State of Minnesota, Appellant, vs. Brian Scott Ederhoff, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-2219

State of Minnesota,

Appellant,

vs.

Brian Scott Ederhoff,

Respondent.

Filed April 22, 1997

Affirmed in Part and Reversed in Part

Schumacher, Judge

Stearns County District Court

File No. KX96607

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

Roger S. Van Heel, Stearns County Attorney, Mary A. Yunker, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4773 (for Appellant)

Paul C. Engh, 1600 Foshay Tower, 821 Marquette Avenue, Minneapolis, MN 55402 (for Respondent)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge. County Davies, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

The State of Minnesota appeals from the trial court's dismissal of numerous criminal charges against respondent Brian Scott Ederhoff, arguing there was sufficient evidence before the grand jury to support the charges. Ederhoff also appeals, arguing the trial court erred in sustaining certain charges and in denying his request for release of the verbatim record of the grand jury proceedings. We affirm in part and reverse in part.

FACTS

On January 29, 1996, Ederhoff, Kenneth Roering, and Thomas Kantor robbed the Freeway Liquor Store in Albany, Minnesota. The three fled in a stolen pickup truck.

A short time later, Officer Brian Klinefelter stopped the truck and asked to see Kantor's driver's license and registration. Kantor pretended to reach for his license, but instead grabbed his .38 caliber pistol and fired 6 shots at Klinefelter, killing him.

After the shooting, the three continued on to St. Cloud where they abandoned the truck in a residential neighborhood. The three fled on foot into the neighborhood for a short time before they separated. After splitting up, Kantor broke into a residence and assaulted the homeowner. Kantor then broke into another home, kidnapped one of the homeowners, and stole their car. Kantor was later stopped and killed by a police officer. Ederhoff and Roering were apprehended in the neighborhood where they abandoned the truck.

The grand jury indicted Ederhoff on 11 counts:

Counts I & II: Murder in the first degree, Minn. Stat. § 609.185(3), (4) (1996); 609.184, subd. 2(1) (1996); 609.05, subds. 1, 2 (1996); 609.11, subd. 5;

Count III: Aggravated Robbery, Minn. Stat. § 609.245, subd. 1 (1996); 609.05, subd. 1; 609.11, subd. 5;

Count IV: Kidnapping, Minn. Stat. § 609.25, subds. 1(1), 2(2); 609.05, subds. 1, 2; 609.11, subd. 5;

Counts V & VI: Burglary in the first degree, Minn. Stat. § 609.582, subd. 1(a) (1996); 609.05, subds. 1, 2; 609.11, subd. 5;

Counts VII, VIII, and IX: Assault in the second degree, Minn. Stat. § 609.222, subd. 1 (1996); 609.05, subds. 1, 2; 609.11, subd. 5; and

Counts X & XI: Theft, Minn. Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (1996); 609.05, subds. 1, 2.

Ederhoff moved to dismiss the grand jury indictment, arguing there was no probable cause to support the charges. Ederhoff also moved the court to release the verbatim record of the grand jury proceedings.

The trial court dismissed counts IV through IX and XI, concluding there was insufficient probable cause to support those counts because Ederhoff had separated from Kantor before the crimes occurred. The trial court upheld counts I through III and X and denied Ederhoff's motion to release the verbatim record. The state and Ederhoff appeal.

D E C I S I O N

1. The state argues that the evidence presented to the grand jury was sufficient to sustain all of the charged offenses against Ederhoff.

The state may immediately appeal a pretrial order dismissing an indictment. Minn. R. Crim. P. 28.04, subd. 1(1). Although this court's general standard of review of pretrial orders requires a showing of clear and unequivocal error, in reviewing the dismissal of an indictment for lack of probable cause the proper focus is the grand jury's determination of probable cause, and this court gives deference to the grand jury's fact-finding role. State v. Plummer, 511 N.W.2d 36, 38 (Minn. App. 1994); cf. State v. Webber, 262 N.W.2d 157, 159 (Minn. 1977) (clear and unequivocal error standard).

"A grand jury proceeding is not a trial on the merits." State v. Inthavong, 402 N.W.2d 799, 801 (Minn. 1987). A presumption of regularity attaches to an indictment, and it is rare that an indictment will be invalidated. Id. The grand jury does not determine guilt or innocence, but decides whether there is probable cause to believe the accused has committed a crime. Id. The test of probable cause

"is whether the evidence worthy of consideration * * * brings the charge against the prisoner within reasonable probability."

State v. Steinbuch, 514 N.W.2d 793, 798 (Minn. 1994) (quoting State v. Florence, 306 Minn. 442, 446, 239 N.W.2d 892, 896 (1976)). To determine whether probable cause exists, the grand jury weighs the evidence presented and determines the credibility of the witnesses. Plummer, 511 N.W.2d at 38 (citing Mayzlik v. Lansing Elevator Co., 241 Minn. 468, 473, 63 N.W.2d 380, 384 (1954)).

The state argues it intends to prove at trial that Ederhoff was an accomplice to the crimes committed by Kantor after the murder of Klinefelter. A person is an accomplice to a crime

if the person intentionally aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.

Minn. Stat. § 609.05, subd. 1 (1996). A person liable under subdivision 1 may also be held liable for other crimes committed by an accomplice in carrying out the intended crime if the accomplice's crimes were "reasonably foreseeable by the person as a probable consequence of committing or attempting to commit the intended crime." Id., subd. 2 (1996); State v. Merrill, 428 N.W.2d 361, 367 (Minn. 1988).

Here, Ederhoff was present when Kantor killed Klinefelter. The record shows that the three then abandoned the truck in a residential area and set off on foot together. After a short time, Kantor split from Ederhoff and Roering, broke into two houses, kidnapped a homeowner, and stole a car. The record shows that Ederhoff and Roering went to a nearby house and waited by a tree near the street. Ederhoff and Roering were less than 200 feet from where Kantor stole the car. Based on these facts, we believe there was sufficient evidence to conclude that probable cause existed to support the state's theory that the three planned to abandon the truck, have Kantor steal another vehicle, and then pick up Ederhoff and Roering. Thus, there was sufficient evidence to conclude that probable cause existed to show Ederhoff was liable as an accomplice to Kantor's subsequent crimes. We conclude, therefore, that the trial court erred in dismissing counts IV through IX and XI.

Based on our review of the record and our analysis above, we conclude the trial court did not err in sustaining counts I and II. We affirm the trial court on counts I and II and reverse the trial court's dismissal of counts IV through IX and XI.[1]

2. Ederhoff argues that the trial court erred in failing to release the verbatim record of the grand jury proceedings.

Under the Minnesota Rules of Criminal Procedure,

a verbatim record shall be made * * * of the evidence taken before the grand jury * * *. * * * The record shall not be disclosed except to the court or prosecuting attorney or unless the court, upon motion by the defendant for good cause shown, or upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury * * *.

Minn. R. Crim. P. 18.05, subd. 1; see also Minn. R. Crim. P. 18.05, subd. 1 cmt. (verbatim record may be disclosed "on a showing that grounds exist for a motion to dismiss the indictment because of occurrences before the grand jury"); United States v. Benson, 760 F.2d 862, 864 (8th Cir.) (defendant must show "particularized need" before verbatim record disclosed), cert. denied, 474 U.S. 858 (1985).

The trial court properly found that Ederhoff failed to make the requisite showing of "good cause" to warrant release of the verbatim record. Although there was no request made by Ederhoff, he was provided with copies of the court's instructions to the grand jury, the transcript of the witness testimony, and the taking of the indictment. In his brief, Ederhoff gives no reason for wanting the verbatim record, other than he requires the additional information to attempt to discredit the charges against him. Because we cannot conclude that Ederhoff's desire to merely "search" the verbatim record constitutes a "particularized need," the trial court did not err in denying the motion.

Affirmed in part and reversed in part.

[ ]1 Ederhoff does not challenge indictments III and X on appeal.