State v. Turnipseed, 50229.
| Decision Date | 12 September 1980 |
| Docket Number | No. 50229.,50229. |
| Citation | 297 NW 2d 308 |
| Parties | STATE of Minnesota, Respondent, v. John Earl TURNIPSEED, Appellant. |
| Court | Minnesota Supreme Court |
C. Paul Jones, Public Defender, and Mary E. Steenson, Asst. Public Defender, Minneapolis, for appellant.
Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief, Appellate Section, Asst. County Atty., David W. Larson and Toni A. Beitz, Asst. County Attys., and Thomas A. Weist, Minneapolis, for respondent.
Heard before TODD, YETKA, and SCOTT, JJ., and considered and decided by the court en banc.
On January 15, 1979, defendant was charged with the burglary of Yorkshire Manor Nursing Home in Minneapolis as a result of a break-in which occurred on November 24-25, 1978. Defendant pleaded not guilty to the charge. An omnibus hearing was held on March 12, 1979, and the matter was tried by a jury in Hennepin County District Court beginning on March 14, 1979. On March 15, the jury found defendant guilty as charged. Defendant was subsequently sentenced to 0-5 years in prison. Defendant appeals from the denial of his motions to vacate the judgment and for a new trial. We affirm.
At 8:00 a. m. on Saturday, November 25, 1978, Roy Curlin, a resident of Yorkshire Manor in Minneapolis, noticed that the sliding glass window between the receptionist's office and a communal sitting room on the first floor was open. This was unusual because the window had been closed and locked for the past year and the key had been lost. Richard Gibson, the administrator of Yorkshire Manor, was notified at his home. When Gibson arrived at the Manor shortly thereafter, he noted that the door to the receptionist's office was closed and locked, as it usually was when the receptionist was not present, but that the left side of the sliding glass window had been lifted out of the track and left inside the office, leaning against the other pane. Gibson also discovered that his office had been entered, and the keys to his filing cabinet had been taken from his desk drawer and used to open the cabinet. Gibson's office is located in the basement directly under the sitting room, and can be reached by going down a stairway, through a fire door, and through the bookkeeper's office. The doors to both rooms are customarily locked, but a police officer testified that the locks could be easily "case-knifed" or opened by means of a plastic card or penknife. Approximately $475 in cash and checks was missing from the file cabinet in Gibson's office, and a box containing personal papers and jewelry belonging to one of the residents was missing from the receptionist's office.
Gibson notified the police and they conducted an investigation. A tennis shoe print was found on a file cabinet under the open window inside the receptionist's office, but it was not sufficiently complete to be used for identification purposes. Latent fingerprints were lifted from both sides of the removed sliding window and from the basement file cabinet. These prints did not match those of the suspects named by Yorkshire Manor personnel, but one of the window fingerprints was entered into a computerized fingerprint comparison system and matched to that of defendant. The police obtained a new set of inked fingerprints from defendant, and two police identification experts testified that they were positive that all of the fingerprints left on the sliding window belonged to defendant. None of the fingerprints found on the filing cabinet matched those of defendant or any other suspect.
Gene Aschbrenner, a member of the maintenance staff at Yorkshire Manor, testified that he had washed both sides of the sliding window on November 22, three days before the burglary. Washing glass removes existing fingerprints, and no prints other than those of defendant were found on the glass.
After the police learned that the fingerprints left on the sliding window matched those of defendant, Officer Becking asked defendant if he would come in to the police station. Defendant did so on January 8, 1979. Becking informed defendant that the police were investigating a burglary at Yorkshire Manor, and testified that he read defendant his Miranda rights. In response to Becking's questions, defendant stated that he had never been employed at Yorkshire Manor, that he knew no employees or residents of the manor, and that he did not recall ever having been there. Defendant also said that on the evening of November 24, he had not been feeling well and spent a considerable time in bed but that he may have gone to a local bar.
Defendant raises four issues on appeal:
(1) Did the trial court's denial of defendant's request for a continuance impair defendant's right to a fair trial?
(2) Did the trial court's instruction to the jury on circumstantial evidence properly state the law?
(3) Did the state present sufficient evidence for the jury to find defendant guilty of the offense of burglary?
(4) Did the trial court properly refuse to instruct the jury regarding the offense of trespass?
1. On the day set for trial, March 12, 1979, defendant's attorney learned that the state did not intend to call as a witness Marge Johnson, the receptionist at Yorkshire Manor, because she was on vacation out of state. Defendant's attorney had previously interviewed Johnson, and advised the trial court that Johnson would testify that on one occasion a man generally answering defendant's description had entered her office at Yorkshire Manor while she was absent. Upon her return, the man asked if he could use her telephone because his car had broken down. Johnson refused, and the man left. Defendant's attorney stated that Johnson's testimony would corroborate the testimony of Morrie Latzer, who was with defendant when the incident occurred. Defendant claimed that he remembered the incident only after he told Becking that he did not recall ever being inside Yorkshire Manor. Defendant's attorney argued that the testimony of Johnson and Latzer would show that defendant had been in the receptionist's office on this occasion and could have left his fingerprints on the window then. However, Johnson was unable to identify defendant from a photograph as the man in her office, and thus it is uncertain whether Johnson could have identified defendant in court. Moreover, Johnson could not remember when the incident occurred.
Defendant's attorney could have subpoenaed Johnson as a witness himself but chose not to for tactical reasons: he believed that her testimony corroborating defendant's prior visit to Yorkshire Manor would be more valuable if Johnson were presented as a witness for the state. Defendant's attorney did not inquire as to Johnson's availability on the date set for trial when he interviewed her.
Defendant's attorney requested a continuance from the chief judge of the criminal bench in Hennepin County District Court and from the trial court. Both judges denied his request. The trial court characterized defense counsel's actions as a tactical move that failed. The court based its denial of the request for a continuance at least in part on defense counsel's statement that Johnson's testimony was desired because it would corroborate Latzer's testimony: the court stated that Johnson's testimony would not be determinative because the witness who accompanied defendant to Yorkshire Manor was available to testify. During the trial, however, defendant's attorney chose not to have either Latzer or the defendant testify about defendant's previous visit to the Manor, and therefore this line of defense was never presented to the jury.
The decision to grant or deny a motion for continuance lies within the sound discretion of the trial court and will only be reversed upon a showing of abuse of discretion. State v. Beveridge, 277 N.W.2d 198 (Minn.1979); State v. Bell, 275 Minn. 541, 146 N.W.2d 597 (1966). The reviewing court must examine the circumstances before the trial court at the time the motion was made to determine whether the trial court's decision prejudiced defendant by materially affecting the outcome of the trial. State v. Beveridge, supra; State v. Fagerstrom, 286 Minn. 295, 176 N.W.2d 261 (1970). We have held in several cases that the trial court did not abuse its discretion in denying a party's request for a continuance when the request was based on the absence of a witness. E. g., State v. Annis, 308 Minn. 232, 241 N.W.2d 482 (1976); State v. Holmes, 281 Minn. 294, 161 N.W.2d 650 (1968).
In the present case, defendant's attorney told the trial court that Johnson's testimony would be used to corroborate the testimony of another witness. Defense counsel could have subpoenaed Johnson but chose not to for tactical purposes. Thus, the absence of Johnson as a witness was of defense counsel's own doing. Defendant does not claim that his attorney's tactical error amounted to incompetence or inadequate representation. Furthermore, the claim that Johnson's testimony would have affected the outcome of the trial is not supported by a fair reading of the record. Even if Johnson were able to identify defendant as the man who stopped in to use the phone, and could place the incident within three days before the burglary so that defendant's fingerprints would have remained on the glass, the jury was certainly not bound to conclude that defendant's fingerprints were left on the glass during this earlier incident; indeed, the placement of the fingerprints (at the top of the glass, on both sides, as if the window had been gripped while out of its frame) makes the inference almost incredible. The weakness of this defense on the merits is supported by the fact that defendant's attorney chose not to introduce this theory at trial through the testimony of Latzer or defendant. Defendant's assertion that he and Latzer would also have testified if Johnson's testimony had been available is merely gratuitous. Therefore, we hold that the trial...
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