State v. Callender, 49452.

• Decision Date: 04 November 1980
• Docket Number: No. 49452.,49452.
• Citation: 297 NW 2d 744
• Parties: STATE of Minnesota, Respondent, v. Rodney Pierre CALLENDER, Appellant.
• Court: Minnesota Supreme Court

297 N.W.2d 744 (1980)

STATE of Minnesota, Respondent, v. Rodney Pierre CALLENDER, Appellant.

No. 49452.

Supreme Court of Minnesota.

July 3, 1980.

Rehearing Denied November 4, 1980.

William W. Fink, St. Paul, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Thomas L. Johnson, County Atty., Vernon E. Bergstrom, Chief, App. Section, Asst. County Atty., David W. Larson, Asst. County Atty., Minneapolis, for respondent.

Considered and decided by the court en banc without oral argument.

OTIS, Justice.

Defendant was found guilty by a district court jury of aggravated robbery, Minn. Stat. § 609.245 (1978), and possession of a pistol by a felon, Minn.Stat. § 624.713 (1978), and was sentenced by the trial court to a limited prison term of one year and one day to ten years (instead of the maximum twenty) for the robbery and a concurrent maximum term of five years for the weapons offense. On this appeal from judgment of conviction, defendant seeks (a) outright reversal of both his convictions on the ground that the evidence on the issue of identity was legally insufficient, (b) a reversal of the weapons conviction on the ground that the legislature never intended that a felon who commits a robbery with a firearm should be subject to a conviction both for unlawfully possessing a pistol and for committing an aggravated robbery, (c) a new trial on the ground of prosecutorial misconduct and erroneous admission of other-crime evidence, (d) a remand for a Schwartz¹ hearing to determine whether racial prejudice infected the jury verdict, or (e) a vacation of the sentence for the weapons conviction pursuant to Minn.Stat. § 609.035 (1978) on the ground that the conviction arose from the same behavioral incident as the robbery.

There is no merit to defendant's contention that the evidence of his guilt was insufficient to sustain the convictions, and our examination of the record satisfies us that the prosecutor did not commit prejudicial misconduct and that the trial court did not prejudicially err in admitting the other-crime evidence. We are also unpersuaded by defendant's contention that a felon who uses a firearm to commit a robbery may be convicted of the offense of aggravated robbery but not of being a felon in possession of a firearm. Defendant's alternative contention relating to the weapons offense is that his sentence for that offense should be vacated on the ground that the offense arose from the same behavioral incident as the aggravated robbery. As in State v. Spann, 287 N.W.2d 406 (Minn.1979), we need not decide this issue because the state in its brief indicates that it does not oppose the vacation of concurrent sentence for the weapons offense.

A more difficult issue raised by defendant, who is black, is his contention that the trial court erred in refusing to conduct a so-called Schwartz evidentiary hearing on defendant's claim that the jury deliberations may have been infected by racial prejudice. The Schwartz hearing was requested by defendant's trial attorney after he was allegedly...