State v. Holmes

• Decision Date: 06 September 1968
• Docket Number: No. 40430,40430
• Citation: 281 Minn. 294,161 N.W.2d 650
• Parties: STATE of Minnesota, Respondent, v. Ronald John HOLMES, Appellant.
• Court: Minnesota Supreme Court

Page 650

161 N.W.2d 650

281 Minn. 294

STATE of Minnesota, Respondent, v. Ronald John HOLMES, Appellant.

No. 40430.

Supreme Court of Minnesota.

Sept. 6, 1968.

Syllabus by the Court

1. It is not an abuse of discretion to deny an untimely motion by defendant for a continuance to locate alibi witnesses.

2. It is not error to permit witnesses for the state to refresh their memories by reading a transcript of the testimony they gave at a prior trial.

3. No prejudicial error occurred to defendant as a result of a state's witness disclosing, by way of impeachment, only four of his five prior felony convictions.

4. Defendant's claim that one of his witnesses was searched for weapons in full view of the jury Held unsupported by the record.

5. A defendant in a criminal case whose conviction has been reversed on appeal or who, without an appeal, has been granted a new trial for errors occurring at his first trial may not, if again convicted, be subjected to a more onerous sentence than that which was imposed as a result of his first conviction for the same offense.

C. Paul Jones, Public Defender, John L. Tambornino, Minneapolis, for appellant.

Douglas M. Head, Atty. Gen., Gerard W. Snell, Asst. Atty. Gen., St. Paul, Robert W. Johnson, County Atty., G. D. Giancola, Asst. County Atty., Anoka, for respondent.

OPINION

OTIS, Justice.

This is an appeal from a conviction in 1966 for aggravated robbery, Minn.St. 609.245, for which defendant has been sentenced to a term not to exceed 20 years in prison, to run consecutively with a prior sentence in 1960 of not to exceed 10 years for the crime of receiving stolen property. In 1964 defendant was convicted of the same robbery and was sentenced to the same term except that the sentences were to run concurrently. The first robbery conviction was reversed and a new trial granted in State v. Holmes, 273 Minn. 223, 140 N.W.2d 610. The details of the offense are set forth in that opinion and need not be repeated here.

Five issues are raised by the appeal: (1) Whether the court abused its discretion in denying a continuance to permit defendant to locate two alibi witnesses; (2) whether it was error to permit witnesses for the state to refresh their memories by use of transcripts of the prior trial and to examine a photograph of the defendant for purposes of identification; (3) whether defendant was denied a fair trial because one of the state's witnesses acknowledged only four out of five prior felony convictions; (4) whether defendant was denied a fair trial because, as he alleges, one of his witnesses was searched for weapons in open court and in full view of the jury; and (5) whether it was error to impose a longer sentence after the second trial than that which was imposed at the first trial.

We have considered all of defendant's claims and find no merit in any of them except that which deals with the length of his sentence.

1. There was ample time to search for the missing witnesses, and notice of their unavailability was not timely. The testimony of one of them given at the prior trial was, in fact, read to the jury. The question of granting a continuance is one which is within the discretion of the trial court and we find no abuse of that discretion in these circumstances.

2. Nor was there any impropriety in permitting witnesses to refresh their memories by use of transcripts of the testimony they gave at a prior trial or to view defendant's photograph.

3. The number of felony convictions of the state's witness, even if established, was a discrepancy of such a trivial nature we do not deem it worthy of further discussion.

4. Defendant's trial attorney alleges by affidavit that one of defendant's witnesses was searched for weapons in the presence of the jury. Defendant asserts he was thereby prejudiced because the search implied that the witness was a 'hoodlum' and it tended to impeach his testimony. The suggestion his witness was armed had a tendency to corroborate the state's charge that this offense was committed with a deadly weapon, so defendant argues.

While it may well be that a search conducted in open court in the presence of the jury is prejudicial, no record of the incident was made by counsel at the trial, and all of the jurors as well as the court have, by affidavit, asserted that if the incident occurred it was not observed by any of them. The bailiffs in charge of the jury denied that the search took place. The court's version of the alleged impropriety is fully supported by these affidavits and we therefore find no merit in this assignment of error.

5. A more difficult question is presented by the imposition of a longer sentence for the second conviction than for the first after a new trial for the same offense. Defendant was convicted of a wholly unrelated offense of April 20, 1960, when he began serving a term not to exceed 10 years. The first robbery trial resulted in a sentence of up to 20 years imposed on March 6, 1964, which would have expired on November 2, 1977, with credit for 'good time,' since it ran Concurrently with the prior 10-year sentence. After the new trial, on April 22, 1966, sentence was again imposed to run Consecutively with the prior 10-year sentence but with credit for the period from March 6, 1964, when his first robbery term began to run, until April 22, 1966, when the second sentence was imposed. With 'good time' the present sentence is due to expire December 28, 1978. Hence, the new trial resulted in extending defendant's term 1 year, 1 month, and 26 days.

We are now faced squarely with the question of whether it is proper for the court to impose on a defendant who has secured a new trial a sentence more onerous than the one he initially received. We hold that as a matter of judicial policy such a sentence is improper.

Until recently, few courts have come to grips with this issue. The United States Supreme Court disposed of the same question somewhat summarily in Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103. There the defendant was convicted of murder and, on the recommendation of the jury, was given a life sentence. On appeal the conviction was reversed and he was retried. The second jury also convicted defendant but without a recommendation of leniency. He was thereupon sentenced to death. The Supreme Court brushed aside his claim of double jeopardy, observing only that the defendant himself had invoked the action which ultimately resulted in a more severe punishment. A number of other courts have seized on this approach to suggest that a defendant who has been wrongfully convicted must take the bitter with the sweet if he sees fit to invoke his right to a trial free from prejudicial error.

In Hobbs v. State, 231 Md. 533, 191 A.2d 238, the Maryland court approved Consecutive 20-year and 5-year sentences imposed on a defendant who was retried after a prior conviction which had resulted in three Concurrent 20-year sentences. The court answered defendant's contention that the second sentence was cruel and unusual punishment by stating (231 Md. 536, 191 A.2d 240): 'In asking for and receiving a new trial, appellant must accept the hazards as well as the benefits resulting therefrom.' Subsequently, the Maryland court backed away from the harshness of the Hobbs case by holding that the second sentence cannot result in confinement for a single offense which exceeds the statutory maximum where no credit is given for time served under the first sentence, saying in Reeves v. State, 3 Md.App. 195, 204, 238 A.2d 307, 313:

'* * * Thus, the limiting factor is clear--a sentence must be imposed within the statutory limit and to say that because, as here, the second sentence, Per se, did not exceed the maximum, is to take a myopic view of its results, which we cannot accept if fundamental fairness is to prevail.'

Georgia has resisted the claim that harsher punishment upon a retrial is in violation of the Fourteenth Amendment by holding in Salisbury v. Grimes, 223 Ga. 776, 778, 158 S.E.2d 412, 414:

'* * * When appellant was granted a new trial, it wiped the slate clean as if no previous conviction and sentence had existed. In electing to have his case retried, appellant must have contemplated the possibility of having the jury impose a harsher sentence if he were convicted again.'

Notwithstanding the fact that the United States District Court had held in Patton v. State (W.D.N.C.) 256 F.Supp. 225, ¹ that the North Carolina practice of imposing the same sentence on a second trial, without credit for the period of confinement under the first sentence, was a violation of the Fourteenth Amendment, the Supreme Court of North Carolina chose to ignore the decision of the Federal court and adhered to its former decisions permitting an increase in the penalty '(i)f a sentence is set aside on a defendant's application.' State v. Pearce, 268 N.C. 707, 708, 151 S.E.2d 571, 572. In a later case, State v. Paige, 272 N.C. 417, 158 S.E.2d 522, the court approved a second sentence which was longer than the first but gave defendant credit for the time he served under the first conviction. Again the court took notice of the decision of the United States Court of Appeals which reversed the Patton conviction but simply observed that the North Carolina attorney general had petitioned the United States Supreme Court for a writ of certiorari in that matter.

The United States Courts of Appeal have taken three different approaches, one being that expressed in the state decisions cited. The second approach is that the subsequent sentence may not be increased unless the court assigns valid reasons for so doing to obviate the suggestion defendant is being penalized for asserting his right to an appeal. The third approach, and the one which we adopt, precludes inquiry into the motives of the sentencing judge and holds as a matter of law that any increase in penalty upon a retrial inevitably discourages a convicted defendant from...