3) a bottle containing lead from a number of .22-caliber bullets; and (4) a plastic can containing gunpowder. A long, black wig was found in another room used by a niece of the grandmother. The manual on urban guerilla warfare advocated the destruction of the armed forces and police, including killing them by use of explosives. One of the diagrams in the pamphlet on making bombs explained how to construct bombs similar to the two Dayton's bombs and the bomb exploded in the viaduct. F.B.I. laboratory personnel testified that the bombs were all of similar components and construction.

On September 11, 1970, the Ramsey County Juvenile Court waived its jurisdiction of defendant and referred him for prosecution as an adult. On September 16, he was indicted for attempted first-degree murder and aggravated arson. Defendant's motion to quash the indictment, based on a challenge to his reference for adult prosecution, was denied on October 2 and a motion for change of venue was denied on December 30. This court denied defendant a writ of mandamus to compel change of venue as well as a writ of prohibition to restrain his prosecution as an adult on December 31, 1970. The United States Supreme Court, 400 U.S. 985, 91 S.Ct. 448, 27 L.Ed.2d 434, similarly denied a writ of mandamus to change venue on January 8, 1971. Defendant was found guilty of both charged offenses on March 1, 1971, after 6 days of deliberation by the jury.

1. The first issue raised is whether prejudicial error was committed by allowing evidence of the unexploded bomb to be introduced without a Spreigl notice. While defendant's argument mainly is concerned with the lack of a Spreigl notice, other related questions are raised, i.e., (1) the sufficiency of evidence to establish complicity by defendant in the planting of the unexploded bomb; (2) whether complicity in planting the unexploded bomb has any bearing on defendant's guilt of the crime charged; and (3) whether the jury was appropriately informed of the limited purpose for which evidence of such complicity was admitted.

We dispose of these last three items first. Rather obviously, complicity in planting the unexploded bomb would bear upon the guilt of defendant. He was charged with attempted murder in the first degree and aggravated arson--both are crimes in which intent must be proved. Certainly then, any evidence tending to show defendant's knowledge about explosives and his state of mind should be admissible. Connecting him with the unexploded Dayton bomb would show his state of mind. Obviously, if he participated in the planting of that bomb, which was many times more powerful than the bomb that exploded and which had been set to explode shortly after the first bomb, when police could be expected to be present, then he had a state of mind from which an intent to attempt murder might readily be inferred. Furthermore, proof of his complicity in the planting of the unexploded bomb would preclude any reasonable argument that the exploded bomb was planted to scare but not to kill on the theory that defendant didn't realize just how much of an explosion the smaller bomb might create.

The evidence from which the court and jury might find that the defendant participated in the planting of the unexploded bomb and that such participation was a part of a scheme or plan as well as a part of the immediate episode of the crime charged is inextricably bound together. There was adequate evidence from which the jury and the trial court might find that defendant had planted the unexploded bomb. As we pointed out in State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967), evidence of a defendant's participation in other crimes need not be proved beyond a reasonable doubt but must be clear and convincing. The placing of the two bombs about 35 feet apart in Dayton's; the time set for the explosion of the bigger bomb; the similarity of the component parts and...