This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Paul Christopher Hanninen,
Filed April 25, 2000
St. Louis County District Court
File No. K9-97-600677
Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN 55103; and
Alan Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 N. Fifth Ave. W., #501, Duluth, MN 55802 (for respondent)
John M. Stuart, State Public Defender, Ann McCaughan, Assistant State Public Defender, 2829 University Ave. S.E., Ste. 600, Minneapolis, MN 55414-3230 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Klaphake, Judge.
At approximately 2:45 a.m. on November 22, 1996, R.M. was pulled from her car outside her residence and forced into the truck of appellant Paul Hanninen, from which she later escaped after a struggle. Appellant was convicted of kidnapping, terroristic threats, false imprisonment, and fifth-degree assault, and sentenced to a 92-month prison term on the kidnapping conviction. On appeal, appellant challenges pretrial identification procedures, the sufficiency of the evidence, and the effectiveness of his counsel. Because we conclude that (1) the pretrial identification procedures did not violate appellant’s due process rights, (2) the evidence was sufficient to support his convictions, and (3) appellant did not meet his burden of proving that his counsel’s representation fell below a reasonable standard, we affirm.
1. Pretrial Identification Procedure
Appellant claims that the lineup and show-up in which R.M. and others identified appellant should have been suppressed because the lineup was unconstitutionally suggestive and the show-up involving R.M. was conducted without the presence of appellant’s counsel.
To determine whether a pretrial identification procedure violated appellant’s due process rights, this court has adopted the two-part test contained in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). First, the trial court should determine whether the procedure was unduly suggestive and, second, whether in light of the totality of the circumstances, the identification evidence is reliable.
State v. Jones, 556 N.W.2d 903, 912 (Minn. 1996) (citations omitted). A valid lineup does not require that police use “exact clones” of a defendant or follow the defendant’s description exactly. State v. Roan, 532 N.W.2d 563, 572 (Minn. 1995).
The photo lineup used in this case was not impermissibly suggestive. The lineup consisted of six Polaroid photographs of individuals. The police officer who created the lineup, Sergeant Moyle, testified that he chose individuals who were blonde and had a lean build, which matched appellant’s general description. Contrary to appellant’s claim, the individuals appear to be within the same age range, and, at the time the photos were taken, are actually within nine years of appellant’s age. While three of the individuals have mustaches, and appellant does not, this difference does not alter the overall similarity in appearance among the individuals. Thus, the lineup was constitutionally valid. See id., 532 N.W.2d at 572 (lineup not suggestive where only defendant and one other of six in lineup had cropped hair); State v. Montjoy, 366 N.W.2d 103, 106 (Minn. 1985) (lineup not suggestive where ages of lineup participants covered 12-year span).
Appellant also suggests that Sergeant Moyle told R.M. that he thought he had the perpetrator and that the perpetrator’s picture would be in the seventh lineup. The testimony of R.M. and Moyle does not support this factual claim. R.M. testified that Moyle told her that “new things * * * have come up and he wants me to look at another photo lineup.” Moyle also denied that he told R.M. that the perpetrator’s photo was in the seventh lineup. Rather, he testified that he gave her his standard warning, which states that “the suspect may be in [the lineup] but I could be wrong. It might be the wrong guy.” Thus, the record does not support appellant’s claim that the lineup was unreliable because police suggested that the perpetrator was in the seventh lineup.
Appellant claims that the show-up was unconstitutional because his counsel was not present and because the show-up violated his due process rights. Appellant raises the right-to-counsel claim for the first time on appeal. Issues first raised on appeal and not presented to the trial court may not be considered before this court, even though they involve constitutional questions. State v. Wagner, 555 N.W.2d 752, 757 (Minn. App. 1996); but see State v. Patterson, 587 N.W.2d 45, 52 (Minn. 1998) (appellate court may consider an unobjected-to, unpreserved issue only if trial court made plain error that affects defendant’s substantial rights); State v. Basting, 572 N.W.2d 281, 286 (Minn. 1997) (supreme court may hear unpreserved issue when interests of justice require). Because the show-up in this case merely confirmed the identification that R.M. had made in the photo lineup, any error in admitting the show-up evidence does not warrant the court’s considering this issue for the first time on appeal.
Appellant also claims that the show-up was unconstitutionally suggestive. This claim is without merit because the show-up merely confirmed R.M.’s identification of appellant in the valid photo lineup. Where a witness has positively identified a defendant in a photographic lineup and the witness is asked to confirm the identification in a physical lineup, the second lineup does not cause a substantial likelihood of misidentification because it is merely confirmatory. Caldwell v. State, 347 N.W.2d 824, 828 (Minn. App. 1984). While this case involved a show-up rather than a second lineup, the likelihood of misidentification is the same in both cases because the identifying witness had already seen the photographic lineup. The pretrial identification procedures used in this case did not violate appellant’s due process rights.
2. Sufficiency of Evidence
Appellant contends that the evidence was insufficient to support his convictions, claiming that the state did not prove identity and did not prove that R.M. was released in an unsafe place consistent with Minn. Stat. § 609.25, subd. 2(2) (1998), which requires either that R.M. was not released in a safe place or that she suffered great bodily harm.
In examining a sufficiency-of-evidence claim, appellate review
consists of a very thorough analysis of the record to determine whether the evidence, viewed in a light most favorable to the jury’s verdict, was sufficient to permit the jury to reach its verdict.
State v. Spann, 574 N.W.2d 47, 54 (Minn. 1998) (citation omitted). We conclude the evidence supporting appellant’s conviction is sufficient. Three witnesses, including R.M., identified appellant as the perpetrator. R.M. had an extended opportunity to view appellant while she was at Hardee’s prior to the abduction, while appellant was talking to her outside her apartment complex, and during the abduction. Despite appellant’s suggestions to the contrary, R.M.’s identification of him was never in doubt and was unwavering—she apparently indicated that she was only 70 percent sure that he was the perpetrator in the photo lineup because she was hesitant to rely on a photograph. After viewing six prior lineups, at the time she first observed the photo of appellant in the seventh lineup, she stated: “that’s him.” Another witness, Ronald Pincombe, had known appellant for 10 to 12 years at the time he identified appellant, and any suggestion that his identification was inaccurate or tainted by his criminal involvement is undermined by the similarity of appellant’s name to the name he provided to R.M. at the time of the crime. Further, other circumstantial evidence also linked appellant to the crime, including physical evidence found at the point of the abduction as well as items found during searches of appellant’s truck and residence. Certain distinctive items, such as a coat with a snap-on hood and a Spur gas station coffee cup were found both at the crime scene and in appellant’s possession during later searches. While there were certain discrepancies in the evidence, most notably being R.M.’s rejection of appellant’s truck as the truck belonging to the perpetrator, and while the state’s case admittedly could have been stronger, we conclude that viewed in the state’s favor, the evidence was sufficient to sustain the verdict.
As to appellant’s claim that R.M. was not released in an unsafe place, the facts do not support this claim. At the point of her release, R.M. escaped from a truck that was being driven very erratically and was alone on a road several blocks from her residence just after 2:30 a.m. Also in the vicinity were two male witnesses who had significant criminal histories and who were in the area to purchase marijuana. While the statute does not define “unsafe place,” these facts provide a common sense basis for this definition. The evidence is sufficient to support the jury’s guilty verdict.
3. Ineffective Assistance of Counsel
A person seeking a new trial for ineffective assistance of counsel
must affirmatively prove that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 688, 694, 104 S. Ct. 2052, 2068 (1984)); see State v. Brocks, 587 N.W.2d 37, 42-3 (Minn. 1998).
Here, counsel made two alleged errors in representing appellant. In the first, counsel commented during his opening statement on appellant’s decision on whether to testify. The comments indicate that appellant’s attorney was attempting to minimize any damage to appellant’s case that would derive from appellant’s decision not to testify. As appellant’s criminal history includes a prior sexual assault, it was unlikely that he would testify, and defense counsel’s comment was strategic, even though improper. See State v. Thompson, 430 N.W.2d 151, 153 (Minn. 1988) (court must obtain defendant’s permission on record before instructing jury on defendant’s failure to testify).
In the second alleged instance of ineffective assistance, defense counsel commented on the differences in the burden of proof in criminal and civil cases. In comparing the burdens on a ten-point scale, counsel stated that the burden of proof in a criminal case is “in the neighborhood of” seven or eight. While this was a misstatement of the reasonable doubt standard, the trial judge properly instructed the jury on the burden of proof.
Despite defense counsel’s improper statements, we conclude that appellant has not met his burden of proving that without his counsel’s errors, the outcome of the trial would have been different. See State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (defendant alleging ineffective assistance of counsel bears burden of proof). Three witnesses identified appellant as the perpetrator, and other evidence supported appellant’s convictions. Under these circumstances, appellant’s ineffective assistance of counsel claim does not warrant a new trial. See Brocks, 587 N.W.2d at 43; Lahue, 585 N.W.2d at 789-90.