State v. Olek

• Decision Date: 21 August 1970
• Docket Number: No. 41527,41527
• Citation: 179 N.W.2d 320,288 Minn. 235
• Parties: STATE of Minnesota, Respondent, v. Ronald Thomas OLEK, Appellant.
• Court: Minnesota Supreme Court

Page 320

179 N.W.2d 320

288 Minn. 235

STATE of Minnesota, Respondent, v. Ronald Thomas OLEK, Appellant.

No. 41527.

Supreme Court of Minnesota.

Aug. 21, 1970.

Syllabus by the Court

1. Where the court correctly stated in its instructions to the jury that defendant is presumed innocent, that he has no burden of proof, and that the state must prove him guilty, defendant was not prejudiced by a subsequent instruction in which the court, in exhorting the jury to reach a verdict based on the evidence presented, instructed: 'If he (defendant) is proved not guilty, say so,' and '* * * (S)ay whether you are satisfied beyond a reasonable doubt * * * of the guilt or innocence of the defendant.'

2. The state may comment in final argument on physical evidence which for technical reasons was stricken if there is properly admitted evidence referring to the stricken object.

3. Sequestration is a matter within the sound discretion of the trial court. Since there is no showing of prejudice to the defendant, the trial court did not abuse its discretion in allowing a deputy sheriff to testify a second time even though he was present in the courtroom between the two times he testified.

4. The evidence presented at the preliminary hearing was sufficient to justify a bind-over to the district court.

5--6. Defendant's arrest and the subsequent search and seizure were proper and valid under the decisions of this court.

7. Physical objects found near the place where defendant was arrested and which are connected with the crime or the investigation of the crime are admissible in evidence.

8. When a jury panel is exhausted and no other preselected jurors are available, having the sheriff select persons from the county is proper. Minn.St. 593.12.

9. Defendant failed to establish claimed misconduct of a juror where defendant merely alleged such misconduct and the juror and her husband denied it had occurred.

10. Where defendant chose to perfect his appeal to this court before the trial court ruled on his motion for a new trial and the trial court is holding in abeyance ruling on the motion until the appeal has been decided, defendant has not been denied due process of law.

11. The evidence sustains the conviction.

Whitney E. Tarutis, Bemidji, for appellant.

Douglas Head, Atty. Gen., James Kelley, Sp. Asst. Atty. Gen., St. Paul, James C. Harten, County Atty., Charles Johnson, 5th Dist. Prosecutor, Mankato, for respondent.

Heard before KNUTSON, C.J., and ROGOSHESKE, SHERAN, PETERSON, and FRANK T. GALLAGHER, JJ.

OPINION

FRANK T. GALLAGHER, Justice.

This is an appeal from a judgment of the district court adjudging defendant, Ronald Thomas Olek, guilty of burglary in violation of Minn.St. 609.58, subd. 2(1).

On March 5, 1967, George Lund, a member of the Vernon Center Village Council, was awakened at 3:05 a.m. by a noise from an electronic speaker in his home. The speaker was connected to an intercom system in the Vernon Center Municipal Liquor Store. When in operation, the system allowed Lund while at home to hear any noise in the store. Lund testified that he looked out his window and observed two men at the front of the store. They gained entry and Lund called Alvin Hohenstein, the deputy sheriff.

In response to Lund's call the deputy sheriff drove his car to the rear of the store, blocking the rear door. Lund then saw the two men flee the building and run across the street. Lowell Krause, chief of police at Amboy, Minnesota, arrived at the scene about 3:15 a.m. and he and Lund began to cruise the area in search of the two men.

On a back street in the middle of the block, Krause and Lund observed a parked car. They notified other police cars by radio, and when a Minnesota highway patrolman, L. J. Schemmel, arrived, Krause and the patrolman approached the car. They saw two men lying in the car and ordered them out. Defendant was the man in the front seat.

The highway patrolman then searched the car. He found a holster lying on the floor in front of the driver's seat; a pair of leather gloves and a flashlight under the rear seat; and a pair of overshoes, three bottles of Coca-Cola, a holster, and a loaded .38--caliber revolver in the glove compartment. The revolver was turned over to Lowell Krause and the other items were given to a deputy sheriff, James Larson. Deputy Sheriff Larson was able to follow a trail in the snow leading from the liquor store to the parked car. Along the way he found a sledge hammer on which paint was found similar to that on the safe in the store. He also found two chisels and two punches in a snow bank alongside the car. Later, on March 9, 1967, after the snow had melted, he found a pliers, two screwdrivers, and a loaded .38--caliber pistol about 40 feet from where the car had been found. Two pry bars were found, one in the store and one in a yard a block away. On investigation, it was found that both bars contained chips of paint indistinguishable from the paint on the doors of the store.

The prosecution established that no one had given defendant permission to enter these premises.

Upon the foregoing evidence the jury convicted defendant of burglary. He appeals.

1. The first issue defendant raises is whether the jury instructions were erroneous and constituted reversible error. Near the end of its instructions to the jury the trial court included the following:

'If the accused is proved guilty say so. If he is proved not guilty say so. Keep constantly in mind that it would be a violation of your sworn duty to base your verdict upon anything but the evidence in this case. Remember also that the question can never be: Will the State win or lose this case. The State loses a case when injustice is done regardless of whether the verdict is guilty or not guilty. You must disregard entirely any feeling or impression or opinion with reference to the question of defendant's guilt or innocence, if any you had, before the testimony was given. You must not allow yourself to be influenced by any information that may have come to you from sources outside the sworn testimony on the witness stand here in court or by any misstatement of fact such as may have been inadvertently made by either counsel or the Court. You must rely entirely in your determination of the case upon your recollection of the facts and the exhibits and then determine the case upon the evidence and the law as I have given it to you. Sympathy or prejudice must not enter into your deliberations. The evidence only is to be considered. You must not indulge in conjecture as to what might happen to the defendant in the future as that is the duty of the Court. Examine, consider and weigh the evidence with care. Subject it to the scrutiny of your judgment as persons of affairs, and act upon it only insofar as being just and true. It is your duty to exercise your common sense and intelligence in hearing the testimony and in determining the facts that the testimony establishes. Consider all of the testimony. Examine it in the light of reason; Examine it in the light of human experience, and then say whether you are satisfied beyond a reasonable doubt, as I have explained to you, of the guilt or innocence of the defendant. If you are so satisfied you will then bring in a verdict of guilty. If you are not so satisfied you will return a verdict of not guilty.' (Italics supplied.)

Defendant contends that the italicized portions of this instruction told the jury that defendant must prove his innocence and prove it beyond a reasonable doubt.

If there had been no other reference in the instructions to the burden of proof and presumption of innocence, the jury might have been confused by this paragraph. But, prior to this, the court had stated that the instructions were to be taken as a whole; that defendant's not-guilty plea places upon the state the burden of proving beyond a reasonable doubt every element necessary to constitute the offense; that the law presumes the defendant innocent until proven guilty; that this presumption places upon the state the burden of establishing guilt beyond a reasonable doubt; that defendant does not have to prove his innocence, but, rather, the state must prove his guilt. These instructions correctly stated and restated the law. Taking the instructions as a whole, we find them to be proper and that defendant was not prejudiced by the charge.

2. Defendant's second contention is that the court was in error in denying his motion for a mistrial on ground of improper argument by the state. Defendant bases his contention on the fact that although the court granted defendant's motion to strike from evidence the pistol found in the glove compartment, the state referred to the pistol twice in its final argument.

The gun was stricken because the chain of evidence was broken by the death of the police chief, Lowell Krause, and the state was unable to lay a foundation for its...