State v. Mastrian

• Citation: 171 N.W.2d 695,285 Minn. 51
• Decision Date: 17 October 1969
• Docket Number: 39752,Nos. 39499,s. 39499
• Parties: STATE of Minnesota, Respondent, v. Norman J. MASTRIAN, Appellant.
• Court: Minnesota Supreme Court

Page 695

171 N.W.2d 695

285 Minn. 51

STATE of Minnesota, Respondent, v. Norman J. MASTRIAN, Appellant.

Nos. 39499, 39752.

Supreme Court of Minnesota.

Oct. 17, 1969.

Syllabus by the Court

1. When a felony has been in fact committed, any arrest without a warrant made pursuant to Minn.St. 629.34(3), if challenged, is presumptively invalid, and the burden is upon the state to justify it as one authorized by statute and not violative of constitutional rights.

2. When accusation is by indictment, no preliminary hearing, although demanded and scheduled, is required, and an intervening indictment charging murder in the first degree sought in compliance with § 628.32 renders the accused's request for such hearing moot and is not violative of due-process or equal-protection rights.

3. Deviation from statutory provisions for the selection of grand jurors and the secrecy of grand jury proceedings held not to prejudice defendant's substantial rights.

4. Indictment charging murder in the first degree supplemented by a bill of particulars held adequate to inform defendant of the acts charged constituting the offense and sufficient to enable him to prepare his defense.

5. Unlimited pretrial discovery in a criminal case is neither authorized by statute nor rule in this state, except that, after a prosecution witness has testified, the defendant has a right to examine any unprivileged pretrial statements of the witness for purposes of impeachment upon a showing that such statement, if written, was either signed or otherwise approved by the witness and, if oral, was recorded substantially verbatim when made.

6. Under § 631.26, a peremptory challenged to a juror must be taken before he is sworn or, upon a showing of good cause, by leave of court after he is sworn but not after all 12 jurors have been sworn.

7. Deviation from statutory provisions governing selection of the petit jury panel and erroneously permitting a peremptory challenge after a jury of 12 was sworn did not constitute prejudicial error.

8. Whether a jury should be sequestered during trial is discretionary with the trial court. Under the circumstances shown there was no abuse of discretion or prejudicial error in the court's refusal to order sequestration.

9. Defendant's judicial admission that the murder as described and charged in the indictment and bill of particulars was committed, together with the testimony of the accomplice-informer and other circumstantial evidence corroborating the testimony of the accomplice that defendant in fact 10. Where accomplice-informer repudiated his trial testimony while in prison and subsequently reaffirmed his testimony at a post-trial hearing to test credibility of the repudiation, at which the court found such repudiation false and merely impeaching, the court did not err in refusing to grant a new trial based upon newly discovered evidence.

hired him to commit the crime, was sufficient to sustain conviction of defendant for first-degree murder.

11. Mere allegations of perjured testimony claimed induced by improper prosecutorial promises and of evidence obtained by means of illegal electronic surveillance, unsupported by the record, provide no basis for a reversal upon a direct appeal although relief may be sought by postconviction proceeding.

John A. Cochrane, Douglas W. Thomson, John R. Wylde, Jr., and Jack S. Nordby, St. Paul, for appellant.

Douglas M. Head, Atty. Gen., Richard H. Kyle, Sol. Gen., Wm. B. Randall, County Atty., Thomas Quayle, Asst. County Atty., St. Paul, for respondent.

OPINION

ROGOSHESKE, Justice.

Defendant was convicted by a jury after trial in Duluth, St. Louis County, of murder in the first degree. The conviction resulted from the brutal murder of Carol Thompson in St. Paul, Ramsey County, on March 6, 1963, admittedly by one Dick W. C. Anderson, as previously described in complete detail in State v. Thompson, 273 Minn. 1, 139 N.W.2d 490, certiorari denied, 385 U.S. 817, 87 S.Ct. 39, 17 L.Ed.2d 56. In that case, the conviction of decedent's husband, T. Eugene Thompson, of first-degree murder resulting from the same homicide upon essentially similar evidence was reviewed and affirmed.

Defendant appeals from orders of the trial court denying his post-trial motions for judgment of acquittal or for a new trial, for arrest of judgment, and for a new trial upon the ground of newly discovered evidence, and also from the judgment of conviction.

In a most comprehensive, detailed, and penetrating brief submitted by defense counsel, defendant raises 21 legal issues challenging, singularly and collectively, what appears to be every arguable imperfection of the proceeding resulting in his conviction and sentence to life imprisonment, and from which it is vigorously urged that we must either reverse the judgment of conviction or at the very least grant a new trial. We are not persuaded that such relief is justified and accordingly affirm defendant's conviction.

In adherence to our obligations to vindicate any denial of substantial rights of persons accused of a crime punishable by loss of liberty and to prevent manifest injustice without regard to the gravity of the offense or the persuasiveness of the proof of guilt, we have painstakingly examined the entire record and carefully considered each and all of defendant's claims. The significant legal issues raised will be considered separately.

Validity of arrest

On April 19, 1963, at 3 a.m., about a month and a half after the murder, several St. Paul police officers, proceeding without an arrest warrant, went to defendant's home in Spring Lake Park, Anoka County, to arrest him. After identifying themselves and their purpose, and when defendant failed to come out, they broke in the door of his home and arrested him. Although a complaint was filed in the St. Paul municipal court following defendant's arrest, no attempt was made to procure an arrest warrant and no claim is made that defendant had escaped or was about to flee the jurisdiction of the arresting officers.

While we have no reason to doubt that the officers were acting honestly to take into custody one who they in good faith believed had participated in a brutal, premeditated murder, we are compelled to agree with defendant that his arrest was illegal and that the municipal court of St. Paul, upon defendant's special appearance challenging the legality of his arrest, erred in refusing to invalidate it.

Apart from the doubtful authority of the officers under Minn.St. 629.40 to make an arrest outside the boundaries of the city of St. Paul of one who had neither escaped from their custody nor was fleeing their jurisdiction, ¹ the invalidity of the arrest rests essentially upon the state's failure to establish that the arresting officers had probable cause to believe that defendant had committed a felony. This is a necessary statutory and constitutional prerequisite to a warrantless arrest. ² At the hearing on defendant's motion challenging personal jurisdiction, the defendant called the police officer who ordered the arrest to testify. In attempting to inquire into the factual basis for his conclusion that there was reasonable or probable cause to believe that defendant had participated in the murder, he received answers which were general and conclusory. The officer stated only that he had probable cause to believe defendant committed the offense and that this belief was based on police sources. The evidence was clearly insufficient under the cases to establish probable cause for the arrest. See, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.

Nevertheless, the municipal court ruled, and defense counsel then representing defendant conceded, that defendant had the burden of proving that there was no probable cause for the arrest, and that defendant failed to carry this burden. This was clearly erroneous. Any arrest made without a warrant, if challenged by the defendant, is presumptively invalid, and the burden is upon the state to justify it as one not only authorized by § 629.34 but also as one not violative of the guarantee of the Fourth Amendment to the United States Constitution against any invasion of privacy except upon a showing of probable cause. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. The defendant cannot be put to the proof of the negative that the police did not have a statutory ground to support the arrest and did not have knowledge of facts sufficient to support a judicial finding that probable cause for the arrest existed. In order to validate the arrest in this case, it was incumbent upon the state to present to the municipal court the factual information and sources thereof which led the police to conclude that there was probable cause to believe that defendant had participated in the murder when they arrested him. The quantum and quality of proof required was recently outlined in State v. Burch, Minn., 170 N.W.2d 543, filed August 15, 1969. Even though the state may have been able to supply such proof, a forcible nighttime intrusion into a dwelling house where no reason appears why an arrest warrant could not have been sought must be condemned as inconsistent with Fourth Amendment rights and fraught with grave danger of prejudicial error requiring retrials of otherwise valid convictions. As we cautioned in State v. Harris, 265 Minn. 260, 121 N.W.2d 327, and reemphasized in State v. Grunau, 273 Minn. 315, 144 N.W.2d 815, a felony arrest and search should not be made without a warrant unless there is a compelling necessity to do so.

The disposition of this issue, however, is controlled by State v. Burch, Supra, where, in addition to detailing the proper method of challenging an adverse jurisdictional finding by the trial court, we held that where the constitutional error in the arrest results in no prejudice to a determination of defendant's guilt...