State v. Lasley

• Decision Date: 21 November 1975
• Docket Number: No. 45464,45464
• Citation: 306 Minn. 224,236 N.W.2d 604
• Parties: STATE of Minnesota, Respondent, v. Larry Carl LASLEY, Appellant.
• Court: Minnesota Supreme Court

Page 604

236 N.W.2d 604

306 Minn. 224

STATE of Minnesota, Respondent, v. Larry Carl LASLEY, Appellant.

No. 45464.

Supreme Court of Minnesota.

Nov. 21, 1975.

C. Paul Jones, Public Defender, Patrick J. Delaney and Peter J. Thompson, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Gary W. Flakne, County Atty., Vernon E. Bergstrom, Michael Mc,Glennen and David W. Larson, Asst. County Attys., Minneapolis, for respondent.

Wetherbee & Baker, R. Michael Wetherbee and Randall Tigue, Minneapolis (for Minn. Civil Liberties Union seeking reversal), amicus curiae.

Considered and decided by the court en banc.

OTIS, Justice.

This is an appeal from a conviction for robbery, aggravated assault, and murder in the first degree. Defendant asserts as grounds for reversal (1) the court's refusal to conduct a psychiatric examination of a victim who testified; (2) the receipt in evidence of hearsay testimony corroborating a victim's identification of defendant; and (3) the court's refusal to suppress evidence removed from his home without a search warrant.

The crimes which gave rise to this prosecution occurred on February 19, 1974, at about 10:30 p.m., at the home of Mrs. Della Ross in North Minneapolis. At that time, Mrs. Ross and her tenant, William Vaughn, were in her kitchen when there was a knock at the back door. Vaughn opened the door, and two intruders pushed past them, brandishing a gun. Vaughn and Mrs. Ross were forced to lie on the floor, and their hands were tied with wire coat hangers. A trunk containing money was opened. Thereafter, one of the intruders, later identified by Vaughn as defendant, shot both Mrs. Ross and Vaughn with his revolver, Killing Mrs. Ross and wounding Vaughn in the neck.

Within 10 minutes of the shooting, Vaughn disengaged his hands and called the police, who reached the scene a few minutes later. Upon their arrival, Vaughn was conscious and able to identify his assailant as 'Nettie's husband.' He also gave the police a physical description of the robbers.

In searching the premises, the police found a .32-caliber revolver in the alley in the middle of the block behind the house. The revolver was sunk in ice, suggesting it was warn when dropped. Although the bullet which killed Mrs. Ross could not be identified as coming from the revolver, a comparison of the firing pin impression on a misfired cartridge found in defendant's apartment with the firing pin impressions on cartridges test-fired from the revolver led an expert to conclude that the firing pin impression on the misfired shell was produced by the revolver.

Vaughn was taken to General Hospital where he was interrogated by the police about 11:15 p.m. He related to them that the assailant had recently been released from prison, which information prompted the police to secure photographs of persons fitting that category. Defendant's picture was not included in this group, but upon viewing them Vaughn recalled that Nettie's last name was Lasley and her husband's name was Larry. The police thereupon secured a picture of defendant which Vaughn identified as a photograph of his assailant.

In searching Mrs. Ross' home a little after midnight, the police discovered an address book which contained the name 'Nettie Lasley' together with a phone number from which they were able to trace the Lasley address to Apartment 301 at 1031 Bryant Avenue North, Minneapolis. Following this discovery, five police officers converged on the Lasley apartment, arriving there at 1:27 a.m. Mrs. Lasley answered the door, and although she objected to having the police enter the apartment, they persuaded her that they had authority to do so. The officers then searched the apartment. Two later testified that their sole purpose was to determine whether defendant was hiding there. Unable to find him, they interrogated Mrs. Lasley to determine where her husband was, where he was apt to be found, who his friends were, what kind of an automobile he owned, and whether he had recently been released from prison. The officers remained until 2:14 a.m. As they were departing, one of the officers observed four .32-caliber bullets on an end table next to the sofa where he and Mrs. Lasley had ben conversing. He took the cartridges with him and had laboratory tests made. The tests demonstrated that one had been in the chamber of the .32-caliber revolver found behind the home in which the shooting occurred. As the officers left the Lasleys' apartment building, defendant arrived in a car and was apprehended.

Defendant here argues not only that the .32-caliber cartridge was inadmissible, but that the identification testimony was inadequate to convict him because it was conclusively impeached by proof that Vaughn was mentally incompetent and there was no other evidence to sustain a conviction. In support of these arguments, defendant points out that no scientific evidence proved that the .32-caliber revolver was the weapon used in the shooting; footprints found in the snow were not those of defendant; no fingerprints connected defendant with the shooting; no money was missing from Mrs. Ross' trunk, and defendant was found with only $68 on his person; and a 'neutron activation test' to determine whether defendant had recently handled a firearm was inconclusive. It is clear that the cartridge found in Lasley's apartment and Vaughn's identification testimony constituted the critical evidence of guilt on which the conviction was based. We hold that such evidence was competent and admissible, and accordingly affirm.

1. Defendant asserts that it was error for the trial court to deny a motion requiring Vaughn to submit to a psychiatric examination, and that his mental condition rendered his testimony inadmissible. It is undisputed that Vaughn was an alcoholic who had undergone intensive treatment and suffered from severe mental deterioration. His testimony on virtually every detail except that of identification was inconsistent and confused. Nevertheless, on the critical question of identity he remained steadfast in his assertions that his assailant was 'Nettie's husband or boyfriend,' that he had recently been released from prison, and that he was someone with whom he, Vaughn, was acquainted. There was testimony by another witness that on February 14 he and Vaughn were present when defendant and Nettie Lasley were at the Ross home negotiating the purchase of a tape recorder by Mrs. Ross from defendant. In defendant's presence, Mrs. Ross opened a trunk and paid him $26. Subsequently, a dispute arose as to whether the tape recorder functioned properly, and apparently Lasley replaced it. After her death the trunk was found to contain over $700. The sale had occurred only 5 days before Mrs. Ross was murdered.

However confused Vaughn may have been on all the other details, it is not unreasonable to believe that, having survived the terrifying experience which nearly cost him his life, he would, if he knew the defendant, struggle to recall his name. Vaughn's inability to recall the sequence of events, disclosed on cross-examination, was a matter which the jury could assess in weighing his testimony. We are not persuaded that it was not entitled to credence with respect to the identification issue. Two judges passed on Vaughn's ability to testify, and both determined that he was competent to do so. We are satisfied that the evidence sustains their decision, and that it was not error to refuse to exclude such testimony under Minn.St. 595.02(6). This is a determination peculiarly within the discretion of the trial court. State ex rel. Dugal v. Tahash, 278 Minn. 175, 153 N.W.2d 232 (1967); State v. Whelan, 291 Minn. 83, 189 N.W.2d 170 (1971).

2. The trial court permitted police officers to testify to Vaughn's conversations with them in which he identified defendant as his assailant. Although the court treated these statements as part of the res gestae, we need not determine whether they were admissible under that exception to the hearsay rule. We are of the opinion that it is always competent to show that a victim consistently identified the person charged with the crime under circumstances where the person making the identification is a witness at the trial, under oath, and subject to cross-examination.

3. The court's refusal to suppress evidence removed from defendant's home raises a serious Fourth Amendment question not yet resolved by the United States Supreme Court. Defendant contends (1) that there was not probable cause for the police to believe that he could be found in his apartment when they arrived at 1:27 a.m. following the murder of Mrs. Ross, and they therefore had no right to enter without a warrant; and (2) that even if they had a right to enter, upon determining that defendant was not in the apartment, it was their duty to depart immediately and any interrogation of Mrs. Lasley should thereafter have been conducted elsewhere.

Minn.St. 629.34(3) permits a peace officer to make an arrest without a warrant '(w)hen a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.' The statute further provides:

'To make such arrest the officer may break open an outer or inner door or window of a dwelling house if, after notice of his office and purpose, he shall be refused admittance.'

Applying that statute, we held in State v. Bean, 280 Minn. 35, 157 N.W.2d 736, certiorari denied, 393 U.S. 1003, 89 S.Ct. 493, 21 L.Ed.2d 468 (1968), that where police officers had probable cause to believe that defendant had committed a felony, they were justified in using force to enter defendant's home without a warrant to effectuate an arrest and that the revolver and shotguns which they came upon were properly seized. Although here the officers were not required to use force, the statute permitted them to enter defendant's apartment in search of him.

Defendant would have us suppress the cartridge found in...