State v. Wallert

402 N.W.2d 570, 1987 Minn. App. LEXIS 4165
CourtCourt of Appeals of Minnesota
DecidedMarch 17, 1987
DocketC5-86-1478
StatusPublished
Cited by5 cases

This text of 402 N.W.2d 570 (State v. Wallert) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wallert, 402 N.W.2d 570, 1987 Minn. App. LEXIS 4165 (Mich. Ct. App. 1987).

Opinion

OPINION

PARKER, Judge.

Appellant Rhona Wallert was convicted of aiding and abetting the commission of a second-degree burglary. On appeal she claims the State’s evidence was insufficient to corroborate the testimony of her alleged accomplices. We agree and reverse.

FACTS

This case involves the theft of a television set by two boys, 12-year-old D.F. and 13-year-old L.Z. The boys testified that during the afternoon of September 14, 1985, they went to visit Wallert, who is L.Z.’s aunt. According to L.Z., Wallert and the boys discussed the possibility of stealing a television set from one Mamie Zupfer. Some time after 3:00 p.m., Wallert allegedly drove the boys to Zupfer’s house, which was empty because Zupfer was at church. Wallert dropped the boys off and drove around the block while they went into the house and took Zupfer’s television. Wallert then returned to pick up the boys, and they brought the television back to Wallert’s apartment. When they plugged in the television, they discovered it did not work, presumably because L.Z. had dropped it, so they put it in a garbage bag and threw it into a dumpster behind Wal-lert’s building. Before the boys left her apartment around 6:00 that night, Wallert allegedly told L.Z. that she would “kill them” if they ever told the police of her involvement in the burglary.

L.Z.’s mother testified that she went to Wallert’s apartment at about 6:30 that evening looking for her son, but Wallert told her that L.Z. was not there. According to L.Z.’s mother, Wallert appeared to be alone, but was standing in the doorway so as to appear intentionally to block her view into the apartment.

The defense witnesses, all of whom were present when Wallert was first questioned by the police, presented a much different version of the events of September 14, 1985. Wallert’s mother, daughter, son, daughter-in-law, and Wallert herself testified that they all were at Wallert’s apartment from about 1:30 p.m. that day until 1:00 a.m. the next morning and that Wal-lert was there at the time of the burglary. None of these witnesses, however, came forth to tell anyone about this alibi before the trial. The defense witnesses also denied that L.Z.’s mother ever showed up at Wallert’s apartment that night looking for her son. They further testified that the only time L.Z. and D.F. were at the apartment on September 14 was sometime between 7:30 and 9:30 at night, when the boys showed up there drunk and Wallert’s son kicked them out.

The boys eventually were implicated in the burglary, and they agreed to testify against Wallert in exchange for the State’s agreement to drop all juvenile proceedings against them. Wallert was subsequently charged with aiding and abetting the commission of a second-degree burglary, Minn. Stat. §§ 609.582, subd. 2, and 609.05 (1984). At a jury trial, she was convicted and sentenced to 43 months in prison and ordered to make restitution of $117.

ISSUE

Was the testimony of Wallert’s alleged accomplices sufficiently corroborated to support her conviction?

DISCUSSION

Minn.Stat. § 634.04 (1986) provides that “[a] conviction cannot be had upon the testimony of an accomplice, unless it is corroborated by such other evidence as tends to convict the defendant of the commission of the offense * * An accomplice is “one who has been or could be convicted of the same offense with which the defendant has been charged.” State v. Houle, 257 N.W.2d 320, 324 (Minn.1977). The testimony of one accomplice cannot be corroborated solely by that of another accomplice. In the Matter of the Welfare of K.A.Z., 266 N.W.2d 167, 169 (Minn.1978).

*572 “The quantum of corroborative evidence required in any case will depend on the circumstances involved, with consideration given to the claims of both the defendant and the state.” State v. Mathiasen, 267 Minn. 393, 399, 127 N.W.2d 534, 539 (1964). In every instance, however, the corroborative evidence must in some substantial degree confirm the truth of the accomplice’s testimony and point to the guilt of the defendant. Houle, 257 N.W.2d at 324; see Minn.Stat. § 634.04. The court must bear in mind that “the testimony of an accomplice is considered inherently untrustworthy,” State v. Sorg, 275 Minn. 1, 5, 144 N.W.2d 783, 786 (1966), and “[t]he accused is exposed to the danger of imprisonment based on the testimony of a witness naturally inclined to shift or diffuse criminal responsibility.” Mathiasen, 267 Minn. at 399, 127 N.W.2d at 539.

Here the State recites several examples of evidence which purportedly corroborated the boys’ story, but none of the corroborative evidence points directly to Wal-lert’s guilt. First, the State attacks the alibi put forth by Wallert and her relatives. The jury apparently did not believe this alibi, and on the record the alibi does appear to have been dubious. This does not, however, necessarily indicate that Wallert committed the crime. It is equally likely that Wallert’s fabrication was prompted by her fear of being charged with a crime she did not commit, especially in light of the fact that she had three previous felony convictions. Inadequacies in a defendant’s testimony may corroborate accomplice testimony. See, e.g., State v. Adams, 295 N.W.2d 527, 533 (Minn.1980). However, when evidence is as consistent with the defendant’s innocence as with her guilt, the evidence is not sufficient to corroborate the testimony of accomplices. See State v. Star, 248 Minn. 571, 576-77, 81 N.W.2d 94, 98 (1957).

The State cites as corroborative evidence Wallert’s admission that she gave the boys a ride to the scene of the crime earlier that day. However, Wallert’s testimony did not corroborate that of the boys. She testified that she drove the boys to Zupfer’s house at about 1:00 p.m., whereas the boys claimed she gave them a ride at about 3:00 p.m. Moreover, the case cited by the State in support of this argument is distinguishable. In K.A.Z., 266 N.W.2d at 167, the supreme court upheld a conviction for arson where fires had been set in three school lavatories during one school day. The accomplices’ testimony was corroborated by that of the assistant principal, who testified that the defendant was one of only four students who were present in the school but truant from class at the time the fires were set. Here, there was no corroborating testimony placing Wallert at the scene of the crime at the time the television was stolen.

The State next attempts to construe Wal-lert’s actions after the burglary as corroborative evidence. First, when L.Z.’s mother came to Wallert’s apartment looking for her son, it appeared to her that Wallert was home alone. At best, this testimony merely tends to negate Wallert’s alibi. It does not corroborate the boys’ testimony; they did not testify that L.Z.’s mother came to Wallert’s apartment while they were there.

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Cite This Page — Counsel Stack

Bluebook (online)
402 N.W.2d 570, 1987 Minn. App. LEXIS 4165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wallert-minnctapp-1987.