State v. Collins, s. 39691

• Decision Date: 12 May 1967
• Docket Number: 40385,Nos. 39691,s. 39691
• Parties: STATE of Minnesota, Respondent, v. Gerald P. COLLINS, Appellant.
• Court: Minnesota Supreme Court

Page 850

150 N.W.2d 850

276 Minn. 459

STATE of Minnesota, Respondent, v. Gerald P. COLLINS, Appellant.

Nos. 39691, 40385.

Supreme Court of Minnesota.

May 12, 1967.

Rehearing Denied June 6, 1967.

Syllabus by the Court

1. On appeal following a criminal conviction this court must take the evidence most favorable to the state, and must assume that the jury believed the state's witnesses and disbelieved anything which contradicted their testimony. If the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that the defendant was proved guilty of the offense charged, a reviewing court will not disturb its verdict.

2. Where defendant made no timely objection against testimony claimed to suggest the existence of other charges against defendant and made no motion to strike the testimony, the strategic maneuver employed by defense counsel was inadequate to preserve the alleged error for appeal.

3. Testimony that a police detective had shown photographs of defendant to four persons, two of whom were not witnesses at the trial, and that defendant was identified by a witness for the state at the Hennepin County courthouse was not prejudicial.

4. Defendant's argument as to lack of foundation for the impeaching testimony of certain state witnesses on rebuttal was not the basis for either of his motions for a new trial, and no objection on that ground was made at the trial. This point is therefore not reviewable on this appeal. The testimony offered to impeach defendant's alibi witness was properly received for that purpose.

5. The arguments on the part of the defense that the state had an obligation to call the alibi witnesses and that the court should have made one of them its witness have no merit. Under our trial system the parties and their counsel have the primary responsibility for finding, selecting, and presenting the evidence, and it is generally held that the trial court has no affirmative duty to call a witness on its own initiative.

6. The trial court's decision to permit the state on rebuttal to recall eyewitnesses who were unable to make an identification when called during the state's case in chief constituted the exercise of a sound discretion. What is proper rebuttal evidence rests almost wholly in the discretion of the trial court.

7. Defendant has failed to show any prejudice by reason of the publication of a certain newspaper article during the trial. The record is clear that he was aware of its publication during the trial but through his counsel informed the court that he did not wish any inquiry made of the majors, and under those circumstances the trial court fulfilled its only remaining obligation by repeatedly instructing the jury not to read any newspaper articles.

8. Before the fact that a juror may have read a newspaper article discussing certain aspects of the case will furnish the basis for a new trial, it must appear (1) that the juror did read such article and was influenced thereby to the prejudice of the defendant 9. Whether a new trial should be granted because of claimed misconduct of the prosecuting attorney is discretionary with the trial judge. His determination should be reversed on appeal only where the misconduct, viewed in the light of the whole record, appears to be inexcusable and of such serious and prejudicial consequence that our responsibility requires us to conclude that defendant's constitutional right to a fair trial was impaired.

(2) that, having knowledge of the fact prior to the submission of the case to the jury, the defendant requested appropriate action by the court. If, having knowledge of the alleged misconduct, defendant chooses to proceed with the trial to completion, it must be held that he has waived the irregularity.

10. The record fully demonstrates that the identification of the defendant was sufficient to sustain defendant's conviction. The evidence amply sustains his guilt beyond a reasonable doubt.

James S. Simonson, Joseph Robbie, Minneapolis, for appellant.

Peter Dorsey, Minneapolis, amicus curiae, for American Civil Liberties Union.

Douglas M. Head, Atty. Gen., St. Paul, George M. Scott, County Atty., Henry McCarr, Jr., Asst. County Atty., Minneapolis, for respondent.

OPINION

NELSON, Justice.

Defendant appeals from orders of the District Court of Hennepin County, one denying his motion for judgment of dismissal or for a new trial, and the other denying his motion for vacation of the judgment or a new trial. He was convicted of aggravated robbery.

Frank and Joseph Wrzos, brothers, owned and operated a tavern known as Erick's Bar at 300 16th Avenue South, Minneapolis. At approximately 1:30 p.m. Sunday, December 8, 1963, a robbery was committed at their bar while Frank Wrzos was on duty. There were present two waitresses, Eleanor Grimms and Florence Munnell. There were also an undetermined number of customers, variously estimated at 12 to 25, present. The state produced six eyewitnesses to the robbery, namely, Frank Wrzos, Eleanor Grimms, and patrons Orville Block, Hans Markuson, Frank Robert King, and Carl Faber. The record shows that the second waitress, Mrs. Munnell, was in the hospital recuperating from major surgery at the time of the trial. It appears that some of the patrons left the tavern before the police arrived.

The essential elements of the robbery are undisputed. Two armed men entered through the front door, the smaller of the two men, David Scavo, proceeding immediately to keep the bar's customers covered at gunpoint, while the larger and taller man, gun in hand, asked Mrs. Grimms where Frank was and then marched him into the bar's office and forced him to place the contents of a cash drawer and the cash in the safe in a brown paper bag. Wrzos was then returned to the bar where he was made to part with the contents of three cash registers. Approximately $2,700 was taken by the pair. The taller gunman was wearing striped coveralls and a ski cap pulled down to cover his ears and his head down to the eyebrows. After obtaining their loot, the two gunmen herded the bar owner, waitresses, and customers into the bar's basement. Shortly thereafter Frank returned to the bar and discovered that the two gunmen had fled. He immediately called the police.

Mrs. Grimms, the state's first witness, testified that sometime before February 1964 she observed a lineup at the city jail and then identified David Dcavo as the smaller of the two gunmen; and that late in February 1964 in a courtroom at the courthouse in Minneapolis she identified the larger of the two gunmen as the defendant. At the trial she unhesitatingly identified him as the larger of the gunmen.

Frank Robert King, a customer present at the time of the robbery, had walked up to the bar just before the robbery took place and could see the taller gunman in the bar office, although the door was closed, since the office resembled a 'cashier's cage with bars.' King also observed the taller gunman 'as he walked along behind the bar in front of (the witness) toward each of the cash registers' and saw him again as he returned to the office in order to get out from behind the bar. At the trial he positively identified defendant as the taller and heavier gunman.

Hans Markuson, another patron in the bar, was so absorbed in watching a football game on television that he failed to realize that something out of the ordinary was happening when the gunmen were only 10 or 12 feet from him. He did not see the owner go into the office, but he did see the cash registers emptied. He said he never had 'much of a look' at the gunmen and was unable to identify either of them.

Orville Block, another customer, was sitting at the west end of the bar near the office. He saw the owner lying on the floor in the office, watched the larger gunman walk out of the office with the owner, and saw the cash registers emptied. He readily identified defendant as the taller of the two gunmen and observed at the trial that defendant looked 'the same as when he was in the bar.' On March 7, 1964, Block had observed a lineup conducted by the Minneapolis Police Department and at that time he identified defendant as one of the gunmen.

Frank Wrzos testified that the two gunmen were a '(big) man and a small man * * *. Heavy-set fellow and a short fellow.' He thought that the big man weighed perhaps 200 pounds, was about 6 feet tall, and was 'in the neighborhood of maybe 30 years old, something like that or better.' Mr. Wrzos could not identify either gunman. He explained that he was 'all shook up' and 'wasn't looking at the man at all too much because I was all nervous.'

Carl Faber, another customer, upon being asked whether he saw either of the two holdup men in the courtroom, replied:

'Well, I see that fellow there, but I still persist that he is--that his facial resemblance is the same, but he looks like a bigger man to me.

'By Mr. Snell (counsel for the state):

'Q. He looks larger now, heavier?

'A. Much heavier man than I saw that time.

'Q. All right. Otherwise--

'A. The facial resemblance is--his facial resemblance is of the man I saw in Erick's Bar.

'Q. What was your impression at the time of the holdup of the physical size of the person in the coveralls?

'A. Well, I saw that through the mirror, you see.

'Q. What height and weight did you feel the person was?

'A. I say, about five feet four, but I am not--I am not a good guesser on height.'

The state also called Detective Eugene W. Wilson of the Minneapolis Police Department, who had conducted an investigation of the robbery. He testified that on a date, which he could not recall, he arranged to have the witnesses King, Faber, Markuson, and Mrs. Grimms--

'* * * come to the robbery office in the courthouse and * * * I gave them instructions as to not to talk to one another, come to the fourth floor, observe the comings and goings of people...