IN COURT OF APPEALS
State of Minnesota,
Auginaldo Leon Adkins,
Affirmed in part, reversed in part, and remanded
Ramsey County District Court
File No. K5034673
Mike Hatch, Attorney General, Suite 1800, Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Suite 315, Ramsey County Government Center West, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)
John M. Stuart, State Public Defender,
Sara L. Martin, Assistant Public Defender,
Considered and decided by Stoneburner, Presiding Judge; Peterson, Judge; and Halbrooks, Judge.
The upward durational departure from the Minnesota Sentencing Guidelines’ presumptive sentence, which the district court imposed under Minn. Stat. § 609.1095, subd. 4 (2004), based on a judicial finding that appellant’s conviction is part of a “pattern of criminal conduct,” violated appellant’s Sixth Amendment right to trial by jury.
Appellant challenges his conviction of first-degree burglary, arguing that the district court erred by denying his motion to suppress identification evidence. He also asserts that the district court erroneously sentenced him as a career offender in violation of his right to a jury determination of aggravating sentencing factors. Because the totality of the circumstances demonstrates that the identification had adequate independent origin and was reliable, the district court did not err by denying appellant’s motion to suppress, and we affirm the conviction. Because sentencing under the career-offender statute violated appellant’s Sixth Amendment rights, we reverse the sentence imposed and remand for resentencing consistent with this opinion.
Fifteen-year-old K.L. was home from school with a sore throat, sleeping in his attic bedroom. He woke up when he heard a loud noise and went downstairs to investigate. He pried apart slats of a door that separated the stairs from the living room and saw an African-American man walking around. K.L. watched the man walk into the kitchen, reenter the living room, and walk to the picture window where he unzipped a hockey-referee bag owned by K.L.’s father and looked inside. The man then walked down the hall toward a bedroom, returned to K.L.’s view, and approached the door K.L. was behind. As the man came toward K.L., K.L. pushed the door open. K.L. and the man stood face-to-face for a couple of seconds, then the man ran out of the house. K.L. called his father who called the police.
Officers Prust and Molina responded to the call of “interrupted burglary.” On their way to the residence, the officers received information from a dispatcher that the suspect was an older African-American man who had “larger lips and larger ears,” and who was wearing a large coat. The officers saw only one pedestrian in the area, an African-American man in a dark coat. Prust thought that the man they saw was probably the intruder.
The officers discovered that the back door of K.L.’s home had been kicked in and part of the frame had fallen down. There was a footprint on the door and footprints in the snow leading to the residence. Twenty-five minutes later, Officer Nelson radioed that he had stopped a suspect (appellant) about a mile from the residence. Prust and Molina took K.L. to the scene of the stop for a “show-up” identification. They told K.L. that they had stopped someone, and they wanted K.L. to look at the person to see if K.L. could identify him. They parked 50 to 120 feet from the squad car in which the suspect was seated and used a P.A. system to ask Nelson to remove appellant from Nelson’s squad car. Appellant, who was handcuffed, was taken out of the car and ordered to turn around slowly. K.L., who viewed appellant through a window in the squad car in which he was seated with Prust and Molina, immediately identified appellant as the intruder. Prust and Molina recognized appellant as the man they had seen on their way to K.L.’s residence.
Appellant was charged with first-degree burglary. Appellant moved to suppress K.L.’s identification as unreliable, pointing out some variations in K.L.’s description of the intruder before and after the show-up identification. The district court denied the motion, finding that although the show-up identification was unnecessarily suggestive, under the totality of the circumstances there was no substantial likelihood of misidentification.
A jury found appellant guilty. The state moved for an upward sentencing departure under Minn. Stat. § 609.1095, subd. 4 (2004). Based on appellant’s prior felony convictions, including eight burglary-related convictions, the district court found that the current offense was committed as part of a pattern of criminal conduct and sentenced appellant under Minn. Stat. § 609.1095, subd. 4 (2004), to a term of 96 months, an upward departure from the presumptive sentence. This appeal followed.
I. Did the district court err by denying appellant’s motion to suppress identification evidence?
II. Did sentencing under Minn. Stat. § 609.1095, subd. 4 (2004), based on a judicial finding that the present offense was committed as part of a pattern of criminal conduct, violate appellant’s Sixth Amendment right to trial by jury?
III. Is Minn. Stat. § 609.1095, subd. 4, unconstitutional?
I. Identification evidence
When the facts are not in dispute, pretrial suppression
issues are reviewed de novo to determine whether the district court erred in
its decision. State v. Harris, 590 N.W.2d 90, 98 (
The district court found, and the parties do not dispute, that the show-up identification procedure used in this case was unnecessarily suggestive. See Taylor, 594 N.W.2d at 161-62 (stating that a one-person show-up is by its very nature suggestive, although not per se unnecessarily suggestive). Appellant argues that under the totality of the circumstances, K.L.’s identification was unreliable. To evaluate the likelihood of irreparable misidentification, courts consider five factors:
1) The opportunity of the witness to view the suspect at the time of the crime;
2) The witness’s degree of attention;
3) The accuracy of the witness’s prior description of the suspect;
4) The level of certainty demonstrated by the witness at the confrontation; and
5) The time between the crime and the confrontation.
Ostrem, 535 N.W.2d at 921. The district court made specific findings as to each factor, finding that (1) K.L. had sufficient opportunity to view appellant during commission of the crime; (2) K.L. was coherent, aware, and attentive during his observation of the intruder; (3) there was no substantial difference between K.L.’s descriptions of the intruder before and after the show-up; (4) K.L.’s identification was certain; and (5) the time between the crime and the identification was minimal. The record supports the findings, and the findings support the conclusions that the identification had adequate independent origin and there was not a substantial likelihood of irreparable misidentification.
Appellant argues that even if the identification would be
admissible under the traditionally applied standard, this court should reject
that standard for evaluating out-of-court identifications and adopt a per se rule excluding identification
evidence obtained through suggestive procedures. Appellant cites “recent scientific research”
and nonjurisdictional cases in support of this request to change existing law
state argues that appellant waived his right to raise a Blakely challenge because no objection was made in the district
court to sentencing under the career-offender statute. Waiver of a constitutional right must be
knowing, voluntary, and intelligent, and waiver of the right to a jury trial
requires that a defendant have knowledge of that right. State
Minn. Stat. § 609.1095, subd. 4 (2004) (the career-offender statute) permits an upward departure from the presumptive sentence “if the judge finds and specifies on the record that the offender has five or more prior felony convictions and that the present offense is a felony that was committed as part of a pattern of criminal conduct.” Based on the district court’s determination that appellant met the statutory criteria, appellant was sentenced to an upward departure from the presumptive sentence for first-degree burglary. Appellant asserts that the sentence violated his Sixth Amendment right to a jury determination of aggravating sentencing factors other than the fact of a prior conviction as recognized in Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004). See State v. Mitchell, 687 N.W.2d 393, 400 (Minn. App. 2004) (noting that determining whether a conviction is part of a “pattern of criminal conduct” goes beyond a mere determination as to the fact, or number, of prior convictions, which judges are permitted to make without violating the Sixth Amendment jury-trial right, and holding that sentencing under the career-offender statute violates a defendant’s Sixth Amendment right to a jury determination of factors that increase a sentence above the recommended guidelines announced in Blakely), review granted (Minn. Dec. 22, 2004).
The state argues that Mitchell
is distinguishable from the instant case because Mitchell involved a comparison of different criminal acts, and
weighed the degree to which the acts were similar with respect to a pattern of
criminal conduct. In contrast, the state
argues, when, as in this case, a pattern of criminal conduct exists on the face
of a defendant’s prior convictions, the finding of a pattern of criminal
conduct is required, and Blakely is
not implicated. But the recently released opinion in State v. Shattuck,704 N.W.2d 131 (
III. Constitutionality of career-offender statute
Shattuck, the supreme court held that the
imposition of an upward durational sentencing departure under Minn. Stat. §
609.109, subd. 4 (2004), violated Shattuck’s Sixth Amendment right to a jury
Because section 609.109, subdivision 4 . . . authorize[s] the district court to make . . . an unconstitutional upward durational departure upon finding an aggravating factor without the aid of a jury, we hold that the statute is facially unconstitutional and section II.D of the guidelines is unconstitutional as applied.
The state argues that the failure to submit the “pattern of criminal conduct” issue to a jury must be reviewed under a plain-error analysis, citing United States v. Cotton, 535 U.S. 625, 634, 122 S. Ct. 1781, 1787 (2002) (holding that a constitutional right may be forfeited by failure to timely assert the right), and United States v. Booker,125 S. Ct. 738, 769 (2005) (stating that in reviewing Blakely appeals, reviewing courts are expected to apply ordinary prudential doctrines including the plain-error test).
Plain-error involves an analysis of whether there was “(1)
error; (2) that is plain; and (3) the error must affect substantial rights.” State
v. Griller, 583 N.W.2d 736, 740 (
Because, under the totality of the circumstances, K.L.’s identification of appellant was reliable, the district court did not err in denying appellant’s motion to suppress identification evidence. Because the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2004), is unconstitutional insofar as it permits a judicial determination of an aggravating factor beyond the recidivism exception recognized in Apprendi, we reverse the sentence imposed and remand for resentencing consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
Dated: November 15, 2005
 At the scene of the show-up identification, Officer Molina recognized that the tread on appellant’s shoes matched the footprints at K.L.’s home.
 The state relies on an unpublished opinion, State v. Henderson, No. A03-1898 (Minn.
App. Aug. 31, 2004), review granted (
The 2005 legislature
amended section 609.1095, subd. 4, to provide for an upward durational
sentencing departure based on a factfinder’s determination of the conditions triggering
upward sentencing departures under the statute.