State v. Johnson, 45311

Citation239 N.W.2d 239,307 Minn. 501
Decision Date13 February 1976
Docket NumberNo. 45311,45311
PartiesSTATE of Minnesota, Respondent, v. Warren Earl JOHNSON, Appellant.
CourtSupreme Court of Minnesota (US)

C. Paul Jones, Public Defender, Mark W. Peterson, Asst. Public Defender, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Gary W. Flakne, County Atty., Vernon E. Bergstrom, David W. Larson and Michael McGlennen, asst. County Attys., Minneapolis, for respondent.

Heard before SHERAN, C.J., and ROGOSHESKE, YETKA, and AMDAHL, JJ., and considered and decided by the court en banc.

PER CURIAM.

This is an appeal from a judgment of the Hennepin County District Court convicting defendant of murder in the second degree and aggravated robbery. We affirm.

Defendant was indicted November 27, 1973, along with two other men, Everett Banham and Edo Walker, for the October 13, 1973, murder Of Woodrow Kipp, a driver for the Yellow Cab Company of Minneapolis.

Codefendant Banham testified that he happened to run into defendant on the evening of the Kipp Illing at a bar in downtown Minneapolis, where the defendant invited him to attend a party at 3715 Second Avenue South. Upon arriving at the party, both he and defendant went inside. Banham came outside after a short time, and stood outside talking to peopel until defendant joined him approximately one hour later, with Edo Walker joining them a short time thereafter. After they had stood around talking for awhile, defendant suggested that they 'rip off' a cab driver.

Approximately 5 minutes after defendant made the suggestion, a yellow cab drove up, and parked in front of 3721 Second Avenue South. The driver got out and went to the door of 3721 Second Avenue South. Mrs. Ruby Tucker, the occupant, was awakened by the sound of her doorbell. She observed a man standing at her front door and a cab parked in front of her house. The man was 'evidently a driver.' She went to get a housecoat in order to open the door and inform the driver that no cab had been called. Before she could return, the driver returned to his cab.

Banham, Walker, and defendant met Kipp, the driver, on the sidewalk as he returned to his cab. Someone asked him for his money at this time, but he kept walking around his cab to the driver's side. The three continued to follow him, defendant in the lead, and before the driver reached the door, defendant grabbed him and started wrestling with him. Kipp managed to push defendant away, who then reached inside his jacket and took something out and hit the driver in the face with it. Defendant then pushed Kipp away and pointed whatever was in his hand at Kipp, whereupon Banham said, 'Don't shoot. Leave him alone,' assuming that defendant had a gun in his hand. Banham then started walking away, hearing a shot fired about 5 seconds later but not looking back. He had not seen defendant with a gun that evening, and as there were between five and ten people standing on the street, Banham testified it was possible someone else fired the shot.

Banham met defendant at the latter's car. They drove past the scene of the shooting, and then proceeded to defendant's mother's house, where Banham and defendant changed clothes. Banham was then taken home.

Jackie Ellis, who had also been present at the party at 3715 Second Avenue South, testified that she had been outside talking with defendant, Walker, and Banham. She testified that defendant discussed the arrival of the cab, stated that he needed some money, and was not dissuaded by Ms. Ellis' suggestion that it would not be worth the trouble to bother the driver. She then saw the three run down to the cab driver, saw defendant struggle with him, and then heard some shots go off. She then heard someone say, 'You damn fool, you didn't have to shoot him,' and then saw the three run from the scene. She testified the flash accompanying the firing of the gun came from where defendant was standing, although she never saw him with a gun at any time during the evening.

On November 17, 1973, Minneapolis officers Stanley Capistrant and Neil Brodin stopped a car in North Minneapolis for traffic violations. As a result defendant and another passenger, Bernadine Anderson, were arrested. A search of Ms. Anderson's purse revealed a .32 caliber Walther PPK, a semi-automatic pistol, later identified as the murder weapon. She testified that defendant had given her the gun at the time the car was stopped, but was unable to identify it at trial.

Officer Capistrant seized the gun. However, he did not mention it in any arrest report. He made a property inventory, but destroyed it. Instead of handling the gun properly, he intended to keep it and locked it in his locker.

The gun's existence did not come to the prosecutor's attention until January 30, 1974, the date of the Rasmussen hearing. Capistrant was questioned about the gun, but continually asserted he had property inventoried it. Captain Robert Finn of the North Side Precinct was informed of the gun's existence and that it was missing and was perhaps at his precinct. He called Sergeant Roibert Roach, informed him of the problem, and asked him to try and locate it. The Sergeant checked the property room, read the arrest reports, and asked Officer Brodin about the details of the incident. Brodin confirmed the presence of a weapon during the incident and Capistrant's handling of it. Sergeant Roach proured a duplicate key for Capistrant's locker, opened the locker, removed the weapon, and gave it to Captain Finn. Finn locked it in his desk drawer.

The next day, after deciding to turn the weapon in to Captain Finn, Capistrant went to the North Side Station. He entered the Captain's office and informed him he had the weapon. The Captain said, 'No, you don't. I have it in my drawer.' Whereupon, the Captain returned the weapon to Capistrant. Capistrant immediately went down to the courthouse, saw Deputy Chief William Quinn, and property inventoried the weapon.

Defendant admitted that when he was arrested on November 17, 1973, he had a gun in his possession, which he had purchased at a crap game on October 20, approximately a week after the incident involved and a day before his birthday. He testified that although the weapon introduced into evidence was similar to the one he had purchased, there were significant differences and he did not believe that it was the same one.

Defendant testified that as he walked out of the party at approximately 2:30 a.m., one taxicab was just pulling away and another was pulling up, further down the street. As he was walking toward his car, some people whom he did not know ran past him, just as the cab driver was coming to the curb. Three men then approached the driver, grabbing him and asking for his money. The driver got loose and ran to the door of the cab, and defendant then heard a shot, causing him to run for his car. Banham, with whom he had come to the party, met him at his car, and the two drove past the scene of the shooting, seeing the cab driver lying on the ground. He denied having anything to do with either the shooting or the robbery.

The issues raised on appeal by defendant are:

(1) Did the trial court abuse its discretion in determining that a sufficient 'chain of custody' had been established in order to admit the murder weapon into evidence?

(2) Was the defendant denied a fair trial by publicity during the course of the trial reporting that threats had allegedly been made against prosecution witnesses, which one juror admitted reading but the balance of the jurors denied reading?

(3) Was alleged prosecutorial misconduct prejudicial to the verdict?

1. The defendant contests only that part of the 'chain of custody' when the murder weapon was in the possession of Officer Capistrant. That link, he urges, is insufficient for two reasons: (1) Officer Capistrant failed to follow proper inventory procedures and (2) he repeatedly lied to his superiors and the prosecuting attorney about his possession of the weapon.

The 'chain of custody' rule, requiring the prosecution to account for the whereabouts of physical evidence connected with a crime from the time of its seizure to its offer at trial, serves the dual purpose of demonstrating that (1) the evidence offered is the same as that seized, and (2) it is in substantially the same condition. It insures that the items seized have not been exchanged for others more incriminating, and that they have not been contaminated or altered. State v. Winston, 300 Minn. 314, 219 N.W.2d 617 (1974); State v. Lunsford, 204 N.W.2d 613 (Iowa, 1973); State v. Simmons, 57 Wis.2d 285, 203 N.W.2d 887 (1973). 1

There can be no rigid formulation of what showing is necessary in order for a particular item of evidence to be admissible. Rather, admissibility must be left to the sound discretion of the trial judge. State v. Winston, supra; United States v. Brown, 482 F.2d 1226 (8th Cir. 1973); Gallego v. United States, 276 F.2d 914 (9th Cir. 1960); State v. Lunsford, supra; State v. Simmons, supra. He must be satisfied that, in all reasonable probability, the item offered is the same as the item seized and is substantially unchanged in condition. United States v. Brown, supra; State v. Lunsford, supra; State v. Simmons, supra; People v. Beamon, 50 Mich.App. 395, 213 N.W.2d 314 (1973).

Admissibility should not depend on the prosecution negativing all possibility of tampering or substitution, but rather only that it is reasonably probable that tampering or substitution did not occur. Contrary speculation may well affect the weight of the evidence accorded it by the factfinder but does not affect its admissibility. Gallego v. United States, supra; State v. Lunsford, supra; People v. King, 58 Mich.App. 390, 228 N.W.2d 391 (1975).

The issue raised here does not concern the condition of the offered evidence but only whether the .32 caliber semi-automatic offered and admitted at trial was the same weapon seized by Officer Capistrant from the...

To continue reading

Request your trial
54 cases
  • State v. Hill, A13–1803.
    • United States
    • Supreme Court of Minnesota (US)
    • December 9, 2015
    ...controlled substances that were not subjected to testing at the Crime Lab under a chain-of-custody standard. See State v. Johnson, 307 Minn. 501, 505, 239 N.W.2d 239, 242 (1976) (noting that admissibility of evidence requiring chain-of-custody authentication is not contingent upon negating ......
  • State v. Bailey, No. C4-02-835.
    • United States
    • Supreme Court of Minnesota (US)
    • March 18, 2004
    ...well affect the weight of the evidence accorded it by the factfinder but does not affect its admissibility. State v. Johnson, 307 Minn. 501, 504-05, 239 N.W.2d 239, 242 (Minn.1976) (emphasis added) (internal citations omitted); see also State v. Hager, 325 N.W.2d 43, 44 (Minn.1982) (reaffir......
  • State v. Skjonsby, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • May 20, 1982
    ...Lange, 255 N.W.2d 59 (N.D.1977); Gleson v. Thompson, 154 N.W.2d 780 (N.D.1967). In State v. Lange, supra at 66, we cited State v. Johnson, 239 N.W.2d 239 (Minn.1976), for a description of the chain of custody rule as "There can be no rigid formulation of what showing is necessary in order f......
  • State v. Hallmark, A18-0825
    • United States
    • Supreme Court of Minnesota (US)
    • May 15, 2019
    ...‘left to the sound discretion of the trial judge.’ " State v. Hager , 325 N.W.2d 43, 44 (Minn. 1982) (quoting State v. Johnson , 307 Minn. 501, 239 N.W.2d 239, 242 (1976) ). There is no "rigid formulation of what showing is necessary in order for a particular item of evidence to be admissib......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT