IN COURT OF APPEALS
William Peter Lushenko,
Filed May 30, 2006
Concurring specially, Shumaker, Judge
Beltrami County District Court
File No. K4-04-951
Mike Hatch, Attorney General, Tibor M. Gallo, Assistant
Attorney General, 1800
Timothy R. Faver, Beltrami County Attorney, Court Annex,
John M. Stuart, State Public Defender, Leslie J. Rosenberg,
Assistant Public Defender,
Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.
a bifurcated trial in order to submit to a jury, post-verdict, the issue of
pattern of criminal conduct under former Minn. Stat. § 609.1095, subd. 4 (2002),
was not error because the district courts possess the inherent authority to
craft sentencing procedures in conformance with Blakely v. Washington, 542
Appellant challenges the district court’s evidentiary ruling on the admissibility of the show-up identification procedure and the district court’s authority to conduct a bifurcated trial on the issue of whether appellant is a career offender under the statute. Although we conclude that the show-up identification was unnecessarily suggestive, because it was reliable and because the district court had the inherent authority to craft a bifurcated sentencing procedure, we affirm.
When Brian Brunetta arrived at his house around noon on June 3, 2004, he observed an unfamiliar blue Chevrolet Blazer parked in his driveway. As Brunetta approached the vehicle, which was still running, a man came from around the back of Brunetta’s house and asked Brunetta if he would like to purchase an aerial photo of his home. Brunetta declined the offer. The man then asked Brunetta if he knew anyone who would want such a photo; when Brunetta said he did not, the man left.
After the man left and Brunetta’s wife arrived home, they realized that their home had been burglarized and called the police. Brunetta gave the responding officer a physical description of the man on his driveway—6’1” and heavyset—as well as a description of the vehicle and its license-plate number. With that information, the officer identified the registered owner of the vehicle, appellant William Lushenko. The officer obtained appellant’s driver’s-license photo and showed it to Brunetta. Brunetta stated that he was 90% positive that appellant was the man he had seen on his driveway.
A jury found appellant guilty of second-degree burglary. Following the jury’s verdict and over appellant’s objection, the district court allowed the state to present evidence regarding whether appellant was a career offender—namely, whether his current offense was part of a pattern of criminal conduct. The state introduced evidence of appellant’s seven prior felony convictions in the preceding 15 years. Appellant then had an opportunity to respond to the state’s evidence. At the conclusion of the evidence and counsels’ final arguments, the district court submitted a special interrogatory to the jury, asking whether it found that appellant’s current conviction was part of a pattern of criminal conduct and instructed the jury that in order to answer “Yes,” it must find that fact to have been proven beyond a reasonable doubt. The jury answered “Yes” to the special interrogatory, and the district court imposed the statutory maximum sentence of 120 months, executed. This appeal follows.
1. Did the district court abuse its discretion by admitting evidence of the show-up identification procedure?
2. Did the district court err by conducting a bifurcated trial?
“Evidentiary rulings rest within the sound discretion of the trial court
and will not be reversed absent a clear abuse of discretion. On appeal, the appellant has the burden of
establishing that the [district] court abused its discretion and that appellant
was thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (
When determining whether a pretrial identification must be suppressed, we apply a two-part test. The first inquiry focuses on whether the procedure was unnecessarily suggestive. . . .
If the procedure is found to be unnecessarily suggestive, the court must then determine under the totality of the circumstances whether the identification created a very substantial likelihood of irreparable misidentification.
the first prong “is ‘whether the defendant was unfairly singled out for
identification’” or “whether the procedure used by the police influenced the
witness identification of the defendant.”
Under the second
prong, courts look at whether, under the totality of the circumstances, there
is a substantial likelihood for an irreparable misidentification.
The five factors are:
1. The opportunity of the witness to view the criminal at the time of the crime;
2. The witness’ degree of attention;
3. The accuracy of the witness’ prior description of the criminal;
4. The level of certainty demonstrated by the witness at the photo display;
5. The time between the crime and the confrontation.
Ostrem, 535 N.W.2d at 921.
Here, the district court found that Brunetta had an adequate opportunity to view appellant in part because the two engaged in a conversation. When Brunetta arrived home, a man appeared from the back of the house and asked Brunetta if he wanted to purchase an aerial photo of his home. When Brunetta declined, the man asked him if he knew anyone who might like one. Brunetta again said he did not, and the man got into his vehicle and drove away. While it was not a lengthy exchange, Brunetta had a good opportunity to view the man in broad daylight as he carried on a conversation with him.
2. Degree of attention
The district court found that Brunetta’s degree of attention was heightened by the fact that he arrived home to find a strange vehicle parked, but still running, in his driveway. This made Brunetta suspicious. After speaking with the man, who asked a strange question, Brunetta was sufficiently disbelieving of the man’s explanation for his presence that Brunetta took down his license-plate number.
3. Accuracy of prior description
The district court stated that Brunetta gave the police a description of the vehicle that included its make, color, and license-plate number, as well as the man’s physical description. Appellant argues that the physical description given was merely a general description but fails to address the fact that the description matched him. Appellant also fails to acknowledge the specificity and accuracy of the vehicle description.
4. Level of certainty
The district court found that Brunetta was “90% certain the photo was the person he saw in his driveway.” This fact is supported by appellant’s memorandum in support of his motion to suppress where he states that Brunetta made a positive identification and by the state’s memorandum, which states that Brunetta was 90% positive.
5. Elapsed time between crime and confrontation
It is undisputed that Brunetta identified appellant as the man on his driveway within three hours after his conversation with him.
Based on its analysis of the Biggers factors, the district court determined that there was little likelihood of misidentification and that Brunetta’s identification had adequate independent origin to be admissible. Having reviewed the record, we conclude that the district court did not err in its decision to admit evidence of the show-up identification. While the initial identification procedure, consisting of showing only one photograph to Brunetta, was unnecessarily suggestive, the identification did not create a substantial likelihood of irreparable misidentification under the totality of the circumstances.
Appellant next challenges the district court’s decision to conduct a bifurcated trial and to submit the issue of whether appellant’s current offense is part of a pattern of criminal conduct to the same jury following its verdict convicting appellant of second-degree burglary. Acknowledging that Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537 (2004), mandates a jury determination of this fact in order to depart from the presumptive guidelines sentence, appellant argues that the district court lacked both statutory and inherent authority to bifurcate the proceedings.
The district court sentenced appellant under Minn. Stat. § 609.1095, subd. 4 (2002), which provides:
Whenever a person is convicted of a felony, and the judge is imposing an executed sentence based on a sentencing guidelines presumptive imprisonment sentence, the judge may impose an aggravated durational departure from the presumptive sentence up to the statutory maximum 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.[]
The supreme court
has held that the determination of a pattern of criminal conduct for use in
sentencing requires a factual finding that goes beyond simply counting the
number of prior convictions, and, therefore, the imposition of an enhanced
sentence based on a district court’s finding of a pattern of criminal conduct
violates a defendant’s Sixth Amendment right to a trial by jury. State v.
State v. Shattuck, the supreme court
examined whether it had inherent authority to authorize the use of sentencing
juries and bifurcated-trial proceedings to remedy a Blakely violation. 704
N.W.2d 131, 147 (
Therefore, while the supreme court stated that its severance jurisprudence does not permit it to engraft sentencing-procedure requirements onto the guidelines, we do not understand the supreme court to be restricting the district court’s inherent authority to craft sentencing procedures. For example, if a district court exercised its inherent authority to conduct a bifurcated trial or impanel a sentencing jury, it is not establishing the requirement of bifurcated trials or sentencing juries in every case, but merely adopting the procedure in that individual case.
The supreme court’s
statement regarding its severance jurisprudence refers only to its ability to require
a remedy such as bifurcated trials or sentencing juries in order to make the
guidelines constitutional. It did not
refer to whether it has the ability to create constitutional sentencing
procedures, as it clearly has the authority to do that. Shattuck,
704 N.W.2d at 148 (stating that “this court has the authority to establish
procedures to apply the requirements of Apprendi
and Blakely to sentencing in
recognize that there are differing views on this issue within this court. See State
We agree that
altering the Sentencing Guidelines is a legislative function, as they were
legislatively created. But it was within
the court’s inherent authority and discretion to craft a bifurcated-trial
procedure in the wake of Blakely before
the legislature amended the guidelines, because sentencing “within the limits
prescribed by the legislature is purely a judicial function.” State
v. Olson, 325 N.W.2d 13, 18 (
The legislature has since amended the sentencing-procedure statute, stating, in pertinent part:
Procedures in cases where state intends to seek an aggravated departure. (a) When the prosecutor provides reasonable notice under subdivision 4, the district court shall allow the state to prove beyond a reasonable doubt to a jury of 12 members the factors in support of the state’s request for an aggravated departure from the Sentencing Guidelines as provided in paragraph (b) or (c).
. . . .
(c) The district court shall bifurcate the proceedings, or impanel a resentencing jury, to allow for the production of evidence, argument, and deliberations on the existence of factors in support of an aggravated departure after the return of a guilty verdict when the evidence in support of an aggravated departure:
(1) includes evidence that is otherwise inadmissible at a trial on the elements of the offense; and
(2) would result in unfair prejudice to the defendant.
We note that the legislature has recently enacted significant new requirements for aggravated sentencing departures, including sentencing juries and bifurcated trials, and that these changes apply both prospectively and to resentencing hearings. We express no opinion about these recent changes, and do not foreclose the district court from considering any constitutionally applicable and/or available laws on remand.
704 N.W.2d at 148 n.17 (emphasis added) (citation omitted). The supreme court remanded for proceedings consistent with the opinion. Thus, if the parties in Shattuck chose to proceed with a resentencing hearing on remand, the district court had the authority to impanel a sentencing jury.
supreme court then issued State v. Barker,
holding that the mandatory-minimum sentencing provided by Minn. Stat. § 609.11
(2004) for possession of a firearm while committing certain offenses was “unconstitutional
to the extent that it authorize[d] the district court to make an upward
durational departure upon finding a sentencing factor without the aid of a jury
or admission by the defendant.” 705
N.W.2d 768, 773 (
In so doing, the supreme
court recognized in Barker that the
legislature had amended other mandatory-minimum statutes, including the career-offender
statute: “Finally, several other mandatory minimum statutes were amended in
2005 to provide for sentencing juries and bifurcated trials at resentencing
hearings. These changes affect . . .
Minn. Stat. § 609.1095 (2004) (relating to certain dangerous and career
offenders). Noticeably absent from this
list is section 609.11.”
Following Barker, the supreme court applied Blakely to the career-offender statute
and reversed and remanded with instructions to the district court to proceed
with “resentencing consistent with Shattuck.”
In an unpublished
opinion subsequent to Shattuck, this
court held that a district court did not exceed its authority by submitting an
aggravating sentencing factor to the jury in a bifurcated trial after the jury
rendered its verdict on the issue of guilt.
State v. Chauvin, No. A05-726,
2005 WL 2979382, at *5 (Minn. App. Nov. 8, 2005), review granted (
D E C I S I O N
We conclude that the district court did not abuse its discretion by admitting evidence of the show-up identification because it did not create a substantial likelihood of irreparable misidentification. We further conclude that the district court did not clearly err by conducting a bifurcated trial because it had inherent authority to craft a sentencing procedure in conformance with Blakely.
SHUMAKER, Judge (concurring specially)
I respectfully concur and write separately to note a burgeoning confusion in the caselaw as to what is and what is not covered by the Minnesota Sentencing Guidelines (MSG).
For nearly all felonies in
The MSG are conditionally mandatory: “Thus, the
judge shall pronounce a sentence
within the applicable range unless there exist identifiable, substantial, and
compelling circumstances to support a sentence outside the range on the
The constraint of the caselaw in Apprendi and Blakely is clear. The discretion to sentence higher than the term provided in a sentencing grid is not exercisable unless a jury determines the fact that supports a higher term, or unless a defendant waives the right to a jury determination.
What we should not lose sight of in our sentencing
jurisprudence is that departures never have been controlled by the guidelines
but rather always have existed in the realm of inherent judicial authority. And although the legislature has, in some
statutes, provided for sentencing departures, it has never purported to
exclusively control the realm of sentencing departures. As the supreme court recognized in Shattuck, the judiciary has the inherent
authority to regulate the procedures for applying Blakely. State v. Shattuck, 704 N.W.2d 131, 148 (
I respectfully urge that State v. Maddox, No. A05-339 (
The legislature has since amended Minn. Stat. § 609.1095. See