State v. Caron
| Decision Date | 10 May 1974 |
| Docket Number | No. 44290,44290 |
| Citation | 300 Minn. 123,218 N.W.2d 197 |
| Parties | STATE of Minnesota, Respondent, v. David Lee CARON, Appellant. |
| Court | Minnesota Supreme Court |
C. Paul Jones, Public Defender, David G. Roston, Mollie G. Raskind, Asst. Public Defenders, for appellant.
Warren Spannaus, Atty. Gen., Jonathan H. Morgan, Sol. Gen., Peter W. Sipkins, Asst. Sol. Gen., James B. Early and Kenneth E. Raschke, Jr., Sp. Asst. Attys. Gen., St. Paul, John E. Pearson, Co. Atty., Detroit Lakes, for respondent.
Heard by KELLY, SCOTT, and McRAE, JJ., and considered and decided by the court.
Defendant, found guilty by a district court jury of selling marijuana in violation of Minn.St. 152.09, subd. 1(1), and sentenced to the maximum term of imprisonment permitted by Minn.St. 152.15, subd. 1(2), 1 contends on this appeal from judgment of conviction and from the order denying his motion for a new trial that (1) the evidence was, as a matter of law, insufficient on the issue of identification to support the verdict; (2) the prosecutor was guilty of misconduct when in his closing argument he alluded to the failure of defendant to call certain witnesses; and (3) the trial court committed error when it failed to give an instruction enumerating all the factors which a jury should consider in evaluating identification testimony. We affirm.
At 3:55 p.m. on August 15, 1972, Lee H. Urness and John Gundersen, who are undercover agents for the narcotics section of the Minnesota Bureau of Criminal Apprehension, visited a small farmhouse near Shell Lake in Becker County for the purpose of attempting to purchase marijuana from the occupants. After purchasing three 'lids' of marijuana at $15 each from an unidentified male occupant, who talked with them for about 10 minutes, the agents went to Detroit Lakes, where they talked with the county attorney, the county sheriff, and the Detroit Lakes chief of police. Bearing a John Doe warrant which they obtained, the agents returned to the farmhouse 2 days later at about 7:15 p.m. and arrested defendant on a charge of having sold them marijuana on the 15th, the charge on which defendant was eventually convicted.
1. Defendant's first contention is that there was, as a matter of law, insufficient evidence that he was the man who sold the marijuana on the 15th. We have carefully read the transcript of defendant's trial and conclude that there is no merit to this contention.
The two key witnesses against defendant at the trial were the two agents, Urness and Gundersen. They both testified that they had sufficient opportunity during the 10 minutes they were in the house on the 15th to get a good look at the person with whom they were dealing and that they were positive in identifying defendant as that person. Admitting that the interior of the house was somewhat dark on that day in that the shades were pulled and the lights were off, they testified that enough daylight was entering the house through the shades to permit them to see everything. The only weakness in their identification is the discrepancy between defendant's actual appearance and the description which they gave to local authorities and which appeared in the complaint, the discrepancy being that defendant had a moustache whereas their description stated that the seller had no facial hair. With respect to this discrepancy Urness testified that he observed the moustache on the person who made the sale but that he did not think that this constituted facial hair, his view being that facial hair implied a big bushy beard like one he himself once had. He added than another reason for the discrepancy was that he and Gundersen had disagreed over whether the party had a moustache. It appears that in every other detail the agents' description fit defendant and that it did not fit the only other male occupant of that house, one Mike Brun, whom the agents apparently knew. 2
As we noted in State v. Senske, 291 Minn. 228, 230, 190 N.W.2d 658, 659 (1971):
In Senske, we also pointed out that every discrepancy in identification testimony need not be treated as fatal 3 and that reference should be made to circumstantial evidence in determining whether the jury's finding of guilt beyond a reasonable doubt is supported by the evidence.
The agents testified to other facts corroborating their identification testimony. First, they testified that they asked the party on the 15th if he lived there and that he said yes. This is evidence that defendant was the person who made the sale, because it is undisputed that he and Mike Brun were the only males living at the farmhouse at that time and it is clear that the person who made the sale was not Mike. It is clear that the person was not Mike because (a) the officers knew Mike; (b) their description fit defendant, not Mike; and (c) the person, in response to a question, stated that Mike would not be back until 6 p.m. because he was at vocational school. Second, the agents testified that on the 17th, defendant, before learning that they were there to arrest him, spoke to them as one would who had seen them earlier, asking them how their week had gone.
In summary, we think it is clear that the evidence was sufficient on the issue of identification to support the verdict.
2. We believe that defendant is correct in his statement that the prosecutor erred by alluding in his closing argument to the failure of defendant to call certain alibi witnesses, but we do not agree with defendant that this warrants a new trial.
The facts are these: Defendant took the stand in his own defense, claiming that on the 15th he was at the farmhouse only until about 2:30 p.m., when he drove to nearby Detroit Lakes where he had a couple of beers and went to Arnold Warnke's gas station to see if he could use a hoist to repair his automobile. He testified that at about 4:15 p.m. he met a friend, Steve Swanson, and was with him for a short time before returning to the farmhouse around 5 p.m. Although defendant called Swanson as an alibi witness, he did not call anyone to corroborate that part of his alibi bearing on where he was at the time of the sale to the agents. It was this failure to which the prosecutor alluded in his closing argument, stating:
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