On September 26, 1980, Diane Edwards, nineteen, was walking home from her waitressing job at a Perkins restaurant in West St. Paul when a station wagon pulled onto the sidewalk beside her on Moreland Avenue. Four teenage girls saw her taken. Her body was found about two weeks later in rural Sherburne County; she had been sexually assaulted and stabbed in the chest, and Joseph Ture, according to the trial evidence, led the police to the place himself. He was convicted of her murder and given a mandatory life sentence. The first of these four opinions, decided by the Supreme Court of Minnesota on June 29, 1984, affirms that conviction and one count of kidnapping, while vacating the duplicate convictions, and deals along the way with a witness, T.W., who testified after being hypnotized. The second, decided the same day, concerns the rapes he committed with a knife in the Lake Street area of south Minneapolis that fall, one of an eighteen-year-old woman and one of a thirteen-year-old runaway; the court affirmed them with his sentence modified.
The other two opinions come almost twenty years later and are about killings that were older still. In the early morning of December 15, 1978, Alice Huling and three of her children, Susan, sixteen, Wayne, thirteen, and Patti, twelve, were shot in their farmhouse in rural Stearns County. Her eleven-year-old son, W.H., lay still under the covers in the bedroom he shared with Wayne and survived. Four days later a deputy arrested Ture at the Clearwater Travel Plaza in a stolen car and found a metal bar wrapped in a steering-wheel cover, a ski mask and a two-inch Corgi Juniors Batmobile, much like a toy the boy had owned. Ture told the Stearns County detectives the toy was his and that he had grandchildren, then corrected himself: “I’m uncle or whatever.” He was released, confessed to a fellow jail inmate in 1981 and to another in 1998, and was not convicted until January 2000, when a jury found him guilty of all four murders. The 2001 opinion affirms those convictions and his four consecutive life sentences.
The last opinion, decided June 3, 2004, is about Marlys Wohlenhaus, eighteen, whose mother found her beaten in a downstairs room of their home in Afton on the afternoon of May 8, 1979; she died the next day. No one was charged for nearly twenty years. In the early 1990s an agent with the cold-case unit of the state Bureau of Criminal Apprehension, Everett Doolittle, took up the case, and in 1998 a Washington County jury convicted Ture of her murder. The court rejected his claims about the evidence of the Edwards killing, the lists of women’s names, addresses and license-plate numbers found among his things, and the prosecutor’s closing, and affirmed. Six murder convictions in three trials, spread across twenty years of appeals, make up the record here.
Most of the case against Ture for the Huling and Wohlenhaus killings came from what other people said he told them, and these opinions describe that evidence without vouching for it. T.K. drafted a written confession in the Sherburne County jail in 1981 that he said Ture dictated and signed; R.F. said Ture bragged in 1998 that the surviving boy could only remember the toy car because the fear was etched into his memory. Former cellmates F.S., D.M., R.L. and L.L. testified at the Wohlenhaus trial to remarks about killing a girl in Afton. The juries believed enough of it, along with the physical evidence, to convict. Ture never admitted the killings at trial, and the court’s summaries are the court’s, not his.
These are opinions of the Supreme Court of Minnesota and are public records that may be reproduced in full. The murdered women and children are named, as are the investigators, the doctors, the lawyers and the judges. The surviving Huling boy is W.H. throughout, though he has spoken publicly about that night, because he was a child when he testified; T.W., the hypnotized witness who had been forced off the road minutes before Edwards was taken, K.D., who also saw the abduction, and the inmates who testified are given initials as well. The two Minneapolis rape victims are not named in the opinion and are not named here.
The Caselaw Access Project text was digitized from the printed reports and not run through OCR by us; its own misreadings stand as printed, the most noticeable being the surviving boy’s surname given once as “Ruling,” which our initials now cover, and “Alice Hiding” and “Mice Huling” for his mother. We closed seventeen words that the printed column split across a line, such as “Hen-nepin” and “Wohlen-haus,” where the unbroken word appears elsewhere in the same file. Nothing has been spell-checked.
STATE of Minnesota, Respondent, v. Joseph Donald TURE, Jr., Appellant.
No. C5-82-385.
Supreme Court of Minnesota.
June 29, 1984.
C. Paul Jones, State Public Defender, Susan K. Maki, Asst. Public Defender, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, John MacGibbon, Sherburne County Atty., Elk River, Thomas Heffelfinger, Asst. Hennepin County Atty., Minneapolis, Thomas Van Horn, Asst. Dakota County Atty., Hastings, for respondent.
[OPINION BY KELLEY, Justice. type=majority]
KELLEY, Justice.
Following conviction, defendant Joseph Donald Ture, Jr. was sentenced to mandatory life imprisonment for the first-degree murder of Diane Edwards. In this appeal he claims that certain statements made by him to police officers should have been suppressed on fifth and sixth amendment grounds; that the trial court erred in admitting testimony of a witness who had undergone hypnosis prior to testifying; that the trial judge erred in admitting other-crime evidence; that cumulative trial errors require the granting of a new trial; that the evidence is insufficient to sustain the convictions; that the prosecutor’s final argument deprived him of a fair trial; and that the court committed sentencing errors. We affirm the judgment of conviction and the sentence imposed on one first-degree murder conviction and the judgment of conviction of one count of kidnapping. We vacate one judgment of conviction for first-degree murder and one judgment of conviction for kidnapping.
On September 26,1980,19-year-old Diane Edwards was abducted while walking home from her waitressing job at a Perkins Restaurant in West St. Paul. Four teen-age girls witnessed her abduction. They saw a station wagon drive west on Moreland Avenue, pull onto the sidewalk and stop by a woman walking there alone. The girls heard the woman scream and observed the driver of the station wagon force the woman into his car through the driver’s door. They immediately reported the event to the police. Although they were unable to identify the driver or to precisely describe the make, model or year of the vehicle involved, they did inform the police that the abducted woman wore a Perkins uniform and was driven away in a dark-colored station wagon with wood-grain panels.
K.D., who was sitting in her car in a laundromat parking lot on Moreland Avenue, also witnessed the abduction. She noticed a man driving an older, brown, somewhat rusty station wagon jump out of the wagon, pick a woman up over his head and throw her into the ear through the driver’s door. She also heard the woman screaming. She did not contact the police until she heard a news report of the missing Diane Edwards the next day.
A few minutes prior to the abduction, T.W. had been forced off the road near the intersection of Thompson and Oakdale in West St. Paul by an older model, dark brown station wagon. She had stopped at a stop sign when the station wagon lightly rear-ended her car. When she turned around, the driver of the station wagon was grinning at her. The man then drove alongside her car, hopped out of the station wagon, and attempted to open the locked passenger door of Ms. W.’ car. In an attempt to avoid him, she turned left, but the man pursued her in the station wagon and forced her to stop by driving ahead of her and blocking the road. Thereupon, she began honking her automobile horn. As a car approached her from the rear, the station wagon drove away. This incident happened within minutes before, and only a few blocks away from, the abduction of Diane Edwards. Later, Ms. W. was unable to positively identify the man but described him as being in his mid-20’s, unshaven and with brown hair below ear length.
On October 9, 1980, a hunter discovered Diane Edwards’ purse on a side road in rural Sherburne County. A few hours later, police discovered Ms. Edwards’ naked body lying face down in a ditch close to where the purse had been found. Ms. Edwards’ clothes were lying in a pile next to her. Further search uncovered Ms. Edwards’ glasses, but nothing was discovered providing a possible lead to the abductor’s identity.
The Ramsey County Medical Examiner concluded that Ms. Edwards had died from loss of blood resulting from stab wounds in the chest area. In his opinion the stab wounds had been caused by a single-bladed instrument, such as a buck knife, with a 6-inch long blade. He concluded she had died between 11:30 p.m. on September 26, 1980, and 1 a.m. on September 27,1980. In addition to the stab wounds, the examiner noted four bruises on the face, one bruise on the right shoulder, and what looked like rope marks on the arms. A sexual assault examination was also conducted on the body. It revealed traces of sperm in the cervical area. Because of decomposition, blood-typing on the sperm sample was inconclusive.
A week later West St. Paul police received information that Joseph Ture had been a suspect in a criminal sexual conduct case in Hopkins. At the time of his arrest on the Hopkins charge, defendant had in his possession a number of names of waitresses in the metropolitan area. Later, West St. Paul police learned that defendant had two outstanding misdemeanor traffic tickets in their city. Hoping to question defendant about the Edwards case, they obtained a warrant for defendant’s arrest for these traffic offenses. However, the warrants were never executed because West St. Paul police in the interim were informed by the Minneapolis police department that defendant had been arrested in Minneapolis on October 30,1980 on charges of attempted rape and kidnapping.
The Dakota County sheriff’s department and the West St. Paul police questioned defendant several times over the next 2 months at the Hennepin County jail. Thereafter, any contact by officers from Dakota County or West St. Paul ceased until approximately 3 months later. Subsequently, as a result of further interrogations in April and May 1981, defendant was charged with first-degree premeditated murder, first-degree murder during a sexual assault, two counts of kidnapping and criminal sexual conduct in the first degree.
1. Defendant first contends that statements made by him to various police officers during the course of the investigation of Diane Edwards’ death were obtained in violation of rights guaranteed to him by the fifth and sixth amendments to the United States Constitution.
Both of those amendments guarantee an accused a right to legal counsel. The fifth amendment providing that “[n]o person * * * shall be compelled in any criminal case to be witness against himself” has been interpreted to secure a right to legal counsel during custodial interrogation even before the filing of formal criminal charges. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The sixth amendment provides that “[i]n all criminal prosecutions the accused shall enjoy the right * * * to have the assistance of counsel for his defense.” The right to counsel granted by the sixth amendment attaches at the time adversary judicial proceedings are commenced against an accused. Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972).
To address this issue raised by appellant, we review in some detail the questioning conducted by various police authorities. Before the first interview of defendant at the Hennepin County jail on October 30, 1980, a Dakota County officer asked him whether he had been apprised of his rights by Minneapolis officers who had just finished questioning him on other criminal charges for which he was being held at the jail. Defendant indicated that he had been read his rights by the Hennepin County authorities and that he understood them. Moreover, he agreed to talk with the Dakota County officers.
Within the next few days, defendant voluntarily consented to take a polygraph test and a psychological stress evaluation. On both occasions he was given his Miranda rights. Defendant was interviewed by West St. Paul and Stearns County officers on November 12, 1980, after again being given his Miranda rights. On November 25, 1980 and early in December, defendant twice was interviewed by a Dakota County detective in the Hennepin County jail, both times at defendant’s request. Finally, on January 13, 1981, again upon defendant’s request, a West St. Paul detective again interviewed him. On each of these occasions, defendant made admissions of facts that might later prove to be inculpatory. At each interrogation police officers read defendant his Miranda rights, and each time defendant indicated he understood his rights and wanted to talk to the officers. At no time did defendant indicate he wanted an attorney.
At the time of this questioning, the Dakota County police officers were aware that defendant was being represented by a court-appointed Hennepin County public defender on charges brought against him in Hennepin County. On no occasion did the officers notify defendant's Hennepin County public defender that they were questioning the defendant about the Diane Edwards case. However, on several occasions these officers specifically asked defendant if his attorney had any objections to defendant talking with them and, further, if defendant wanted to call his attorney representing him on the Hennepin County charges. Each time the defendant replied in the negative. The questioning of the Dakota County officers was strictly confined to the Diane Edwards case and did not involve the pending Hennepin County cases.
Following the January 13, 1981 interview, no law enforcement officer spoke to defendant about the Edwards case again until 3 months later. During that 3-month interval, defendant was tried and convicted in Hennepin County on two charges of criminal sexual conduct involving two other victims. While still incarcerated in the Hennepin County jail awaiting trial on a third charge, defendant requested to speak with the Hennepin County sheriff. In response, Hennepin County detective Archie Sonenstahl, the on-call detective, on April 29, 1981 talked with defendant for several hours. Although most of the conversation concerned defendant’s jail problems, in that session he did admit to knowing Ms. Edwards. He also at that time expressed discontent with the public defender representing him on the Hennepin County charges.
On May 7,1981, defendant was convicted of a third criminal sexual conduct charge in Hennepin County. The next day he requested to speak with Detective Sonenstahl who finally met with defendant in the Hennepin County jail on May 11,1981. At that time no Miranda rights were given defendant. Sonenstahl did not interrogate him about the Edwards case. At this meeting defendant was lamenting the fact that he faced a long prison incarceration as a result of his three Hennepin County convictions. Defendant then initiated discussion of the Diane Edwards ease by asking: “If I was involved and if I cooperated with Dakota County on the Diane Edwards case, do you think they would recommend some treatment for me while I am in Stillwater?” Sonenstahl replied: “I can ask ’em * * *. Why don’t you have your attorney ask them?” Defendant indicated he did not want his Hennepin County public defender to contact Dakota County authorities. Sonenstahl then agreed to contact the authorities and “get back to” defendant.
The next evening Detective Sonenstahl met with two officers from the Dakota County sheriff’s office, an assistant Dakota County attorney, and an assistant Hennepin County attorney. He was first briefed on the facts of the Edwards case and then told that Dakota County authorities “would be receptive to his [defendant’s] cooperation” but they could make no promises. Sonenstahl then left the meeting to speak with defendant in the jail. There, he informed defendant that Dakota County authorities were “receptive” to his cooperation but that they could “make no promises.” Defendant was also told “a lot of it would depend on probably the amount of his cooperation and his need for treatment.” After defendant had responded “that sounded okay to him,” Detective Sonenstahl read defendant his Miranda rights, which defendant acknowledged he understood and after which he was willing to talk. Sonenstahl asked defendant if he wanted his attorney who had been representing him on the Hennepin County charges, or any other attorney, present. Defendant replied that he did not. Thereupon, defendant confessed in detail to having abducted, raped and murdered Diane Edwards on September 26, 1980. Sonenstahl later returned to the jail with West St. Paul detective Batzell, and a re-interview containing the confession was tape-recorded. Before taping, defendant was again informed of his Miranda rights, indicated that he understood them, and agreed to waive those rights and talk without the presence of counsel.
We address first defendant’s contention that his sixth amendment right to counsel had attached. This right does not attach until the initiation of adversary judicial proceedings against an accused “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972); see also Brewer v. Williams, 430 U.S. 387, 401, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424 (1977). Once the right has attached, interrogation of an accused in the absence of his attorney is improper unless the defendant gives a valid waiver of the right. Giddings v. State, 290 N.W.2d 595, 597 (Minn.1980).
Since the interrogations by Dakota County authorities and Detective Sonenstahl were merely investigatory and preceded the bringing of formal charges on the Diane Edwards case, ordinarily defendant’s sixth amendment right to the assistance of counsel would not attach. Here, however, during the time of the interrogations defendant was being held in the Hennepin County jail awaiting trial on the three Hennepin County charges. During all the questioning, officers knew that defendant was represented by a Hennepin County public defender in connection with those Hennepin County charges. The various officers did not notify the Hennepin County public defender representing defendant on those charges that they planned to question defendant about the Dakota County Edwards case. Accordingly, that attorney was not present during those interviews. However, on several occasions defendant clearly indicated that he did not want that or any other attorney to represent him in connection with his talks with authorities concerning the Edwards case.
Defendant now urges us to hold that where an accused has been formally charged with one offense in one jurisdiction and is represented by counsel with respect to that offense, police must notify that counsel before questioning defendant about a second offense committed in a different jurisdiction for which defendant has not been formally charged. Failure to do so, he claims, automatically results in deprivation of his sixth amendment right to assistance of counsel and renders statements made by him inadmissible.
Courts of other jurisdictions have considered the time at which an accused’s sixth amendment right attaches in situations similar to those existing here. A majority of those courts have held the accused’s sixth amendment right does not attach in these circumstances. A West Virginia court has considered what effect should be given the fact that, at the time of his confession, an accused was represented by counsel on an unrelated charge in New Jersey. State v. Clawson, 270 S.E.2d 659 (W.Va.1980). While being held in New Jersey and while represented by counsel on the New Jersey charge, the defendant evinced a willingness to confess to murdering two women in West Virginia. The latter charges were unrelated to the New Jersey charge. West Virginia officials obtained the confession without first notifying the defendant’s New Jersey counsel. There, as here, the defendant claimed in the subsequent West Virginia prosecution his sixth amendment right to assistance of counsel had been violated. The West Virginia court rejected these contentions saying:
[Wjhere counsel has been obtained on an unrelated charge, this fact has no particular bearing on whether the defendant is willing to waive counsel on the present charge. It cannot be said from either a constitutional or ethical standpoint that because a defendant has counsel on one criminal charge, the State is thereby foreclosed from making contact with the defendant on another matter. * * * The essential point is whether the defendant desires to have counsel on the present charge or whether he will voluntarily waive that right.
This decision is one that necessarily relates to the defendant’s state of mind in regard to the present charge and we cannot conclude that an earlier decision to have counsel on an unrelated charge can be automatically assumed on the subsequent charge. Moreover, the State is still required before interrogation to give the defendant his Miranda warnings so that he may at this point make the decision to have counsel on the separate charge. To hold that his prior decision to have counsel on an unrelated charge forecloses further inquiry with the defendant on the new charge would result in an absolute presumption against waiver from a prior collateral occurrence.
Clawson, 270 S.E.2d at 669 (citations omitted).
The Fifth Circuit addressed similar facts in United States v. Tyler, 592 F.2d 261 (5th Cir.1979). There, defendant was in custody upon indictment for bank robbery. While in custody, defendant was required to participate without counsel in a police station lineup in another unrelated bank robbery investigation. Defendant argued that his sixth amendment right to counsel had attached because he was in custody at the time of the lineup. The court, however, held:
The fact defendant was in custody for an unrelated offense at the time of the lineup has no bearing on the issue here. The identification was not used in the other proceeding. Only as to that charge had defendant’s right to counsel matured. Since the Government had not “committed itself to prosecute” defendant for this offense at the time of the lineup, his Sixth Amendment claim is without merit.
Id. at 263; see also People v. Agee, 100 Ill.App.3d 878, 881-82, 56 Ill.Dec. 164, 167, 427 N.E.2d 244, 247 (1981) (right to counsel at pre-indictment lineup does not arise merely because defendant was in custody and was represented by counsel on an unrelated criminal matter); Turner v. State, 614 S.W.2d 144, 147 (Tex.Crim.App.1981) (fact that defendant faced adversarial proceedings for attempted indecency with a child is not relevant to determination of defendant’s right to counsel at a show-up for an unrelated aggravated rape offense).
Similarly, the Second Circuit in United States v. Masullo, 489 F.2d 217 (2d Cir.1973), considered whether federal agents, before questioning defendant on federal drug charges, were required to notify the attorney who represented defendant on unrelated state charges. The court noted that there was no showing that defendant’s attorney had been retained to represent defendant in the federal matter and that there was no proof that the crimes were related. Although defendant sought the exclusion of admissions made by him to federal agents, the court concluded that since no federal judicial proceedings had begun against defendant, he had no sixth amendment right to counsel at the time he made the admissions. Id. at 222. The court further commented:
The concept that professional criminals have “house counsel” because of prior escapades and that therefore Government agents knowing the identity of pri- or counsel have an obligation of constitutional or even ethical dimension to contact counsel before questioning them, is hardly appealing. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) requires that all who are arrested be advised of their right to obtain counsel and to remain silent. This, in our view, adequately protects their rights. Those who have no “regular” counsel and no means to retain counsel would seem to be more deserving of our solicitude.
Id. at 223-24; see also Government of Canal Zone v. Sierra, 594 F.2d 60 (5th Cir.1979) (fact that defendant was being represented by public defender’s office on another charge did not preclude him from waiving his right to confer with counsel on the instant charge without notice to that counsel); People v. Mack, 152 Cal.Rptr. 882, 89 Cal.App.3d 974 (1979); Jackson v. State, 268 Ind. 360, 375 N.E.2d 223 (1978).
On the other hand, the New York Court of Appeals has adopted the rule urged by defendant in the present case. Under New York case law, once an interrogating officer knows or should know that a suspect is represented by counsel, even if only on an unrelated charge, statements obtained from the interrogation must be suppressed unless that attorney has been notified and given the opportunity to be present. See People v. Bartolomeo, 53 N.Y.2d 225, 229, 440 N.Y.S.2d 894, 896, 423 N.E.2d 371, 373 (1981). Thus, in People v. Smith, 54 N.Y.2d 954, 445 N.Y.S.2d 145, 429 N.E.2d 823 (1981), where an officer who questioned defendant about his involvement in a murder case knew that defendant had been arrested 8 months earlier on an unrelated sodomy charge, the court held the officer was obligated to inquire whether defendant was represented by an attorney on the sodomy charge and presumably to cease interrogation if he was so represented.
While the New York approach recognizes the importance of the lawyer in safeguarding the suspect’s privilege against self-incrimination, that approach turns on the fortuity that a suspect has been charged on an unrelated offense before interrogation takes place. We choose to follow the majority of jurisdictions that hold that sixth amendment right to counsel does not automatically attach when an accused is questioned in an investigatory stage, notwithstanding he is represented by counsel on unrelated matters. By rejecting the “per se” rule of inadmissibility in these circumstances, we do not diminish our disapproval of custodial and non-custodial interrogations of accused represented by counsel who is not present. See, e.g., Giddings v. State, 290 N.W.2d 595 (Minn.1980); State v. Fossen, 312 Minn. 414, 255 N.W.2d 357 (1977). Moreover, we deem it significant that the Dakota County Edwards case was unconnected with defendant’s Hennepin County offenses. Different jurisdictions, and hence different police officers, were investigating these offenses. No information obtained by police investigating the Edwards case was used against defendant in any of the three Hennepin County trials.
Defendant likewise contends that all statements made by him to the police violated his fifth amendment right against self-incrimination. Statements stemming from a custodial interrogation of an accused are inadmissible unless the state demonstrates that the accused has been fully and effectively apprised of his rights and has knowingly, intelligently and voluntarily waived those rights. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). When waiver is claimed, this court will make an independent determination, on the basis of the facts as found, whether the state has shown that the waiver was knowing, intelligent and voluntary. In doing so we employ the totality of the circumstances approach. State v. Linder, 268 N.W.2d 734, 735 (Minn.1978).
As to statements made by defendant to the police prior to May 12, 1981, his contention is clearly meritless. On each occasion he was read his Miranda rights before being questioned. Defendant himself testified that on those occasions he understood his rights, spoke to the officers voluntarily, and wanted to talk with them without a lawyer being present.
However, defendant claims that his May 12, 1981 confession to Sonenstahl should be suppressed because he involuntarily waived his Miranda rights and was induced to confess by the “deal” offered by Sonenstahl. A determination of whether defendant’s waiver and subsequent confession were voluntary turns on whether defendant was subjectively induced to confess or whether his confession was the product of freewill decision. State v. Orscanin, 283 N.W.2d 897, 899 (Minn.1979), cert. denied, 444 U.S. 970, 100 S.Ct. 464, 62 L.Ed.2d 385 (1979).
Here, the record reveals that defendant initiated all contact with Sonenstahl during April and May 1981. Sonenstahl did not question defendant about the Edwards case until the defendant himself volunteered information. Defendant asked Sonenstahl whether he could get medical treatment in exchange for his confession. Sonenstahl stated several times to defendant, both on and off tape, that neither he nor the Dakota County authorities could make any such promises. Defendant claims Sonenstahl promised him treatment and the dropping of the Hennepin County charges on which defendant had already been convicted. These conflicting contentions created a credibility issue for the trial court as trier of fact to resolve. The court found a knowing, intelligent and voluntary waiver. Therefore, we assume it chose to believe the police officer, a choice, in our view, clearly supported by the circumstances. For a defendant to persuade a court that his confession was induced by a promise of leniency, there must be a stronger showing of specific inducements than those made here. Orscanin, 283 N.W.2d at 900.
We conclude that defendant’s statements made to police officials were made after being fully advised of his rights, that he understood those rights and that he voluntarily waived them.
2. The state called T.W. to testify concerning her encounter with an older model brown station wagon just minutes before the abduction of Diane Edwards. Ms. W.’ description of this station wagon very closely resembled the description of the vehicle given by the five witnesses who had witnessed the abduction. Even when denying his responsibility for Ms. Edwards' death and his possession of a station wagon, defendant admitted in his early statements to the police that he had bumped an older model Chevrolet — yellow, white or gray in color — at Thompson Avenue to get the woman driver’s attention on the evening of September 26, 1980. Ms. W.’ car, in fact, was a 1969 light yellow Nova. Thus, Ms. W.’ testimony links defendant to a brown station wagon similar to the one into which Ms. Edwards was forced just blocks from where the W. incident occurred.
The day after Ms. W. testified, the state’s attorney notified defense counsel that Ms. W. had been hypnotized by a psychologist in early October 1980 at the request of local police and the FBI to assist Ms. W. in recalling precise details about the man and vehicle involved in this incident. Defense counsel immediately moved for a mistrial on the basis that Ms. W.’ testimony was inadmissible as hypnotically-induced testimony. After an extended omnibus hearing during which the trial judge viewed the videotapes of the hypnotic sessions conducted on October 1 and 2, 1980, the trial judge found no material differences between Ms. W.’ statements given before and after hypnosis and concluded that Ms. W.’ testimony was not hypnotically induced. The trial judge also noted that in light of defendant’s admissions, Ms. W.’ testimony “was not incriminating in the extreme.” The trial judge denied the motion for mistrial but ordered that defense counsel have an opportunity to further cross-examine Ms. W. if he so chose.
Defendant now contends that his constitutional right to a fair trial has been violated by admission of Ms. W.’ testimony and urges this court to adopt a per se rule precluding a previously hypnotized witness from testifying to any facts relating to the subject matter of the pretrial hypnotic interview.
We first considered use of hypnosis in criminal cases in State v. Mack, 292 N.W.2d 764 (Minn.1980). The victim in Mack had been brutally stabbed but could remember nothing of the attack upon her. Six weeks after the assault, at the suggestion of a police officer, she submitted to hypnosis by a self-taught lay hypnotist in the presence of two police officers. The issue before this court was the admissibility at trial of the victim’s hypnotically-induced testimony. After carefully reviewing the testimony of five experts and the literature on the reliability of hypnotically-induced testimony, we there stated: “Regardless of whether such evidence is offered by the defense or by the prosecution, a witness whose memory has been ‘revived’ under hypnosis ordinarily must not be permitted to testify in a criminal proceeding to matters which he or she ‘remembered’ under hypnosis.” Mack, 292 N.W.2d at 771. We went on to observe that we did not foreclose the use of hypnosis as an extremely useful investigative tool when a witness is enabled to remember verifiable factual information which provides new leads to the solution of a crime, but even then we warned that adequate safeguards should be established to assure the utmost freedom from suggestion upon the hypnotized person’s memory recall in the event the witness must later be called to testify to recollections recorded prior to the hypnotic interview. Mack, 292 N.W.2d at 771.
We next addressed the issue in State v. Koehler, 312 N.W.2d 108 (Minn.1981). The crucial issue there was whether the defendant’s car was at or near the scene of the crime at the time of its commission. Family members testified the car at the crucial time was in front of the defendant’s residence. A witness claimed to have seen the victim riding in the passenger seat of an off-green, mid-1960’s compact car, but he could give no more specific description. After being hypnotized by a police sergeant, the witness testified he had seen the defendant’s car near the scene of the crime at the crucial time and remembered one number on the license plate. This was the only direct evidence linking the defendant to the area of the crime. Because the witness’ hypnotically-influenced testimony was incriminatory and highly prejudicial, we reversed the defendant’s conviction and mandated on retrial that the witness could not testify to matters adduced at the pretrial hypnotic interview except as such matters were previously and unequivocally disclosed by him to the police prior to the hypnosis. Koehler, 312 N.W.2d at 110.
In State v. Blanchard, 315 N.W.2d 427 (Minn.1982), we adhered to our holding in Mack and Koehler that a hypnotically-influenced witness must not be allowed to testify in a criminal proceeding concerning matters he or she “remembers” under hypnosis. Blanchard, 315 N.W.2d at 430. We there went on to hold, however, that admission of the witness’ hypnotically-influenced recollections was not reversible error since it was not highly prejudicial and because six other witnesses testified as to the defendant’s admission of guilt. Moreover, we noted that the witness’ pre-hypnotic memory contained devastating evidence against the defendant and that in the posthypnotic testimony the crucial information remained unchanged. Blanchard, 315 N.W.2d at 431.
These cases demonstrate that this court has consistently adhered to the rule of general inadmissibility of hypnotically-induced testimony in criminal cases. Investigators and prosecutors have been put on notice that the use of such testimony invites reversal. It will be a rare case when a conviction will be sustained if hypnotically-influenced testimony is used at trial.
Is this such a rare case? Although we entertain some doubt, we think it is. The hypnosis safeguards to be exercised to minimize the possibility of suggestibility advanced by Dr. Martin S. Orne in Mack were scrupulously observed in the present case. Moreover, Ms. W.’ post-hypnotic testimony was strikingly similar to her pre-hyp-notic memory. In her September statements to officers — a day or two after the abduction — she described the vehicle as “an older brown wagon, (no wood grain sides)” and with “the left head light * * * out.” She also described it as “dirty” and “beat-up.” She described the driver as “mid-20’s, glasses, medium brown shoulder length hair, medium build.” After seeing a composite drawing of a suspect in a newspaper, she positively advised police that it showed the same person who attempted to get into her vehicle on that Friday evening.
At trial, post-hypnosis, Ms. W. described the vehicle as an older model dark brown station wagon' in rusty condition with the left headlight out. She described the driver as a male in his mid-20’s with medium brown hair below ear length and hair growing on his upper lip but not a full moustache. At no point did she positively identify defendant as the driver.
It appears clear that the differences between her pre-hypnotic testimony and her post-hypnotic testimony were slight to non-existent. In neither instance did she positively identify defendant as the driver of the car involved in her incident, and in both instances she was vague in her description of his appearance. Additionally, there were five other eyewitnesses to the abduction who gave descriptions of the vehicle used and vague descriptions of the abductor. Consequently, we conclude under these circumstances admission of her trial testimony was not prejudicial.
Finally, defendant contends the prosecutor violated Minn.R.Crim.P. 9.01, subd. l(l)(a), subd. 1(4) and subd. 1(6) by failing to disclose to defense counsel that Ms. W. had been hypnotized until after she had testified at the trial. We agree that the prosecutor violated the letter and spirit of those rules and censure him for so doing but conclude the violation, under the circumstances existing in this case, does not warrant the granting of a new trial.
Under the Minnesota Rules of Criminal Procedure, the prosecutor clearly had the obligation to disclose the fact of Ms. W.’ hypnosis. However, in this case the prosecutor was unaware that Ms. W. had been hypnotized until 5 days before she testified. During the course of the lengthy pretrial proceeding, the defense counsel had access to the prosecutor’s files. The prosecutor either overlooked the fact of hypnosis or took it upon himself to make the judgment that Ms. W.’ post-hypnotic testimony did not differ from her prior statements. If it were the former, lack of diligence in conforming to the criminal rules is apparent; if it were the latter, the prosecutor was clearly wrong — that determination was for the court. If defendant were prejudiced by his failure to disclose, a new trial would be mandated. We find, however, no prejudice. The entire hypnotic session was videotaped. Defendant and his counsel had the opportunity to and did view the videotapes of Ms. W.’ hypnotic session. The court offered defense counsel further opportunity to cross-examine the witness, an opportunity of which he chose not to take advantage. Because Ms. W.’ post-hypnotic testimony was not prejudicial, we find no reversible error.
3. Defendant next asserts the trial court erred in admitting evidence of other crimes committed by him. The offenses consisted of the attempted kidnapping of and attempted sexual assault upon J.M. on October 27, 1980; the kidnapping of and sexual assault upon C.S. on October 25, 1980; and the kidnapping of and sexual assault upon L.W. on October 19, 1980. Defendant had been convicted of each of these offenses in Hennepin County prior to this trial. The evidence was admitted to show identification, intent, common plan or scheme and motive. State v. Saucedo, 294 Minn. 289, 291-92, 200 N.W.2d 37, 39 (1972); see also Minn.R.Evid. 404(b).
Admission of evidence of other crimes rests in the sound discretion of the trial court and will be upheld absent a clear showing of abuse of discretion. State v. Johnson, 256 N.W.2d 280, 286 (Minn.1977); State v. Williams, 307 Minn. 191, 194-95, 239 N.W.2d 222, 225 (1976). The prior offenses were acts of criminal sexual conduct and kidnapping strikingly similar to those with which defendant was charged in the Edwards case and closely related in time to the abduction of Ms. Edwards. State v. Williams, 325 N.W.2d 812 (Minn.1982); State v. Morrison, 310 N.W.2d 135 (Minn.1981). Moreover, evidence of defendant’s prior offenses was relevant to identity which he placed in issue by denying his confession and presenting an alibi. State v. Billstrom, 276 Minn. 174, 177-78, 149 N.W.2d 281, 284 (1967). There was no abuse of trial court discretion.
4. Defendant alleges trial court errors which, though admittedly not requiring a new trial when considered in isolation, prejudiced him in their cumulative effect. See State v. Underwood, 281 N.W.2d 337, 344 (Minn.1979). Most of these alleged errors concerned the trial judge’s rulings regarding physical evidence and testimony. These rulings involved the scope of cross-examination and relevancy of evidence, both determinations resting within the sound discretion of the trial court.
We have reviewed the record and the context in which the rulings on the evidence were made. We find nothing to indicate the trial judge clearly abused his discretion by rulings made. The only issue raised deserving comment relates to the trial court allowing transcripts of defendant’s recorded statements to be read by jurors as they listened to the taped recordings. We hold the trial court did not abuse its discretion in finding proper foundation had been laid for the tapes or the transcripts. Moreover, the transcripts were collected from the jury immediately after the tapes were played and did not go to the jury room. Finally, the court gave the jurors a complete instruction as to the limited use of the transcript and admonished them that if the transcript differed from what they heard on the tape, they should follow the tape. See United States v. McMillan, 508 F.2d 101, 105 (8th Cir.1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975); State v. Olkon, 299 N.W.2d 89, 103 (Minn.1980), cert. denied, 449 U.S. 1132, 101 S.Ct. 954, 67 L.Ed.2d 119 (1981).
5. Defendant’s contention that the evidence is insufficient as a matter of law to sustain the convictions is clearly without merit. Defendant’s own statements to police establish his guilt. A great quantity of other evidence existed to corroborate those statements. There were eyewitnesses to the abduction. Several witnesses linked defendant to possession of a brown station wagon similar to the one seen at the scene of the abduction. Without police prompting, defendant himself led police to the site of the disposition of Diane Edwards’ body. Moreover, the defendant’s at-trial alibi was inconsistent with the testimony of the other witnesses. Viewing the record in its entirety, there is more than sufficient evidence, if believed by the jury as, in fact, it was, to sustain the verdict that defendant was guilty of the kidnapping, criminal sexual conduct in the first degree, and the murder of Diane Edwards.
6. Finally,, defendant urges reversal of his convictions because of misconduct of the prosecutor in his final argument. In the argument the prosecutor commented on the credibility of several of the state’s witnesses by characterizing various witnesses as being “honest,” “a woman of integrity,” “honest detectives,” and “honest police officers.” He extolled the police officers as “not the kind of officers who are going to get up here, take the stand, take the oath and tell you something if it isn’t true.” In addition, he characterized defendant’s testimony as “[ijncredible is the word for it * * *. I suggest to you that Mr. Ture is not only wrong, but not exactly telling the truth on the stand.” Defendant’s testimony was referred to as “a lot of nonsense” and as a “joke, joke.” He depicted defendant as a “rapist and murderer” and as a “predator.”
Both those portions of the final argument of the prosecutor endorsing the credibility of the state’s witnesses and injecting personal opinion as to defendant’s credibility were clearly improper. The credibility of a witness is to be determined by the jury. An advocate may indeed point to circumstances which cast doubt on a witness’ veracity or which corroborates his or her testimony, but he may not throw onto the scales of credibility the weight of his own personal opinion. Such conduct is expressly prohibited by the Minnesota Code of Professional Responsibility, DR 7-106(C)(4), and the ABA Standards for Criminal Justice, § 3-5.8(b) (2nd ed. 1980).
While those parts of the prosecutor’s final argument were clearly improper, we must consider whether they were so egregious as to justify a new trial. Normally, a determination of whether the prosecutor acted improperly in final argument is a matter within the discretion of the trial court. State v. Fossen, 282 N.W.2d 496, 503 (Minn.1979). At the trial defendant and his counsel failed to object to the improper statements and failed to seek specific cautionary instructions. Ordinarily, by failing to take either step the defendant is deemed to have forfeited his right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn.1980); State v. Flom, 285 N.W.2d 476, 477-78 (Minn.1979). The fact that defendant failed to object to the prosecutor’s statements suggests he then did not consider them prejudicial. State v. Thomas, 305 Minn. 513, 517, 232 N.W.2d 766, 769 (1975).
This court has held in cases where the prosecutor has expressed a personal opinion of the accused’s guilt or the veracity of witnesses that such statements were harmless where the trial judge cautioned the jury that it should consider only the evidence and that counsel’s final argument statements were not evidence, where the evidence of guilt was adequate, and where the prosecutor’s argument was otherwise proper. State v. Spaulding, 296 N.W.2d 870, 876 (Minn.1980); State v. Schultz, 262 N.W.2d 411 (Minn.1978); State v. Prettyman, 293 Minn. 493, 495, 198 N.W.2d 156, 158 (1972).
In the present case the trial court gave an appropriate instruction to the jury that statements of counsel were not evidence and that its verdict could be based only on the evidence. In addition, the written jury instructions went into the jury room. Both the prosecutor and defense counsel informed the jury that it should only consider the evidence offered in the trial. Defense counsel in his final arguments stressed that arguments of counsel were not evidence. Moreover, the objectionable comments were isolated in an argument that took several hours after a lenghty trial. Finally, as indicated, there was more than adequate evidence of defendant’s guilt without these comments. Although we strongly disapprove of the prosecutor’s comments, we cannot on this record conclude the jury based its verdict, even in part, on the improper statements of the prosecutor.
7. Defendant was convicted of one count of first-degree premeditated murder, Minn.Stat. § 609.185(1) (1982), one count of first-degree murder committed during a sexual assault, Minn.Stat. § 609.185(2) (1982), one count of criminal sexual conduct, and two counts of kidnapping. Defendant was only sentenced for the conviction of first-degree murder committed during a sexual assault. Defendant contends and the state agrees that the judgment of conviction of first-degree premeditated murder and one judgment of conviction for kidnapping should be vacated.
Minn.Stat. § 609.04 (1982) bars the conviction of a defendant twice for the same offense against the same victim on the basis of the same act. State v. Discher, 295 N.W.2d 99, 100 (Minn.1980); see also State v. Bowser, 307 N.W.2d 778, 779 (Minn.1981); State v. Smith, 299 N.W.2d 504, 506 (Minn.1980). Thus, defendant cannot legally be convicted of two counts of first-degree murder where both convictions were for the same offense on the basis of the same act involving the same victim. Likewise, defendant cannot legally be convicted of two counts of kidnapping. Accordingly, we vacate the judgment of conviction for first-degree premeditated murder and one judgment of conviction fot kidnapping.
8. As a result of his three Hennepin County convictions, defendant was sentenced to three consecutive terms of imprisonment. In this case, the trial judge imposed the mandatory life sentence, Minn. Stat. § 609.185 (1982), to run consecutively to the last of the previously-imposed sentences. Relying on Minn.Stat. § 609.035 (1982), the single sentence statute, defendant claims his murder conviction should run concurrently with his prior sentences. That reliance is misplaced. The statute’s basic purpose is to “leaven the harshness which may result from multiple prosecutions arising out of a single criminal episode.” State ex rel. Stangvik v. Tahash, 281 Minn. 353, 361, 161 N.W.2d 667, 672 (1968). Defendant’s life sentence was imposed for a crime arising out of a criminal incident separate from the incidents for which he was previously sentenced in Hennepin County. The trial court’s determination that the consecutive sentence was necessary to protect the public is supported by our prior cases. State v. Olson, 291 N.W.2d 203 (Minn.1980); Bangert v. State, 282 N.W.2d 540, 547 (Minn.1979).
We affirm the defendant’s convictions for first-degree murder committed during a sexual assault, criminal sexual conduct in the first degree, and for one charge of kidnapping. We vacate defendant’s judgment of conviction for first-degree premeditated murder and for one charge of kidnapping. We affirm the trial court’s sentence on the first-degree murder charge to be served consecutive to the sentences affirmed in Ture v. State, 353 N.W.2d 518 (Minn.1984), filed herewith.
Affirmed in part and vacated in part.
The jury found the defendant guilty of first-degree premeditated murder, criminal sexual conduct in the first degree, and two counts of kidnapping — all with Diane Edwards as the victim. He was only sentenced for first-degree murder committed during the course of criminal sexual conduct in the first degree. He also was convicted for first-degree murder while committing or attempting criminal sexual conduct in the first degree. Minn.Stat. § 609.185(2) (1982). .These charges stemmed from an incident which occurred on October 27, 1980 in the area of Lake Street and Pillsbury in Minneapolis. J.M. was walking alone there on that evening when a car pulled up to the sidewalk. The driver, later identified as defendant by J.M., got out of that car and tried to drag J.M. into the car. J.M. was able to escape from the driver by burning his face with her lit cigarette.
This protection applies to state court proceedings through the 14th amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The Minnesota constitution contains an identical provision. Minn. Const, art. I, § 7.
This protection likewise applies to state court proceedings through the 14th amendment, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and is also guaranteed under Minn. Const, art. I, § 6.
At one point defendant’s Hennepin County public defender told defendant that defendant would have to get a different attorney to represent him on the Dakota County charges.
We note that it is highly improbable that a Hennepin County detective could promise the dropping of three Hennepin County charges of which the defendant, after three separate trials, had been convicted.
Other courts, even those which had adopted a per se rule of inadmissibility of hypnotically-induced testimony, have permitted the admission of pre-hypnotic testimony in limited instances. See State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982); People v. Jackson, 114 Mich.App. 649, 319 N.W.2d 613 (1982); State v. Patterson, 213 Neb. 686, 331 N.W.2d 500 (1983); People v. Hughes, 59 N.Y.2d 523, 466 N.Y.S.2d 255, 453 N.E.2d 484 (1983); Commonwealth v. Taylor, 294 Pa.Super. 171, 439 A.2d 805 (1982). These courts have held that a witness is not rendered incompetent merely because the witness was hypnotized during the investigatory phase of the case; rather, the witness is permitted to testify concerning matters which the witness was able to recall and relate prior to hypnosis provided there is sufficient evidence to satisfy the court that the evidence was known and related prior to hypnosis. See, e.g., State v. Patterson, 213 Neb. 686, 331 N.W.2d 500 (1983); State v. Hutchinson, 99 N.M. 616, 661 P.2d 1315 (1983). As one court noted, if it were to hold otherwise, "the police will seldom dare to use hypnosis as an investigatory tool because they will thereby risk making the witness incompetent if it is later determined that the testimony of that witness is essential.” Collins, 132 Ariz. at 209, 644 P.2d at 1295.
In Mack we noted, but did not adopt, those safeguards. State v. Mack, 292 N.W.2d 764, 771 n. 14 (Minn.1980). We do not adopt them in this case. .Minn.R.Crim.P. 9.01, subd. l(l)(a), subd. 1(4) and subd. 1(6) so far as applicable read as follows: Subd. 1. Disclosure by Prosecution Without Order of Court. * * * (1) Trial Witnesses; Grand Jury Witnesses. (а) The prosecuting attorney * * * shall permit defense counsel to inspect and reproduce such witnesses’ relevant written or recorded statements and any written summaries within his knowledge of the substance of relevant oral statements made by such witnesses to prosecution agents. ****** (4) Reports of Examinations and Tests. The prosecuting attorney shall disclose and permit defense counsel to inspect and reproduce any results or reports of physical or mental examinations, scientific tests, experiments or comparisons made in connection with the particular case. ****** (б) Exculpatory Information. The prosecuting attorney shall disclose to defense counsel any material or information within his possession and control that tends to negate or reduce the guilt of the accused as to the offense charged.
As noted herein, Ms. W.’ post-hypnotic testimony did not differ in any material degree from that initially given to authorities. We note, however, effective cross-examination of a previously hypnotized witness is virtually impossible. See, e.g., State v. Mack, 292 N.W.2d 764, 769 & n. 10 (Minn.1980).
See Vess, Walking a Tightrope: A Survey of Limitations on the Prosecutor’s Closing Argument, 64 J.Crim.L. and Criminology 22 (1973). The author points out this is a factor to be considered: Fourth, the court may take into account the length of the trial or the length of the argument. It may be that a misstatement in a short trial is not serious error, since the jurors should have an independent recollection of the evidence. On the other hand, a lengthy argument after a long trial is more likely to be imperfect, and minor transgressions in this setting may also be excused. Id. at 55.
Joseph Donald TURE, Jr., petitioner, Appellant, v. STATE of Minnesota, Respondent.
Nos. C7-82-1635, C7-83-88 and C1-83-250.
Supreme Court of Minnesota.
June 29, 1984.
C. Paul Jones, State Public Defender, Kathy King, Mark P. Anderson, Mary E. Steenson, Asst. Public Defenders, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Henn. County. Atty., Vernon E. Bergstrom, Rick Osborne, Michel Richardson, Beverly J. Wolfe, Asst. County Attys., Minneapolis, for respondent.
[OPINION BY KELLEY, Justice. type=majority]
KELLEY, Justice.
We have consolidated, on our own motion, three appeals by defendant from orders denying postconviction relief from convictions arising from a series of sex offenses committed by defendant in Minneapolis in the fall of 1980. We decide by separate opinion in State v. Ture, 353 N.W.2d 502 (Minn.1984), filed herewith, defendant’s appeal of his conviction of murder, which he committed while kidnapping and sexually assaulting another woman, also in the fall of 1980.
Early on October 19, 1980, while armed with a knife, defendant forced an 18-year-old woman into his car in the Lake Street area of south Minneapolis and drove her to a secluded place, forcing her to commit fellatio as he drove and forcing her to submit to sexual intercourse once he stopped driving. After defendant dropped her off, the victim immediately called police. On October 22, 1980, she identified defendant’s photograph in a photographic display.
Early on October 25, 1980, defendant, using a knife, forced a 13-year-old runaway into his car in the Lake Street area of south Minneapolis and drove her to a nearby residential area, where he forced her to commit fellatio and to submit to cunnilingus and sexual intercourse. After being released, the victim told the woman who was harboring her and also reported the incident to her uncle, but she did not report it to police until later that day, when she was detained at a store for shoplifting.
Late on October 27, 1980, defendant attempted to force a 20-year-old woman into his car in the Lake Street area of south Minneapolis but fled when the woman burned him on the face with her lit cigarette. This victim copied down the license plate number of defendant’s car and reported the incident to the police the following day. On October 29, 1980, she identified defendant’s photograph. Early on October 30, 1980, she spotted defendant as he was again driving in the area in his car, and she immediately called the police. Defendant was arrested nearby a short time later. When he was arrested, defendant was observed to have a small blemish on his face where the victim touched him with her cigarette.
On the afternoon of October 30, 1980, police questioned defendant, first about the October 19 incident, then about the October 27 incident. While denying that he committed any crimes, defendant made statements that connected him to all three incidents. On October 31, 1980, the victim of the October 25 incident identified defendant’s picture. Also on that date, police discovered incriminating evidence in a warranted search of defendant’s car. Police also questioned defendant about the October 25 incident, obtaining more statements connecting him to that offense.
Defendant was tried first for the October 27 incident and was found guilty of attempted kidnapping and attempted criminal sexual conduct in the first degree. He was originally sentenced to 120 months in prison for attempted criminal sexual conduct in the first degree, but the court subsequently reduced this to 45 months.
Defendant was next tried for the October 25 incident and was found guilty of criminal sexual conduct in the first degree, criminal sexual conduct in the third degree and kidnapping. The trial court sentenced defendant to a consecutive term of 120 months for criminal sexual conduct in the first degree.
Defendant was found guilty of kidnapping and two counts of criminal sexual conduct in the first degree in connection with the October 19 incident and was sentenced to three terms of 120 months, with the terms running concurrently with each other but consecutively with the previously imposed terms.
We consider the three appeals in the order in which the offenses were committed.
1. In connection with the October 19 incident, defendant claims that the trial court erred in admitting other-crime evidence and in departing durationally from the presumptive sentence; he also argues that he is entitled to have the kidnapping conviction and one of the sex convictions vacated pursuant to section 609.04, or at least to have the sentences for those offenses vacated pursuant to section 609.035. We agree with the state that the durational departure was justified, but we vacate one of the sex convictions and vacate the sentence for the kidnapping conviction.
A. Defendant’s first contention relates to the admission of so-called Spreigl evidence, specifically evidence concerning the October 27 incident and evidence concerning an earlier incident occurring on October 15, 1980, in which defendant kidnapped a 26-year-old woman from a location near Lake Street and forced her to commit fellatio and submit to sexual intercourse.
Defendant’s contention that the trial court erred in admitting this evidence is meritless. Minn.R.Evid. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence of other crimes is admissible if the evidence of the defendant’s participation in the other crimes is clear and convincing, if the evidence is relevant and material to the state’s case, and if the probative character of the evidence outweighs its potential for unfair prejudice. The converse of this is that the evidence is inadmissible if it is irrelevant to the state’s case, if the sole purpose of its introduction is to show that the accused has a propensity to commit crimes, or if its potential for unfair prejudice outweighs its probative character. Regardless of the purpose for which the evidence is admitted, there must be some relationship in time, location, or modus operandi between the crime charged and the other crimes, and further, the evidence must be needed. State v. Billstrom, 276 Minn. 174, 178-79, 149 N.W.2d 281, 284-85 (1967).
In this case, the evidence of the other crimes was clear and convincing, the evidence was relevant, and the probative character of the evidence outweighed its potential for unfair prejudice. The trial court’s decision that the evidence was needed was a discretionary decision. While the state probably could have obtained a conviction without the other-crime evidence, one cannot be sure of this, and, in any event, it does not follow that the evidence should not have been admitted. Among the many sex cases in which we have upheld admission of evidence of other sex crimes, one that is closely in point is Muhammed, v. State, 316 N.W.2d 572 (Minn.1982). In that case, the defendant was charged with one of a series of rapes committed by a man in a neighborhood. The trial court in that case admitted evidence of a number of other rapes, and we upheld the trial court on appeal. In this case, we also uphold the trial court.
B. Defendant's second contention relates to the durational sentencing departure. At the time defendant was sentenced, he had a criminal history score of two. Criminal sexual conduct in the first degree is a severity level VIII offense. The presumptive concurrent sentence for the offense by a person with a criminal history score of two is an executed term of 65 (60-70) months in prison. The presumptive consecutive sentence, if a consecutive sentence is imposed pursuant to Minnesota Sentencing Guidelines and Commentary II.F. (1983), is 43 (41-45) months in prison. The trial court imposed three 120-month terms, with the terms running concurrently with each other but consecutively to the previously imposed terms.
As we stated recently in State v. Cox, 343 N.W.2d 641, 643 (Minn.1984), “[t]he general issue that faces a sentencing court in deciding whether to depart durationally is whether the defendant’s conduct was significantly more or less serious than that typically involved in the commission of the crime in question.” In this case, the trial court was justified in concluding that defendant committed the rape of the victim on October 19 in a particularly serious way. Facts that stand out include: (i) the victim’s intoxication; (ii) defendant penetrated the victim in two different ways; (iii) defendant ejaculated into the victim’s mouth; (iv) defendant’s conduct violated two different subsections of Minn.Stat. § 609.342 (1982); (v) the entire episode lasted about 1 hour; and (vi) as a result of the incident, the victim, who later discovered she was pregnant, had to go through her entire pregnancy without knowing for sure whether the biological father of the unborn child was defendant or her boyfriend.
Making a qualitative assessment of all these facts, we conclude that, using consecutive sentencing, the trial court was free to double the maximum presumptive consecutive sentence duration of 45 months, giving defendant a total of 90 months in prison. State v. Van Gorden, 326 N.W.2d 633 (Minn.1982); Davis v. State, 324 N.W.2d 802 (Minn.1982); State v. Morales, 324 N.W.2d 374 (Minn.1982); State v. Herberg, 324 N.W.2d 346 (Minn.1982); State v. Heinkel, 322 N.W.2d 322 (Minn.1982); State v. Luna, 320 N.W.2d 87 (Minn.1982); State v. Martinez, 319 N.W.2d 699 (Minn.1982); State v. Garcia, 302 N.W.2d 643 (Minn.1981). The consecutive sentence of 120 months must be reduced to 90 months. State v. Elkins, 346 N.W.2d 116 (Minn.1984).
C. Defendant’s final contention relates to the fact that he was convicted of and sentenced for three offenses. Defendant contends that under sections 609.035 and 609.04 he should have been sentenced for and formally adjudicated guilty only of one offense. The state disputes this and also argues “waiver” because the defendant did not raise this at the time of sentencing but waited until he petitioned for post-eonviction relief. The postconviction court refused to address the issue, ruling that defendant had waived his right to raise it.
All three convictions clearly arose from the same behavioral incident and, therefore, the trial court should have sentenced defendant only for one of the three offenses. Bixby v. State, 344 N.W.2d 390 (Minn.1984); State v. Herberg, 324 N.W.2d 346 (Minn.1982); State v. Koonsman, 281 N.W.2d 487 (Minn.1979). Defendant’s failure to raise this issue at the time of sentencing does not constitute a waiver barring him from later raising the issue and obtaining relief. State v. Kemp, 305 N.W.2d 322 (Minn.1981), relied upon by the state, merely indicated that in the future we might decline to decide issues concerning the application of either section 609.035 or 609.04 unless the defendant first presented it to the trial court for decision. The intent of that language was to get defense counsel to petition for relief in the district court first, thereby possibly avoiding the need for an appeal and avoiding the need for this court to decide the issue.
Defendant did that here, petitioning for postconviction relief first. The intent of the language was not to suggest that a defendant waives or forfeits the issue if he does not raise it at the time of sentencing. Cases consistent with this include Bixby v. State, 344 N.W.2d 390 (Minn.1984); State v. Tenhoff, 322 N.W.2d 354 (Minn.1982); State v. White, 300 Minn. 99, 219 N.W.2d 89 (1974), the latter ease holding that the prohibition against double punishment in section 609.035 cannot be waived.
The final issue is whether two of the three convictions should be vacated. Defendant clearly is entitled to have one of the two sex convictions vacated. State v. Dudrey, 330 N.W.2d 719 (Minn.1983); State v. Koonsman, 281 N.W.2d 487 (Minn.1979). However, he is not entitled to have the kidnapping conviction vacated. Section 609.04 would apply if either the kidnapping conviction or the conviction of criminal sexual conduct in the first degree were a necessarily included offense of the other. That is not the case since one can commit kidnapping without committing the sex crime and vice versa. That being so, we do not believe the defendant is entitled to vacation of the kidnapping conviction. State v. Whisonant, 331 N.W.2d 766 (Minn.1983); State v. Koonsman, 281 N.W.2d 487 (Minn.1979).
2. In connection with the October 25 incident, defendant claims that the trial court denied him a fair trial by admitting Spreigl evidence concerning the October 19 and October 27 incidents. Alternatively, he seeks reduction of his sentence on the ground that the durational departure was unjustified and/or excessive.
A. The contention that the trial court erred in admitting the Spreigl evidence is answered by our discussion of the same contention in connection with the October 19 incident. See paragraph 1, subparagraph A above.
B. At the time of sentencing in the case involving the October 25 incident, defendant’s criminal history score was one. The presumptive concurrent sentence for criminal sexual conduct in the first degree by a person with a criminal history score of one is an executed term of 54 (50-58) months in prison. The presumptive consecutive sentence, if a consecutive sentence is imposed pursuant to Section II.F. of the Guidelines, is 43 (41-45) months in prison. The trial court sentenced defendant to an executed term of 120 months in prison, with the term running consecutively to the previously imposed sentence in connection with the October 27 incident.
We believe that the trial court was justified in departing durationally. The episode lasted 2 hours, involved multiple types of penetration, involved violating section 609.342 in two different ways, the victim of the violent rape was only 13 years old, and defendant was arguably gratuitously cruel. Making a qualitative assessment of all the facts, we conclude that the trial court was justified in concluding that defendant committed the offense in a particularly serious way.
Defendant was sentenced first in connection with the October 27 incident, discussed infra, and next in connection with this incident. Given our disposition of the sentencing issue in connection with the October 27 incident, we modify defendant’s sentence for this offense to a concurrent sentence of 116 months (two times the maximum presumptive concurrent sentence), which gives defendant 3V2 months more maximum prison time than would be obtained by modifying the 120-month consecutive sentence to 90 months consecutive.
3. In connection with the October 27 incident, defendant claims that the evidence of his guilt was legally insufficient, that he was denied a fair trial by admission of evidence indicating his involvement in other crimes, and that the trial court erred in departing durationally from the presumptive sentence.
A. The contention that the evidence of defendant’s guilt was legally insufficient is meritless. Evidence concerning what defendant said and did to the victim and the Spreigl evidence clearly demonstrate that he intended to kidnap and rape her. The fact that he grabbed her and started dragging her to his car is sufficient evidence that he took a substantial step toward the commission of the intended crimes.
B. Defendant next argues that he was denied a fair trial by the admission of evidence indicating his involvement in other crimes.
(1) First, he claims that he was denied a fair trial by the admission of Spreigl evidence of the October 15 and October 19 incidents. This claim is answered by our discussion of the same contention in connection with the October 19 incident. See paragraph 1, subparagraph A above.
(2) Defendant also claims that he was denied a fair trial by the admission of evidence about an incident in another county. Specifically, an officer from the Dakota County sheriff’s office questioned defendant on October 30, 1980, right after the Minneapolis police finished questioning defendant. Defendant made a statement to him to the effect that “they have really got me good this time.”
At the start of his testimony, this officer indicated that he was there to talk with defendant about “an incident in Dakota County.” Defense counsel objected in chambers to this, and the trial court agreed that this reference to his reason for questioning defendant should not have been elicited. The court stated that it did not justify a mistrial but offered to give a curative instruction. After thinking about it, defense counsel decided that a curative instruction would only highlight the testimony. We believe, as the trial court apparently did, that the elicitation of the evidence, while improper, clearly was not prejudicial.
(3) Defendant’s other related contention concerns the fact that the victim’s roommate, who was with the victim when she spotted defendant on October 30, referred in her testimony to the fact that the victim identified defendant from “mug shots.” It was unfortunate that the witness referred to the pictures as “mug shots,” however, defense counsel did not object to the use of this term and, in any event, given the strong evidence against defendant, the error was not prejudicial.
C. Defendant’s final contention concerns the propriety of the trial court’s durational departure in sentencing him for the October 27 incident. Defendant’s criminal history score at the time of sentencing for this incident was zero because this was the first offense for which defendant was sentenced. The presumptive sentence for the completed offense of criminal sexual conduct in the first degree when committed by a person with a criminal history score of zero is 43 (41-45) months in prison. Under Minnesota Sentencing Guidelines and Commentary II.G. (1982), the presumptive sentence duration for an attempt is one-half the presumptive sentence duration for the completed offense. Thus, the presumptive sentence duration in this case was 21 ¾⅞ (20j/2 to 22V2) months in prison.
The trial court based the durational departure on (i) the fact that the offense was but one of a number of similar offenses committed within a short period of time in the same area of Minneapolis; (ii) the fact that the circumstances of the offense show a clear pattern of stalking women for the purpose of eventually sexually assaulting them; and (iii) the presumptive sentence does not adequately protect the public.'
Generally, it is proper for the sentencing court to consider the course of conduct underlying the charge for which the defendant is being sentenced, but generally it is not proper for the court to consider evidence which points to defendant’s guilt of some other offense which does not support the conclusion that the defendant committed the instant offense, for which he is being sentenced, in a particularly serious way. State v. Cermak, 344 N.W.2d 833 (Minn.1984). Defendant was convicted and sentenced for the October 19 and October 25 incidents and apparently was not tried for the October 15 incident. It is not proper to justify the departure in this case on defendant’s conduct with respect to the other victims. Similarly, defendant’s dangerousness does not justify a departure. State v. Hagen, 317 N.W.2d 701 (Minn.1982).
Whether the departure was justified depends on whether defendant committed the crime in question, attempted criminal sexual conduct in the first degree, in a particularly serious way. Focusing on the objective aspects of defendant’s conduct, we conclude that the departure was unjustified. When defendant abandoned the attempt, defendant simply had not gone far enough to distinguish his conduct from that of any other violent rapist’s conduct at an identical stage. Under the circumstances, defendant’s sentence for this offense must be reduced to the maximum presumptive sentence duration, 22V2 months.
In connection with the October 19 incident, the defendant’s sentence is reduced to 90 months consecutive; one of the sex convictions and the sentence for the kidnapping conviction must be vacated pursuant to sections 609.04 and 609.035, respectively. In connection with the October 25 incident, the defendant’s sentence is reduced to 116 months concurrent. In connection with the October 27 incident, defendant’s sentence is reduced from 45 months to 22lk months. This means that defendant is subject to concurrent terms of 22½ months and 116 months for the October 27 and October 25 incidents respectively, a 90-month consecutive term thereafter for the October 19 incident, and a consecutive life sentence in connection with his murder conviction in State v. Ture, 353 N.W.2d 502 (Minn.1984), filed herewith.
Affirmed as modified.
Generally, under Section II.F. of the Guidelines “any time consecutive sentencing is used the presumptive sentence must be computed using the zero criminal history column.” State v. Elkins, 346 N.W.2d 116, 120 (Minn.1984). The only exception is when there is a mandatory minimum term which is greater. In this case, there is a mandatory minimum term, but it is for a shorter period.
STATE of Minnesota, Respondent, v. Joseph D. TURE, Appellant.
No. C8-00-798.
Supreme Court of Minnesota.
Aug. 16, 2001.
Mark D. Nyvold, for appellant.
Mike Hatch, Attorney General, Thomas R. Razatz, Assistant Attorney General, Roger S. Van Heel, Stearns County Attorney, for respondent.
[OPINION BY PAGE, Justice. type=majority]
OPINION
PAGE, Justice.
Appellant Joseph Ture was convicted in January 2000 of four counts of first-degree murder in violation of Minn.Stat. § 609.185, subd. 1 (1978), for the December 15, 1978, murders of Alice Huling and three of her four children. Ture was sentenced to four consecutive life sentences. In this direct appeal, Ture argues that the district court erred when it denied his motion at trial to suppress three items seized from his car four days after the murders: a metal bar wrapped in what appeared to be a steering wheel cover, a two-inch Corgi Juniors Batmobile toy car, and a ski mask. Ture also claims that the court erred in finding that the police properly retained those items until his trial in this case. In addition, Ture argues that he was denied a fair trial by evidentiary rulings that (1) permitted the state to introduce evidence that the seized toy car was similar to a toy that may have been present at the murder scene and (2) allowed the state to present expert testimony that a bruise on Alice Huling was caused by the metal bar seized from Ture’s car. Ture also raises various pro se issues. We affirm.
During the early morning hours of December 15, 1978, Alice Huling and three of her four children were murdered in their house located in rural Stearns County. The surviving child, W.H., was 11 years old at the time and was the only witness to the murders. At trial, W. testified that he was asleep in the upstairs bedroom he shared with his 13-year-old brother, Wayne, when at approximately 4:00 a.m. he was awakened by loud noises coming from the kitchen below. He heard muffled noises and wrestling, and then a gunshot. A short while later, he heard footsteps coming up the stairs and saw a person standing in the doorway to the bedroom. The person appeared to be of medium build, less than six feet tall, and wearing a stocking cap. W. could see a silhouette of the person’s face, but not well enough to make a positive identification. From his bed, Wayne asked, ‘Who are you?” The person fired a shotgun at Wayne, lolling him instantly. The person then left the boys’ room and went to 16-year-old Susie’s bedroom where he shot her in the head, and proceeded to 12-year-old Patti’s bedroom where he shot her in the head. Both girls died instantly. After shooting both girls, the gunman returned to the boys’ room and fired twice at W., missing both times, and then left. After 10 or 15 minutes, W. got out of bed and fled to a neighbor’s house.
On the morning of December 19, four days after the murders, Wright County Deputy Sheriff Gary Miller was dispatched to the restaurant at the Clearwater Travel Plaza in response to a complaint about a customer later identified as Ture. After learning that the car Ture was driving had been reported stolen, Miller arrested Ture for unauthorized use of a motor vehicle and placed Ture, handcuffed, in the back of his squad car. Upon entering Ture’s car to look for its keys and a newspaper Ture indicated he wanted, Miller discovered a metal bar, approximately 32 inches in length, on the front passenger seat. Miller seized the metal bar, transported Ture to the Wright County Sheriffs Department, and arranged for Ture’s car to be towed. Miller and another officer conducted an inventory search of Ture’s car, during which the toy car and ski mask were discovered. No weapons or ammunition were found.
Several of the items found during the search, including the toy car, the ski mask, and the metal bar discovered earlier, were turned over to Deputy James Kostreba and Detective Ross Baker of the Stearns County Sheriffs Department, who were investigating the Huling murders. Kos-treba and Baker interviewed Ture on December 20, 1978. An audiotape of the interview was played to the jury at Ture’s trial. During the interview, Ture said that he had been fired from his job a few days before and that he had been living out of his car. Ture stated that the toy car belonged to him and that he had grandchildren. Ture then indicated that the toy car was for his sister’s children. Ture was charged with unauthorized use of a motor vehicle and released on January 4, 1979. Although Ture was not charged with the Huling murders at that time, he remained a suspect.
In 1981, Ture was incarcerated with T.K. at the Sherburne County Jail. According to K., Ture confessed to murdering the Hulings and signed a written confession that K. had drafted according to Ture’s instructions. Although the police obtained a copy of the written confession and questioned Ture on several occasions about the confession and the murders, no charges were brought against Ture. In the summer of 1998, Ture and R.F. were inmates at Minnesota Correctional Facility-Oak Park Heights. According to F., Ture confessed to the Huling murders. F. informed the authorities of Ture’s statements in August 1998, and in May 1999 Ture was indicted on four counts of first-degree murder in violation of Minn. Stat. § 609.185, subd. 1.
Before trial, Ture moved to suppress, among other things, the metal bar, the toy car, and the ski mask, claiming that the warrantless seizure of those items was not justified by any exception to the warrant requirement. He also claimed that the three items were improperly retained by the police from the time of their seizure until the trial in this case. During the suppression hearing, Ture testified that he found the metal bar and the toy car while working at a junkyard and that he had the ski mask because he worked outdoors at a car lot. The state argued that the metal bar was properly taken during a search incident to arrest, and that the toy car and ski mask were properly taken during an inventory search or, in the alternative, during a search under the automobile exception to the warrant requirement. The district court found that the metal bar was properly seized during the search incident to Ture’s arrest and, noting that there was no evidence that the inventory of Ture’s car was conducted in bad faith, that the toy car and ski mask were properly seized during the inventory search. The district court also found that the three items were properly retained by the police and admissible at trial. Ture subsequently filed a motion in limine to prevent the state from introducing evidence related to the toy car. This motion was also denied.
At trial, the state offered evidence concerning Ture’s confessions to T.K. and R.F. K. testified that, while he and Ture were incarcerated at the Sherburne County Jail in 1981, Ture admitted to committing the Huling murders. According to K., Ture asked him whether someone would be considered crazy for killing a bunch of people. Ture repeated the question a few weeks later and at some point admitted to killing a family of four. K. stated thafi' over time, Ture gave him additional information, and that Ture wanted to dictate a letter for K. to write and send to a judge. K. testified that he wrote a number of drafts of the letter, to which Ture made corrections until they had a final draft. K. testified that he saw Ture sign the letter and that he signed it as a witness.
The four-page letter indicates that it was written by K. because Ture’s spelling is not very good. The letter explains that Ture was angry because Alice Huling had called him a pervert when he asked her if he could go out with “Pat” Huling, and that he broke into the Hulings’ house to rape “Pat” and knock everybody out with his “billy club.” The letter states that Ture shot Alice with his shotgun above the knees and hit her a couple of times because she woke up and recognized him, even though he had a ski mask on. The letter states that Ture then went upstairs and shot two girls and one boy. The letter indicates that Ture returned to Alice, told her what he had done, beat her with his fists and his “billy club,” and then shot her in the head. The letter ends by stating that “this statement should prove” that he is insane. When questioned by the police, Ture denied making any confession or even discussing the Huling case with K., and stated that, when he signed the alleged confession, it consisted of blank pages that K. told him would be used to make complaints about jail food.
F. testified that in 1998, when he and Ture were inmates together at Minnesota’s Oak Park Heights correctional facility, Ture admitted to F. that he had “shotgunned” a family to death. According to F., Ture spoke of the surviving boy’s anticipated testimony about a toy car the boy had owned that was found in Ture’s car, bragging that the only way the boy could remember the toy car was if “the fear was etched into his memory so badly that he would have to live with it for the rest of his life.”
At trial, the state offered the testimony of three pathologists regarding a one-inch by four-inch bruise found beneath Alice Huling’s right breast during her autopsy. Dr. James Hansen conducted Alice Huling’s autopsy. Dr. Hansen testified that he had compared autopsy photos of the bruise under Alice Hulin'g’s right breast with the metal bar found in Ture’s car and that, in his opinion, the bar could have caused the bruise. Dr. Michael McGee, the medical examiner for Ramsey and Washington Counties, testified that he had examined Alice’s autopsy reports, photographs of the bruise, and the metal bar. Dr. McGee stated that the dimension and appearance of the bar matched the bruise. He testified that, in his opinion, either Ture’s metal bar, or one of “similar configuration,” caused the bruise. By “simpar configuration,” Dr. McGee testified that he meant a bar that “look[s] identical.” Finally, Dr. Daniel Davis, a forensic pathologist with the Hennepin County Medical Examiner’s Office, testified that he had also examined photographs of Alice’s bruise and the metal bar. Dr. Davis testified that the bruise was a patterned injury and was unique for all practical purposes. According to Dr. Davis, the way in which the covering material was wrapped around the bar with its unique plastic lacing tied into a knot and the “unique length of the left overlacing,” combined to make the arrangement, like Mice Huling’s bruise, practically unique. In his testimony, Dr. Davis explained how numerous characteristics of the bruise corresponded to characteristics of the wrapping on the metal bar and concluded that, in his opinion, the metal bar caused the bruise.
In this appeal, Ture challenges the district court’s denial of his motion to suppress the metal bar, toy car, and ski mask. He also claims that the court erred when it ruled that those items were properly retained until his trial in this case. He further claims that he was denied a fair trial by evidentiary rulings that allowed the state to introduce evidence about the toy car and to present expert testimony that the bruise beneath Alice Huling’s right breast was caused by the metal bar. Finally, he raises various pro se issues.
I.
We first consider whether the district court erred in finding that the police properly searched Ture’s car and seized the metal bar, the toy car, and the ski mask, and did not improperly retain those items. When the facts are undisputed, this court reviews de novo a district court’s denial of a motion to suppress. State v. Carter, 569 N.W.2d 169, 173 (Minn.1997). In this case, there are no disputed facts surrounding the search of Ture’s car, the seizure of the three items in question, or their retention by the police. Accordingly, we give no deference to the district court’s decision to deny Ture’s motion to suppress these items.
Both the United States and Minnesota Constitutions prohibit the state from conducting unreasonable searches or seizures. U.S. Const, amend. IV; Minn. Const. Art. I, § 10; State v. Munson, 594 N.W.2d 128, 135 (Minn.1999). In general, searches conducted without a search warrant are “per se unreasonable.” Munson, 594 N.W.2d at 135. In this case, the police did not have a search warrant authorizing a search of Ture’s car. Therefore, unless “one of the well-delineated exceptions to the warrant requirement” applies, the seizure of the three items from his car was unconstitutional. Id. The state bears the burden of establishing an exception to the warrant requirement. See State v. Fitzgerald, 562 N.W.2d 288, 288 (Minn.1997) (state bears the burden of establishing the existence of an emergency justifying a warrantless entry under the emergency exception to the warrant requirement); State v. Mastrian, 285 Minn. 51, 56, 171 N.W.2d 695, 699 (1969) (upon challenge to a warrantless arrest, state has the burden of proving that the arrest did not violate the Fourth Amendment).
With respect to the metal bar, the state contends that the exception for searches incident to arrest applies. With respect to the toy car and ski mask, the state argues that the exception for inventory searches applies. Under the exception for searches incident to arrest, once a vehicle’s occupant is lawfully arrested the police may search the vehicle’s passenger compartment. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State v. Robb, 605 N.W.2d 96, 100 (Minn.2000). The inventory exception, in turn, permits the police to search a vehicle provided they (1) follow standard procedures in carrying out the search and (2) perform the search, at least in part, for the purpose of obtaining an inventory and not for the sole purpose of investigation. State v. Holmes, 569 N.W.2d 181, 188 (Minn.1997).
Search Incident to Arrest
The state argues that the metal bar was properly seized during a search incident to Ture’s arrest. Ture concedes that the police may conduct such searches without violating the Fourth Amendment, but nevertheless argues that probable cause is required to “seiz[e] specific items of property pursuant to such a search” and that the metal bar was improperly seized from his car because it did not have any “immediately apparent evidentiary value.”
Ture misconstrues the nature of a search incident to arrest, which is directed not only at preventing the destruction of evidence, but also at removing any weapons the arrestee might use to resist arrest or flee. State v. Mitchell, 285 Minn. 153, 161, 172 N.W.2d 66, 71 (1969); see also State v. Rodewald, 376 N.W.2d 416, 420 (Minn.1985). Accordingly, the metal bar need not have had “immediately apparent evidentiary value.” Because the metal bar could have been used as a weapon, we conclude that its seizure was proper as part of the search of Ture’s car incident to his arrest.
Inventory Search
When performing inventory searches, the police fulfill “administrative or caretaking functions” that protect the vehicle owner’s property and also protect the police from claims of lost or damaged property. Holmes, 569 N.W.2d at 186. The requirement of particularized inventory procedures is designed to make sure the intrusion is no greater than necessary to execute this “caretaking function.” Id. at 187 (quoting South Dakota v. Opperman, 428 U.S. 364, 375, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)).
Ture acknowledges that Miller testified that the inventory was conducted according to Wright County Sheriffs Department policy, but argues that, because the state never introduced a written copy of the policy, the district court had no way to determine if the inventory was actually conducted according to the department’s policy. Our decision in Rodewald, however, demonstrates that both the existence of standard inventory procedures, as well as compliance with those procedures, may be established through testimony and does not require admission of the policy itself into evidence.
In Rodewald, the defendant sought to suppress evidence found in his wallet by a police officer and jailer conducting an inventory search of the defendant as part of the booking process. 376 N.W.2d at 418. Both the officer and jailer testified that such searches were standard procedure and included looking in wallets. The jailer further testified that this was in accordance with written jail policy. Id. Significantly, however, there is no indication that the written policy was admitted into evidence. Neither could recall which of them filled out an inventory sheet in that case, but the officer testified that one of them did so, and the jailer testified that an inventory is completed whenever property is taken from an arrestee. Id. This court held that it was clear from this testimony “that the search was carried out in accordance with standard procedures.” Id. at 421; see also United States v. Lowe, 9 F.3d 43, 45-46 (8th Cir.1993) (rejecting claim that a written inventory policy is required to establish the existence of standard procedures).
In this case, Miller testified that it was standard department policy in 1978 to inventory the contents of impounded cars and to make a list of those contents. He also provided details about the search itself. He testified that he and the officer assisting him removed all the items from Ture’s car and put them on the garage floor around the car, and that he recorded them on a detailed list as they were returned to the car.
In response, Ture argues that the fact that some items removed from the car were not identified on the inventory list demonstrates that the inventory search was not conducted according to department policy but was conducted with an investigatory motive. Miller acknowledged at trial that some items, including the metal bar, the toy car, and — possibly— the ski mask, were not recorded on the inventory list. We note, as discussed above, that the metal bar was properly seized at the time of Ture’s arrest and was not involved in the inventory search of Ture’s car. With respect to the other items, Miller explained that during the inventory they found a number of notebooks and pieces of paper listing license numbers, descriptions of females, first names (over 200), and descriptions of travel routes from places of work to houses. Because this seemed unusual, Miller notified his superiors, who took possession of several items, including the toy car and ski mask, in addition to the notebooks, pieces of paper, and the metal bar. Miller testified that, because he recorded items on the inventory list as they were returned to the car, items taken by his superiors before being returned would not necessarily have made it onto the list. Ture points to nothing in the record that would cast doubt on Miller’s explanation, nor does he explain why failing to list a few of the numerous items found in the car renders the entire search invalid. As it was in Rodewald, it is clear here that the inventory search of Ture’s car was conducted in accordance with standard procedures.
Although Ture asserts that the police had an investigatory motive when they searched his car, an inventory search need only be conducted in part for the purpose of obtaining an inventory. Holmes, 569 N.W.2d at 188. To be invalid, the investigatory motive must be the sole purpose behind the search, meaning that the search would not have occurred but for the investigatory motive. Id. Because the car Ture was driving was reported stolen, there is no question that impounding the car was proper. And, given Miller’s undisputed testimony that it was standard procedure to perform inventory searches of impounded cars, there is no basis for concluding that the purported investigatory motive was the sole purpose behind the inventory. Because we conclude that the inventory search of Ture’s car was conducted in accordance with standard procedures and that the inventory search was conducted at least in part for the purpose of obtaining an inventory, the seizure of the toy car and ski mask was proper.
Retaining the Seized Items
Ture argues that the district court erred in holding that, under Minn.Stat. § 626.04 (1978), the state had the authority to retain his property after he was released without charges following his December 19,1978, arrest.
The version of section 626.04 in effect in 1978 provides, in relevant part:
When any officer shall seize, with or without warrant, any property or thing, the same shall be safely kept by direction of the court or magistrate, so long as may be necessary for the purpose of being produced as evidence on any trial, and then the property or things shall, unless otherwise subject to lawful detention, be returned to the owner thereof, or to such other person as may be entitled to the possession of the same and the other things so seized may be destroyed or otherwise disposed of under the direction of the court or justice of the peace.
Ture argues that the statutory language indicating that property seized by an officer “shall be safely kept by direction of the court or magistrate so long as may be necessary for the purpose of being produced as evidence on any trial” means that the police must obtain specific permission from a court in order to retain seized property. The state argues that this interpretation is absurd because it would “place an enormous burden on law enforcement and on district courts” by “requiring] police to obtain judicial authorization every time evidence is seized and not immediately returned.” The state interprets the statutory language as meaning “that evidence held by the police is under the direction of the court; [it] is under the court’s control, and may be ordered returned by the court.” We agree with the state’s interpretation of section 626.04 and conclude that retention of the metal bar, the t< j car, and the ski mask was not impro, ier.
Ture also argues that, after his 1981 trial for the murder of Diane Edwards, see State v. Ture, 353 N.W.2d 502 (Minn.1984), the state was required to return his property “unless otherwise subject to lawful detention.” The problem with this argument is that it ignores the statutory language that permits the seized property to be retained “so long as may be necessary for the purpose of being produced as evidence on any trial.” Because Ture continued to be a suspect in the Huling murders, particularly in light of his confessions to T.K. and R.F., but had not been tried for any of them, retention of the items for the purpose of introducing them at a future trial was proper.
II.
We next address whether the district court erred when it permitted the state to introduce the toy car seized from Ture’s car or when it allowed an expert witness to testify that the leather-wrapped metal bar seized from Ture’s car caused the bruise injury found under Alice Huling’s right breast.
Toy Car
Ture moved to suppress the toy car and evidence related to it on the basis that it was irrelevant and prejudicial. Following a pretrial hearing held in December 1999 on this issue, the court denied Ture’s motion, finding the toy car to be “clearly relevant to the possibility that [Ture] was at the murder site.” The court also found that the jury could properly weigh the evidence without any undue prejudice to Ture.
Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. Rule 401 “adopts a minimal relevancy approach.” State v. Provost, 490 N.W.2d 93, 99 (Minn.1992). Rulings on the “relevancy of evidence are generally left to the sound discretion of the trial court.” State v. Horning, 535 N.W.2d 296, 298 (Minn.1995).
Ture argues that the toy car was irrelevant because “no logical basis” supports the inference that it was W.’s car. We disagree. The seized toy car supports an inference that Ture was present at the Huling house. This is particularly true, as the district court noted, in fight of Ture’s alleged statements to R.F. concerning the toy car. Moreover, given Ture’s evasive responses during the December 20, 1978, interview concerning the toy car’s origin and their inconsistency with Ture’s testimony at the suppression hearing, the toy car is directly relevant to the question of Ture’s guilt. This satisfies Rule 401’s “minimal relevancy approach.” Provost, 490 N.W.2d at 99.
Ture next claims that, under Minn. R. Evid. 403, the prejudicial effect of admitting the toy car substantially outweighed its probative value. He argues that the toy must have had “a powerful effect on the jury” because “the incredibly sad events that befell W.H.” must have made them want to believe that it was W.’s. This argument lacks merit. While it suggests that W.H.’s experience had a prejudicial effect on the jury, it says little if anything about the toy car’s prejudicial effect. Ture has offered no other basis on which we can conclude that the prejudicial effect of admitting evidence related to the toy car substantially outweighed its probative value. We therefore conclude that the district court did not abuse its discretion when it admitted evidence related to the toy car at trial.
Expert Testimony
Trial courts have discretion in determining whether to admit an expert’s opinion. State v. Bradford, 618 N.W.2d 782, 793 (Minn.2000) (citation omitted). Here, the district court permitted Dr. Daniel Davis to testify that the metal bar caused the bruise found under Alice Hiding’s right breast. Ture argues that it was “outside the realm of Dr. Davis’s expertise” and of forensics “to conclude that only the bar owned by Mr. Ture could have inflicted the bruise.” Specifically, Ture argues that it was improper for Dr. Davis to give the “categorical judgment” that it was Ture’s bar that caused the bruise because Dr. Davis did not know whether identical bars existed among “the untold numbers of objects in the world.”
As the state points out, however, accepting Ture’s argument would mean that “no witness can ever make a positive identification of an object” because no witness could claim to have seen every object in the world. Moreover, Dr. Davis did not make a categorical statement that no other bar could have caused the bruise. He merely stated, “I would find it hard to believe that we’re ever going to And another bar just like this anywhere in the world.” Thus, the jury was aware that Dr. Davis understood that an identical bar might exist but that, in his opinion, it was highly unlikely. We therefore conclude that the district court did not abuse its discretion in permitting Dr. Davis to testify that the metal bar caused the bruise.
III.
With respect to the claims raised in Ture’s pro se brief, Ture first argues that his request for a change of venue should have been honored because of the publicity in this case. However, Ture provides nothing to sustain his burden of proving “actual prejudice” from the publicity. State v. Everett, 472 N.W.2d 864, 866 (Minn.1991). Ture also claims ineffective assistance of counsel. To prevail, Ture has the burden of demonstrating that (1) his counsel’s representation fell below an objective standard of reasonableness and (2) a reasonable probability that the outcome would have been different but for counsel’s errors. State v. Lahue, 586 N.W.2d 785, 789 (Minn.1998). Although Ture advances several alleged errors committed by his trial counsel, he makes no attempt to establish either of the above elements and therefore fails to meet his burden. Finally, Ture claims that, because he was not given the Miranda warning at any time, his alleged admissions to law enforcement investigators should not have been admitted. Again, Ture fails to provide any authority or argument to support this claim and we therefore deem that claim waived. See McKenzie v. State, 583 N.W.2d 744, 746 n. 1 (Minn.1998) (defendant who “alludefd]” to certain issues in his brief waived those issues by failing to address them in the argument portion of his brief).
Affirmed.
The record reflects that at the time of the murders W.H. had a toy car that was "probably identical” to the toy car found in Ture's car.
Section 626.04 was amended in 1983. Act of June 14, 1983, ch. 359, § 111, 1983 Minn. Laws 2488. Although the amendment removed obsolete references to "justice of the peace” and "magistrate” and made other changes as well, the statutory language at issue in this case — "shall be safely kept by direction of the court” — was not changed. No amendments have occurred since 1983.
As noted previously, Ture was interviewed on December 20, 1978, by Deputy James Kos-treba and Detective Ross Baker of the Stearns County Sheriffs Department. A transcript of that audiotaped interview shows that the following colloquy took place regarding the toy car: Q: I noticed a little toy there. A little thing with Batman, was that in the car when you got it too or do you recall where that might have come from? A: It's mine. I got grandkids. Q: Oh, you have grandkids? A: My daughter does. I'm uncle or whatever. Q: Well if your daughter has children well then you'd be a grandfather then, huh? A: Yea. Q: How old are you? A: No. I mean my sister[.] Q: Oh your... ? A: Uncle, yea. Uncle. Q: Your your [sic] uncle’s children and they would be what, they would be your grandchildren or won’t be his grand.... ? A: I'm the uncle. My sister’s got kids I'm the uncle, right? Q: Oh, I see. Alright. And then you were around them after you picked up this car here? A: Well what is that ah difference that a couple of toys make? Q: Well it might make a lot of difference. You never know. Huh. I just wanted to know if you know where that one come from if it was in the car or or [sic] not? Do you recall it? A: No, I don't see where it makes any difference. Q: Well it could though. It could make a difference. A: Well until you prove it to me. Q: Prove what. I mean where you got it? A: No. Till you prove me what this whole charade is.
While Ture complains about Dr. Davis's testimony, he does not complain about Dr. McGee's. Yet we see no substantive difference between Dr. Davis's testimony and the testimony of Dr. McGee — that the bruise was caused by either Ture's metal bar or one of “similar configuration,” meaning a metal bar that "look[s] identical.” Thus, had Dr. Davis's testimony on that point been excluded, the outcome would have been the same.
Joseph Donald TURE, Jr., petitioner, Appellant, v. STATE of Minnesota, Respondent.
No. A03-1457.
Supreme Court of Minnesota.
June 3, 2004.
Mark D. Nyvold, Joseph Special Ass’t State Public Defender, St. Paul, Joseph Donald Ture, MCF-Stillwater, Bayport, Attorneys for Appellant.
Michael A. Hatch, State Attorney General, St. Paul, Doug Johnson, Washington County Attorney, John W. Fristik, Ass’t County Attorney Government Center, Stillwater, Attorneys for Respondent.
[OPINION BY ANDERSON, PAUL H., Justice. type=majority]
OPINION
ANDERSON, PAUL H., Justice.
In 1998, Joseph Donald Ture, Jr. was convicted of first-degree murder for the May 1979 death of Marlys Wohlenhaus. On appeal of the denial of postconviction relief, which is the first substantive review of his conviction, Ture alleges a number of trial errors that he claims entitle him to relief from conviction. Specifically, Ture alleges as error: (1) the admission of Spreigl evidence regarding the murder of Diane Edwards and the manner in which this evidence was presented at trial; (2) the admission of numerous pages of women’s names, addresses, phone numbers, and license plate numbers; (3) the district court’s failure to use a more specific cautionary instruction to limit the use of Spreigl evidence; and (4) the state’s conduct during closing argument. Ture also submitted a supplemental pro se brief rer questing relief. We affirm.
At about 3:30 p.m. on May 8, 1979, 18-year-old Marlys Wohlenhaus was discovered by her mother in a downstairs room of their Afton home covered in blood with her head “bashed in.” Wohlenhaus had several star-shaped cuts on her scalp and her skull was fractured. The injuries caused uncontrollable bleeding and severe brain injury. Wohlenhaus was hospitalized and underwent emergency surgery, but the next day she was taken off a respirator and pronounced dead. An autopsy also revealed broken fingers and bruises on both hands.
The Washington County Sheriffs Department investigated the murder and had several leads. The leads included a neighbor who saw a car fishtail out of Wohlenhaus’s driveway at about 3:15 p.m. on May 8, the day Wohlenhaus was assaulted. Also, a friend of Wohlenhaus testified that on the night before Wohlenhaus’s death, she and Wohlenhaus had been at a restaurant in Afton and Wohlenhaus had appeared upset upon seeing a man sitting in the back of the restaurant. The man had light blond hair and was wearing a leather coat, sunglasses, and a baseball cap. The man apparently followed the two women on a motorcycle after they left the restaurant. Despite the investigation of several suspects, no one was charged in connection with Wohlenhaus’s death.
In the early 1990’s, Everett Doolittle, a Special Agent with the Cold Case Unit of the Bureau of Criminal Apprehension (BCA), began investigating the Wohlenhaus murder. Appellánt Joseph Donald Ture, Jr. was one of the suspects in the case because of evidence that he had made a detailed written confession to the Wohlenhaus murder while in jail awaiting trial for another crime. Nevertheless, Ture had been cleared as a suspect because he was thought to have been working at the Saint Paul Ford plant at the time of the murder.
Ture’s written confession was drafted in November and December 1981 while he was being held in the Sherburne County Jail awaiting trial for .the murder of Diane Edwards, a 19-year-old waitress who was abducted from West Saint Paul, sexually assaulted, and killed in 1980. While in jail, Ture had fellow inmate T.K. draft a confession to the Wohlenhaus murder and “another matter.” Ture signed the confession, stating that he was making the confession with the hope of getting to Saint Peter State Hospital for treatment. According to the confession, in 1978 Ture worked part time for Wohlenhaus’s father at Greg’s Body Shop in Afton. Ture claimed that Wohlenhaus’s father wanted Ture to kill Wohlenhaus’s mother and that Ture drove to the Wohlenhaus home to kill the mother. According to his statement, while Ture waited outside for Wohlenhaus’s mother to arrive, Wohlenhaus came home and she invited Ture inside to “smoke dope.” Ture asked Wohlenhaus for sex, but she rejected his advances. Ture then got upset and hit her with a hatchet. A handwriting expert for the BCA testified at Ture’s trial that the signatures on each page of the confession were Ture’s.
Ture also confessed to David Hofstad, who worked in the Sherburne County Attorney’s Office from 1981-1982. Hofstad received a call in November 1981 from a Twin Cities television news cameraman with whom he was acquainted. The cameraman apparently told Hofstad he should talk to Ture about Wohlenhaus. Ture, who was still in jail awaiting trial for the Edwards murder, agreed to meet with Hofstad. Hofstad, who knew nothing about the Wohlenhaus murder, asked Ture about Wohlenhaus and Ture told him that he had known her, she had been a waitress, and he had wanted to date her. Ture then told Hofstad that he had wanted to talk to Wohlenhaus, so one day he went to her house to wait for her to come home. He got into the house through the garage and, when Wohlenhaus arrived, they talked, argued, and he killed her with either a hatchet or a crowbar. Hofstad later called the Washington County Sheriffs Office and spoke with someone involved with the investigation of Wohlenhaus’s murder about what Ture told him.
Upon further investigation of Ture, Doolittle discovered that authorities had cleared Ture as a suspect because they believed he was working at the Ford plant at the time of the murder. However, Doolittle concluded that this alibi was erroneous because the authorities had mistakenly looked up the work schedule of his father, Joseph Ture, Sr.
Ture was indicted in 1996 for first-degree premeditated murder in violation of Minn.Stat. § 609.185, subd. 1 (1978), in connection with Wohlenhaus’s death. He was tried before a jury beginning in September 1998. In addition to both K. and Hofstad, other witnesses testified at trial that Ture directly and indirectly told them about the Wohlenhaus murder. Former Washington County Deputy Sheriff Jeff Klarich testified that F.S., a former cellmate of Ture’s in Montana, told him that Ture had said that he had “beat” a young girl to death with an axe or hatchet. Several former inmates of Ture’s also testified. D.M. testified that in 1981 or 1982 when a news story was on television about a girl who had been killed in Afton, Ture stated that the. authorities would never be able to prove it against him. R.F. testified that in May 1998, at Oak Park Heights Prison, Ture bragged to him that he had beaten a woman to death in Afton. R.L.- testified that in 1990 or 1991 Ture described killing a male victim while burglarizing a small house in a rural area of Afton. L.L. testified that in the summer of 1998 he overheard Ture asking a prisoner with cancer to “take the rap” for him.
Wohlenhaus’s friend who had been out with Wohlenhaus the night before she was assaulted also testified. The friend stated that Ture could have been the man in the restaurant whom Wohlenhaus was upset upon seeing and who followed them on a motorcycle. A man who worked at Greg’s Body Shop in 1979 identified Ture from a photo array and testified that he could have been a man he had seen riding a motorcycle in the Afton area between 1978 and 1980. Another man, who lived near the Wohlenhaus residence in Afton, identified a photo of Ture as someone he had seen in the Afton area and testified that he remembered him having a motorcycle.
Over Ture’s objection, the state offered testimony that in 1980 Ture abducted Diane Edwards as she was walking home after working at the Robert Street Perkins restaurant in West Saint Paul and eventually murdered her. Ture was convicted of the Edwards murder. Twenty-four witnesses testified to the details of the Edwards murder, taking up almost three of the twelve total days of trial testimony. In sum, witnesses testified that Edwards’ body was found in rural Sherburne County approximately two weeks after she went missing. Evidence indicated that Edwards had been sexually assaulted and died- of stab wounds to* her chest. Ture had confessed to the Edwards murder while he was in jail waiting to be tried for that murder and again after he was convicted. The state also attempted to offer evidence about the murder of Alice Huling and three of her four children, as well as another murder, but the court did not allow the state to present this evidence.
Jack Kulseth, a retired Minneapolis homicide investigator, testified that he interviewed Ture in late October 1980 while investigating the Edwards murder. Through'Kulseth, the state offered a loose-leaf notebook and various other notebooks and address books found during a 1980 search of Ture’s motor vehicle and garage in South Saint Paul. The notebooks and address books contained listings of women’s names, license plate numbers, addresses, and phone numbers. Included in these notebooks, which listed the names of women and their descriptions, was a reference to the West Saint Paul Perkins. The notebooks do not appear to contain any information related to Wohlenhaus.
Ture did not testify, but presented witnesses who lived in the Afton area in 1979. These witnesses, who included persons who worked at Greg’s Body Shop, gave testimony directed at contradicting some of the details of Ture’s written confession. This included testimony that they did not know a man named Joseph Ture, Jr. or that they did not recognize him in any of the police photo line-ups.
At the close of trial, the district court instructed the jury on the limited use of Spreigl evidence by stating:
The state introduced evidence in this case of an occurrence on September 26th, 1980 involving Diane Edwards. As I told you at the time that this evidence was offered, it was admitted for the limited purpose of assisting you in determining whether defendant committed the crimes with which he is charged in the indictment I read to you.
[The] defendant is not being tried for and may not be convicted of any crime other than the crime charged in the indictment. You are instructed specifically that you are not to convict [the] defendant on the basis of any occurrence on September 26th, 1980, involving Diane Edwards. To do so might result in unjust double punishment.
This instruction was adapted from Criminal Jury Instruction 3.16. See 10 Minn. Dist. Judges Ass’n, Minnesota Practice— Jury Instruction ' Guides, Criminal, CRIMJIG 3.16 (4th ed.1999) (hereinafter “CRIMJIG 3.16”). Ture objected to this instruction, arguing that the court should use the Eighth Circuit’s instruction for a defendant’s prior similar acts because that instruction specifies that the jury could use Spreigl evidence for purposes of identity.
Ture was convicted of first-degree premeditated murder and sentenced to life in prison consecutive to other sentences he was 'serving. Following his conviction, Ture filed a direct appeal. However, after Ture’s attorney unsuccessfully sought to supplement the record on the jury instructions requested by Ture at trial, Ture and the state stipulated to a dismissal of the appeal, which we' accepted. Ture subsequently filed for postconviction relief. He did not request an evidentiary hearing, but alleged a. number of trial errors he claimed entitle him to relief from conviction. The alleged errors were: (1) the admission of Spreigl evidence regarding the murder of Diane Edwards and the manner in which this evidence was presented at trial; (2) the admission of pages of women’s names, addresses, phone numbers, and license plate numbers; (3) the district court’s failure to use a more specific cautionary instruction to limit the use of Spreigl evidence; and (4) the state’s conduct during closing argument. The postconviction court denied the petition without conducting a hearing pursuant to Minn.Stat. § 590.04, subd. 1 (2002). On appeal of the denial of postconviction relief, Ture asserts the same errors argued to the postconviction court.
I.
We begin by addressing whether the district court properly admitted Spreigl evidence that Ture murdered Edwards. Spreigl evidence is evidence of another crime, wrong, or bad act — the appellation is derived from our decision in State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965). On appeal of the denial of postconviction relief that is an appellant’s first substantive review of his conviction, we review whether there is sufficient evidence in the record to sustain the postconviction court’s findings. Butala v. State, 664 N.W.2d 333, 338 (Minn.2003). A district court’s decision to admit Spreigl evidence is reviewed for abuse of discretion. See State v. Shannon, 583 N.W.2d 579, 583 (Minn.1998).
Evidence of another crime, wrong, or act is not admissible at trial to prove the character of a person in order to show that he acted in conformity therewith. Minn. R. Evid. 404(b). Such evidence, may be admissible for other purposes, however, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Id. For the evidence to. be admissible, “the other crime, wrong, or act and the participation in it by a relevant person [must be] proven by clear and convincing evidence.” Id,.
' To admit Spreigl evidence, the district court must determine “(1) that the evidence is clear and convincing that the defendant participated in the other offense; (2) that the Spreigl evidence is relevant and material to the state’s case; and (3) that the probative value of the Spreigl evidence is not outweighed by its. potential for unfair prejudice.” Shannon, 583 N.W.2d at 583. Ture was convicted of killing Edwards and he does not dispute that the evidence of his murder of her was clear and convincing. Ture does, however, argue that the court did not admit the Edwards murder evidence for a proper Spreigl purpose (i.e., that it was not relevant) and that the evidence, particularly because of the way it was presented at trial, was more prejudicial than probative.
The district court admitted the Edwards murder evidence for several purposes other than to identify Ture as the murderer of Wohlenhaus as well as Edwards, including to illustrate Ture’s intent and modus operandi. To determine the relevance of such evidence, a district court should consider “the issues in the case, the reasons and need for the evidence, and whether there is a sufficiently close relationship between the charged offense and the Spreigl offense in time, place, or modus operandi.” State v. DeBaere, 356 N.W.2d 301, 305 (Minn.1984). The closer the relationship between the events, the greater the relevance of the evidence and the lesser the likelihood it will be used for an improper purpose. State v. Lynch, 590 N.W.2d 75, 80 (Minn.1999). Spreigl evidence need not be identical in every way to the charged crime, but should serve to “complete the picture” of the defendant and “not to paint another picture.” Lynch, 590 N.W.2d at 81 (quoting State v. Berry, 484 N.W.2d 14, 18 (Minn.1992)).
The record establishes that the Edwards murder and the Wohlenhaus murder were similar in time, place, and modus operandi. Edwards was a 19 year old waitress when she was abducted and murdered; Wohlenhaus was an 18 year old waitress. Edwards was abducted from West Saint Paul, about 20 miles from Afton, approximately 16 months after Wohlenhaus was murdered in Afton. Ture, who maintained a garage in South Saint Paul, told law enforcement officials that he frequented the Perkins restaurant in West Saint Paul where Edwards worked and that he asked her out on dates: Ture told law enforcement officials that he “blew up” at Edwards after she said something he did not like. Evidence indicated that Edwards was sexually assaulted and stabbed multiple times. K. testified that Ture told him he wanted to have sex with Wohlenhaus and that when she refused he “freaked,” grabbed a hatchet, and struck her in the head. Hofstad testified that Ture told him Wohlenhaus was a waitress and that he had wanted to date her. Ture also discussed the details of the Edwards and Wohlenhaus murders with authorities, a reporter, and fellow inmates in a similar fashion and in tandem. For all these reasons, we conclude ■ that the district court did not abuse its discretion in ruling that the Edwards murder evidence was relevant.
Even when relevant, however, Spreigl evidence should be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice.” Minn. R. Evid. 403. Spreigl evidence “should be excluded where it is merely cumulative and a subterfuge for impugning a defendant’s character or for indicating to the jury that he is a proper candidate for punishment.” State v. Billstrom, 276 Minn. 174, 179, 149 N.W.2d 281, 284-85 (1967). Ture argues that the state’s presentation of 24 witnesses testifying to the details of the Edwards murder for almost three of the twelve days of trial testimony made the evidence highly prejudicial. We agree with much of Ture’s argument. The state’s presentation of evidence was practically a retrial of the Edwards case. Much of the witnesses’ testimony was redundant. While the state had the right to present evidence of the details of the Edwards murder, courts should not allow the state, when presenting Spreigl evidence, to present evidence that is unduly cumulative with the potential to fixate the jury on the defendant’s guilt of the other crime. See Minn. R. Evid. 403.
Nevertheless, Ture did not object to the number of witnesses who testified regarding the details of the Edwards murder, nor did Ture object on the record to the testimony of specific witnesses who may have presented unduly prejudicial testimony. Without Ture’s objection to the manner in which the Edwards murder evidence was presented, we are reluctant to second-guess the court’s sound discretion. Therefore, we hold that the district court did not abuse its discretion by admitting the Edwards murder evidence. ■
II.
Ture also argues that the district court erroneously admitted notebooks and address books seized from him during the 1980 investigation of the Edwards murder. These items contained women’s names, license plate numbers, addresses, and phone numbers, including a reference to the West Saint Paul Perkins where Edwards' worked. Ture argues that this evidence was Spreigl evidence impropeiiy admitted without notice because this behavior-collecting information on ■ various women-could be characterized as stalking. The district court and postconviction court both concluded that the evidence was not evidence of bad acts because there is nothing per se wrong with collecting information on women. We agree that this evidence was not Spreigl evidence.
Ture also argues, as he did at trial, that the notebooks and address books were not relevant because they did not appear to contain any information related to Wohlenhaus. The postconviction court found that the evidence was admitted bp-cause collecting information on women was Ture’s habit and routine practice. Evidence of a habit or routine practice is relevant because it déseribes “one’s regular response to a repeated specific situation.” Minn. R. Evid. 406 advisory committee comment-1989 (quoting C.T. McCormick, Evidence § 195 (2d ed.1972)). “Whether the response is sufficiently regular and whether the specific situation has been repeated enough to constitute habit are questions for the trial court.” Id. (citing Lewan, Rationale of Habit Evidence, 16 Syracuse L.Rev. 39 (1964)).
While the postconviction court found that the notebooks and address books were evidence of Ture’s habit and routine practice, the record does not indicate that the district court made any kind of inquiry to assure that-a true habit existed. See id. (“The [district court] should make a searching inquiry to assure that a true habit exists.”). The state concedes that whether Ture’s collection of information on women was proper evidence of his habit or routine practice is a close call. We agree. Regardless, following a thorough review of the record, we hold that even if admission of this evidence was erroneous, the error was harmless because the verdict was surely unattributable to the error. See, State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997).
III.
Next, we consider the district court’s refusal to grant Ture’s request to use the Eighth Circuit’s jury instruction for the admission of evidence of prior bad acts. The court instructed the jury using an adaptation of CRIMJIG 3.16 to the facts of this case. See CRIMJIG 3.16. Ture argued that Eighth Circuit Model Instruction 2.09 would be a more appropriate instruction because the only proper us'e for the Spreigl evidence was to determine the identity of the person who killed Wohlenhaus. According to Ture, failure to give this instruction prejudiced him because the instruction the court gave left the jury free to use the Spreigl evidence for purposes other than proof of identity.
We observed in Billstrom that, as a safeguard for the admission of Spreigl evidence, the court “should admonish the jury that the testimony is received for the limited purpose of establishing identity.” 276 Minn. at 179, 149 N.W.2d at 285. In State v. Broulik, we considered the approach taken by several federal appellate jurisdictions, including the Eighth Circuit, which include in their model instructions the specific limited purpose for which evidence of prior bad acts may be used. 606 N.W.2d 64, 70-71 (Minn.2000). We contrasted this approach with CRIMJIG 3.16, which leaves the possible inferences that may be drawn from the evidence to the arguments of counsel. Id. We noted that we did not read Billstrom as mandating a specific limited purpose instruction for Spreigl evidence. Broulik, 606 N.W.2d at 69. However, in Broulik we did not reach any conclusions on the instruction issue, holding that a “trial court’s failure to give an instruction on the specific purpose for which Rule 404(b) evidence may be considered is not error where no request to so instruct is made.” Id. at 71.
Here, Ture specifically requested Eighth Circuit Model Instruction 2.09 rather than the CRIMJIG instruction for Spreigl evidence. Eighth Circuit Model Criminal Jury Instruction 2.09 is given when evidence of a defendant’s prior similar acts is introduced to prove identity. Eighth Circuit CRIM MI 2.09. Eighth Circuit Model Instruction 2.08 is given when evidence of a defendant’s prior similar acts is introduced for a purpose other than to prove identity, which purpose is to be specifically described in the instruction. Eighth Circuit CRIM MI 2.08. The primary difference between Eighth Circuit Model Instruction 2.09 and GRIMJIG 3.16 is that the Eighth Circuit instruction specifically limits the jury’s use of the evidence to whether it “suggests that the same person” ■ committed the act, whereas CRIM-JIG 3.16 more generally limits the jury’s use of the evidence to “determining whether defendant committed those ■ acts with which the defendant is charged.”
We have stated that as a general rule, “instructions on particular kinds of evidence ‘should be avoided as much as possible’ ” because they tend to inject argument into the judge’s charge. State v. Olson, 482 N.W.2d 212, 215 (Minn.1992) (quoting Manual of Model Criminal Jury Instructions for the Ninth Circuit 48 (1989 ed.)). CRIMJIG 3.16 leaves it to the attorneys to argue to the jury the possible inferences that can be drawn from the evidence. We have utilized this approach because Spreigl evidence does not always fit neatly into specific categories-purposes such as identity, “common scheme or plan,” and modus operandi may overlap, or the evidence may be properly admitted for more than one purpose. See State v. Forsman, 260 N.W.2d 160, 167 (Minn.1977) (discussing how the “common scheme or plan” exception has evolved to embrace offenses which tend, to corroborate the charged offense because of their marked similarity in modus operandi). ■
Based on the foregoing distinction, we conclude that under the circumstances here, when the Edwards murder evidence was not necessarily admitted solely for purposes- of proving identity, Eighth Circuit Model Instruction 2.09 would not have been a better instruction than the adapted CRIMJIG 3.16 instruction. Accordingly, we hold that the district court did not abuse its discretion in giving the CRIM-JIG instruction instead of Ture’s requested instruction.
IV.
Ture next argues that during closing argument the state committed prosecu-torial misconduct sufficient to warrant a new trial. Ture argues that the state improperly mentioned other rapes that Ture committed, evidence of which was not permitted at trial. He asserts the state did so by arguing to the jurors that Ture had confessed to the Edwards case “to try and get a package deal for the Diane Edwards murder and other cases, other rapes.” (Emphasis added.) Ture also argues that the state committed misconduct by arguing Ture’s character to the jurors when he told them the state had Diane Edwards’ father testify because the state wanted the jury to “see what kind of a man Joe Ture is, and how he acts and how he behaves consistently in his crimes.” Finally, Ture argues that the state improperly personalized the case against Ture and interjected personal opinion into the closing argument through use of phrases such as “I wanted you to see” and by twice addressing a portion of the closing argument to Ture rather than to the jury. Following the state’s closing argument, Ture moved for a mistrial based on these comments, which the district court denied.
Prosecutorial misconduct does not in and of itself necessitate that a defendant be granted a new trial. State v. Atkins, 543 N.W.2d 642, 647 (Minn.1996). Once misconduct has been established, we must then determine whether the defendant was, denied a fair trial. Id. at 647-48. Generally, a defendant alleging prosecuto-rial misconduct will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt. State v. Hunt, 615 N.W.2d 294, 301-02 (Minn.2000). To determine whether the state committed misconduct warranting a new trial, we look to the closing argument as a whole, rather than to selected phrases and remarks. State v. Walsh, 495 N.W.2d 602, 607 (Minn.1993).
The postconviction court noted, as did the district court in denying the mistrial motion, that the closing argument was two and a half hours long, summarized a complicated murder trial, and the misconduct appeared to have been inadvertent. The postconviction court concluded that the state’s comments did not deny Ture the right to a fair trial. We agree and conclude that while the state committed misconduct during closing argument, the misconduct was harmless beyond a reasonable doubt.
The state’s mention of “other rapes” was clearly improper given that evidence of Ture’s prior sexual assaults was ruled inadmissible at trial. However, the jury was presented evidence of Ture’s rape and murder of Edwards, and the jury had been made aware of “other cases.” We do not believe that this single reference to another rape, given all that the jury already knew about Ture, entitles Ture to a new trial.
The state’s argument regarding Ture’s character was also inappropriate. Character attacks are improper during closing argument. State v. Washington, 521 N.W.2d 35, 39 (Minn.1994). In this case in particular, the state’s argument regarding “what kind of man Joe Ture is” appears to strike at the heart of the potential for prejudice inherent with Spreigl evidence. But this statement must be read in context. It appears that the state was attempting to illustrate the similarities of the Edwards and Wohlenhaus murders and to ■ tie the evidence together. This type of reference to character came just one time during the closing argument and the state specifically mentioned how Ture behaves “consistently in his crimes,” not that the Edwards murder showed his character for such crimes.
Finally, we conclude that the use of the first-person pronoun “I” during closing argument and addressing of portions of the argument directly to Ture was an improper'interjection of personal opinion into the argument. An attorney may argue a particular witness’s credibility, but may not interject his or her personal opin-ión so as to “personally attach[] himself or herself to the cause which he or she represents.” State v. Everett, 472 N.W.2d 864, 870 (Minn.1991). This “personal opinion rule” helps prevent “exploitation of the influence of the prosecutor’s office.” Id. (citing AJBA Standards Relating to the Prosecutor’s Function, S — 5.8(b) and Commentary (1979)). Nevertheless, we conclude that the state’s actions could not reasonably have had an impact' on the jury’s verdict. The'refore, while we are troubled by the state’s conduct during closing argument, after examining the argument as a whole, we hold that the state’s misconduct was harmless beyond a reasonable doubt and does not warrant a new trial.
V.
In addition to arguments presented through counsel, Ture submitted a supplemental pro se brief arguing, among other things, that he was denied effective assistance of counsel and that the evidence was insufficient for this conviction. Ture argues he was denied effective assistance because, he claims, his counsel allowed the state to present inaccurate testimony about when his work hours< were at the Saint Paul Ford plant in 1979. Ture claims he was working at the time the Wohlenhaus murder took place. We have considered each of Ture’s pro se arguments and, after a thorough review of the record and case law relevant to these arguments, we hold that none of these arguments has merit.
Affirmed.
Ture was ultimately convicted for the murder of Diane Edwards. See State v. Ture, 353 N.W.2d 502 (Minn.1984) (affirming Ture's conviction for first-degree murder of Edwards).
The phrase "another matter” refers to the 1978 murder of Alice Huling and three of her four children. Ture was ultimately convicted of these murders as well. See State v. Ture, 632 N.W.2d 621 (Minn.2001) (affirming conviction for four counts of first-degree murder).
The State has introduced evidence of an occurrence on_at'_As I told you at the time this evidence was offered, it was-admitted for the limited purpose of assisting you in determining whether the defendant committed those acts with which the defendant is charged in the (indictment) (complaint). The defendant is not being tried for and may not be convicted of any offense other than the charged offense(s). You are not to convict the defendant on the basis of any occurrence on_at_To do so might result in unjust, double punishment. 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 3.16 (4th ed.1999).
You [are about to hear] [have heard] evidence that the defendant previously committed [an act] [acts] similar to [the one] [those], charged in this case. You may use this evidence to help you decide manner in which the evidence will be used to prove identity— e.g., [whether the similarity between the act[s] previously committed and the one[s] charged in this case suggests that the same person committed all of them.] Remember, however, that the -mere fact that the defendant may have committed [a similar act] [similar acts] in the past is not evidence that [he][she] committed such [an act] [acts] in this case. The defendant is on trial for the crime[s] charged and for [that] [those] crime[s] alone. You may not convict a person simply because you believe [he][she] may have committed some act[s], even bad act[s], in the past. Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit Instruction 2.09 (2002 ed.) (hereinafter "Eighth Circuit CRIM-MI”) (brackets in original).