Marshall H. Tanick
NOTE: This is the second of two parts
Those who play golf rarely commit crimes on the course. But the places where the game is played and the instrumentalities of the activity often are involved in crime-related proceedings in Minnesota.
The theft of golf carts provided the basis for taking DNA samples from a juvenile suspected of the crime, which was later used to support his delinquency adjudication for a different offense in In re Welfare of J.W.K., 583 N.W.2d 752 (Minn. 1998). A juvenile suspected of being involved in the theft of carts from a country club in New London, in central Minnesota, agreed to a blood test for DNA testing. The youth was subsequently cleared of the offense, and the DNA sample was not used for that purpose. However, the blood sample was used for DNA testing in connection with a different transgression, a residential burglary. After being told that his sample matched the blood at the scene, the youth confessed. Finding that the boy gave only “limited consent” for the use of his DNA testing, the trial court suppressed the evidence and threw out the subsequent confession, and the appellate court affirmed. 574 N.W.2d 103 (Minn. App. 1998).
While recognizing that the youth had made a “strong argument” against the use of the DNA sample foe a different offense than the one or which consent was given, the Court of Appeals applied the “inevitable discovery exception” to the Fourth Amendment. Under this doctrine, derived from Nix v. Williams, 467 U.S. 431 (1984), a Fourth Amendment violation is excused if the evidence “would inevitably have been discovered.”
The court reasoned that the boy and his mother “presumably” would have given consent to the use of the blood sample for testing in the burglary case, and, if they did not, the police “presumably” would have obtained a search warrant to secure a new sample or to allow the submission of the previous sample for DNA profiling. Because it was “inevitable” the police would have obtained the evidence anyway, it was not suppressible. Nor was the subsequent confession barred under the “fruits of the poisonous tree” doctrine, which bar use of evidence, that stems from a Fourth Amendment violation. Therefore, the case was remanded or adjudication of the youth’s delinquency.
The accoutrements of golf occasionally constitute instrumentalities of criminal offenses rather than the chip shots, birdies, and bogeys for which they were designed. In State v. Carlin, 1989 WL 94455 (Minn. App. 08/22/89) (unpublished), rev. denied (Minn. 10/13/89), a hitchhiker was assaulted with a golf club by two friends of a car’s driver, who were in the car, and robbed the victim. One of the attackers challenged his conviction in the St. Louis County District Court for attempted murder, assault and robbery.
The appellate court affirmed the conviction, holding that the testimony of the driver was sufficiently corroborated by the evidence, coupled with the defendant’s initial lie to the police that he was home and that he was not in the car, and the discovery in his home of a blood-stained jacket. Additionally, the defendant had told the police “where to find the golf club” that was used in the attack. Although the trial court erroneously allowed inadmissible hearsay evidence of a woman who told the police that she saw the defendant that night with “blood on his jacket,” it was harmless because of the substantial other evidence supporting the conviction against the golf club attacker.
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A more innocuous use of a golf club did not minimize the sentence for a conviction of terroristic threats in State v. Morris, 609 N.W.2d 242 (Minn. App. 2000) rev. denied (Minnn. 05/23/00). A participant in a domestic altercation in St. Paul barricaded himself in his room and threatened to shoot police, who responded to the incident. After a long stand-off, police decided to enter his room after seeing through a window what “appeared to be a shotgun or rifle” in the hands of the suspect, pointed towards the door. After entering, and, after apprehending him, they discovered that what they thought was a gun barrel was actually the “grip end of a golf club.”
A pre-sentence report suggested the presumptive guideline of 24 months’ imprisonment, but the Ramsey County District Court, finding aggravating circumstances, sentenced the barricaded man to five years, the statutory maximum for terroristic threats.
The appellate court affirmed the sentence, holding that the trial court did not abuse its discretion in departing from the presumptive guideline and imposing the five-year maximum. While aggravating circumstances generally warrant only a doubling of the presumptive sentence, if those circumstances are “severe,” a trial court may impose a sentence “greater than double the presumptive sentence” up to the statutory maximum, as occurred here. The trial court properly determined that the defendant’s conduct was “more … serious than that typically involved” in making terroristic threats because of the number of people involved and the risks to a large number of officers who were at the scene during the standoff, which necessitated that residents of nearby homes be evacuated. Because the standoff was “wrought with the risk of serious physical injury to police officers and the residents of the surrounding neighborhood,” the trial court properly departed from the presumptive sentence in imposing the statutory maximum.
The golf club in the Morris case was protruding from a blanket, rather than in its customary position in a bag of clubs. But golf bags have been the source of criminal convictions in Minnesota. In Neal v. United States, 114 F.2d 1000 (8th Cir. 1940), the conviction of a Minneapolis man as an accessory after the fact to a theft by his brother was affirmed by the 8th U.S. Circuit Court of Appeals. The brother had stolen money from a federally insured bank and his brother, with whom he lived, had stashed the “stolen money in a golf bag.”
The appellate court found sufficient evidence to uphold the conviction and decided a jury could properly reject the defense testimony that ‘all of the money” had been stolen before the federal law went into effect “was just as plausible and just as substantial and convincing,” the court sustained the verdict against the golf bag bandit.
“Golf is a good walk spoiled.”
Mark Twain, describing golf (1835-1910)
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“I think perfection is impossible in golf.”
Championship pro golfer Nelly Korda (1998 – )
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“Success in golf depends less on strength of body than strength of mind and character..”
Golf icon Arnold Palmer (1992-2016)
Course crimes
A sexual assault on a golf course led to a conviction for criminal sexual conduct and kidnapping in State v. Olson, 359 N.W.2d 67 (Minn. App. 1984), rev. denied (Minn. March 13, 1985). A man picked up a woman at The Leaning Post in St. Louis Park, a popular hang out on Excelsior Boulevard in the day. While driving her home, he forced her to have oral sex in his car and then drove to a golf course, where he attacked her and attempted to rape her.
The assault continued in his car while driving to his house, and again in his home. He then drove the woman back to the golf course to look for his shoes and, after not being able to find them, drove her to an area near her home and released her. Convicted by the Hennepin County District Court, he appealed on the basis that the woman consented to the sexual activity.
The appellate court affirmed the conviction, holding that the tape-recorded telephone call the woman made to the police reporting the incident as properly admitted to show her “state of mind.”
The prosecutor’s use of the accused’s post incident silence as impeachment was not enjoined. As refusal to discuss the matter with law enforcement was “pre-comment” and not violative of Fifth Amendment under Federal and state case law. Nor was it error for the prosecutor to reference it in closing argument.
Answer: Tom Lehman, 35.
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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick Linder & Robbins, PA.