State v. Sorg

• Decision Date: 19 August 1966
• Docket Number: No. 39740,39740
• Citation: 275 Minn. 1,144 N.W.2d 783
• Parties: STATE of Minnesota, Respondent, v. Gerald Lee SORG, Appellant.
• Court: Minnesota Supreme Court

Page 783

144 N.W.2d 783

275 Minn. 1

STATE of Minnesota, Respondent, v. Gerald Lee SORG, Appellant.

No. 39740.

Supreme Court of Minnesota.

Aug. 19, 1966.

Syllabus by the Court

1--2. Corroborative evidence standing alone need not be sufficient to support a conviction. It is sufficient when it is weighty enough to restore confidence in the truth of the accomplice's testimony. It must affirm the truth of the accomplice's testimony and point to the guilt of the defendant in some substantial degree.

3. Evidence connecting the defendant to other crimes is, as a rule, not admissible principally because it tends to justify to the jury a finding of guilt irrespective of present charges. There are some exceptions, however. Evidence of a separate crime may be admitted if it is reasonably closely related in scheme, pattern, and time to the act charged and its admission is largely within the discretion of the trial court.

4. It is held under the record here that neither the State nor Federal constitutional rights of the defendant were violated in connection with these proceedings, and that, viewing the evidence in its entirety, the interests of justice do not require a new trial in this case.

John S. Connolly, St. Paul, made the oral argument (Robert C. Bell, St. Paul, prepared brief), for appellant.

Robert W. Mattson, Atty. Gen., St. Paul, William B. Randall, County Atty., Bertrand Poritsky, Henry W. Pickett, Jr., Asst. County Attys., St. Paul, for respondent.

OPINION

FRANK T. GALLAGHER, C.

This is an appeal from a judgment of conviction for aggravated robbery.

Defendant, Gerald Lee Sorg, was charged with aggravated robbery ¹ by amended information in which the court was informed that on December 20, 1963, in Ramsey County, Minnesota, defendant, together with William John Patterson, Gerald Louis Corbo, James Wayne Hughes, and Anthony Valdez, armed with automatic pistols and a German Luger, unlawfully took money in excess of one dollar, owned by Stephen L. and Richard B. Schwietz, from Carmen Delmont, then and there is lawful possession of said property, overcoming his resistance by the threat of the use of force.

At the jury trial it appeared that the robbery took place at Schwietz' Bar in St. Paul. Valdez and Hughes, among others, testified against defendant. Defendant's primary contention on appeal is that as accomplices ² the testimony of Valdez and Hughes was insufficiently corroborated. ³ Eleven other witnesses were called by the prosecution, some of whose testimony will be later reviewed. The defense called no witnesses.

Valdez testified that in December 1963, he was living with Hughes in an apartment on East Jenks in St. Paul, and that on December 19, the evening before the Schwietz' Bar robbery, Valdez, together with defendant, Hughes, Patterson, and Carbo, planned the robbery while at the 'Jenks' apartment. Later that evening these five men gambled in a house at 1084 Laurel in St. Paul which was occupied by Patterson, Ed Sutherland, Frances McKinnon, and Donna Barstad.

Valdez stated that on the following day the same five men drove to Schwietz' Bar from the 'Jenks' apartment. After their arrival at the bar, Corbo remained in the automobile as he suspected that his godfather, a bartender at Schwietz', would be on duty and would recognize him. The other four proceeded into the bar through the rear entrance. Valdez carried a .32 automatic pistol; he wore sunglasses, a hat, and an overcoat; and he held a gloved hand over the lower portion of his face. He testified that Hughes wore a trench coat and a hat and had a 'hanky' over his face, that defendant Sorg had a .45 automatic pistol; and that Patterson had a .32 automatic pistol. The customers and the bartender, Carmen Delmont, were 'herded' into the poolroom and told to place their billfolds on the pool table, face the wall with their 'hands up,' and then were made to go into the basement. Thereafter, money was taken from the cash register and from a cupboard and a 'folder' behind the bar. Valdez said he took a ring and a watch from a glass behind the bar and that he later hocked the ring and threw away the watch.

As they were going out the back door of the bar, a customer, James W. Mathison, was coming in the same door. Valdez testified that Mathison saw his face--uncovered at the moment--and that he told Mathison to go downstairs into the basement. Mathison later recognized Valdez at a police 'lineup.'

After the robbery, Valdez, Patterson, Hughes, and defendant rejoined Corbo at the car and proceeded to the 'Laurel' house. There, they divided the money they had taken and 'squared' their gambling debts from the previous evening.

Valdez declared that a short time later Donna Barstad drove him, Hughes, Patterson, and Corbo to Eau Claire, Wisconsin. From there these four traveled to Chicago and then on to Miami Beach, Florida. Valdez identified a German Luger, two .45 and one .32 automatic pistols as 'our' guns. He said he was with Corbo, Hughes, and defendant when one of the .45's--a National Match Colt .45--was 'pawned' or 'hocked' in a Miami pawn shop. He also identified a .38 pistol which belonged to Hughes and which was traded for another gun in Miami. Valdez was later arrested in Miami Beach where his .32 automatic pistol was picked up in his hotel room by the Miami police.

Valdez also testified to a robbery of the Twin Light Tavern in St. Paul on December 17, 1963, by the same five men. Patterson stayed in the car and the others entered the tavern by the rear entrance. There were two persons in the tavern--the owner, Edward Kelly, and a liquor salesman, Melvin Lang--who were ordered to lie on the floor while the four men proceeded to rifle the cash register and safe; Kelly and Lang were then taken and left in the basement.

The testimony of James Wayne Hughes was basically the same as that of Valdez. Hughes stated that on the night before the Schwietz' Bar robbery, he and the other four were at the 'Laurel' house and may have gambled, but they stayed at the 'Jenks' apartment for the night. After the robbery the five men split the money equally. Thereafter, Donna Barstad took him (Hughes), Valdez, Corbo, and Patterson to Eau Claire, Wisconsin, where the four men took a bus to Chicago and from there a plane to Miami. A week later they were met in Miami by defendant, together with Frances McKinnon and Donna Barstad. Hughes said that he was present at the disposition of the Luger and the two .45 automatic pistols.

1. If it were possible to ignore the accomplice status of Hughes and Valdez, we think their testimony would have been sufficient to justify the verdict of guilty under Minn.St. 609.245. However, because they were accomplices, their testimony could not stand alone; corroboration was necessary.

The rules respecting the sufficiency of corroborative evidence have been amply stated in prior decisions of this court. ⁴ Such corroborative evidence standing alone need not be sufficient to support a conviction. Corroboration is required because the testimony of an accomplice is considered inherently untrustworthy, primarily for the reason that he may testify against defendant in the hope of obtaining clemency for himself. Therefore, corroborative evidence is sufficient when it is weighty enough to restore confidence in the truth of the accomplice's testimony. State v. Guy, 259 Minn. 67, 105 N.W.2d 892. See, also, 7 Wigmore, Evidence (3 ed.) § 2059.

Although corroborative evidence need not be of itself adequate to establish a prima facie case of guilt, it must affirm the truth of the accomplice's testimony and point to the guilt of the defendant in some substantial degree. State v. Mathiasen, 267 Minn. 393, 127 N.W.2d 534. We stated in that case that sources of such evidence may include, among other things, scientific analysis of physical objects connected with the alleged crime and suspicious and unexplained conduct of the accused either before or after the offense. We also said that relevant facts provable by evidence secured from such sources include participation in the preparation for the criminal act; opportunity and motive; proximity of the defendant to the place where the crime was committed under unusual circumstances; association with persons involved in the crime in such a way as to suggest joint participation; possession of an instrument or instruments probably used to commit the offense; and unexplained affluence or possession of the fruits of criminal conduct.

Reviewing the record in the instant case in the light of the foregoing rules, it is our opinion that there was adequate evidence and corroboration to justify a conviction of the defendant. Donna Barstad testified that the defendant was at the 'Laurel' home with Corbo, Patterson, Hughes, and Valdez on the night before Schwietz' Bar was robbed; that he participated in a poker game with the other four; that on the afternoon of the day of the robbery he returned to the 'Laurel' home with the other four and money passed between them in satisfaction of gambling debts. She also testified that she saw hand guns in the possession of the five men during the month of December; that she drove four of them, but not the...