State v. Azzone

• Decision Date: 14 May 1965
• Docket Number: No. 38948,38948
• Parties: STATE of Minnesota, Respondent, v. John AZZONE, Appellant.
• Court: Minnesota Supreme Court

Page 488

135 N.W.2d 488

271 Minn. 166

STATE of Minnesota, Respondent, v. John AZZONE, Appellant.

No. 38948.

Supreme Court of Minnesota.

May 14, 1965.

Rehearing Denied June 15, 1965.

Syllabus by the Court

I. In criminal prosecution for kidnapping there was no denial of due process of law where (1) newly discovered evidence which defendant claims to be conclusive of his innocence but which trial court rejected

as grounds for new trial consists of statement made by prosecuting attorney after defendant's conviction to the effect that in separate proceedings against an accomplice whose testimony was used to convict the defendant there was insufficient evidence to convict the accomplice of participation in the crime when he pleaded not guilty and refused to testify against himself; (2) review of the grounds asserted in support of a new trial is afforded by the appellate court even though the motion for a new trial was considered not timely by the district court; (3) the admission of evidence of other and separate crimes was not prejudicially erroneous under the circumstances of the case; and (4) the argument of the prosecuting attorney to the jury did not deprive defendant of his right to a fair trial.

II. Evidence reviewed and held to adequately corroborate the testimony of an accomplice as required by Minn.St. 634.04.

III. The 'corpus delicti' in a criminal case may be proved by the corroborated testimony of an accomplice.

IV. Complaint that a defendant sentenced for violation of state law while confined in Federal prison is entitled to have sentences run concurrently is premature where minimum term of state sentence has not been served in any event.

V. Prosecution was not barred by the statute of limitations.

VI. Defendant was not denied fair trial because of prejudicial publicity appearing in news media.

Robert W. Mattson, Atty. Gen., St. Paul, William B. Randall, County Atty., Phyllis Jones, Asst. County Atty., St. Paul, for respondent.

Joseph Robbie and Peter Lindberg, Minneapolis, for appellant.

SHERAN, Justice.

Appeal from an order of the district court denying defendant's motion for a new trial.

On December 8, 1959, John Azzone, Alex DeGoode, and Rocco Lupino were indicted jointly for the crime of kidnapping Anthony DeVito on September 28, 1953. Lupino was tried first and found guilty. Upon appeal to this court the conviction was affirmed. State v. Lupino, 268 Minn. 344, 129 N.W.2d 294, ¹ certiorari denied, 379 U.S. 978, 85 S.Ct. 681, 13 L.Ed.2d 569. After the conviction of Lupino but before his appeal, Azzone was tried separately and found guilty by a jury verdict returned May 7, 1960. Two days later he was sentenced to Stillwater penitentiary for confinement 'according to law.' After 2 years, on August 1, 1962, he moved for a new trial, which was denied by an order dated November 1, 1962, from which defendant appeals.

In this court defendant contends:

I. He was denied due process of law under the Fourteenth Amendment of the United States Constitution and art. 1, § 7, of the Minnesota Constitution because (1) the order of the trial court denying his motion for a new trial based on newly discovered evidence was not justified; (2) the trial court erroneously decided that the motion for a new trial was not timely; (3) the admission of evidence of other and separate crimes was prejudicially erroneous; and (4) inflammatory remarks and statements made by the county attorney in his argument to the jury improperly influenced the verdict.

II. The evidence fails to sustain the verdict since the testimony of an accomplice (Alex DeGoode) was not adequately corroborated.

III. The evidence fails to establish that the crime of kidnapping was in fact committed by defendant.

IV. The sentence of the trial court was defective and failed to specify whether or not it was to run concurrently with a Federal sentence being served by Azzone at the time the sentence in this state criminal proceedings was imposed.

V. The evidence establishes that prosecution was barred by the statute of limitations.

VI. Defendant was denied a fair trial because of prejudicial publicity appearing in news media.

I. Claimed Violations of Constitutional Rights

(1) The trial court was justified in refusing to grant a new trial upon the grounds of 'newly discovered evidence' consisting of certain statements made by the county attorney in open court on June 8, 1960, when the indictment against Alex DeGoode was dismissed, which statements included these comments:

'This matter presently before the Court was a companion matter to the Lupino case which has already been tried, and the Azzone case which has already been tried. These cases arose after conviction of Azzone and Lupino in a federal trial for unlawful flight, and after sentence of this defendant who had pled guilty to the same charge.

'Now, in the federal trial this defendant had pled guilty, and after he had been sentenced I asked if he was willing to waive his constitutional rights and testify before a Ramsey County District Grand Jury. He indicated he would. After his testimony and other evidence the Grand Jury indicted this defendant, together with Lupino and Azzone, for Kidnapping.

'* * * (But) in this court Mr. DeGoode pled not guilty.

'Separating the trials, as each of these defendants has chosen to do, leaves me with a completely different picture. I'm now faced with the trial of DeGoode alone, not in concert with Lupino and not in concert with Azzone, * * * the State is unaware of a single (witness) who will testify that this defendant was even in the State of Minnesota, to say nothing of having taken part in the crime for which he is charged.

'* * * we are unable to prove that the crime of kidnapping occurred and that this defendant participated in it.

'The Court: You mean by that without his own testimony.

'Mr. Randall: Without his own testimony and with his testimony we are unable to establish corroboration as to his participation in it, because we have no witnesses who identify Mr. DeGoode as being anywhere in Minnesota at that time.

'Now, immediately following the completion of the Azzone trial, which was the second of the two, I talked to the attorney for Lupino and I talked to the attorney for Azzone. They talked to their clients. Thereafter, I talked personally to Lupino and I talked personally to Azzone. I pointed out to them in as clear words as I could use that we needed additional evidence in order to corroborate the confession and the sworn testimony which DeGoode had given. Neither Lupino or Azzone were able to give me the names of a single witness; nor were they willing to indicate their willingness to appear as a witness themselves.'

Defendant contends that these statements by the county attorney made with respect to the state's case against DeGoode constitute judicial admissions which establish as a fact that DeGoode was not in Minnesota on September 29, 1953, and this being so, convictions based on his testimony should not be permitted to stand. The argument reflects a misunderstanding of the differences between problems of proof occurring under Minn.St. 634.03, which provides:

'A confession of the defendant shall not be sufficient to warrant his conviction without evidence that the offense charged has been committed; nor can it be given in evidence against him whether made in the course of judicial proceedings or to a private person, when made under the influence of fear produced by threats,'

and those occurring under § 634.04, which provides:

'A conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.'

One object of § 634.03 is to discourage invasions of the constitutional rights of accused persons to be free from undue pressure to confess exerted by law enforcement authorities. ² The importance of this right and the measure of judicial concern for its protection is illustrated by the recent decision of the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, where it was held that criminal procedures followed in the State of New York which made possible jury reliance upon a credible but nonvoluntary confession deprived the defendant of his liberty without due process of law. The object of § 634.04 is to provide a check upon the credibility of testimony of a person who, having been admittedly involved in criminal conduct, might be disposed to shift or diffuse responsibility in order to curry the favor of law enforcement officials. The confession to which reference is made in § 634.03, as a practical matter, is one obtained extrajudicially. There is no opportunity for the jury to observe firsthand the process which produces it. On the other hand, the testimony of an accomplice is given in open court and is subject to cross-examination by the defendant's attorney. Verity is thus safeguarded in a measure. These different reasons for §§ 634.03 and 634.04 in themselves suggest that the quantum of proof required to constitute 'evidence that the offense charged has been committed' within the meaning of § 634.03 ³ is different than that required to constitute 'such other evidence as tends to convict the defendant of the commission of the offense' within the meaning of § 634.04. ⁴

In evaluating the comments made by the county attorney, the question is not whether DeGoode's written confession made out of court coupled with the recitation of events given by him in open court during the Lupino and Azzone trials would have supported a conviction. The significant thing is that in the opinion of the county attorney at the time these statements were made the written confession of DeGoode could not be buttressed by his testimony in the Lupino and Azzone trials in order to meet...