State v. HyvareState v. Hyvare
- Reporters:
- ,
- Before:
- Coyne
Defendant was found guilty by a district court jury of aggravated robbery,
The state’s evidence at trial established that defendant went to Arone‘s Bar in Northeast Minneapolis on the evening of July 11, 1982, drank several mixed drinks, and then shortly after midnight, as the bar was closing, pulled out a .25-caliber automatic handgun and robbed the bar of the day’s receipts, then drove off in a black Cadillac Eldorado. Defendant was arrested on July 31, 1982, after he revisited the bar wearing clothes similar to those worn when he committed the robbery. Evidence connecting defendant to the robbery included: (a) evidence that three eyewitnesses positively identified defendant at a lineup and that a fourth positively identified defendant’s picture from a photographic display; (b) positive in-court identification by the four witnesses; (c) evidence that a loaded .25-caliber automatic handgun was found in a search of defendant’s residence; (d) evidence that defendant and his wife were staying at her parents’ home on the 11th while her parents were out of town and that defendant returned to the house between 1 and 2 a.m. on the 12th in her father’s black Cadillac Eldorado; (e) evidence that the bank bags that had contained the bar’s receipts were found several blocks from this house on top of the roof of a grocery store, where defendant apparently had tossed them; and (f) evidence that defendant confessed to his father-in-law that he committed the crime.
1. Defendant’s first contention is that the eyewitness identification evidence was obtained in violation of his right to counsel and his right to due process and should have been suppressed.
(a) If a lineup is held in violation of a defendant’s right to counsel, then the evidence of the lineup identification is inadmissible per se and the in-court identification of the defendant by the witnesses who attended the lineup must be suppressed unless the in-court identification is untainted in that it has a source independent of the lineup. Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977); Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); State v. Cobb, 279 N.W.2d 832, 834 (Minn.1979). Defendant’s claim that he had a right to counsel at the lineup must fail because the lineup occurred before he was formally charged with the robbery. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Cobb, 279 N.W.2d 832 (Minn.1979); State v. Lee, 266 N.W.2d 181 (Minn.1978); State v. Oksanen, 311 Minn. 553, 249 N.W.2d 464 (1977).
2. Defendant’s other contention is that the trial court erred in granting the jury’s request that the reporter read the testimony of the neighbor who saw defendant return to his in-laws’ house in the Cadillac between 1 a.m. and 2 a.m. on the 12th. We hold that the trial court did not abuse its discretion under
In conclusion, we hold that defendant received a fair trial and was properly found guilty of aggravated robbery.
Affirmed.