State v. Hazley

• Decision Date: 16 August 1988
• Docket Number: No. C1-87-2511,C1-87-2511
• Citation: 428 N.W.2d 406
• Parties: STATE of Minnesota, Respondent, v. Valentino (NMN) HAZLEY, Appellant.
• Court: Minnesota Court of Appeals

Page 406

428 N.W.2d 406

STATE of Minnesota, Respondent, v. Valentino (NMN) HAZLEY, Appellant.

No. C1-87-2511.

Court of Appeals of Minnesota.

Aug. 16, 1988.

Review Denied Sept. 28, 1988.

Syllabus by the Court

1. Trial court did not abuse its discretion in excluding accomplice's out-of-court statement that he was with someone other than appellant when no evidence corroborated that person's existence and point for which statement was offered was collateral to the issues.

2. Admission of identification testimony did not deny due process because the totality of circumstances did not indicate a substantial likelihood of misidentification.

3. Although asking appellant who he was with did not fall within the public safety exception to Miranda, admission of appellant's response was harmless error.

4. Consecutive 60-month sentences for assault and aggravated robbery were not an abuse of discretion.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Michael Richardson, Asst. Co. Atty., Minneapolis, for respondent.

C. Paul Jones, State Public Defender, Melissa Sheridan, Asst. State Public Defender, Minneapolis, for appellant.

Considered and decided by FORSBERG, P.J., and LANSING and SCHULTZ, ^* JJ., without oral argument.

OPINION

LANSING, Judge.

The jury found appellant Valentino Hazley guilty of five counts of second degree assault, Minn.Stat. Sec. 609.222, and one count of aggravated robbery, Minn.Stat. Sec. 609.245. The trial court sentenced him to consecutive terms of 60 months imprisonment for aggravated robbery and 60 months for second degree assault. Hazley appeals the conviction and sentence.

FACTS

The Minnetonka Chi-Chi's Restaurant was robbed at about 2:00 a.m. on September 21, 1986. Three masked men, one of them holding a gun, walked into the kitchen of the closed restaurant and asked employees Timothy Hall and Jeremy Allshouse where the safe was located. After they said they did not know, they were put in an empty office and told to lie down and cover their heads. Hall observed that one of the men was a "mulatto," or light-skinned black, and was carrying a knife.

A black man wearing a dark jacket and green ski mask and holding a gun entered another office where Steve Newmann, Janine Timm, and Debra Borkowski were finishing paperwork. The gunman told them to get on the floor and when Newmann did not move fast enough, hit him on the head. The man then held the gun to Borkowski's head and made her open the safe. As she was ordered back on the floor, she saw another, lighter-skinned black man, wearing a ski mask and carrying a knife, enter the office. They cleaned out the safe and ran from the office.

Newmann ran after them and saw a brown or maroon car leaving the parking lot. He noted the license plate number as FGL-937, and phoned it in to the Minnetonka police. The police department sent out a dispatch on the car, and also sent officer Richard Dvorak to Chi-Chi's. Dvorak spoke with all five employees, but let Hall and Allshouse go home because they were distraught. He gave Timm, Borkowski, and Newmann written statement forms to fill out.

Meanwhile, Golden Valley police officer Joseph Dutton had heard the radio dispatch and drove west on Highway 12 to County Road 18 to watch for the car. He noticed a brown Pontiac driving east, which slowed almost to a stop when he spotlighted it. Before he pursued it, information came over his radio that another squad had stopped the suspect vehicle. Within moments that report was corrected, and Dutton could still see the Pontiac on the ramp from eastbound Highway 12 to northbound County Road 18. He radioed the dispatcher, and New Hope police officer Allen Server picked up the vehicle at Medicine Lake Road. At 36th Avenue, the Pontiac crossed over and headed back south on County Road 18. Server noted that its license number was FGC-997, but could see only one person in the car. When another Golden Valley squad pulled behind him at the exit to eastbound Highway 55, Server turned on his red lights to stop the Pontiac.

A high speed chase ensued down Highway 55 until the Pontiac made a sharp right-hand turn at Humboldt Avenue in Minneapolis and stopped at a housing development. As Server pulled in behind it, the passenger door flew open and a black man who appeared to be wearing a grayish T-shirt with stripes down the sleeves ran out. Server got out of his car and saw the man coming through the hedges toward him. He stopped the man, later identified as Valentino Hazley, and handcuffed and searched him but did not find a weapon.

Minneapolis police officers David Rumpza and Peter Jackson, assisting the chase, saw the Pontiac stop and two men get out. Rumpza described the passenger as a black man wearing blue jeans and a black jacket with white stripes, but Jackson broadcast a description of the passenger as wearing a gray T-shirt and dark pants. A tape of the radio communications did not indicate that Rumpza corrected Jackson's description, although Rumpza said he tried but must have been cut off. Rumpza chased the passenger briefly, but remained near the Pontiac. He later identified Hazley as the man he had seen leave the Pontiac. Meanwhile, Jackson apprehended the driver, Audwin Duke, who told him that his name was Julius Duke, he had been with Vitto Maloney, and Duke had had the knife and Maloney the gun.

Server turned Hazley over to Minneapolis police officers Michael Fossum and Dan Gustafson. Fossum put Hazley in the squad car and, without giving Miranda warnings, asked him who he was and who was with him. Hazley gave his name and said he was with Audwin Duke.

When a detective back at Chi-Chi's learned that two suspects had been apprehended, he drove Borkowski, Timm, and Newmann to the scene in his squad car. The witnesses remained in the squad while the suspects were brought one at a time in front of the headlights. Based on his clothing, Borkowski and Newmann made a positive identification of Hazley as the gunman, but Timm was unable to identify him. Newmann also identified the Pontiac as the car he had seen leave the parking lot.

Borkowski, Timm and Newmann then went to the police station, where they finished their written statements. It appears from changes in the ink color that Borkowski and Newmann made their original descriptions more specific after having viewed the suspects. Newmann inserted "white striped" over his original description of a "blue windbreaker," and Borkowski wrote "or black" above her original description of "blue jeans." It appears that Timm either started over or did her entire statement at the police station.

At around 3:00 a.m., while searching for physical evidence, deputy Jeffrey Schiebel found a broken revolver body and several gun pieces, a green stocking cap, and a holster in the far south lane of eastbound Highway 55. A knife, a black stocking cap, and a pillowcase containing Chi-Chi's cashboxes were found in the Pontiac. Hair analysis showed that hairs left in the green stocking cap matched Hazley's and those in the black stocking cap matched Duke's.

At trial, Hall, Newmann, Borkowski, and Timm identified the green mask as that the gunman had worn, although Allshouse thought the robber's mask was darker green. All the witnesses identified the gun, and Hall and Borkowski identified the knife. Allshouse stated that the black, white-striped jacket Hazley had been wearing was not the one he had seen, which was blue and not striped. Hall thought he had seen the black jacket before, but was not sure if it was on the night of the robbery. Newmann, Borkowski, and Timm positively identified the jacket.

Hazley did not testify, but presented an alibi defense through the testimony of his former girlfriend, Sherrillyn Mosley. Mosley testified that she and Hazley had been together that day since the late afternoon or early evening. According to Mosley, she and Hazley had smoked a joint, taken a walk on Plymouth Avenue where people congregated, then returned home between 1:30 and 2:00 a.m. Hazley stayed about five minutes, then she watched him walk home toward the Humboldt apartment complex where he was arrested.

Although other testimony indicated that it had been raining hard that evening, Mosley did not recall if it was raining or not. She also stated that she knew she had spent the evening of the robbery with Hazley because he and his mother called the next day. Jail records indicate that Hazley did not call her until over a week after his arrest, but Hazley's mother testified that she did call Mosley the next day. Mosley made no effort to inform the police or county officials that Hazley had been with her, and had earlier stated that she did not remember if Hazley was with her on that date.

The jury found Hazley guilty, and the trial court sentenced him to consecutive sentences of 60 months for the aggravated robbery of Debra Borkowski and 60 months for the second degree assault of Jeremy Allshouse. Hazley appeals his conviction and sentence.

ISSUES

1. Did the trial court abuse its discretion in excluding from evidence Duke's statement that he had been with "Vitto Maloney"?

2. Did admission of identification testimony deny Hazley due process of law?

3. Was the admission of Hazley's statement that he had been with Duke reversible error?

4. Did the trial court abuse its discretion in sentencing Hazley to consecutive prison terms for aggravated robbery and second degree assault?

ANALYSIS

I

Hazley argues that Duke's statement that he had been with Vitto Maloney should have been admitted as a statement against penal interest or an excited utterance, and that the trial court's failure to admit the statement denied him due process and the right to present a defense. See Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (denial of due process to exclude hearsay statements of another man who had repeatedly confessed to murder).

Hazley does not claim that a man...