State v. Kindem
| Decision Date | 24 October 1983 |
| Docket Number | No. C4-81-562.,C4-81-562. |
| Citation | 338 NW 2d 9 |
| Parties | STATE of Minnesota, Respondent, v. Harlan K. KINDEM, Appellant. |
| Court | Minnesota Supreme Court |
Harlan K. Kindem, pro se.
C. Paul Jones, State Public Defender, Susan K. Maki, Asst. Public Defender, Minneapolis, amici curiae, for appellant.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Rick Osborne, Michael Richardson, Asst. County Attys., and Beverly J. Wolfe, Staff Atty., Minneapolis, for respondent.
Considered and decided by the court en banc without oral argument.
Defendant was charged by the grand jury in Hennepin County with second-degree intentional murder, Minn.Stat. § 609.19 (1980), for killing 63-year-old Clifford Hoffman of Richfield by hitting him on the head a number of times with a baseball bat in the course of robbing him outside his home early on June 17, 1980. A district court jury found defendant guilty of the lesser-included offense of third-degree murder under the felony-murder doctrine, Minn.Stat. § 609.195(2) (1980).1 The presumptive sentence for the offense of third-degree murder (which is a severity level IX offense) when committed by a person with defendant's criminal history score (three) is 149 (143-155) months in prison. The trial court departed from the presumptive sentence and sentenced defendant to 300 months in prison, which is the maximum permitted by statute for third-degree murder.
The state public defender prepared an appeal brief for defendant but defendant rejected that brief and obtained permission from this court to file his own brief. This court allowed the state public defender to file its brief as an amicus brief. Although defendant's pro se brief was untimely, the state does not seek dismissal on this ground. Issues raised by the defendant's brief and the state public defender's brief include: (1) the sufficiency of the evidence, (2) the legality of a search that resulted in the discovery of certain incriminating evidence, (3) alleged misconduct by the state in using what defendant argues was perjured testimony and in failing to locate and call certain witnesses, (4) the propriety of the trial court's denial of a mid-trial defense motion for a continuance to locate certain witnesses, (5) the propriety of certain evidentiary rulings by the trial court, (6) the adequacy and fairness of the trial court's instructions, (7) the prejudicial effect of the trial court's responding to questions by the jury during its deliberations without notifying defendant and the attorneys, (8) the effectiveness of representation of defendant by his trial counsel, and (9) the propriety of the sentencing departure. We affirm.
The victim, Mr. Hoffman, owned three service stations. The closings of the stations were staggered so as to allow Hoffman to pick up the receipts at each as it closed. Because he feared a robbery, Hoffman carried a handgun, for which he had a permit, and he took a circuitous route home, varying it each night. He had a safe in his basement, where he kept the money. Each morning the bookkeeper would come to the house and prepare the receipts for deposit in the bank.
On Monday, June 16, 1980, Hoffman picked up the receipts as he usually did and drove home, arriving there about 1:15 a.m. on the 17th. The next door neighbor was awakened by a sound which she described as the sound of wood falling. She sent her son outside to investigate. He found Hoffman unconscious.
Police and paramedics were called to the scene. Hoffman was taken to a nearby hospital where he underwent brain surgery. He died on June 20th. The pathologist testified that the cause of death was "a traumatic hit injury with the associated skull fracture, hemorrhage and brain injury." He testified further that his findings were consistent with Hoffman having been struck on the head four times with a softball or baseball bat.
Police found a softball bat and a ski mask near the place of the attack. Hoffman's gun was missing as were the bags of receipts he had been carrying. Hoffman's bookkeeper estimated that the robber(s) got receipts totaling nearly $6,000, of which approximately one-fourth to one-third were checks.
Michelle Webb, an acquaintance of defendant, provided police with the first big break, giving them information which incriminated defendant and others. On the basis of this information, police on June 30 obtained and executed a warrant to search defendant's grandmother's residence where defendant had been staying. This led to the discovery of a piece of paper in defendant's handwriting giving the name and telephone number of two of the victim's service stations. Subsequently, on July 3, the police put out a nationwide teletype seeking the arrest of defendant and his brother.
Defendant and his brother, having left the state the day after Hoffman died, were arrested by an Oklahoma State Trooper on July 10. A search of the car resulted in the discovery of Hoffman's gun, which was loaded, and a number of other items. Defendant and his brother waived extradition and were returned to Minnesota. Subsequently, Kari Stevens, who had been charged in connection with the offense, agreed to assist the state by testifying against defendant and his brother, James, in return for a favorable plea agreement (aggravated robbery with a recommendation of probation by the prosecutor). On October 28, 1980, a grand jury indicted defendant and his brother for second-degree intentional murder.
Michelle Webb, a key witness at defendant's trial, testified about discussions she and others had with defendant as early as April of 1980 about his plan to rob Hoffman. She also testified concerning a meeting that she had with defendant and his brother at a resort near Alexandria on June 19, after the crime. She testified that defendant had some shop work done on his car and bought supplies for a trip that he and his brother were going to take. Defendant paid for the supplies with money from a "roll of bills."
The testimony of Kari Stevens was the most damaging. Her testimony concerned not only the planning but also the execution of the crime, including her role as driver of the get-away vehicle. She testified that on Monday night, June 16, after they saw Hoffman at the last of his three stations, she drove defendant and his brother to Hoffman's neighborhood, dropped them off and drove to a prearranged place where she parked the car and waited. She testified that they previously had hidden some baseball or softball bats in shrubbery near the house and intended to use the bats in committing the crime. She also testified that the men wore dark clothing and that defendant had a mask. She testified that while waiting she heard a man, presumably Hoffman, scream, "Oh, God, no" and then heard the sound of a bat hitting him three times. Moments later defendant and his brother jumped into the car and they took off. She testified that defendant, who was angry, said that he had hit Hoffman in the head twice and that his brother, James, had just stood there not doing anything. When she said that she knew Hoffman would die, defendant told her to shut up and that he would not die. When she asked why defendant had hit Hoffman in the head rather than in the legs as he had promised, defendant said that he got frustrated waiting for Hoffman to arrive.
Defendant, who was 28 at the time, testified in his own defense, claiming that he had planned to commit only a burglary and had told a number of people about the plan. He said that one or more of those people, including one Charles Tuck, must have committed the robbery and killed Hoffman. Defendant testified that after the crime he and his brother took some money and the gun from Tuck's knapsack. He claimed that he later began to suspect that he and his brother had been set up by Tuck and Kari Stevens. He testified that accordingly James and he left the state not to flee justice but to find and arrest Tuck and return him to Minnesota.
The jury acquitted defendant of the charged offense but found him guilty of the lesser offense of third-degree murder under the felony-murder doctrine. His brother, James, subsequently pleaded guilty to third-degree murder and was sentenced to 94 months in prison, which is at the low end of the presumptive sentence range (94-100) for the offense in question by a person with a zero criminal history score. In his testimony at the hearing on whether to accept his guilty plea, James implicated defendant in the murder. James' sentence was affirmed in State v. Kindem, 313 N.W.2d 6 (Minn.1981). As we indicated earlier, the presumptive sentence for defendant, based on a criminal history of three, was 149 (143-155) months in prison. The trial court sentenced defendant to 300 months in prison, the statutory maximum for the offense.
1. Defendant's first contention is that the evidence of his guilt was legally insufficient. This contention is meritless. The record is replete with evidence that defendant not only planned and committed the robbery but inflicted the blows that resulted in Hoffman's death.
2. Defendant's next contention is that the trial court prejudicially erred in refusing to suppress a letter found in the search of the apartment of one Kim Stevens on August 14, 1980.
The facts relating to this contention are as follows. On August 14 defendant was arrested on a federal warrant for being in possession of a handgun, namely Hoffman's gun. That arrest occurred at the apartment of Kim Stevens, where defendant was staying. While executing the warrant, agents saw marijuana in plain sight. Kim Stevens picked up her purse and asked to leave. The officers said that they were going to try to get a search warrant to search for evidence relating to the marijuana offense and said that she could not take the purse without letting them examine it because they did not want her removing evidence. She then...
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