This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Robert E. Guy,
Filed September 3, 2002
Hennepin County District Court
File No. 01053955
Mike Hatch, Attorney General, 525 Park Street, Suite
500, St. Paul, MN 55103; and
Amy Klobuchar, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)
John M. Stuart, State Public Defender, Susan J. Andrews, Assistant Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Randall, Judge, and Hudson, Judge.
Appealing from conviction for possession of burglary tools, appellant argues that the circumstances of his show-up identification were impermissibly suggestive and created a substantial likelihood of irreparable misidentification. Appellant argues that the district court erred by admitting this out-of-court identification. Appellant also argues that the prosecutor committed prejudicial misconduct by eliciting a defense witness’s arrest record and disparaging the defense. We affirm.
At approximately 11:30 p.m., June 30, 2001, Alexander Huff and Kristin Hortenbach were looking for a place to park their car in their Loring Park neighborhood in Minneapolis. As they turned onto their street, they noticed movement in a parked car that they knew belonged to Carrie Mueller, a neighbor. Huff and Hortenbach assumed that Mueller was in the car, and Huff slowed down so they could talk to her. When they pulled next to Mueller’s car, they noticed two men whom they did not know sitting in the car leaning over the steering wheel. Huff and Hortenbach suspected that the men were stealing the car. Hortenbach stated that one of the men, who was wearing a blue T-shirt, looked directly at her, so she looked down and told Huff to drive on. Huff testified the two men looked up at him and Hortenbach, and Huff “took off.” Huff used his cellular phone to call the police and report a suspected car theft.
Huff, the driver, described the men sitting in Mueller’s car to police. He said both were African-American and one was wearing a brimmed hat. Hortenbach, the passenger, said she looked at the men for “a couple of seconds” and likewise saw a brimmed hat on one of the men. She stated the other man had a thin mustache and wore a blue T-shirt, and that one of the men looked directly at her.
A description of the two men was broadcast over police radio. Minneapolis police officers Matthew St. George and Sara Metcalf responded to the call. About five minutes later, the officers spotted two men, later identified as appellant Robert E. Guy and John Dyson, about a block and a half from the place where Huff and Hortenbach noticed the men in Mueller’s car. Neither man was wearing a brimmed hat, but appellant had a thin mustache and was wearing a blue shirt.
The officers handcuffed both men and put them in their squad car. Both men agreed to be shown to the witnesses for identification, a practice known as a “show-up.” The officers then brought the two men back to the scene to be identified. While en route, Metcalf called Hortenbach, who by then had returned to her nearby home, and asked her if she “would be able to identify the suspects.” Metcalf testified that she told Hortenbach she “would have both suspects out front [at] the scene where [Hortenbach] could view them and see if they were the suspects.” Hortenbach testified that Metcalf told her they had “caught two guys a couple of blocks away and that they needed us to identify them.” Huff, who overheard this conversation because Metcalf was on his and Hortenbach’s home speakerphone, testified that Metcalf said she had “found two people that matched the descriptions” that he and Hortenbach had given.
Upon arrival at Hortenbach’s apartment, Metcalf took appellant and Dyson out of the squad car and shone a light on them. Because Hortenbach was frightened, she viewed Guy and Dyson from her apartment, which was about 40 yards away from where appellant and Dyson were standing. Huff, who was not asked to make an identification, stood next to her. Huff testified that at the time the men were taken out of the car, “[Hortenbach] and I were kind [of] in the same place together and kind of said ‘Yep, that’s them, or it appears to be.’” Hortenbach then told Metcalf that appellant and Dyson were the men she had seen in Mueller’s car.
Upon arresting and searching appellant and Dyson, the officers found a pry-bar/screwdriver in a “small handbag-type purse” contained in a plastic bag appellant had been carrying. The officers found a hat with a brim in Dyson’s pocket.
Appellant was charged with one count of possession of burglary tools in violation of Minn. Stat. § 609.59 (2000). At the omnibus hearing, appellant moved to suppress the out-of-court identification on the grounds that the show-up procedure was impermissibly suggestive and created a substantial likelihood of an irreparable misidentification. The district court denied the motion, finding that the officers did nothing that “implant[ed] a false identification in effect in the witness’s mind.” The district court reasoned that the description given to the police “turn[ed] out to be an accurate one” because the description was specific about the moustache and the T-shirt color, the apprehension was within minutes of the witnesses’ observation of the offense and one and a half blocks of the crime scene, and the witnesses took their time to observe the suspects.
After a trial, a jury convicted appellant of the offense. This appeal followed.
Appellant first argues that the district court erred in denying his pretrial motion to suppress on the grounds that the show-up procedure was impermissibly suggestive and created a substantial likelihood of an irreparable misidentification. We review pretrial motions to suppress evidence by independently considering the facts to determine, as a matter of law, whether the district court erred in its decision. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).
Whether identification evidence should be admitted depends on the reliability of the identification. State v. Taylor, 594 N.W.2d 158, 161 (Minn. 1999). We employ a two-part test to determine whether pretrial identification evidence is admissible. Id.
The first inquiry focuses on whether the procedure was unnecessarily suggestive. Included in that inquiry is whether the defendant was unfairly singled out for identification. Ultimately, the concern is whether the procedure used by the police influenced the witness identification of the defendant.
Id. (quotations and citations omitted). In Taylor, 594 N.W.2d at 162, the supreme court, in dictum, noted that a one-person show-up would be unnecessarily suggestive if the police had singled out the defendant from the general population based on the victim’s description and presented him in handcuffs to the victim for identification. In State v. Anderson, ___ N.W.2d ___, 2002 WL 417286, at *3 (Minn. App. Mar. 19, 2002), this court held that a “show-up” was unnecessarily suggestive when police singled out the defendant based on the eyewitness’s description, then brought him back to the scene in a squad car, presented him to the witness in handcuffs, and, flanked by a uniformed police officer, told the witness that they thought they had a person in custody who matched the witness’s description. However, inState v. Carey, 296 Minn. 214, 219, 207 N.W.2d 529, 532 (1973), the supreme court held that a witness’s identification of a suspect was not held to be “unduly suggestive,” even though the police had told the witness that they had apprehended a person they felt was a suspect.
In this case, Metcalf testified that she told Hortenbach she was bringing the two men to see if Hortenbach “would be able to identify the suspects * * * .” Hortenbach testified that when Metcalf called her, Metcalf “said they had caught two guys a couple of blocks away and that they needed us to identify them.” Huff testified that Metcalf stated that she had “found two people that matched the descriptions.” The evidence also shows that when the officers took appellant and Dyson for identification, they took the men out of a squad car in front of the witnesses while both men were handcuffed. Much like the officers in Anderson, for all intents and purposes, the officers here told the witnesses that they had the suspects in custody and then pulled the suspects out of the squad car while both were handcuffed. On these facts, we find that the identification procedure was unnecessarily suggestive.
Under the second inquiry,
[i]f 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. However, if the totality of the circumstances shows the witness’ identification has an adequate independent origin, it is considered to be reliable despite the suggestive procedure.
Taylor, 594 N.W.2d at 161 (quotations and citations omitted). The non-exclusive factors used to determine whether the witness’s identification had an adequate independent origin include:
1. The opportunity of the witness to view the criminal at the time of the crime;
2. The witness’s degree of attention;
3. The accuracy of the witness’s prior description of the criminal;
4. The level of certainty demonstrated by the witness at the [confrontation]; and
5. The time between the crime and the confrontation.
State v. Ostrem, 535 N.W.2d 916, 921 (Minn. 1995). A witness’s identification is considered reliable despite a suggestive nature if the totality of the circumstances demonstrates that the identification has an adequate independent origin. Id.
The supreme court has held that an on-the-scene identification was not so impermissibly suggestive to create substantial likelihood of misidentification where the police arrested a defendant and told the victims that he had a party in his squad car who fit the description the dispatcher had provided and asked them to take a look at that person. State v. Bernier, 301 Minn. 267, 269-70, 226 N.W.2d 864, 865 (Minn. 1974). In McDuffie v. State, 482 N.W.2d 234, 236-37 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992), this court held that an identification procedure did not create a substantial likelihood of misidentification where the victim had the opportunity to view the assailants for several minutes as they robbed him, the victim’s description of assailant fit the defendant who was apprehended shortly after the robbery only few blocks from the robbery scene, and the victim identified the defendant less than one-half hour after the robbery.
In this case, after considering the five factors laid out in State v. Ostrem, we conclude that there was no substantial likelihood of irreparable misidentification. Huff and Hortenbach noticed appellant and Dyson in Mueller’s car. They knew the two men did not belong in that car, and Hortenbach had an opportunity to observe them face-to-face for several seconds. In addition, appellant and Dyson matched Hortenbach’s earlier detailed description. Hortenbach described both men as African-American, one with a thin moustache and wearing a blue shirt, and the other wearing a brimmed hat. Both appellant and Dyson are African-American. Appellant was wearing a blue shirt and had a thin moustache. Dyson was carrying a wide-brimmed hat in his pocket. Furthermore, appellant and Dyson were seen moving south from the location of the car. Appellant and Dyson were then picked up by officers one and a half blocks away from the location where the witnesses observed them, and were identified by Hortenbach and Huff within five to ten minutes of their initial observation of the two men. Finally, Hortenbach testified that she was “certain” her identification was accurate. Considering the totality of the circumstances, we conclude that Hortenbach and Huff’s identification was based on an adequate independent origin. Because we conclude that the district court did not err in admitting the witnesses’ out-of-court identification, we need not address the state’s argument that any alleged error was harmless.
Appellant next argues that the prosecutor deprived him of a fair trial by eliciting inadmissible evidence about his criminal record and disparaging defense counsel’s role. Defense counsel did not object to any of the alleged errors at trial.
A defendant alleging prosecutorial misconduct generally will not be granted a new trial if the misconduct was harmless beyond a reasonable doubt. Further, whether prosecutorial misconduct was harmless depends partly upon the type of misconduct committed. For serious prosecutorial misconduct, the misconduct is harmless beyond a reasonable doubt if the verdict rendered was surely unattributable to the error. For less serious misconduct, the test is whether the misconduct likely played a substantial part in influencing the jury to convict.
State v. Hunt, 615 N.W.2d 294, 301-02 (Minn. 2000) (citations omitted). “The prosecutor’s statements must be taken as a whole when determining if there is a basis for reversing appellant’s conviction.” State v. Yang, 627 N.W.2d 666, 678 (Minn. App. 2001) (citation omitted), review denied (Minn. July 24, 2001).
It is well settled, however, that a defendant who fails to object to the prosecutor’s statements or to seek specific cautionary instructions is deemed to have forfeited the right to have the issue considered on appeal. State v. Gunn, 299 N.W.2d 137, 138 (Minn. 1980). Further, a defense counsel’s “failure to object or seek a cautionary instruction suggests that the conduct was not considered prejudicial.” State v. McDaniel, 534 N.W.2d 290, 293 (Minn. App. 1995), review denied (Minn. Sept. 20, 1995). A failure to object or seek a curative instruction is “weighed heavily” in our decisions “because the trial court might have been able to ameliorate the effect of improper prosecutorial argument.” State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994) (quotations omitted).
On cross-examination, the prosecutor asked Dyson, the only defense witness, whether he had previously been arrested for theft in 1996. Because only convictions, and not arrests or accusations, may be used to impeach a defendant’s credibility, State v. Oden, 385 N.W.2d 420, 421-22 (Minn. App. 1986) (citing Minn. R. Evid. 609), the prosecutor’s question, and her reference to the witness’s answer in her closing argument, were improper. However, we hold that appellant forfeited consideration of this issue on appeal because defense counsel neither objected to the question nor sought a curative instruction.
Appellant also argues that the prosecutor committed misconduct when “she shared her dim view of defense counsel’s role during her closing argument” by stating that defense counsel tried to “cloud the issues” and divert the jury’s attention away from “the facts.” It is improper to disparage the defense in closing arguments, State v. Griese, 565 N.W.2d 419, 427 (Minn. 1997). But defense counsel neither objected nor requested a curative instruction, and we hold that consideration of this issue has likewise been forfeited. Even if we were to consider the merits, after examining the closing argument in its entirety, we find that any misconduct was harmless beyond a reasonable doubt. See State v. Porter, 526 N.W.2d 359, 365 (Minn. 1995) (noting, in dicta, that defendant is not entitled to a new trial “where it can be said with certainty that the misconduct was harmless beyond a reasonable doubt”); State v. Hunt, 615 N.W.2d 294, 301-02 (Minn. 2000) (citations omitted). In State v. Hoppe, 641 N.W.2d 315, 321 (Minn. App. 2002), review denied (Minn. May 14, 2002), this court held that the prosecutor committed misconduct by disparaging the defense when it referred to the defense’s argument as “ridiculous,” told the jury “don’t bite that [argument] – don’t buy that,” and not to be “snowed” by the defense. This case does not present a similarly egregious situation.
 We note, however, that the prosecutor’s question was in all likelihood harmless because Dyson had already admitted on direct examination to a prior felony conviction for credit-card fraud.