This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




State of Minnesota,



Jack Sherman Warren,


Filed July 1, 1997


Kalitowski, Judge

Pine County District Court

File No. K69648

Hubert H. Humphrey III, Attorney General, Paul R. Kempainen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

John K. Carlson, Pine County Attorney, Pine County Courthouse, 315 Sixth Street, Pine City, MN 55063 (for Respondent)

John M. Stuart, State Public Defender, Patricia P. Rettler, Special Assistant State Public Defender, 2829 University Avenue SE, Suite 600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.



Appellant Jack S. Warren challenges the district court's decisions (1) ordering that appellant be tried jointly with his wife, and (2) admitting appellant's prior burglary conviction. We affirm.



The district court has discretion in determining whether to order joinder or separate trials when two or more defendants are jointly charged with a felony. Minn. R. Crim. R. 17.03, subd. 2(1). On appeal, this court must determine whether any substantial prejudice to defendants may have resulted from their being joined for trial. State v. Hathaway, 379 N.W.2d 498, 502 (Minn. 1985).

Appellant argues the district court erred when it granted the state's motion for a joint trial, and as a result he suffered substantial prejudice. To support his argument, appellant cites cases decided under the 1975 version of Minn. R. Crim. P. 17.03, subd. 2(1). Under this rule, the supreme court held that ordinarily, defendants jointly charged with a felony shall be tried separately, but that the court, in the interests of justice and not solely related to economy of time or expense, may order joinder. Id. at 502; State v. Eaton, 292 N.W.2d 260, 265 (Minn. 1980); State v. DeFoe, 280 N.W.2d 38, 40 (Minn. 1979); State v. Strimling, 265 N.W.2d 423, 431 (Minn. 1978). "State policy favors strongly separate trials." State v. Stock, 362 N.W.2d 351, 352 (Minn. App. 1985) (citing State v. Swenson, 301 Minn. 199, 201, 221 N.W.2d 706, 708 (1974)).

In 1989, rule 17.03 was revised to read:

When two or more defendants are jointly charged with a felony, they may be tried separately or jointly in the discretion of the court. In making its determination on whether to order joinder or separate trials, the court shall consider the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice. In cases other than felonies, defendants jointly charged may be tried jointly or separately, in the discretion of the court. In all cases any one or more of said defendants may be convicted or acquitted.

Minn. R. Crim. P. 17.03, subd. 2(1) (emphasis added).

The revised rule expressly gave the district court the discretion to order joint felony trials and codified the factors considered by the courts under the prior rule. See Hathaway, 379 N.W.2d at 502 (court considered the interests of justice and prejudice to defendants); Strimling, 265 N.W.2d at 431-32 (court considered the nature of the offense and the interests of justice); State v. Gengler, 294 Minn. 503, 504, 200 N.W.2d 187, 189 (1972) (court considered the nature of the offense and the impact on the victim).

Here, the district court granted the state's motion for a joint trial because (1) the defendants were involved in the same illegal acts, and the facts to prove each defendant's guilt are the same; (2) the same witnesses will be testifying at separate trials; (3) separate trials would negatively impact the victim when forced to testify at separate trials; and (4) joinder is in the best interests of justice and judicial resources. Relying on this court's opinion in Stock, appellant argues the district court erred in ordering a joint trial. We disagree.

Unlike Stock, appellant here was not substantially prejudiced by the joint trial. The defense theories expounded by appellant and his wife were not "antagonistic" or "inconsistent"; they did not attempt to put blame on the other, and in fact they often adopted the motions and objections of the other. See Hathaway, 379 N.W.2d at 503 (holding no substantial prejudice where defendants did not present inconsistent defense theories and seek to shift blame to the other, and they regularly adopted the other's motions and objections).

Appellant argues he suffered prejudice when the jury heard appellant's statement asking the investigating officer to show compassion for his wife and the closing argument of appellant's wife's counsel. We disagree. This argument assumes the jury was unable to separate the evidence against each defendant and was unduly influenced by the plea for compassion from appellant and appellant's wife's counsel. Rule 17.03, subdivision 2(1), states, "[i]n all cases, any one or more of said defendants may be convicted or acquitted." Thus, the fact that the jury convicted appellant and acquitted his wife does not necessarily indicate jury prejudice toward appellant. Because appellant was not substantially prejudiced by the joint trial, in light of the district court's discretion in ordering joinder, we conclude the district court did not err.


Evidence of other crimes or acts is inadmissible to prove a defendant's propensity to commit the charged offense, but such evidence may be admitted "'to establish motive, intent, absence of mistake or accident, identity or common scheme or plan.'"

State v. Landin, 472 N.W.2d 854, 859 (Minn. 1991) (citations omitted). Admission of Spreigl evidence rests within the sound discretion of the district court, and, on appeal, this court will not reverse the district court's decision absent a clear abuse of discretion. Id. Where the admissibility of Spreigl evidence is unclear, the district court should give the defendant the benefit of the doubt and reject the evidence. Id.

Appellant argues the state failed to give the defense prior notice of its intent to use appellant's prior burglary conviction as required by Minn. R. Crim. P. 7.02. We agree that because the Spreigl evidence introduced at trial involved an offense for which appellant was prosecuted, and because appellant requested disclosure pursuant to Minn. R. Crim. P. 9.01, appellant was entitled to advance notice. However, notice is to be given "as soon after the Omnibus Hearing as the offenses become known to the prosecuting attorney." Minn. R. Crim. P. 7.02. Here, the district court found that the delay in the prosecution's discovery of the conviction was unavoidable and not a result of bad faith or lack of diligence. This finding is supported by evidence in the record. Under these facts, we conclude the district court did not abuse its discretion in admitting the Spreigl evidence. See State v. Casady, 392 N.W.2d 629, 632 (Minn. App. 1986) (one-day prior notice before trial was held timely because the prosecuting attorney promptly notified the defense counsel upon discovery of the Spreigl evidence), review denied (Minn. Sept. 24, 1986).

Appellant next argues the district court erred in admitting uncertified copies of appellant's burglary conviction. We disagree. Under rule 404(b), prior misconduct may be proven through use of prior judgment of conviction by relying on the hearsay exception in rule 803(22) for final judgment in felony criminal cases. State v. Crocker, 409 N.W.2d 840, 844 (Minn. 1987). In Crocker, a certified copy of a prior conviction was held to be admissible to prove the offense. Id. An uncertified copy of a conviction may not carry the same evidentiary weight as a certified copy, but nonetheless it is admissible as evidence of a final judgment to prove the facts essential to sustain the judgment. Minn. R. Evid. 803(22). Given the district court's broad discretion on evidentiary matters, we conclude the district court did not err in admitting uncertified copies of appellants prior conviction.