This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).








State of Minnesota,





Michael Diangelo Davis,




Filed September 23, 2002


Robert H. Schumacher, Judge


Hennepin County District Court

File No. 01016088



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


Amy Klobuchar, Hennepin County Attorney, David C. Brown, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


John M. Stuart, State Public Defender, Cathryn Y. Middlebrook, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)



Considered and decided by Minge, Presiding Judge, Schumacher, Judge, and Peterson, Judge.



Appellant Michael Diangelo Davis challenges his conviction of promotion of prostitution, arguing that the eyewitness identification of one police officer, based on brief observations and a suggestive show-up, was insufficient to support his conviction. Davis also argues (1) that other evidence, or the lack thereof, casts doubt on the identification; (2) that the district court abused its discretion in excluding evidence of the outer clothing he was wearing, based on untimely discovery; and (3) that the court erred in declining to give a requested jury instruction on the difficulties of cross-racial identification. We affirm.


On February 23, 2001, at approximately 2:00 a.m., members of the Third Precinct Community Response Team were working on an undercover prostitution detail near Bloomington Avenue and Lake Street in Minneapolis. Officers Johnny Mercil and Matthew Wente were driving unmarked police cars and wearing plain clothes. As Mercil approached the intersection of 27th Street and Bloomington, he saw a female he recognized as Kimberly Tate, a known prostitute, and a male he would later identify as Davis. Tate and Davis waved at Mercil, and Davis hollered at him.

Mercil radioed other officers and indicated that he had been flagged down. Mercil testified that when he pulled his car over, Davis ran across the street and approached his car on the passenger side. Mercil could see Davis's face through the passenger window of his car. Mercil told Davis he wanted a girl. Davis told Mercil that he could get him a girl and to drive around the block. Mercil testified that the conversation lasted about ten seconds and that he was looking at Davis the entire time. Wente testified that he was in a vehicle behind Mercil, observed Mercil pull over, and watched a black male, later identified as Davis, cross the street and make contact with the passenger side of Mercil's vehicle. Wente testified that he constantly watched Davis. When Mercil circled the block as instructed by Davis, Wente pulled his car just slightly ahead of where Mercil had been parked. When Mercil returned, he pulled in behind Wente.

Davis came up to Mercil's passenger window a second time. Davis and Mercil discussed what Mercil wanted the girl for and began negotiating how much Mercil would pay Davis. Mercil testified that the second conversation lasted about 20 to 30 seconds and that he was looking at Davis's face during the entire conversation. Mercil paid Davis $20, and Davis told Mercil to drive around the block again. Mercil radioed other officers as he was driving around the block to inform them that he had paid money, and once he had Tate in his car they should arrest Davis.

Wente watched the entire second contact between Davis and Mercil in his rear-view and side-view mirrors. He testified that he never took his eyes off Davis. While Mercil was circling the block, Wente saw another vehicle pull up. Wente testified that he observed Davis walk over to the passenger window, lean in, and make contact with the people inside the vehicle. The vehicle then left. Wente testified that a black male, who was six to eight inches taller than Davis, approached the intersection on foot, talked with Tate and Davis for a moment, and then left, walking eastbound on 27th.

When Mercil returned to the intersection, Davis and Tate crossed the street and Tate got into Mercil's vehicle. After Mercil drove away, Wente radioed for Officer Kara Parker to come in a marked squad car and arrest Davis. Wente directed Parker to Davis's location and parked where he "could watch the contact for Officer Parker's safety." Wente testified that from the time he first saw Davis with Tate on the corner to the time Parker arrested him, Davis never left his sight. Wente testified that while he never got close enough to Davis to positively identify him at a later time, he was "absolutely" sure that the person he saw approaching Mercil's car on two occasions was the same person that Parker placed under arrest. A search of Davis produced two rocks of suspected crack cocaine.

Tate directed Mercil to an apartment building a short distance away. When they arrived, Tate told Mercil to bring all of his money with him. Mercil gave a signal and another officer arrested both Tate and Mercil. The officer then released Mercil. Davis was taken to a police substation about seven or eight blocks from where Mercil was at this point. Mercil testified that within ten minutes after his last observation of Davis at the intersection of 27th and Bloomington, he arrived at the police station, where he identified Davis.

Davis was charged with promotion of prostitution in violation of Minn. Stat. 609.322, subd. 1a(2) (2000), and controlled substance crime in the fifth degree in violation of Minn. Stat. 152.025, subd. 2(1) (2000). The district court granted Davis's motion for judgment of acquittal on the controlled substance count. The jury convicted Davis of promoting prostitution. The court imposed a 23-month, stayed sentence. This appeal followed.



Davis argues that the evidence at trial was insufficient to prove beyond a reasonable doubt that he was the person who committed the crime. In considering a claim of insufficient evidence, this court's review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the conviction, is sufficient to allow the jurors to reach the verdict that they did. State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989). The reviewing court must assume that the jury believed the state's witnesses and disbelieved any evidence to the contrary. State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). The reviewing court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and the requirement of proof beyond a reasonable doubt, could reasonably conclude the defendant was guilty of the charged offense. State v. Alton, 432 N.W.2d 754, 756 (Minn. 1988).

Davis argues that the eyewitness testimony and the impermissibly suggestive show-up mandate reversal. "It is well established that a conviction can rest on the testimony of a single credible witness." State v. Bliss, 457 N.W.2d 385, 390 (Minn. 1990). "The weight and credibility of individual witnesses is for the jury to determine." Id. (citation omitted). In determining whether the pretrial identification procedure was impermissibly suggestive in violation of Davis's due process rights, the first inquiry focuses on whether the procedure was unnecessarily suggestive, which turns on whether the defendant was unfairly singled out for identification. State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995).

The state argues that Davis was not unfairly singled out for identification; Davis was singled out and presented to Mercil based on Wente's observation of his criminal conduct. Wente testified that he observed the entire transaction and constantly kept Davis within his sight. Once Mercil drove away with Tate in his car, Wente directed Parker to Davis's location to arrest him. The Minnesota Supreme Court has held that a one-person show-up is not unnecessarily suggestive per se. State v. Taylor, 594 N.W.2d 158, 161-62 (Minn. 1999) (footnote omitted). The Minnesota Supreme Court has also held that an unnecessarily suggestive identification procedure did not cause a substantial likelihood of misidentification because it was merely confirmatory. Id. at 162.

In Taylor, the court concluded that it was error to suppress the pretrial identification of the defendant because the one-person show-up procedure used was not unnecessarily suggestive. Id. The present case, like Taylor, is not a case where the police singled the defendant out from the general population based on a description given them by a victim. Because we conclude that the pretrial identification procedure was not impermissibly suggestive, we do not reach the totality of the circumstances.[1] Davis's due process rights were not violated. Assuming, as a reviewing court must, that the jury believed the state's witnesses and disbelieved any evidence to the contrary, we conclude that the evidence was sufficient to allow the jurors to reach the verdict that they did.

Davis argues that the district court abused its discretion in excluding the jacket he offered as an exhibit. Appellate courts largely defer to the district court's evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989).

Before the date set for the omnibus hearing:

The defendant shall disclose and permit the prosecuting attorney to inspect * * * tangible objects which the defendant intends to introduce in evidence at the trial or concerning which the defendant intends to offer evidence at the trial * * * .


Minn. R. Crim. P. 9.02, subd. 1(1).

The imposition of sanctions for violations of discovery rules and orders is a matter particularly suited to the judgment and discretion of the trial court. Indeed, the trial court is in the best position to determine whether any harm has resulted from the particular violation and the extent to which this harm can be eliminated or otherwise alleviated. Accordingly, we will not overturn its ruling absent a clear abuse of discretion.


State v. Lindsey, 284 N.W.2d 368, 373 (Minn. 1979) (citations omitted).

In exercising this discretion the trial judge should take into account: (1) the reason why disclosure was not made; (2) the extent of prejudice to the opposing party; (3) the feasibility of rectifying that prejudice by a continuance; and (4) any other relevant factors.


Id. (citations omitted). While "[p]reclusion of evidence is a severe sanction which should not be lightly invoked," district courts "must have the ability to make [discovery] obligations meaningful." Id. at 374 (citations omitted). Even if the district court abused its discretion in excluding the evidence, the exclusion is subject to harmless error analysis. Id.

1. Minnesota Rule of Criminal Procedure 9.02 requires the defense to disclose all tangible items that it intends to introduce before the omnibus hearing. Here, the defense waited to produce the jacket until after the state rested, after a lunch recess, and moments before Davis was to testify. When asked by the district court why she had not disclosed the jacket, defense counsel claimed that she was not required to until she knew that Davis was going to testify. The defense cannot justify a lack of disclosure by claiming that the decision to introduce that evidence was not made until the state rested. See id. at 373 ("Defense counsel cannot now justify his lack of disclosure by claiming that the decision to call these nondisclosed witnesses was not formally made until after the state had rested. Such an interpretation of the discovery obligation would render Rule 9.02 * * * meaningless.").

The state contends that defense counsel was trying to gain a tactical advantage. "The United States Supreme Court has upheld the preclusion of witness testimony as a sanction where a party willfully violated a discovery rule to gain a tactical advantage." In re Welfare of M.P.Y., 630 N.W.2d 411, 417 (Minn. 2001) (citation omitted). Davis's testimony was not restricted; he was only precluded from introducing the jacket as an exhibit. Davis was allowed to testify about the jacket.

2. The state argues that there was no guarantee that the jacket produced by the defense was the jacket Davis was wearing when he was arrested. By intentionally withholding discovery, the defense prevented the state from investigating the authenticity of the proffered jacket. The state contends that Davis cites no authority for the proposition that returning property to defendants released from jail operates as a waiver of the discovery rules.

3. The Lindsey court concluded that where disclosure did not occur until after the state had rested, it was too far into trial to consider a continuance. Lindsey, 284 N.W.2d at 374. Here, defense counsel waited until after the omnibus hearing, after the jury was selected and impaneled, after opening statements, after the state had rested, and after a noon recess to disclose the jacket. With the jury waiting, it does not appear that a continuance would have been a feasible way of rectifying the prejudice to the state.

4. The district court in this case had no other available options for a meaningful sanction. We conclude that the district court did not abuse its discretion in excluding the jacket from evidence.

Davis argues that the district court's denial of his request for a jury instruction on cross-racial identification denied him his right to a fair trial. The refusal to give a requested jury instruction lies within the discretion of the district court and will not be reversed absent an abuse of discretion. State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996). The focus of the analysis is on whether the refusal resulted in error. State v. Kuhnau, 622 N.W.2d 552, 555 (Minn. 2001). Jury instructions must be viewed in their entirety to determine whether they fairly and adequately explain the law of the case. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). If the jury charge as a whole "correctly states the law in language that can be understood by the jury there is no reversible error." State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (citation omitted).

The district court gave the general instruction on the evaluation of witness testimony. The district court also gave the following cautionary instruction on identification testimony:

Testimony has been introduced tending to identify the defendant as the person observed at the time of the alleged offenses. You should carefully evaluate this testimony. In doing so, you should consider such factors as the opportunity of the witness to see the person at the time of the alleged offenses, the length of time the person was in the witness's view, the circumstances of that view, including light conditions and the distance involved, the stress the witness was under at the time, and the lapse of time between the alleged offense and the identification. If the witness has seen and identified the person before trial and after the alleged offenses, you should also consider the circumstances of that earlier identification, and you should consider whether in this trial the witness's memory is affected by that earlier identification.


These instructions, viewed as a whole, accurately state the law.

In State v. Miles, 585 N.W.2d 368, 371-72 (Minn. 1998), the Minnesota Supreme Court affirmed the district court's refusal to admit expert testimony on the difficulty of cross-racial identification. The court noted that a defendant's right to a fair trial is best protected from the danger of unreliable eyewitness identification by a variety of other safeguards of our trial system:

Prosecutors do not have to prosecute if they think the evidence is unreliable. * * * Effective cross-examination and persuasive argument by defense counsel are additional safeguards. Proper instruction of the jury on the factors in evaluating eyewitness identification testimony and on the state's burden of proving identification beyond a reasonable doubt are other safeguards. The requirement of jury unanimity is also a safeguard. Finally, this court has the power to grant relief if it is convinced that the evidence of a convicted defendant's guilt was legally insufficient.


Id. (quoting State v. Helterbridle, 301 N.W.2d 545, 547 (Minn. 1980)) (footnote omitted).

In the instant case, the district court instructed the jury on evaluating eyewitness identification testimony and the state's burden of proof. The eyewitnesses were cross-examined about the reliability of their testimony. In closing argument, defense counsel argued extensively about the unreliability of the identification. Defense counsel was allowed to argue the difficulty people of one race have in identifying people of another race and used the phrase "cross-racial identification." After closing arguments, the district court instructed the jury on the presumption of innocence, the state's burden of proof, and eyewitness identification testimony, and gave the cautionary instruction on identification testimony. We conclude that the district court did not abuse its discretion in refusing to give an instruction on cross-racial identification.



[U]nder the second prong of the test, the identification evidence, even if suggestive, may be admissible if the totality of the circumstances establishes that the evidence was reliable. If the totality of the circumstances shows the witness's identification has adequate independent origin, it is considered to be reliable despite the suggestive procedure. The test is whether the suggestive procedures created a very substantial likelihood of irreparable misidentification.


State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995) (citations omitted).