State v. Rainer

• Decision Date: 21 August 1987
• Docket Number: No. C6-86-1232,C6-86-1232
• Citation: 411 N.W.2d 490
• Parties: STATE of Minnesota, Respondent, v. Joseph Leander RAINER, Appellant.
• Court: Minnesota Supreme Court

Page 490

411 N.W.2d 490

STATE of Minnesota, Respondent, v. Joseph Leander RAINER, Appellant.

No. C6-86-1232.

Supreme Court of Minnesota.

Aug. 21, 1987.

Syllabus by the Court

1. The presence of a state investigator during the defense expert's tests and the state's delay in disclosing the investigator's report did not violate the defendant's rights.

2. The evidence was sufficient to support findings of intent and premeditation.

3. The trial court properly admitted evidence of prior bad acts.

4. The trial court properly refused to grant a Schwartz hearing on alleged jury misconduct.

J. Christopher Cuneo, James M. Lockhart, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, John E. MacGibbon, Sherburne Co. Atty., Elk River, Kim Brandell, Thomas N. Price, Asst. Sherburne Co. Attys., Elk River, for respondent.

Heard, considered and decided by the court en banc.

WAHL, Justice.

Joseph Rainer was convicted of murder in the first degree in connection with the shooting death of Marla Forrest in violation of Minn.Stat. § 609.185(1) (1986) after a jury trial from April 22 to May 7, 1986, and was sentenced to life imprisonment. He appeals on four grounds: intrusion by a state investigator into the activities of the defense's expert witness; sufficiency of the evidence; the admission of Spreigl evidence; and the denial of a Schwartz hearing. We affirm the conviction.

Defendant and Marla Forrest had known each other since the summer of 1983 when Forrest began taking her car to defendant's gas station. The two spent time together and defendant wanted to get married, but Forrest was not prepared to make a commitment. Within the last two weeks before the shooting Forrest told friends that she planned to terminate the relationship.

On October 27, 1984, Forrest went to defendant's house so that he could replace the engine in her car. Her 9-year-old son Tobi went along. During the afternoon Forrest and defendant talked and drank beer, while Tobi amused himself. Forrest sounded normal and cheerful when her father telephoned and she told him that she would use defendant's car to get home. At one point during the afternoon Tobi heard an argument between Forrest and defendant.

At the end of the afternoon as Forrest was leaving, defendant walked her out to the car. According to the account of the incident defendant gave the police, he picked up a single shot 12-gauge shotgun that he had left lying in the breezeway, tucked it under his arm, and it accidentally fired, hitting Forrest in the back. He said that he had been shooting squirrels that morning and had left the gun in the breezeway and that he picked it up to get it out of the mist. Defendant's former wife, Maxine, testified that defendant made a habit of keeping his guns loaded. Tobi said that the gun was not in the breezeway but in the living room, leaning against the wall near the gun case. Defendant's tenant said that he did not remember seeing a gun in the breezeway when he walked through the breezeway in the early afternoon.

Medical evidence indicated that Forrest was shot in the back from one to two feet away at a downward angle of between 10 and 20 degrees. The wound was 44 1/2 inches from Forrest's bare feet, and her boots added another 1 3/4 to 2 inches. Defendant measured between 47 3/8 inches and 53 inches from stocking foot to armpit (measurements at different times yielded different results); his boots added another 1 3/4 inches. The downward angle and the measurements of the two bodies were relevant to the question of whether the gun was under defendant's arm when it went off, as he claimed, or whether it was at his shoulder, a normal position for intentional firing, as the state hypothesized.

Expert testimony concerning the gun established that the gun required cocking before firing, though it had no other safety device, and that a moderate to heavy amount of force was needed for pulling the trigger. The gun would not discharge without the trigger being pulled when it was tested by dropping it or striking it with a rubber mallet when it was cocked. No tests were made concerning pulling the gun along clothing, though the expert agreed that the gun could be cocked by catching it on clothing. The expert did not comment on whether the trigger could be pulled by drawing it across clothing.

The issues raised on appeal are:

1. Whether there was intrusion by the state on activities of the defense's expert firearms witness in violation of the defendant's rights.

2. Whether the jury's verdict of first degree murder is supported by the evidence.

3. Whether the trial court erred in admitting evidence of prior bad acts.

4. Whether the trial court erred in refusing to grant a Schwartz hearing on alleged jury misconduct.

1. Defendant argues that a state investigator injected his presence into the testing being done by a defense expert, in violation of defendant's sixth amendment right to counsel, his fourteenth amendment right to due process and a fair trial, and the rules of discovery, and further that the state did not release the investigator's report for more than three weeks, in violation of the rules of discovery.

The case had been continued at the request of defendant's attorney so that the defendant could retain Richard Thompson, a Wisconsin firearms expert, to do testing on the gun. An investigator with the Sherburne County sheriff's department, Ferdinand Trebesch, took the gun to Thompson in Oregon, Wisconsin, and stayed to observe the testing with the consent of Thompson. Trebesch, in his report of his observations of the procedures used by Thompson, quoted Thompson as saying some very negative things about the defendant's story, particularly with regard to the angle of the wound and the position in which the gun was held. Trebesch's report also indicated that Thompson had played a videotape of the sheriff's department's reconstruction of the incident which Trebesch had taken with him.

Defense expert Thompson's report focused primarily on the question of the possibility of accidental discharge. His tests indicated that the gun would fire when hit on the bottom of the pistol grip when cocked, but not when hit elsewhere or dropped. He also commented on the extremely heavy recoil. He estimated that the shot which killed Forrest was fired from a distance of between 6 and 24 inches. He mentioned in his report that his estimate was based in part on conversation with Investigator Trebesch. The report did not refer to the angle of the shot.

Thompson discussed his findings with defendant's attorney and wrote a report, dated April 8, 1986, which the defense received on April 15th and which was delivered to the state on April 16, the day before trial began. On April 17, voir dire of prospective jurors indicated that the defense intended to call a ballistics expert from Wisconsin. On that date, Trebesch's report, dated March 24, was given to defense counsel. Defense counsel moved for a mistrial, a continuance, or a ruling that the state could not use the evidence. The trial court denied the mistrial and continuance and denied at that time the motion on restriction of the state's use of the evidence, leaving open the option for the defense to raise the issue again later in the trial.

The sixth amendment right to effective assistance of counsel protects the defendant's relationship to a defense expert witness.

[I]t is essential that [the defense attorney] be permitted full investigative latitude in developing a meritorious defense on his client's behalf. This latitude will be circumscribed if defense counsel must risk a potentially crippling revelation to the state of information discovered in the course of investigation which he chooses not to use at trial.

State v. Mingo, 77 N.J. 576, 582, 392 A.2d 590, 592 (1978). However, here there is little basis for a sixth amendment claim. Thompson apparently gave information voluntarily to the state investigator. An investigator is permitted to talk to a potential witness, without a Miranda warning, and the witness is free to refuse to talk. Trebesch was not present by subterfuge or disguise, as was Weatherford in Weatherford v. Bursey, where an undercover agent sat in on a defense meeting because he had been arrested at the same time as the defendant. 429 U.S. 545, 547, 97 S.Ct. 837, 839, 51 L.Ed.2d 30 (1977). Further, Trebesch's information was not used at trial. See United States v. Brugman, 655 F.2d 540, 546 (4th Cir.1981). Nor is there any indication that the defense expert was influenced in his conclusions by his conversations with the state investigator or by the state's videotaped re-enactment of the incident. While it would have been preferable that a state investigator not be present to observe defense tests, to hear unguarded comments, and to discuss the case with the expert before the expert formulated conclusions, the presence of the state investigator in this case does not rise to the level of a sixth amendment problem.

Defendant's next contention is that late disclosure of Trebesch's report constituted a violation of the rules of discovery. Trebesch's report was delivered on April 17, three and a half weeks after it was written but only one day after Thompson's report was received by the prosecution. We have held that failure of the prosecution to release a statement by a defense witness and use of the statement at trial to impeach the witness require reversal of a conviction. State v. Schwantes, 314 N.W.2d 243, 244-45 (Minn.1982). However, in defendant's case the statement was disclosed before trial and was not used to impeach the witness as the witness was not called. The lateness of the disclosure was not a serious discovery violation and no prejudice has been demonstrated. See State v. Galvan, 374 N.W.2d 269, 270 (Minn.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1496, 89 L.Ed.2d 897 (1986).

Defendant also argues that the trial court erred in refusing to grant...