This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-00-1778

 

 

State of Minnesota,

Respondent

 

vs.

 

Scott Andrew Kohser,

Appellant.

 

 

Filed August 28, 2001

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 99119997

 

Steven J. Meshbesher, Rory Patrick Durkin, Meshbesher & Associates, 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN† 55402 (for appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Mary M. Lynch, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN† 55487 (for respondent)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Willis,† Judge.


U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† On appeal from his conviction of first-degree burglary, theft of a motor vehicle, and fleeing a police officer in a motor vehicle, Scott Kohser argues that the district court erred in admitting the victimís identification testimony that resulted from a show-up, erred in denying his motion for a mistrial on double-jeopardy grounds, and abused its discretion in sentencing him as a repeat offender.† In a pro se brief, Kohser raises additional claims of error.† Because we conclude that the victimís show-up identification was reliable under the totality of the circumstances, that the Double Jeopardy Clause did not preclude a retrial, that the district court did not abuse its discretion in sentencing Kohser as a repeat offender, and that Kohserís pro se claims do not provide a basis for relief, we affirm.

F A C T S

††††††††††† The facts supporting Scott Kohserís convictions are drawn primarily from Bernice Johnsonís observations and identification and the police pursuit of Johnsonís stolen car.† Johnson, the 85-year-old resident of the burglarized home, was alone at about 3 p.m. when her doorbell rang.† As she approached the front door, she saw a person moving away from the front steps.† Through a glass panel on the door, Johnson saw that the person was a tall, slim, young white man.†

††††††††††† Not long after seeing the young man, Johnson heard a loud noise coming from the basement.† Johnson went to the basement to investigate and found the man she had seen by the front steps.† Johnson and the man were approximately eight feet apart and face to face when Johnson asked the man who he was.† After giving Johnson a name she could not remember, the man ran up the stairs and locked the basement door.† As the man ransacked the house on the main level, Johnson called 911 and reported the burglary.† She described the intruder as a tall, slim, young white man, wearing blue jeans, a blue-jean jacket, and a dark stocking cap.† The dispatcher broadcast the information immediately.

††††††††††† Officer Brandon Deshler heard the broadcast and proceeded to Johnsonís house.† As he approached the house, he saw a man fitting the description of the suspect driving Johnsonís car out of her garage.† Deshler gave chase, but he briefly lost sight of the suspect after the suspect turned into a gas station.† At the direction of the gas-station attendants, Deshler turned onto a nearby street where he saw Johnsonís car moving slowly and then hitting a sign and a pine tree.† The car was empty.† Deshler then heard a radio report that the suspect was nearby.† He proceeded to the location specified in the report, saw the suspect running, and immediately gave chase on foot.† Deshler noticed that the suspect was wearing gloves and a green cap.† After briefly losing sight of the suspect again, Deshler saw a bystander on the sidewalk directing him into a store.† Deshler looked in and saw the suspect just inside the door.† Deshler arrested the suspect, whom he later identified as Kohser.† Before Deshler left the store, an employee handed him a stocking cap and a glove he had found in a store drawer.

††††††††††† Kohser was brought to the Johnson home 20 minutes after the 911 call was received.† Detective Eric Kleinberg was in the home and told Johnson that the police were bringing a possible suspect for identification.† Johnson watched through a window as uniformed officers took Kohser in handcuffs, out of a squad car, and escorted him toward the house.† Johnson and Kleinberg had an unobstructed view of the suspect in daylight. After seeing the suspect get out of the car, Johnson immediately stated, ďThatís him.† That looks like him.† Thatís the man that broke into my house.Ē† Officers later took a statement from Johnson.†

††††††††††† At the Rasmussen hearing, the district court denied Kohserís motion to suppress Johnsonís identification testimony, reasoning that the show-up was not unnecessarily suggestive and did not taint the identification.

††††††††††† After trial began, Kohser moved to exclude the testimony of a state witness as beyond the scope of discovery.† The court denied Kohserís motion, but granted Kohser an overnight continuance.† During trial Kohser ascertained that Johnsonís husband, Bennet Johnson, had provided exculpatory evidence that the prosecutor had not disclosed to Kohser.† On Kohserís motion, the court declared a mistrial.

Before the start of his second trial, Kohser moved for dismissal on double-jeopardy grounds.† The court denied the motion, reasoning that the prosecutorís discovery violation was not deliberate.† Kohser waived his right to a jury trial and submitted the case to the court on stipulated facts.† The court found Kohser guilty of first-degree burglary, felony theft of a motor vehicle, and fleeing a police officer in a motor vehicle and sentenced Kohser as a repeat offender to a 150-month prison term.† This appeal followed.

D E C I S I O N

I

 

††††††††††† Kohser first argues the district court erred in allowing the victimís identification testimony because the identification procedure was unnecessarily suggestive.† We disagree.

When reviewing a pretrial order suppressing evidence on undisputed facts, a reviewing court may evaluate the facts independently to determine, as a matter of law, whether the evidence must be suppressed.† State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999).† Whether identification evidence must be suppressed depends on the reliability of the identification.† See id.† In determining if an identification is reliable, courts conduct a two-part analysis.† First, courts consider whether the identification procedure was unnecessarily suggestive.† Id.† If a court concludes that the procedure was unnecessarily suggestive, it then considers whether under the totality of the circumstances the identification created a ďvery substantial likelihood of irreparable misidentification.Ē† Id.†

In determining whether the identification procedure created a substantial likelihood of misidentification, courts consider five factors:† (1) the witnessís opportunity to view the person when the crime occurred, (2) the witnessís degree of attention, (3) the accuracy of the witnessís prior description of the criminal, (4) the level of certainty the witness demonstrated when identifying the person, and (5) the time elapsed between the crime and the identification.† State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).†

††††††††††† The district court denied Kohserís motion to suppress Johnsonís identification testimony, reasoning that while the identification procedure was suggestive, it was not unnecessarily suggestive, and that even if the procedure was unnecessarily suggestive, it did not taint the identification.

The courtís determination that the show-up was not unnecessarily suggestive is inconsistent with dictum in Taylor.† In Taylor, the supreme court stated that the use of a one-person show-up is unnecessarily suggestive when the police single out a suspect from the general population based on a description given by the victim, and then present the suspect in handcuffs to the victim for identification.† Taylor, 594 N.W.2d at 162.† The police singled out Kohser based on Johnsonís description; brought Kohser back to Johnsonís house in a squad car; and presented Kohser in handcuffs, flanked by uniformed police officers, and surrounded by squad cars, to Johnson for identification.† Detective Eric Kleinberg, who was waiting with Johnson when the police brought Kohser for the show-up, further tainted the identification procedure by telling Johnson that the intruder had taken her car and that police had chased him and ďcaught himĒ and were bringing him for identification.† Under the dictum in Taylor, the identification procedure was thus unnecessarily suggestive.†

††††††††††† But the identification was reliable, nonetheless, under the totality of the circumstances measured by the five Ostrem factors.† First, Johnson had the opportunity to see Kohser three times: by the front door, face to face in the basement, and as he ran past her and up the stairs.† Even though she did not see his face, she saw enough descriptive features to guarantee the reliability of her identification.† Johnson described seeing a tall, slim, younger white man wearing a dark stocking cap, blue jeans, and a blue-jean jacket.† Kohser fit that description exactly.††

††††††††††† Second, although upon seeing Kohser in her basement Johnson was surprised and under a great deal of stress, she provided the police a full description that reasonably allowed them to identify a suspect.

††††††††††† Third, Johnson described Kohser accurately.† Kohser is in fact a tall, slim, younger white man and was wearing jeans, a jean jacket, and a dark stocking cap.†

Fourth, Johnson identified Kohser at the show-up with certainty.† Upon seeing Kohser in her front lawn, she indicated immediately and without hesitation, ďThatís the man that broke into my house.Ē† Kohser claims that Johnsonís tape-recorded answers to police questions following the show-up cast doubt on the reliability because she replied, ďI think it wasĒ when asked if the person she initially saw by the front door was the same person she saw in the basement.† But Johnsonís response may reflect more a manner of speaking than an uncertainty in her answer.† And any hesitancy is not particularly significant in light of the certainty with which she identified Kohser immediately after seeing him on her lawn.†

Finally, only 20 minutes had elapsed between the crime and the identification.† Thus, under the totality of the circumstances the identification was reliable, and the district court did not err in denying the motion to suppress the identification testimony.

II

††††††††††† Kohser next argues the district court abused its discretion in denying his motion for dismissal on double-jeopardy grounds, on a finding that the prosecutor did not act intentionally in failing to disclose exculpatory testimony.† Alternatively, Kohser argues that in interpreting the Minnesota Constitutionís Double Jeopardy Clause, this court should reject the ďintentĒ standard the supreme court adopted in State v. Fuller, 374 N.W.2d 722, 726 (Minn. 1985),and adopt a gross-negligence standard instead.† We cannot agree.

Whether the Double Jeopardy Clause bars a retrial is a question of law subject to de novo review.† State v. Watley, 541 N.W.2d 345, 347 (Minn. App. 1995) (citations omitted), review denied (Minn. Feb. 27, 1996).† But we must accept the findings on which the district courtís decision rests unless clearly erroneous.† Fuller, 374 N.W.2d at 726.

††††††††††† The Minnesota Constitution prohibits putting a person twice in jeopardy for the same offense.† Minn. Const. Art. I, ß 7.† When a criminal trial is terminated over a defendantís objection, the Double Jeopardy Clause of the federal constitution bars a second trial unless there was a ďmanifest necessityĒ that the first trial be terminated.† Fuller, 374 N.W.2d at 726 (citing Oregon v. Kennedy, 456 U.S. 667, 672, 102 S. Ct. 2083, 2087 (1982)).† But when a criminal trial is terminated at a defendantís request, the Double Jeopardy Clause bars a second trial only if the mistrial resulted from governmental misconduct intended to goad the defendant into requesting the mistrial.† Id.

††††††††††† The district court found that the prosecutor did not act intentionally to force Kohser into requesting a mistrial.† The court stated that the prosecutor was, at most, careless or negligent and that defense counsel had committed similar discovery violations.† The record supports the courtís finding.† Although the prosecutor failed to disclose Bennet Johnsonís statements twiceófirst before trial and then in the court-ordered written summaryóthe failure to disclose does not by itself establish intent.† See State v. Kaiser, 486 N.W.2d 384, 386-87 (Minn. 1992) (finding prosecutor acted intentionally when he failed to disclose that he persuaded key witness to sign affidavit repudiating earlier contradictory affidavit).† The prosecutor did nothing to prevent Bennet Johnsonís testimony from coming to light.† He placed Bennet Johnson on the stand and was proceeding with questioning that almost inevitably would have elicited the exculpatory evidence.† Under Kaiser, therefore, the district courtís finding that the prosecutor did not intentionally fail to disclose Bennet Johnsonís statements is not clearly erroneous.†

The district courtís finding that the prosecutor did not intend to goad Kohser into requesting the mistrial is similarly not clearly erroneous.† As is usually the case, the prosecutor had little to gain and much to lose by causing a mistrial.†

††††††††††† Kohser argues that this court should interpret the Minnesota Constitutionís Double Jeopardy Clause to provide a criminal defendant greater protection than its federal counterpart.† Specifically, Kohser argues that in interpreting the state Double Jeopardy Clause, this court should substitute the ďintentĒ standard the supreme court adopted in Fuller, under which double jeopardy attaches only when the state intentionally goads the defendant into moving for a mistrial, with a gross-negligence standard.† We disagree.

In Fuller, the supreme court left open the possibility that the Double Jeopardy Clause in the Minnesota Constitution could be read more broadly than its federal counterpart.† See Fuller, 347 N.W.2d at 727.† But historically this court has not assumed the role of expanding existing constitutional rights.† And even if we were to assume that role and adopt the proposed gross-negligence standard, the Double Jeopardy Clause would not bar a retrial because the district courtís finding that the prosecutorís conduct was, at most, careless or negligent is not clearly erroneous.† This case is thus not the appropriate vehicle to depart from existing precedent and announce a different double-jeopardy standard under the Minnesota Constitution.† See State v. Schroepfer, 416 N.W.2d 491, 493 (Minn. App. 1987) (declining to announce different double-jeopardy standard on grounds that prosecutorís conduct did not exceed the negligent conduct in Fuller).

The district court did not err, therefore, in denying Kohserís motion for dismissal on double-jeopardy grounds.

III

††††††††††† Kohser claims the district court abused its discretion in sentencing him under the repeat-offender statute because the record does not support the courtís finding that he is a danger to public safety.† We disagree that the finding is unsupported.

The repeat-offender statute allows the district court to impose an aggravated durational departure from the presumptive sentence if a convicted felon was at least 18 years old when committing the felony, and the court (a) determines at sentencing that the offender has two or more prior convictions for violent crimes, and (b) finds that the offender is a danger to public safety.† Minn. Stat. ß 609.1095, subd. 2 (2000).† The court may premise a finding that the offender is a danger to public safety on (a) the offenderís past criminal behavior, including the frequency or length of involvement in criminal activity, or (b) an aggravating factor in the current offense that would justify a durational departure.† Id.† A district courtís finding of dangerousness will not be disturbed if supported by the record.† State v. Branson, 529 N.W.2d 1, 4 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995).

††††††††††† The record supports the district courtís finding that Kohser is a danger to public safety.† Kohser has been involved in criminal activity since 1981.† He has a 1981 theft conviction, two 1983 convictions of receiving stolen property, a 1983 burglary conviction, and 1986 convictions of burglary, attempted burglary, and escape with force or violence.† He also has numerous misdemeanor convictionsóincluding convictions for driving while under the influence, providing false information, and obstructing legal processóand a juvenile record that dates back to 1979 and includes arrests for burglary, forgery, theft, assault, and reckless driving.† Kohserís long-term involvement in criminal activity amply supports the district courtís finding that he is a danger to public safety.

††††††††††† Alternatively, the presence of an aggravating factor in the current offense justifies the district courtís finding of dangerousness and its consequent upward departure. Johnson was 85 years old at the time of the crime.† Her age and vulnerability constitute aggravating factors under the sentencing guidelines.† See, e.g., State v. Van Gorden, 326 N.W.2d 633, 634 (Minn. 1982) (involving a sixty-six-year-old victim); State v. Kimmons, 502 N.W.2d 391, 397 (Minn. App. 1993) (involving sixty-three-year-old victim), review denied (Minn. Aug. 16, 1993).††

††††††††††† Because both Kohserís criminal history and the presence of aggravating factors in the current offense support the district courtís finding that Kohser is a danger to public safety, the district court did not abuse its discretion in sentencing Kohser under the repeat-offender statute.

IV

††††††††††† In his pro se brief, Kohser raises eighteen claims of error, including jury misconduct and ineffective assistance of counsel. †Kohser first claims that the district court abused its discretion in refusing to hold a Schwartz hearing to investigate an allegation that two jurors had been overheard in the hallway talking about Kohserís case as being a ďhigh-profile caseĒ involving a gun.† But the bystander who reported the jurorsí alleged conversation told the judge he ď[did not] know if [the juror] was talking [about] this case or something he read out of the paper, but, you know, I canít assume anything.Ē† The district court, therefore, did not abuse its discretion in refusing to hold a Schwartz hearing.† See State v. Starkey, 516 N.W.2d 918, 928 (Minn. 1994) (requiring defendant to establish prima facie case of jury misconduct to warrant Schwartz hearing).

††††††††††† Kohserís claim of ineffective assistance of counsel is similarly unsupported.† To prevail on an ineffective-assistance-of-counsel claim a defendant must show (a) that counselís performance fell below an objective standard of reasonableness and (b) that a different outcome would have resulted at trial were it not for counselís performance. Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001).† The allegations underlying an ineffective-assistance-of-counsel claim must be more than argumentative assertions without factual support.† Hodgson v. State, 540 N.W.2d 515, 518 (Minn. 1995).† Kohserís claims that his attorney failed to investigate his case, document information, and impeach witnesses are not supported by the record.† Further, he has not established that a different outcome would have resulted at trial were it not for the alleged deficiencies in counselís performance.† Kohserís ineffective-assistance-of-counsel claim does not provide a basis for relief.†

††††††††††† Affirmed.