-- indictment -- evidence required.
1. While an indictment must be based on competent evidence, it will not ordinarily be quashed because some incompetent evidence comes before the grand jury if there is sufficient competent evidence to sustain it.
Evidence -- admissibility -- hearsay statements of coconspirators -- proof of conspiracy.
2. When there is prima facie proof of the existence of a conspiracy to commit a crime, the acts and declarations of any of those in the conspiracy made in furtherance thereof become admissible as evidence in the trial of any of the coconspirators. While ordinarily hearsay statements of alleged coconspirators should not be admitted until there is prima facie proof of the conspiracy, the trial court is allowed some latitude in the order of proof; and if an examination of the record as a whole shows facts from which the court could reasonably infer the existence of a conspiracy the case will not be reversed because the proof of a conspiracy came at the wrong time. In this case the evidence sufficiently establishes a conspiracy so that the hearsay statements of alleged coconspirators were admissible.
-- search and seizure -- consent by owner of premises -- subsequent objection.
3. Where police officers in their investigation of a crime enter premises on which the crime was committed owned or occupied by one not then suspected of complicity in the crime, with his express or tacit consent, and in the process discover and seize articles or instruments used in the commission of the crime, there is no unlawful invasion of privacy of the owner or occupant of the premises. If upon further investigation the owner or occupant of such premises is charged with complicity in the crime he cannot then retroactively suppress such evidence as the fruits of an unlawful search and seizure.
Appeal and error -- review -- denial of motion to suppress evidence.
3a. Where defendant's motion to suppress evidence as fruits of an unlawful search and seizure is denied he has sufficiently preserved his record so that the action of the trial court may be reviewed on appeal.
-- trial -- right of accused to examine pretrial statements of prosecution witnesses -- procedure.
4. After a witness is called and testifies for the prosecution an accused person has the right to examine unprivileged pretrial statements of the witness for the purpose of determining whether he wishes to use such statements for impeachment purposes, without laying any further foundation than showing that such statements were made. If the prosecution objects to the relevancy of the statements, the court shall examine them in camera and excise those portions not relevant to the testimony of the witness. All portions of the statements so excised shall be made a part of the record so that the court's action in denying the accused access to them may be reviewed on appeal.
-- new trial -- grounds -- misconduct of juror.
5. Where it appears that a juror has read newspaper articles discussing certain aspects of a criminal case, before such conduct will furnish grounds for a new trial, it must appear that the juror read such articles and was influenced thereby to the prejudice of the defendant and that, having knowledge of the fact prior to submission of the case to the jury, defendant requested appropriate action by the trial court.
-- new trial -- grounds -- denial of fair trial -- venue change to county requested by accused.
6. Where the venue of the criminal case was changed from Ramsey County to Hennepin County at the request of the accused and no further request was made for a change from Hennepin County, and it does not appear that the 12 jurors accepted to try the case were biased, a new trial will not be granted unless it appears affirmatively that the defendant did not have a fair trial.
-- murder conviction -- sufficiency of evidence.
7. The evidence in this case contained in a voluminous record has been thoroughly examined and found to be sufficient to sustain the conviction of the defendant. Hearsay evidence of alleged coconspirators admitted after the court has found that there was prima facie proof of conspiracy coupled with circumstantial evidence corroborating such hearsay testimony was sufficient to support the jury's finding of guilt.
-- new trial -- grounds -- newly discovered evidence -- repudiation of testimony.
8. Where one of alleged coconspirators repudiated his testimony at the trial and a hearing was granted to test the credibility of such repudiation, at which time the alleged coconspirator reaffirmed testimony given at the trial, and the court found that such witness told the truth at the trial rather than at the time of the repudiation, we accept the decision of the trial court in refusing to grant a new trial based on such newly discovered evidence.
The opinion of the court was delivered by: Knutson
Defendant was convicted in the Hennepin County District Court, Rolf Fosseen, Judge, of murder in the first degree, and he appealed from an order denying his alternative motion for judgment of acquittal notwithstanding the verdict or for a new trial; from the judgment of conviction; and from an order denying his later alternative motion for judgment of acquittal notwithstanding the verdict or for a new trial upon the ground of newly discovered evidence.
Defendant was convicted of first-degree murder and appeals from an order denying his motion for a judgment of acquittal notwithstanding the verdict or for a new trial; from a supplemental order denying his motion for a new trial on the grounds of newly discovered evidence; and from the judgment of conviction.
The conviction resulted from the brutal murder of defendant's wife, Carol Thompson, on March 6, 1963, admittedly by one Dick W. C. Anderson.
At the time defendant's wife was killed defendant was a practicing attorney of some prominence in the city of St. Paul. He was admitted to the bar in 1955 after having attended Macalester College from 1946 to 1950 and the St. Paul College of Law from 1951 to 1955. After working at some jobs that are not of importance here, he began practicing law and was quite successful, mainly in the fields of personal injury, domestic relations, and . He was very active in bar association activities and did some teaching at the William Mitchell College of Law.
While attending Macalester College defendant met and married his wife. They have four children, a son born in 1949, and three girls born in 1951, 1953, and 1956. The family moved into the home in which they were living at the time of Mrs. Thompson's death in 1958. The home is located at 1720 Hillcrest Avenue in St. Paul. Both defendant and his wife were active in many community affairs and in their church. Defendant had served as an elder and a trustee of his church. So far as the record shows, their married life was harmonious and they seemed to get along well together, taking many trips with each other.
During the summer of 1960 defendant commenced a social relationship with one Jacqueline Okoneski whom, to begin with, he had represented in a divorce action. The relationship continued on a fairly regular basis until December 1961, and included dinner dates, visits by defendant to her apartment, some trips to out-state motels, frequent trips to a lake home at Forest Lake, Minnesota, owned by Carol's father, and one trip to Chicago. During 1961 Jackie attended a business school. She paid the tuition and expenses with money borrowed from defendant and upon her completion of this study was employed by defendant as a secretary. She repaid the money borrowed to pay for her education. In December 1961 Jackie began dating one Ronald Olesen, and early in 1962 returned a ring to defendant which he had given her shortly before that time. In the month of January 1962 Jackie terminated her employment with defendant's law firm. After December 1961 she dated defendant only a few times and on those occasions indicated that she was interested in marrying Ronald Olesen. She testified that in February 1962 defendant asked her if, before she made a final decision, she would give him a year or 11 months to get his financial affairs straightened around so as to arrange for the financial well-being of his family, but that she refused to do so. It appears that after the early part of 1962 Jackie saw defendant only a few times, for business purposes. In June 1962 she married Ronald Olesen. Sometime later in the summer of 1962 she came to defendant's office to discuss with him obtaining a divorce from Olesen, and papers were drawn to commence a divorce action. According to Jackie, she had lunch with defendant during the summer of 1962 and he asked her if she would marry him if he put $10,000 in the bank in her name, but she replied in the negative. In September 1962 Jackie's divorce action was commenced by defendant. The papers were personally served upon Olesen by defendant. It appears that in October 1962 a reconciliation was contemplated and defendant requested a friend of Jackie's to discourage her from such reconciliation with her husband. It does appear that in November 1962 Jackie and her husband were reconciled and living together. Defendant called her a few times and in December 1962 he had some harsh words with her husband, who would not permit defendant to speak with Jackie. She testified that sometime shortly after Christmas 1962 defendant called her at her work and asked her if she would be interested in taking an apartment in a building he owned, but that she refused. This appears to be the last time he contacted her prior to the death of Mrs. Thompson.
In January 1962 defendant and his wife traveled to Chicago and visited with acquaintances by the name of Mr. and Mrs. Bruce Gove, whom they had known since their days at Macalester College. Mr. Gove was in the insurance business and after being informed that Carol Thompson had very little insurance on her life he strongly urged Thompson to purchase some such insurance. He recommended a $50,000 ordinary life policy. Upon their return to St. Paul defendant had a conversation with his regular insurance agent, James Treanor. Inquiry was made about term insurance, and as a result of this interview and further negotiations defendant purchased insurance, much of which was term insurance with accidental death benefits, or purely accidental death insurance. This brought the aggregate insurance on her life to $1,061,000. The attached chart shows the amount and nature of the term insurance and the time it was purchased.
Defendant explained to Treanor and testified at the trial that his desire for this amount of insurance was based on the fact that if he died first his wife and children would have approximately $1,000,000 to live on by combining the insurance he carried on his life, which amounted to some $460,000, and an anticipated $500,000 inheritance she would receive from her father, a successful plumbing contractor of considerable wealth. Defendant testified that in order to have an equal amount for himself and his children if Carol should die first he purchased this insurance, amounting to somewhat over $1,000,000. He also stated that he had reached a position in life where he could easily afford it out of an unneeded monthly retainer which he received from the company owned by Carol's father. He stated that he had a premonition that his wife was going to have a tragic accident on February 8 or 9, 1963, and that he had had such premonitions previously when his brother and sister had died unexpectedly.
In July 1962 defendant was contacted by one Norman Mastrian in connection with a possible false arrest of Mastrian in Anoka. Mastrian had attended Macalester College about the same time as defendant, but it appears that defendant did not remember him from those days. On July 31, 1962, defendant agreed to represent Mastrian if he were paid a retainer of $2,500. Mastrian had no such money but did own stock in Telostat Corporation. Defendant agreed to take 1,000 shares of the stock in lieu of his retainer, but the company refused to make the transfer in that manner, so defendant paid Mastrian $2,500 in cash and then immediately took it back, as well as the stock. Further negotiations led to the purchase of the remaining 2,200 shares of stock in this company owned by Mastrian, for which he paid $1.25 a share, or a total of $2,750. Defendant testified that he was interested in acquiring controlling interest in the Telostat Corporation. On December 31, 1962, he had ascertained that the stock was virtually worthless and sold all of his stock to the president of the company for $800.
It appears that from August 1962 through February 1963 defendant met Mastrian in various places and spoke to him on the telephone on numerous occasions. During this time he was admittedly representing Mastrian in several legal matters.
Up to this point, there is not much dispute in the evidence.
The conviction rests upon an alleged conspiracy between Thompson and Mastrian to commit or procure someone to commit the murder of Mrs. Thompson. The evidence relating to this conspiracy is much in dispute; but briefly the testimony of witnesses, if admissible, would justify the jury in believing that the following acts transpired:
Prior to January 24, 1963, the Thompsons had a dog in their home which would bark when someone came to the house. On that date defendant took the dog to a veterinarian and asked him to find a new home for the dog. It was his claim that they had installed new carpeting in the home in January and that they had been unable to train the dog, so that she had stained the previous carpeting and they felt they had to get rid of her in view of the new carpeting. There was some dispute in the evidence as to whether Carol knew why the dog was given away or concurred in getting rid of her.
It was also shown that the portable telephone, often kept in the bedroom upstairs, was removed on March 4, 1963. Defendant claimed that it was removed because they wished to exchange it for a color telephone more in harmony with the new decoration in the house. The telephone was found in defendant's car after Mrs. Thompson had been assaulted.
In late February 1963 Mastrian began looking for someone to commit a murder for hire. One Sheldon Morris testified that in late February 1963 he was present when Mastrian asked one Richard Sharp if he would commit a murder for $2,000, to which Sharp replied that he was not interested but he knew a man by the name of Bill Ingram who might be interested. Morris testified that he was present when Mastrian asked Ingram if he was interested in killing a woman for $2,000. Ingram said he was not interested. Morris then testified that on March 2, 1963, Mastrian asked one Henry Butler if he would take the contract, but that Butler declined. Morris further testified that on the morning of March 4, 1963, Norman Mastrian told him that he had to go to meet defendant at a pancake house in St. Paul, and that Mastrian borrowed his car that same evening to meet Thompson in the parking lot behind McGuire's Restaurant.
Richard Sharp testified that he had been offered a job by Mastrian to kill a churchgoing woman with four children and that Mastrian had suggested that it be done by hitting her with a rubber hose and then drowning her in the bathtub. He was told that she was heavily insured and that the price for the job would be $2,000 unless it looked like an accident, in which case it would be $3,000. Sharp then testified that on or about March 2, 1963, he introduced Mastrian to Dick Anderson, and that he, Sharp, was present on March 3 when Mastrian offered the job to Dick Anderson, who replied that he would think about it. He testified that on March 4 he gave the gun to Mastrian that was used 2 days later in the beating of Carol Thompson.
Willard Ingram testified to the conversation that he had with Mastrian and corroborated the testimony of Morris and Sharp.
Henry Butler testified that he had been offered a job of killing by Mastrian and that he was present when Mastrian gave the gun to Anderson; and that on March 4 or 5, 1963, he had heard Mastrian ask Anderson, "What happened today? I had a perfect alibi."
Dick W. C. Anderson then testified that he met Mastrian on March 3, 1963, and that Mastrian asked him on that day if he was interested in killing a woman, to which he replied that he would think about it. He testified that later that same day Mastrian called him, and at that time Anderson said he would take the contract to kill the woman, but he would have to have half the money, $1,000, before he did the job. Anderson then testified that Mastrian arranged to meet him on the evening of March 4 and at that time told him that he could get only $200, but that he would get the rest by the following Friday. Anderson testified in detail as to how the killing was to be done. He then said:
"This was the first time I had heard the name of Mr. Thompson. He says, 'Mr. Thompson will leave the door open in the morning.' Says, 'You will be able to go inside and go down in the basement and wait.' Says, 'At 8:25 Mr. Thompson will call Mrs. Thompson and,' he says, 'at that time you will be able to sneak up the stairway.' He says, 'Mrs. Thompson will be right around in the kitchen answering the telephone. The other telephones in the house will be removed so that she has to come downstairs.'"
Anderson testified that they then picked up a hat for Anderson to wear while doing the job, and then proceeded to St. Paul, where:
"We went over to the Highland Park area and he drove me past the residence at 1720 Hillcrest in the front. He says, 'Look good at the front of the house.' I did and then we went around the alley and we made several trips around the alley and around the front of the home. Then we finally pulled up in front of the home and then I -- he showed me the side door, pointed it out to me and said that there is no back door on the residence. He says also at 6:00 o'clock in the morning there is no movement around on the streets and that there is no lights on in this section. And then I asked him about coming out in the morning, this side door, I asked about the people that lived next door to the east of the Thompson residence. He told me there was a widow lady that lived there and she didn't get up early in the morning and she also slept on the opposite side of the home. He says, 'You won't have to worry about anybody seeing you as you come out in the morning.'
"* * * At that time he took a rubber hose out from underneath the front seat of his car and he told me that the woman should be hit at an angle across the back of the neck to more or less simulate falling in the bathtub. I asked him about the water in the bathtub and he said, 'Mr. Thompson will leave water in the bathtub.' I discussed further with him about the body, whether it should be face down or up if she fell in the bathtub. He said, 'Be sure and have it so the body is up as far as the bathtub goes,' and he instructed me as far as reverse artificial respiration on the chest."
Anderson also testified that when questioned Mastrian admitted that insurance was involved and that Mastrian drew diagrams of the house so that he could find his way around; that they purchased rubber surgical gloves; and that Mastrian took him home, gave him a rubber hose and the hat, and said he would call that night. He testified that Mastrian did call him about midnight on March 4 and told him that the job could be done on the morning of March 5, 6, or 7, but had to be done before March 8. He testified that Mastrian called him about 9:30 in the morning of March 5 and asked him if the job had been done and was informed by Anderson that he did not do it that morning and wanted a gun in case anything went wrong. He testified that Mastrian delivered a gun to him on March 5 and, after he had assured Mastrian that the job could be done the next morning, Mastrian said, "Well, I will have to see Mr. Thompson again and see if everything will be in the clear"; that Mastrian called later on March 5 and informed him that everything was clear, and that he then proceeded to do the job.
Anderson testified in detail that he entered the house by the side door and hid in the basement until he heard Mr. Thompson and the children leave. The telephone rang and Mrs. Thompson came down to answer it. He said that the stairs going to the basement had squeaked when he came in so, rather than alarm her, he waited until she had returned to her bedroom and then went up and told her that he was looking for money and would not harm her. He told her to lie on her face, and when she did, he hit her at the base of the skull with the rubber hose as hard as he could, and carried her body to the bathtub where he intended to drown her by reverse artificial respiration, but she came to and escaped from him and ran back to her room. He said that he then tried to shoot her, but that the gun refused to fire, and that he hit her with it. She ran downstairs and tried to get out the front door, but it was locked with the chain latch which prevented her from doing so before he again struck her with the gun. He then took a knife from the kitchen and stabbed her in the throat, and the handle of the knife broke off, leaving the blade in her throat. He thought she was dead or dying and went back to the bedroom to create the appearance of an attempt to commit burglary. Then he heard the door shut downstairs and went down to find that Mrs. Thompson had gone.
It appears that after escaping from the home subsequent to the assault upon her by Anderson, Carol ran to the neighbor's house next door but was unable to get help there. She then ran to the home of Mrs. Ruth Nelson, where she collapsed after asking for help. She was asked, "Who did this to you?" and answered, "A man" before collapsing. The police were called and she was taken to Ancker Hospital, where she died about noon.
Anderson testified that after he found that Mrs. Thompson had gone he left the house by the front door and went back to his apartment where he received a call from Norman Mastrian. He put the clothing he had worn into a laundry bag and met Mastrian and Sheldon Morris and the three of them rode north of the Twin Cities and threw the clothing and gun out of the car while driving along side roads. Anderson got out of the car at Anoka and took a cab back to Minneapolis.
Sheldon Morris testified that 2 days after Mrs. Thompson was killed he drove Mastrian to Forest Lake, where her father owned a cottage frequently used by the Thompsons. They parked the car and waited for about an hour and then drove back to Minneapolis. On the following night, March 9, and in the afternoon on March 10, this trip was repeated, and each time after waiting about an hour they returned. Morris testified that on March 15 he delivered $800 from Mastrian to Anderson, with the message that that was all the money Mastrian could raise at that time, and that Anderson should not bother him until he (Mastrian) could make contact with the payoff man. He testified that on or about March 15 an attorney, John Connolly, gave Morris 25 $100 bills, to be given to Mastrian, and that on April 15 he delivered an envelope from Mastrian to Anderson that was supposed to have $1,500 in it, with a message that it would be all the money Anderson could expect until Mastrian received his money from the payoff man. Anderson then informed Morris that he would be gone for about 2 weeks and wanted the rest of his money upon his return "or else." Before Anderson could return he was apprehended and arrested in Phoenix, Arizona, in connection with this crime.
It is not disputed that defendant arrived at his office on March 6 earlier than usual and shortly thereafter had his secretary call his home. She spoke to defendant's wife and then turned the telephone over to defendant, who informed his wife that he would be unable to return home early that afternoon as they had planned.
About 9:15 a.m. on March 6 defendant was informed by a son of Mrs. Ruth Nelson, the neighbor to whom Carol had gone for help after being attacked, that his wife had been stabbed and would be taken to Ancker Hospital shortly. Defendant left his office with an associate, Donald Kelly, and went immediately to the Nelson residence. Upon arriving there he found that Carol had been taken to Ancker, so they drove there. While at the hospital that morning defendant suggested to the police who were there that robbery might be the motive for the crime and suggested that they go to his home and look in the basement to see if quite a large sum of money he kept there had been taken. Later in the day he spoke again to the police, and produced a briefcase which had been in his office in which were found 44 $100 bills. On March 8 defendant indicated a desire to withdraw $5,000 in cash from an account he had for the purpose of hiring private investigators, but was advised by his associate that it would be unwise to withdraw such money in view of the questions that had been raised about the insurance he had on his wife. On the same day he again spoke with the police and said the hose found in defendant's bathroom after the killing probably came from his lake home but he did not know how it came to be in the bathroom.
On March 20, 1963, defendant was contacted by attorney John Connolly, who was then representing Mastrian, and asked to bring certain files of Mastrian's to Connolly's office. In addition to the files defendant gave Connolly 25 $100 bills and said it was the return of the retainer which Mastrian had given him in connection with the matter in Anoka County. In the examination of defendant, he admitted he had done considerable work for Mastrian but had never had an accounting with him.
The venue of the case was ultimately changed from Ramsey to Hennepin County at the request of the defendant, and the case was tried there by a jury, commencing on October 28, 1963, and ending on December 6, 1963. Defendant was found guilty of murder in the first degree and sentenced to life imprisonment in the state penitentiary.
The appeal raises a number of questions, some of which must be considered separately from the others. In discussing them additional facts pertaining to each issue will be stated hereinafter. The assignments of error pose the following questions:
(1) Was the indictment based on competent legal evidence sufficient to sustain it?
(2) Was there sufficient proof of a conspiracy so as to render admissible against Thompson the hearsay statements of alleged coconspirators?
(3) Should the evidence procured by police officers in searching the Thompson home have been suppressed as the fruits of an unlawful search and seizure?
(4) Was it reversible error to deny defendant's motion for leave to examine a pretrial statement of a prosecution witness?
(5) Was misconduct of a juror in reading newspaper articles concerning the trial grounds for a new trial?
(6) Was defendant denied a fair trial due to publicity ...