*1 (cita Revenue, (Minn.1980) omitted).
tions correctly envel- ruled these
The tax taxable,
opes in the absence are taxed in envelopes
destination state.
Affirmed.
COYNE, J., took of this case. decision
consideration Minnesota, Respondent,
STATE SWANSON, Appellant.
James Shane
No. C2-92-314.
Supreme Minnesota. Court
April
KEITH, Chief Justice. 3, 1991, July County grand an Aitkin
On indictment jury returned five-count defendant, Swan- charging James Shane son, in connec- following kidnapping, rape, and murder tion with 15, 1991, in Streufert on of Carin June count of and Aitkin Counties: one Itasca murder, degree premeditated Minn. 609.185, (1992); three Stat. subd. § murder, degree Minn. felony of first counts 609.185, (1992); and one subds. 2-3 Stat. § 609.25, kidnapping, count of Minn.Stat. trial, 1(2), 2(2) (1992). Prior to ven- subds. County. was transferred to Beltrami ue 14, 1991, December a Beltrami Coun- On ty jury guilty returned verdicts of on all 17, 1991, charges, and on defen- December sentenced to life dant was for the first murder conviction months for a consecutive sentence of 91 kidnapping. appealed to this court, (1) asserting that the evidence was sustain insufficient as a matter of law to convictions; (2) the trial court commit- admitting error into evi- prejudicial ted transcripts taped state- dence the (3) erred police; ments to the trial court admitting evidence of defendant’s encoun- night of the another woman the ter with testimo- murder in rebuttal planning kidnap ny that he was not night; the trial court someone by sentencing to life im- erred term of 91 prisonment with for We affirm. months 14,1991, Streufert, an 18- On June Carin college student, Perkins year-old went to a Rapids Restaurant with some 12:30 and 1:00 a.m. friends between 2:45, Al- departed. Around Streufert though another her a ride friend offered Stuart, Defender, Mi- John State Public home, Streufert decided to walk. Cromett, chael F. De- Asst. State Public home Streufert had not returned When fender, Paul, appellant. St. morning, disappearance the next reported to the sheriff’s office. Within III, Humphrey, Atty. Gen., H. Hubert hours, dispatched search crews were Stanieh, Atty. Gen., A. Special Robert Asst. her, albeit success. search without Paul, Rhodes, and Bradley St. C. Aitkin Aitkin, County Atty., respondent. party June at a at defendant’s On
house, Hollom, Bill told who boyfriend his sister’s trainee in a law and a program, every- enforcement that he knew said and defendant murder. He drove Streufert thing about the Streufert previous- to the wooded area defendant had had been with Guy he and ly described, and defendant confessed that night and that the two strangers that both men her. When decided Neil, Ralph committed the strangers, might tell Streufert about the La- and Sullivan watched. murder while *3 incident, he defendant said that shot her in told his evening, that defendant also ter of the head with the back .25 caliber story about the murder involv- father the then, fell, pistol and after she fired sec- not strangers. His father did ing the two pistol. ond her throat .22 shot into with a told him to totally believe defendant and confession, agreed After this defendant then police. turn Defendant himself place take the sheriff where he had fa- and went his Guy called Sullivan so, body. doing they After re- buried 2:30 and to turn himself between ther turned to the sheriff’s office. Defendant 3:00 a.m. go was told that he free to he was but that station, police de- Upon arriving at the would be arrested soon. voluntarily police that he had fendant told shortly was arrested Defendant after disappear- on Carin Streufert’s information leaving police station. After he was police Guy he He told that and Sulli- ance. given warning, again a Miranda defendant Ralph strangers had met named van murder, providing confessed to Streufert’s Rapids, and Neil at bar prior details which matched his confession. Streufert, up five of them picking after again once reiterated he Defendant that 30 miles south of drove to a wooded area Streufert, and Sullivan followed forced her was stand- town. Defendant said that he area, car, into took her to the wooded away strangers from ing about 15 feet her, her. .Defendant and shot admit- they shot Streufert. shots, police firing ted the fatal and he told telling if Police asked defendant he was cover-up, including about his the truth and informed defendant that Sul- burying body partially Streufert's adjoining telling po- livan was room throwing handbag high- out onto that the defendant had fired the lice shots way. contemplated removing He even the victim. Defendant admitted that at gun slugs of her so from the back head fabricated, he story was they could be traced back to his got said, to see Sullivan. When defendant guns. admitting asked “I'm I’m Defendant so, he opportunity police to do asked Sullivan him that guilty.” told Sullivan When if thing.” he should “tell the whole When had forced said that defendant Sullivan should, acts, perform he defendant gunpoint Sullivan indicated that defen- these stating in it police previous they were “SO- disagreed, dant told that most of the story SO.” was false. trial, his earlier At defendant recanted proceeded Defendant to recant his initial statements, indicating that he and Sullivan story story told second attempt in an up had made these stories implicated
which he himself and Sullivan in Defendant claimed that protect Sullivan. told he the murder. Defendant his life to exon- willing he sacrifice was pick up and Sullivan decided woman erate Sullivan. and “terrorize” her that and when they Res- he saw Streufert leave the Perkins testified that and Sullivan Defendant taurant, said, up go leaving it.” Perkins and drove defendant “Let’s saw Streufert thought he knew pulled alongside his ear to her because Sullivan When car, got voluntarily got into the defendant the car and her. Streufert get refused, they proceeded to drive the wooded told Streufert to in. When she trip, shoulder, County. During put his hand on her area Aitkin and Streu- caliber auto- defendant testified and Sullivan revealed .25 pistol friendly conversation about legs. matic She then fert had a between although got claimed that into the school. Defendant car. pains “limited to a days retry the facts and is slept only three hours he murder, determine pills taking analysis the Eferdrine of the record to preceding the taking1 caused him to be “zonked when viewed was whether the conviction, out” the back seat. light most favorable to permit jurors to reach the sufficient to area, they When arrived at wooded Webb, they did.” State v. verdict the fire started made a fire. When (Minn.1989) (citation out, dying get went some omitted). wood, upon returning, he said more having were sexual Sullivan and Streufert case, In this the evidence of defen left them alone. intercourse. guilt overwhelming. The defen dant’s this, headed After Sullivan and Streufert initially voluntarily police, dant went to the *4 trail, while, up after a the telling story imagi false them a about two Upon reaching went to look for them. Neil,” nary strangers “Ralph named Sullivan, testified he Streu- saw story a in defen followed second which lying ground, fert dead on the with Sulli- kidnapping, raping, dant admitted to holding gun. van a Defendant said that killing being formally Streufert. After ar happened, after told him what he rested, given defendant was a Miranda agreed help friend and therefore warning again proceeded and then once fired the second shot into her neck. implicate himself the victim’s murder. trip Rapids, the return On Grand de- He admitted that he and had decid him fendant said that Sullivan told that he they ed to abduct a woman that raped had Streufert. Defendant threw both that he had fired both handbag highway, Streufert’s onto the victim, fatal shots into the and that he had during trip they phony concocted the up the crime. Testimo cover story strangers, Ralph about the two and ny at trial also revealed that defendant had Neil, developed story and later another Rapids a letter to the written Chief pointing which defendant would admit police of Police in he thanked which gun forcing perform at Sullivan and him to sorry their and said he was work for what Although story these acts. latter this best family he had done as well as “for the of accomplished purported goal of girl killed.” we evidence Sullivan, exonerating defendant claimed presented at trial was consistent with the that he did not story initially tell hypothesis guilty that defendant was because he and Sullivan had not worked any hypothesis inconsistent with rational out all the details on it. Race, except guilt. that of State v.
I.
asserts that the evidence
II.
was insufficient as a matter of law to sus
Defendant claims
trial
reviewing
tain his convictions.
such
court’s admission into evidence of the tran
claims,
applicable
standard of review
scripts
tape-recorded
conversations
provides:
with
constituted reversible error be
reviewing
insufficiency
a claim of
evidence,
cause it was not the best
we are limited to ascertain-
cumulative,
rights
and violated his
to due
whether,
ing
given the
facts
the record
process
Although
and a fair trial.
the trial
legitimate
and the
inferences that can be
judge originally
transcripts,
excluded the
facts,
jury
drawn from those
could
the court later admitted them under Minn.
reasonably conclude that the defendant
provides:
Stat.
611.033. This statute
guilty
charged.
of the offense
Merrill,
(Minn.
statement, confession,
A
or admission
1978)(citations omitted).
writing
This court cannot
shall not be received
evi-
asthma,
pills
amphetamines,
pills per day
taking
Eferdrine
and defen-
for his
he was
initially
nearly 200/day
dant claimed that
while
took
time
3-5
of the murder.
played
identify
speak-
or
need
any
proceeding against
criminal
dence
ers, may
appropriate,
it
be
in the sound
a reasonable
any defendant unless within
judge,
discretion of the trial
to furnish
taking
thereof the defendant
time of
copies
transcript
jurors
copy
thereof and
is furnished with
listening
tapes.
to the
assist them
confession,
statement,
or admis-
prejudi-
not
ordinary
case this will
be
at-
thereon or
shall have endorsed
sion
cially
Transcripts
cumulative.
should
receipt
accused
tached thereto
ordinarily
jury
be read
or
peace
of a
officer which
or certification
weight.
given independent
The trial
copy
that a
thereof has been
shall state
jury
judge
carefully instruct the
should
ac-
by or made available
received
meaning
that differences in
be
requires
Nothing
this section
cused.
caused
such factors as the inflection
audiotape,
transcript
or
videotape,
speaker’s
in a
voice or inaccuracies
at the
tape
given
be
the defendant
transcript
should,
they
there-
confession,
statement,
or admis-
time the
fore, rely
they
on what
hear rather than
made or
a reasonable time
sion is
within
on what
read when there is a differ-
thereafter, provided
videotape or
that the
Transcripts
ence.
ordinari-
should not
audiotape is available to the defendant
ly
admitted into
unless
with-
attorney
the defendant’s
for review
accuracy
stipulate to their
*5
both sides
time
in a reasonable
of the
agree
their
as
to
use
evidence.”
arrest,
discovery pursuant
as
in
well as
89,
(Minn.1980),
Olkon, 299
103
v.
N.W.2d
State
procedure.
to
rules
criminal
the
of
denied,
1132,
rt.
449
101 S.Ct.
U.S.
ce
(1992).
611.033
Minn.Stat. §
954,
(emphasis added)
tion admitting state- any error committed transcripts testify prepared son who section 611.033 is ments violation of recordings has that he listened beyond a reasonable doubt harmless violated, accurately transcribed their contents. right anoth- constitutional transcripts gen- the need for confession damaging Because and more er admitted, circumstances, the officer could erally by two inau- properly caused the same evidence dibility portions tape orally provided under the have refreshing memoran- using tape as a it re- circumstances will be it was within the Johnson, duct” a woman. v. dum. State discretion allow case, trial court's considerable In this the officer Freeberg’s testimony as rebuttal evidence. compared them the statements who took testified that each was transcripts and addition, the defen- accurate. true and IV. point any substantive unable to dant is Finally, argues that the trial transcripts, taped inaccuracies sentencing defendant to life court erred admissible, he were otherwise admissions degree first murder and instruction, limiting request a did not kid- consecutive 91-month guilt was overwhelm- the evidence napping. contends that sen- transcripts Thus, the admission of the ing. to run concur- tences should be modified was harmless error.
into evidence rently the offenses were because single victim arose out of a III. incident. behavioral claims that Meredith Free- The defendant fact, statutes Minnesota ex testimony on constituted berg’s rebuttal permit pressly sentences to be it was improper Spreigl evidence because imposed multiple offenses committed prove that defendant had at- introduced against the victim a behav same kidnap another tempted to woman ioral incident where one of offenses is night. Spreigl, 272 Minn. See State (1992). 609.251 Minn.Stat. § (1965). addition, murder is excluded however, Freeberg’s testimony, Sentencing from the Guidelines. Minnesota Spreigl as was not admitted Minnesota Guidelines II.A. See prior attempted kidnapping rather as but Furthermore, deciding whether to rebuttal evidence. Defendant testified *6 sentences, impose consecutive merely trial he and Sullivan that were considers whether consecutive sentences “cruising” looking party around town for a culpability “are commensurate with and did not believe had and that he that exaggeration not an of defendant’s crimi Freeberg night. rebuttal, followed State, 540, nality.” N.W.2d Bangert v. 282 Freeberg testified men walked (Minn.1979). Here, 547 defendant kid toward her that watched her continu napped, raped, and killed Carin manner, ously, spoke menacing to her in a crime, up the and initial to cover continuously and watched until she was police. ly lied to the about his involvement picked inside her house. She later kidnapping because was involved and lineup was able to exaggerate did not resulting sentence trial. identify defendant at say criminality, cannot we general, rebuttal evidence consists the trial court its discretion in im abused explains, contradicts, that which or refutes posing plus life imprisonment consecutive Gore, the defendant’s State v. kidnapping. 91-month 313, (Minn.1990), 451 316 N.W.2d and “the Affirmed. proper determination of what constitutes wholly evidence rests almost rebuttal WAHL, (concurring specially). Justice the trial court.” discretion of v. El State 286, (cit (Minn.1984) ing, 355 N.W.2d 291 I concur the affirmance of with defen Collins, 459, 473, modify 276 ing v. Minn. dant’s I would defen State conviction but (1967), 850, denied, concurrently 150 860 cert. dant’s sentences to run be 960, 1058, 19 390 U.S. 88 S.Ct. L.Ed.2d 1156 cause sentences under the cir consecutive (1968)). Freeberg’s testimony unfairly exagger tended to re cumstances of this case but defendant’s claim that he ate the criminality was not of defendant’s conduct. 833, stalking night Patch, women and to affirm In 329 N.W.2d State v. 837 (Minn.1983), his earlier statements that he and stated that we “Minn.Stat. looking sentencing Sullivan were generally “terrorize” or “ab 609.035 bars a de time, more than one even con fendant sentences, multiple offenses
current SPECIAL SCHOOL DISTRICT 1, victim as against committed the same Appellant, NO. pur incident.” The of a behavioral v. statute, had
pose previously as of this we against exagger “to recognized, protect is DUNHAM, Respondent. Marian C. ating criminality person’s conduct No. CX-91-1913. prosecu punishment to make both culpability.” tion commensurate with Supreme Court of Minnesota. Tahash, Stangvik ex rel. State 353, 360, 667, (1968). Minn. 161 N.W.2d 9, April legislature amended section 609.251 so 609.035 and added Minn.Stat. § convicted
that a defendant kidnapping and for the crime
sentenced by
facilitated
Crocker, so, Minnesota
Even under the Commentary II.F. when an
Guidelines multiple
offender is convicted of current victim, concurrent presumed, excep three
sentences are with Kidnapping
tions not relevant here.1 is an sentencing guide
offense covered
lines, It murder not. makes sense, however, as counsel has defense from
argued, to exclude murder first
guidelines’ rationality pro principles Here,
portionality. where defendant crime
convicted of the most serious under laws,
our life mandated law, multiple sentences for *7 arising against a victim unfairly behavioral incident ex criminality of
aggerate
conduct. I would hold consecutive sentenc circumstances, permis
ing, under such
sible. persons, guidelines an given only and the call for different
1. sentences Consecutive sentence; (3) (1) following prior where the offense executed cases: (or expired, escape against person an offense committed while has not a crime sentence). against person, serving prison Minneso- an executed current offense is for crime sentence; Comments, guidelines II.F.l- call for an executed ta Guidelines and the multiple current offenses there