State v. Waters, 48181.

• Decision Date: 26 January 1979
• Docket Number: No. 48181.,48181.
• Citation: 276 NW 2d 34
• Parties: STATE of Minnesota, Respondent, v. Gary Benjamin WATERS, Appellant.
• Court: Minnesota Supreme Court

276 N.W.2d 34 (1979)

STATE of Minnesota, Respondent, v. Gary Benjamin WATERS, Appellant.

No. 48181.

Supreme Court of Minnesota.

January 26, 1979.

Connolly & Heffernan, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Craig H. Forsman, Special Asst. Atty. Gen., St. Paul, Arvid Wendland, County Atty., Blue Earth, for respondent.

Considered and decided by the court without oral argument.

PER CURIAM.

Defendant was found guilty by a district court jury of charges of criminal sexual conduct in the third degree (using force or coercion to accomplish penetration) Minn.St. 609.344(c), and simple robbery, § 609.24, and was sentenced by the trial court to a maximum term of 5 years in prison. On this appeal from judgment of conviction defendant contends (1) that his automobile was illegally searched without a warrant in violation of the Fourth Amendment, (2) that the prosecutor committed misconduct in the manner in which he cross-examined defendant about his criminal record, and (3) that the prosecutor committed misconduct in closing argument. We affirm.

The crimes of which defendant was convicted were committed by a masked intruder on November 9, 1976, shortly after midnight. After the intruder left at about 1 o'clock, the victim made a report to a deputy from the Faribault County Sheriff's office and stated that she had recognized the voice of her assailant as that of defendant, whom she had known through her estranged husband. Meanwhile, defendant had been involved in an automobile accident near his hometown of Amboy, which is in Blue Earth County, some 4 to 5 miles from the scene of the crime, and had asked the night police officer to go to the car, which was outside the city limits, and tow it for him. As the tow was being completed, the officer learned from the Faribault County Deputy Sheriff of the report concerning defendant. Unsure of his authority to impound the car, he nonetheless felt that he was responsible for its contents since defendant had asked him to take care of the towing. Accordingly, he opened the door and reached in to remove the keys so he could lock it pending a determination by someone else whether to impound it. While doing this he kept his eyes open and saw in plain sight, but did not seize, three items which tended to connect defendant to the crime. Later, the highway patrol issued an impoundment order and an official inventory was made by a deputy sheriff, during which two items implicating defendant were seized. A second...