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State v. Colbert

July 6, 2006

STATE OF MINNESOTA, RESPONDENT,
v.
DARRYL COLBERT, APPELLANT.



Hennepin County

SYLLABUS BY THE COURT

1. The evidence was sufficient to support a conviction for first-degree premeditated murder.

2. The trial court did not abuse its discretion in fashioning a remedy for an alleged discovery violation.

3. Appellant was not denied a fair trial by prosecutorial misconduct.

The opinion of the court was delivered by: Page, Justice.

Affirmed.

Heard, considered and decided by the court en banc.

OPINION

On December 26, 2003, Robert Mitchell was shot and killed on the 2800 block of Columbus Avenue in Minneapolis. Appellant Daryl Colbert was arrested and indicted for first-degree premeditated murder in violation of Minn. Stat. § 609.185 (a)(1) (2004), and second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1(1) (2004), for Mitchell's death. Colbert was tried before a Hennepin County jury in November 2004. That trial resulted in a hung jury and a mistrial. On retrial in January and February 2005, another Hennepin County jury found Colbert guilty of premeditated first-degree murder and the trial court imposed the mandatory sentence of life imprisonment. Colbert raises three issues in this direct appeal: (1) the evidence was insufficient to support the conviction; (2) the trial court erred when it failed to dismiss the case based on an alleged discovery violation by the state during trial; and (3) the prosecutor committed prejudicial misconduct. We affirm.

The record from Colbert's trial indicates that on December 26, 2003, Mitchelland Gladys Rogers became engaged. To celebrate, Mitchell and Rogers went to Sunny's, a bar and restaurant on Lake Street and Chicago Avenue in Minneapolis, arriving there around 3:00 p.m. While at Sunny's, they were joined by several friends, including Kathleen Washington and Clarence Ealey.

Colbert, wearing a long coat and a brimmed, fedora-style hat, arrived at Sunny's at 5:33 p.m., according to Sunny's surveillance videotapes. Although Colbert was not a member of Mitchell's party, Washington saw Colbert walk over to Mitchell and have a conversation, during which she heard Colbert and Mitchell mention $50. Washington thought Colbert was wearing a brimmed hat and a long, trench-style coat, which went past his knees and might have been made of cashmere. Ealey saw a person wearing a long, full-length dark coat and a dark fedora-style hat talking to Mitchell.

At about 6:00 p.m., Mitchell told Rogers that he was going to buy a television for $50 and that he needed $25 to purchase it. Rogers gave him $30. Washington heard Mitchell ask Rogers for the money and saw Rogers hand Mitchell some money. Mitchell told Rogers he was leaving Sunny's with "Darryl." When Mitchell left he took only the keys to Rogers' car, and said he would be gone for a few minutes.

Washington had been using Mitchell's cell phone that evening to make calls. She placed a call at approximately 6:10 p.m., and immediately thereafter, she saw Mitchell leaving Sunny's. As he was leaving, Mitchell told her to keep his phone until he returned. Washington saw Colbert and Mitchell leave Sunny's at the same time. Mitchell never returned.

Kevin Bollinger and his mother, Lisa Bollinger, were at their home on the 2800 block of Columbus Avenue in Minneapolis that evening. At about 6:15 p.m., while watching television, they heard seven or more gunshots. When they looked out the window, they saw two cars parked trunk-to-trunk on the east side of Columbus Avenue, just to the north of their building. One car was silver or gray and the other was white. The front of the silver car was pointing south and the front of the white car was pointing north. Both cars had their trunks open. Kevin Bollinger saw a man standing next to the white car fire one gunshot towards the south in the direction of the silver car and get into the white car. Lisa Bollinger saw only the back of an African-American male getting into a white car. The man was wearing a dark, brimmed dress hat, with a long, dark or black trench coat that was tied at the waist. The shooter drove away in what looked like a white, four-door Cadillac. Lisa Bollinger thought the car was older, while Kevin Bollinger thought the car might have been newer. The car headed north and turned east on 28th Street. Lisa Bollinger called 911 at 6:17 p.m.

Another eyewitness, Kiersten Chace, parked her car on Columbus Avenue shortly after 6:00 p.m. She heard what she described as two African-American men talking in a normal tone of voice, standing on the east side of Columbus Avenue behind a car with the trunk open. One of the men pulled out a gun and began shooting the other man. The shooter wore a long coat that "came below the buttocks." Chace heard what she thought were six to eight gunshots. The next thing she saw was a large, white sedan speeding away. The car looked like a Monte Carlo and had a "boxed-shaped" trunk. She called 911 at 6:20 p.m. In all, five 911 calls were made regarding the shooting.

When police officers arrived at the scene of the shooting, they found a gray Buick Regal, which was later determined to be Rogers', facing southbound on the east side of Columbus Avenue with its trunk open and motor running. Mitchell's body was lying dead in the street with multiple gunshot wounds. The police found eight discharged shell casings at the scene. There were no fingerprints found on the casings. While at the scene, the police interviewed both of the Bollingers and Chace, and documented their accounts of the shooting.

The next day, at about 9:40 p.m., police responded to a shots-fired call at an apartment on 19th Avenue in Minneapolis. This apartment belonged to Colbert's nephew, Mark Colbert (M. Colbert). Police officers found a black and silver Lorcin nine millimeter semi-automatic handgun in the apartment. They also determined that both Colbert and a man named Troy Parker had been shot. Forensic experts subsequently determined that at ...


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