Colbert v. State

• Decision Date: 21 October 2015
• Docket Number: No. A14–2165.,A14–2165.
• Citation: 870 N.W.2d 616
• Parties: Darryl COLBERT, petitioner, Appellant, v. STATE of Minnesota, Respondent.
• Court: Minnesota Supreme Court

870 N.W.2d 616

Darryl COLBERT, petitioner, Appellant

v.STATE of Minnesota, Respondent.

No. A14–2165.

Supreme Court of Minnesota.

Oct. 21, 2015.

Zachary A. Longsdorf, Inver Grove Heights, MN, for appellant.

Lori Swanson, Attorney General, Saint Paul, MN; Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant Hennepin County Attorney, Minneapolis, MN, for respondent.

Considered and decided by the court without oral argument.

OPINION

DIETZEN, Justice.

Appellant Darryl Colbert was found guilty by a Hennepin County jury of the first-degree murder of Robert Mitchell in December 2003, and was sentenced to life imprisonment without the possibility of release. We affirmed Colbert's conviction on direct appeal. State v. Colbert (Colbert I), 716 N.W.2d 647, 649 (Minn.2006). In July 2014, Colbert filed his sixth postconviction petition under Minn.Stat. § 590.01 (2014). The postconviction court summarily denied the petition without an evidentiary hearing. Because the record conclusively shows that Colbert's claims are harmless beyond a reasonable doubt, procedurally barred, or meritless, we affirm.

On December 26, 2003, Robert Mitchell was shot and killed on the 2800 block of Columbus Avenue in Minneapolis. Colbert was arrested and indicted for first-degree premeditated murder, Minn.Stat. § 609.185(a)(1) (2014), and second-degree intentional murder, Minn.Stat. § 609.19, subd. 1(1) (2014), for Mitchell's death. Following a trial, the jury found Colbert guilty of first-degree murder.

The State introduced testimony of the events leading up to the shooting death of Mitchell on the evening of December 26, 2003, and a related shooting involving Colbert and Troy Parker, which occurred on the evening of December 27, 2003.¹ Surveillance video footage established that Colbert arrived at Sunny's, a bar and restaurant on Lake Street and Chicago Avenue in Minneapolis, around 5:33 p.m. on December 26 wearing a brimmed, fedora-style hat and long topcoat. At the time, Mitchell, his fiancée, Gladys Rogers, and several friends including Kathleen Washington and Clarence Ealey were also at Sunny's to celebrate the engagement of Mitchell and Rogers. Washington testified that she saw Colbert talking to Mitchell, and overheard part of the conversation in which $50 was mentioned. Washington then saw Colbert leave Sunny's with Mitchell. The surveillance tape from Sunny's showed Colbert talking to Mitchell at 5:50 p.m., and the two of them leaving together at 6:13 p.m. Rogers testified that Mitchell told her he was going to buy a television for $50 and was leaving with someone named “Darryl.”

Shortly after Colbert and Mitchell left Sunny's, three individuals separately witnessed two cars parked trunk-to-trunk approximately one and one-half blocks north of Sunny's on the 2800 block of Columbus Avenue. One of the cars was described as an older model white car with a “boxed-shaped” or “squared-off” back end. Two men were seen standing near the cars. The witnesses saw one of the men, who was wearing a dark, brimmed hat and a long, dark topcoat, shoot the other man. The shooter drove away in the older model white car. Colbert drove a white, 1988 Chrysler New Yorker, which witnesses testified was similar to the shooter's car. Two of the witnesses called 911 immediately after the shooting. The first call was logged at 6:17 p.m.

At 6:21 p.m., surveillance video from Sunny's showed a white Chrysler New Yorker driving past Sunny's on Chicago Avenue. Colbert admitted that the white Chrysler New Yorker seen driving past Sunny's belonged to him and that he was driving it. Police officers testified that it would take 50–53 seconds to drive from Sunny's to the murder scene.

The next day, Colbert was involved in a separate incident involving the gun used in Mitchell's murder. Troy Parker testified that Colbert brought the gun to the apartment of Colbert's nephew, M.C., that a fight between Colbert and Parker occurred in the apartment, and that Colbert shot Parker and then accidentally shot himself. Guy Richardson, who was M.C.'s neighbor in the apartment building at the time, testified that Colbert came to Richardson's apartment and asked if he had seen Parker, and that Colbert used Richardson's phone to call Parker. When Colbert left the apartment he put his hands behind his back, Richardson heard a sound like a gun cocking, and Colbert said, “mind your business about what you hear over here or I'm going to come back.” A few minutes later, Richardson heard Parker's voice and then three gun shots.

Colbert denied that he was involved in the shooting of Mitchell. He testified that he arrived at Sunny's at 5:33 p.m. on December 26 wearing a long coat and brimmed hat, and that he briefly spoke to Mitchell. According to Colbert, he left Sunny's alone, Mitchell left behind him, and they went their separate ways. After Colbert left Sunny's he walked to his car, which was parked in the KFC parking lot approximately one-half block north of Sunny's, drove out of the KFC parking lot, and then headed south on Chicago Avenue. Colbert relied on an aerial photograph of the neighborhood where the murder occurred (Exhibit 4) to testify that it would have been impossible for him to leave Sunny's, drive to the crime scene, commit the crime, and then drive back past Sunny's during the eight-minute time period between 6:13 p.m. and 6:21 p.m.

Additionally, Colbert disputed his role in the December 27 incident. Colbert stated that Parker asked him to come over to M.C.'s apartment and “cook up some crack for him.” At the apartment, Parker accused Colbert of stealing his drugs and pointed a gun at Colbert. During an ensuing struggle Parker shot both of Colbert's legs, and when Colbert grabbed for the gun, Parker was shot. Colbert admitted that an earlier version of the incident he told police was a lie.

Howard Wilder testified that he and Colbert drove to M.C.'s apartment building in Colbert's car and that Colbert left the car saying he would be back shortly. According to Wilder, Colbert did not appear to be carrying a gun when he left the car. Wilder testified further that Colbert stumbled out of the apartment building about twenty minutes later saying “he shot me.” As Colbert entered the car, Wilder saw a man holding a gun emerge from M.C.'s apartment building. On cross-examination, Wilder admitted there were several inconsistencies between his testimony and a prior statement he had given to the police.

On direct appeal, Colbert challenged his conviction based on: (1) the sufficiency of the evidence; (2) an alleged discovery violation by the State; and (3) prosecutorial misconduct. Colbert I, 716 N.W.2d at 649. To support his sufficiency of the evidence claim, Colbert cited the inconsistent witness descriptions of the shooter, the implausibility of Parker's version of the December 27 incident, and the narrow time-frame between the time Colbert left Sunny's and the time he was observed driving past Sunny's at 6:21 p.m., shortly after the murder occurred. Id. at 653. We affirmed Colbert's conviction, concluding that the evidence was sufficient to support Colbert's conviction and that Colbert's other claims were meritless. Id. at 653–57.

Colbert subsequently petitioned for a writ of habeas corpus in federal district court asserting the same three grounds for relief he had raised in his direct appeal. See Colbert v. Minnesota, No. 06–4407, 2007 WL 4224214 (D.Minn. Nov. 28, 2007). The court denied the writ. Id. at *5.

In March 2008 Colbert filed his first petition for postconviction relief.² The postconviction court denied Colbert's petition without a hearing. Colbert filed his second petition for postconviction relief in July 2008.³ The postconviction court again denied Colbert's petition without a hearing. Colbert attempted to appeal the denial, but we dismissed the appeal because he failed to timely file a notice of appeal. See Colbert v. State, A09–858, Order at 2 (Minn. filed May 27, 2009). In December 2009, Colbert filed his third petition for postconviction relief.⁴ Colbert amended this petition with additional claims in February 2010 (Colbert's fourth request for postconviction relief).⁵ The postconviction court summarily denied these petitions. In January 2011, Colbert filed his fifth petition for postconviction relief.⁶ The postconviction court summarily denied the petition and Colbert appealed. We affirmed the postconviction court's denial of Colbert's fifth petition, concluding that the petition was untimely under Minn.Stat. § 590.01, subd. 4(a). Colbert v. State (Colbert II), 811 N.W.2d 103, 105 (Minn.2012).

Colbert filed his sixth petition for postconviction relief on July 29, 2014, alleging (1) newly discovered evidence that a defense witness was threatened by a state actor prior to testifying at trial; (2) newly discovered evidence that the State altered Exhibit 4 and used the altered exhibit to make improper arguments at trial; (3) juror misconduct; and (4) that the cumulative errors require a new trial in the interests of justice. The postconviction court denied Colbert's petition without an evidentiary hearing.

I.

On appeal, Colbert argues the postconviction court abused its discretion in denying his petition by concluding: (1) the witness intimidation claim lacks merit; (2) the claim based on Exhibit 4 is time-barred under Minn.Stat. § 590.01, subd. 4 (a); and (3) the juror misconduct and the cumulative error claims are procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).

We review the denial of a petition for postconviction relief, as well as a request for an evidentiary hearing, for an abuse of discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn.2012). We review legal issues de novo, but we review factual matters under the clearly erroneous standard.

Brown v. State, 863 N.W.2d 781, 786 (Minn.2015) ; Riley, 819 N.W.2d at 167. A postconviction court need not grant a hearing on a claim if the files and records of the proceeding conclusively...